Sources of the Quebec Law of Evidence in Civil and Commercial Matters

WALTER S. JOHNSON Montreal

Perhaps for the lawyer who has time and inclination to meditate upon the reason and the sanction for a given rule of law, the most rewarding study is that of its origin in an earlier and less mature civilization, and its evolution through all the vicissitudes of its growth and acceptance and its dispersion in many lands. Our modern juridical conscience must be satisfied that our laws are both just and justly applied. Our intelligence demands that justice shall conform to the credibly verified truth of all alleged facts. The operation of both conscience and intelligence has varied down the centuries, depending in succeeding ages upon social stability, the influence of religion, the state of public morals, the force of the police power, the prevalence of education. While it is commonly acknowledged that men tend to speak the truth-because of some innate natural quality, because of mor- al and religious teaching and sanctions, or because, as Bentham claimed, it is generally easier to speak the truth than to invent and maintain a lie-we are still, after two thousand years of experi- mentation, not satisfied that our methods and rules for the estab- lishing of alleged facts cannot be improved. . In Quebec, as you know, and we think it an advantage, our- civil law was codified in 1866. A very few articles of the Code, forty-three in number, suffice to state the general and fundamental rules-articles 1203 to 1245 (both inclusive) which state certain general provisions, and include proof by writings-whether au- thentic or under private signature or executed outside the province -and proof by testimony, presumptions and admissions. 0pthe *An address delivered by Mr. Walter S. Johnson, Q. C., before the Associ- ation Henri Capitant pour la culture juridique française, at Quebec, on~ September 19th, 1952.

1953] Sources of the Quebec Law of Evidence 1001

Model Code of Evidence, published in 1942 by the American Law Institute, there are 806 rules-though many of these are proce- dural and provide for details which are found in our Quebec Code of Procedure. Our articles, being incorporated in the Civil Code, are treated as substantive law. In effect, they are a distillation of what seemed good to us of principles drawn from both French and English law -resulting in a somewhat original and distinct body of rules and principles, suited on the whole, to our needs and different French and English historical backgrounds, resulting also in a clear sanction of the rules of proof and a simple procedure for deciding upon the admissibility of tendered proof, possibly excelling those of other systems. So that our law of proof in civil and commercial matters is neither French nor English, but a mingling of the two as modified by statute and by the Civil Code. Where we have a definite rule it governs. In civil matters, the basis of our rules is the old French common law found in the French Ordonnance de Procédure of 1667, to which recourse is still possible if the code is silent. In commercial matters, 'the basis of our rules is the "rules of evidence laid down by the laws of England" (article 1206), to which, if the code is silent, we may still have recourse. It is, a defect in our law, uneconomic and hazardous, that ,we should have two basic systems of evidence to watch in advising on problems'and preparing a case. Even in one action it often hap pens that there is both a civil law element and a commercial law element, subject to different rules . of proof, and it may be a vital question whether a given element is civil or commercial in character. From a practical point of view there should be one set of rules,. applicable to all cases in Quebec courts. But there are ob- stacles in the way. Our code of substantive law is known as the Civil Code. It is divided into four books : the first entitled Of Persons ; the second Of Property, of Ownership and of its different Modifications; the third- Of the Acquisition and Exercise of Rights of Property ; the fourth, Commercial Law-namely Bills of Exchange, Affreight- ment, Maritime Transport, Insurance, and Bottomry and Réspon- dentia. Of the first three books, most of the 2,270 rules or articles apply to matters whether civil or commercial, and some of them, by exception, to commercial matters. The subjects of the fourth book are grouped as being essentially commercial in character. The Quebec codifiers did not follow the example of the côdi-

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fiers of the law of France in 1804 and 1808 and make two distinct codes-the Code Civil and the Code de Commerce. On the contrary, as I have suggested, they covered both subjects in one code., making most of the rules common to both. Actually, that was a great and liberal advance, but to effect a complete fusion of the two would not have met with general acceptance in 1866. Nor was the question a vital one at the time, considering the very small population and the comparative unimportance of trade and litigation. Broadly speaking, the differences are somewhat absurd-depending upon whether one is a trader, or upon the special nature- of the particular transaction as by nature civil or commercial . A farmer sells me a quantity of hay-the contract is civil because neither of us is in trade. A dealer in hay sells a quantity of bay- he is a trader and the contract commercial . If the price of the sale to me exceeds $50.00, the farmer must produce a writing, but the trader can prove the contract by testimony if the buyer has accepted or received part of the hay or paid part of the price. Yet if a question of prescription arises, the sale of his hay by a farmer, who is a non-trader, to a hay merchant, who is a trader, is a commercial matter ; but his sale to me is not. The codifiers, while suggesting the present rules of evidence, were emphatic in their criticism and favoured a complete assimila- tion of the rules, uniform for all cases. "Nothing is more apt to embarrass and retard the administration ofjustice", they declared, "than the existence of different laws for different classes of persons or transactions, and such differences should be avoided unless dic- tated by an evident and almost general utility". Writing in 1948, Mr. Antonio Perrault, Q.C., said that a complete fusion of the civil and commercial law, including the rules of evidence, is called for, to overcome once and for all these incon- sistencies This fusion will cause to disappear from our Code vague and unpre- cise expressions and from our juridical thinking distinctions between civil matters and commercial operations and between the application of the general rule or of the exception-casuistry almost always prejudicial to parties! And, as Mr. Perrault goes on to remark, the opposition between the civil and the commercial law has weakened among modems nations--Quebec adopting a system different from that of France,

'Antonio Perrault, Q.C., Le Droit commercial québecois (1948). 26 Can. Bar Rev. 137, at p. 145.

1953] Sources of the Quebec Law of Evidence 1003

and Switzerland, Great Britain and the United States ignoring the distinction. -So much, then, by way of preamble and preview. But to under- stand something of the sources of our law and how far we have travelled along with and away from them, we must look backward fok .â. .few moments.

In ancient Rome, as is the case in our lands and times, the fundamental difficulty, apart from the honesty or bias of the witness, was the need of assurance that, in the matter of contract for example, the, promise made and accepted was at the time so actively present to the mind of the witness that his memory, even long afterward, should reasonably be accepted as accurate. So that in those very early years when few were able to write, contracts were mainly oral and were made memorable,by material acts and for- malities which witnesses could later recall having seen performed. Testimony was in practice widely accepted. The concept of contract - ,complete by consent alone was absent. The attendant for- malities, if proved, made the contract obligatory. When writing becamé more common and scribes were available, and there came a gradual development of juristic science growing out of a'more complex civilization, written contracts, at least in the more important transactions, became more common. But, here again, the concept of contract complete by consent alone was absent. The contract had to be in a special form of question and answer-the stipulatio-otherwise the consent, which was of course necessary, was not proved. The concept of consent seemed lost in the formality which made the contract obligatory. But the existence of written contracts soon raised the question of their probative value under the impact of testimony. How early in the classical period of the great jurists the question was raised it is impossible to say definitely. In Justinian's Code, compiled between A.D. 528-534, we find the -definite rule, "Contra scriptum testimonium, non scriptum testimonium non fertur"-unwritten evidence is not receivable against written evidence. How early in fact had that rule been stated? Cujas, the great early French juris- consult, who began lecturing at Toulouse on the Institutes in 1547, attributed it to a constitution of the Emperor Caracalla (A.D. 188- 217). Professor Edouard Bonnier of the University of Paris con- tests so early an attribution and thinks it an interpolation of a

1004 THE CANADIAN BAR REVIEW [VOL . XXXI later date." One may agree that perhaps the very definition of the rule outran the state of legal thought in Caracalla's time. Yet in the Sentences of Paulus, who wrote in the third century, there is the rule, "Testes, quum de fide tabularum nihil dicitur, adversus scripturam interrogari non possunt" -which makes a distinction good even now, that if you attack the origin and validity of the writing, testimony is admissible, but testimony is not admissible to prove that the agreement was difTereat than expressed. Again, Bonnier considers that this rule was a later interpolation. In support of his view, he cites a constitution of the Emperor Con- stantine (A.D. 274-337) : "In exercendis litibus eamdem vim ob- tinent tam fides instrumentorum quam depositiones testium"- literally that seems to mean that there is no conflict between the proving force of written records and that of testimony by witnesses, the one not being superior or inferior to the other. We know nothing of the surrounding circumstances. The rule may only have meant that where in a case no writing was produced, testimony could take its place. But those doubts and conjectures apart, it is clear that when Justinian's Corpus Juris was compiled it was an accepted principle that written evidence could not be contradicted by testimony. Here we turn the page and open a new chapter of history. Jus- tinian was emperor of the Eastern Roman Empire, ruling from Constantinople. The Western Empire had collapsed in 476, the Roman legions withdrawing from Gaul, or what is now France, and the Germanic tribes pouring down to fill the vacuum. The Goths had sacked Rome and occupied northern Italy. After they . were driven out by Justinian's generals, the Corpus Juris was applicable in Italy for perhaps fifty years. It contained all the Roman law known to us, except the Institutes of Gaius, which were rediscovered early in the nineteenth century, and some other frag- ments. It incorporated the works of the other classical jurists- Paulus, Ulpian, Papinian, Modestinus, and others. It was com- pletely lost to the West for many centuries. It was in manuscript form, of which only a relatively few copies could ever have been available. Caesar's invasion of Gaul (B.C. 58-50) made Rome master from the Mediterranean to the Rhine, and there for about five centuries the Roman legions and civilization remained, welcomed so en- thusiastically by the Gaulish people that the country quickly as-

s Edouard Bonnier, Traité théorique et pratique Des Preuves en droit civil et en droit criminel (5th ed., Paris, 1888) .

1953] Sources of the Quebec Law of Evidence 1005 similated Roman ideas, customs and law. Schools of law flourished at several centres and students often went to Rome to perfect their studies. The Roman law was that earlier law we mentioned and doubtless the works of at least some of the classical jurists, dis- cussed by the teachers and carried away in the notes of students, together with imperial constitutions and praetorian edicts, the sena- tus-consulta and the rescripta of the emperors. When these complex masses of law became too burdensome, attempts were made to collect and systematize them in codes=-Codex Gregorianus, Co- dex Hermogenianus, Codex Theodosianus, to mention only a few. The Church, too, made free by Constantine in 313, and authorized . to acquire - and own property, adopted the Roman law for its in- ternal management and built it in time into the vast body of the canon law. From the sixth century on, during the dark ages and the middle ages, the Church was the main repository of the Roman law, though in a most uncertain and debased form, and its bishops the leading jurists. Of the barbarian invaders we are mainly concerned with the Salian Franks, who moved in as the Roman legions withdrew and occupied the northern and central parts of France. They recognized the principle of the personality of laws and allowed their .Gallo- Roman. subjects to continue in their own laws and customary us- ages. Yet the domination was that of barbarians, and in the confusion and disorder the Roman law inevitably became diluted, disappeared in northern France where the barbaric pressure was greatest, and in some degree lingered in the customs of Provence, for example, where the Roman influence had-been most prevalent. Some day, many centuries later, it had to be rediscovered before it could bring. a. new birth to half a world. .. The Salian Franks brought with them and long retained their primitive and unwritten laws and customs. Writing was unknown among . them. Contracts were accompanied by formal physical acts to make them memorable-the handing by one party : to another of a. branch, a stick, a glove, .a sod, a formality without which the agreement was not obligatory.. The formality had to be proved, necessarily by testimony. Over a period of several centuries, and here we can speak only in terms of centuries, the Franks learned from the Gallo-Romans the art of writing and came to appreciate the value of the written agreements more common among the Gallo-Romans . And here there was a curious and interesting development-in fact, there were two developments, so slowly accruing, so impossible to date,

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that one is almost afraid to mention them for fear of leaving a wrong impression. First, in the case of oral contracts, the formality ofthe exchange of a stick, a sod, a glove, to make the contract obligatory, was somewhat relaxed-and in time, in the case of a sale of goods, for example, it was conceded that if the traditional formality were omitted, the agreement was obligatory if one of the parties had made performance, as by giving delivery or paying the price, and even a partial performance came to be accepted. Later the giving of earnest was accepted as another exterior and visible sign of an obligatory and concluded agreement. Secondly, in the case of written agreements, the tendency was to regard the writing in and of itself as satisfying the need of a formality-the formal Roman stipulatio, which in the strict Roman law alone made the agreement obligatory, became merged in the formality of the writing itself. The writing, as such, made the agreement obligatory. Moreover, prima facie, it proved itself. As can be seen, this was going a step beyond the classical Roman law, which did not declare every written agreement to be ipso facto obligatory, but required the formality of the stipulatio without which the writing was not obligatory. From this it is obvious that it was not at all understood that the consent of parties made a contract obligatory, and that the writing, if accepted as evidence, was only proof of the consent. And it was many centuries before the difference was realized-as we shall see in a moment it was realized. That failure was of more importance in the case of oral contracts and retarded for centuries the abandonment of the formal material and exterior acts deemed necessary to make a contract obligatory and, of course, requiring to be proved. There were, too, the thousands of quarrels and crimes requiring proof. Under the principle of the personality of laws, the Gallo-Ro- mans were free to make evidence by writings or by testimony as in their old law. But in the presence of an overwhelming barbarian environment a serious degradation of Roman law occurred, as indeed of the Gallo-Roman population itself. The Roman forms of proof, even centuries after the invasions, had little or no influence among the Franks and had themselves become in a degree bar- barized. Among the Franks testimony was never trusted. Divided into clan and family groups, among whom blood feuds and personal vengeance were the punishment for any act of disloyalty, a man

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feared to give evidence that might involve his clan or family in ruin. Perjury was his only means of escape. So a wholly objective device was long favoured-the ordeal by battle-and the litigants or their substitutes fought it out by sword and battle-axe, the loser being deemed to have had his day in court. And also greatly prac- tised was the use of physical torture to extract evidence. Against these cruelties the infant Church sternly and stubbornly contended, introducing instead, among those who would accept them, the device of the compurgation or solemn oath-taking by the parties before Cod as witness and avenger, and the devices of the ordeal of the hot irons, the boiling water, the cold water, or of the Cross-on the assumption that Providence would indicate a person's innocence or legal right according as he survived or not the ordeal. And still there was perjury, while gradually over a period -of centuries men's minds awoke to the absurdity of these cruelties and fantastic tests. That awakening appeared in many ways, two ,of which I would like to mention in this context. First, that by the thirteenth century there appeared in some of the many quite independent Coutumes (of which there were in time over two hundred), the startling maxim that "convenance loi vainc" -consent (or agreement) conquers law, a concept apparently even then of some antiquity. In a word-parties in agreeing make their own law. Loysel I in his Institutes Coutumières (1607) puts it in his homely and forceful way : Convenances vainquent loi. On lie les boeufs par les cornes et les hommes par les paroles, et autant vaut une simple promesse ou convenance que les stipulations du droit romain-they hold bulls by the horns and men by their words, and a man's simple promise or agreement is as binding as the stipulations of the Roman law. So that out of all the welter and confusion of the dark and middle ages came that new and fundamental principle of our modern law. The classical Roman law did not hold that a contract was complete and obligatory by consent alone. Where, then, did the jurists of those dark and middle ages get the idea? First, we saw a moment ago that the Gallo-Roman lawyers misinterpreted the old Roman law-thinking that it made a written agreement ipso facto obligatory, , and overlooking or minimizing the stipulatio which in the classical Roman law alone made the contract obligatory. In the deeds of the time there appeared often the words stipulatio sub hexa, which puzzled modern students until it was realized that they were merely "words of style", signifying

a Antoine i.oisel (Loysel) 1536-1617 .

1008 THE CANADIAN BAR REVIEW [VOL . XXXI nothing unless that the meaning of the stipulatio had simply been forgotten and that the main point, that consent makes the contract, had been missed. The consent was confused in the writing, but a step forward had been taken. Secondly, there was the religious teaching of the Church, that a man of honour and religion will not betray his given word. By the thirteenth century, too, the canon law was being applied in the canonical courts, to which many resorted as an escape from the more brutal and tyrannous feudal justice, and there the Church's view was enforced.' The second aspect of the great awakening to which I referred had to do with testimony and was in part a reaction against the cruelty and absurdity of the ordeals and compurgations. There came a swing back to plain testimony on oath, due in part to the social conditions of the times. The masses were ab- solutely illiterate. They understood the value of written agreements, but they distrusted the only educated class, the clercs, who were suspected of binding the ignorant by written terms and conditions other than they had agreed . It being in any case difficult to secure written agreements, testimony came to be almost the preferred mode of proof; so much so, that it became an accepted principle that "témoins par vive voix détruisent lettres". This principle was not everywhere accepted. Where it was accepted, there were rules as to the number of witnesses necessary to contradict a writing- two, or three, or more, being deemed necessary in different jurisdictions ; and at least two witnesses necessary to establish a fact. The principle became established that "Testis unus, testis nullus" -the evidence of one witness is no evidence-a rule which was observed in France until the Code Napoléon, and in Quebec until 1858 (23 Viet., c. 57, s. 50). But the rule provided a trap into which the early jurists fell. They rejected the evidence of one witness, but the evidence of two witnesses bound the judge, who had no discretion left, whatever his private opinion might be-and that was not the original intent of the rule. Testimony had thus gradually acquired great importance-too great, as was in time realized. Its weight was mechanical and not dependent on its merit-if two concurring witnesses bound the judge, the intrinsic worth of their evidence was beside the point, and rules for assessing intrinsic worth could not be formulated,,

' I am indebted in this discussion to the late Professor A. Esmein's most interesting and valuable Etudes sur les contrats dans le tr8s-ancien droit Français (Paris, 1883).

1953] Sources of the Quebec Law of Evidence 1009

for intrinsic worth and convincing force could touch only the mind and the conscience of the judge. The jurists sought a remedy in a screening of the quality of the witnesses themselves. The result was innumerable exclusions- first, of all those who might be interested or who might be sym- pathetic to a party, and second, those whose status, character, oc- cupation or antecedents could raise doubt as to their truthfulness. The latter were an extremely mixed lot-women, children, the weak-minded, clercs, bastards, serfs, servants and domestics, co- medians, prostitutes, beggars, and many others. The range ofthose interested ran even to godparents and god-children. These exclusions were so numerous that it became difficult to secure evidence at all-with the result that professional witnesses, untainted by any the remotest interest in the litigation, or, rela tionship to parties, and therefore in some fantastic way creible, and ready to swear to anything if paid, made oath and swore away men's lives and property. The middle ages, by some curious twist in the evolution of human thought, produced men of subtle minds, the canonists. Among them were the jurists or doctors of the law. Yet it did not occur to them, during centuries of time, that the way through oral testimony to the truth, to at least the nearest possible approach to truth, lay in convincing an upright judge of the credible value of the evidence. They were bound by the convention that the testimony of two' disinterested and concurring witnesses was conclu- sive. And here, under the need to secure evidence, they began to split hairs. -If the evidence of two witnesses, where required, was plena probatio, full proof, the evidence of one witness was half proof or semiplena probatio. Admissions secured by torture, oc- casionally fame or rumour, even entries made by tradesmen in their books to the prejudice of others, were acceptable as semi-proofs, two of which had the value of full proof. The Parlement de Toulouse added a further twist, applying that fractioning to the credit of witnesses. Instead of enforcing a total exclusion of a witness objected to, it avoided a total destruction of his evidence by allowing it a value of, say, one-eighth, a quarter, a half or three-quarters, subject to making up the -difference by a fractional credit from another witness. Bonnier gives this example : For example, if on the depositions of four witnesses objected to, two are reduced to a'half, that makes one witness ; if the third is reduced to a fourth, and the fourth to three-quarters, that makes another witness, and consequently there is a sufficient proof by witnesses, although all"

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have been objected to, and suffered in some degree from the objections taken.6 Those were the conditions reached by say the thirteenth and fourteenth centuries-"The substitution of arithmetic for observa- tion and reasoning", as Best so aptly puts it. The satire heaped upon "witnesses" and trials by writers of the fifteenth and sixteenth centuries, notably by Rabelais, shows how stubborn and entrenched those practices and ineptitudes had become. Vicious as these were, they remained embedded in French law until the Code Napoldon expressly struck them down ; though by Pothier's time it was recognized that a judge was not bound by the concurring evidence of two witnesses even if legally made by the methods we have just explained. . Meanwhile, the Renaissance was on its way. The laws of France were being critically studied and commented by competent jurists, education was more prevalent, the notaries and professional lawyers were more in demand and more respected. There came a distinct enhancement of the probative value of the written agreement and a denigration of the value of testimony. Even the writing under private signature was, by the authors, admitted to be as binding as the more formal notarial deed. Testimony had become ridiculous as a means of proof of contracts without distinction of their importance or subject matter, and the system had allowed fraud and chicanery to subvert and deny all justice. By the famous Ordonnance de Moulins of 1566, in principle operative throughout France, but actually operative only in those customaryjurisdictions whose Parlements accepted it, and in general they did accept it, we see the dawning of modern times and see actually emerge a modern law, evolved in France out of a long experience, after many detours and wrong turnings and blind-alleys- owing nothing to the ancient Roman law. Section 54, inserted on the urging of the Parlement de Toulouse, ordered that (translated) : In all matters exceeding the sum or value of 100 livres principal sum, contracts before notaries and witnesses shall be executed, by means of which contracts alone shall proof of the subject thereof be made and Bonnier, op. cit., no. 243 ; Best, On Evidence (11th ed.) pp. 59-61 : Dorion, Preuve (Montreal, 1894) passim. Bentham, who ridiculed the system, was none the less impressed by the mathematical approach, for he suggested the use of a belief-meter, a scale of credibility : "Imagine a scale divided into ten degrees. It has a positive side, inscribed with the degrees of positive belief (that is, affirmative of the fact in question) and a negative side, inscribed with the degrees of negative belief (that is, deny- ing the same fact) ; at the bottom of the scale is O, denoting the absence of all belief either for or against the fact in question" (Bentham . Judicial Evidence, Book I, chap. 17, pp. 41-42) .

1953] . . Sources of the Quebec Law of Evidence 1011 received, without any proof by witnesses 'being receivable beyond the content of the said contract or concerning anything alleged to have been said or agreed before, at the time of, or since the execution of the contracts It is rather striking that though perjury was rampant, the reason given in the Ordonnance for the new rule was, not the perjury, but "to obviate the multiplication of facts heretofore put forward for judgment, 411 subject to proof by witnesses and to the disqualifica- tions to which those are liable, from which there result numerous inconveniences and complications of procedure". As might be expected, there was a great outcry against the new rule. People capable of preparing written contracts were not to be found in many communities, and the poorer people could not afford their fees. The poor condemned the rule as favouring the rich. The merchant class were familiar with the risk they ran in oral contracts and, as we shall see, ignored the rule. But the conditions struck at were general in Europe,' and the Ordonnance de Moulins brought to a focus the most advanced thinking of the age. It was in fact the most momentous document in the history of the law of evidence-both in what it explicitly provided as in the juridical results to which it led. And that is worth some further elucidation. While the Ordonnance de Moulins thus established a new and definite rule requiring an official notarial deed in respect of contracts over 100 livres, and excluding testimony. to contradict or vary contracts so made, it gave for the fast time a certain probative value to writings under private signature. The second part of the Ordonnance deals with such writings. "En quoi", it reads, "n'entendons exclure les preuves des conventions- particulières, et autres qui seraient faites sous leurs seings, sceaux, et écritures privées" ; by which, says Boiceau, "the prince seems to indicate under what necessity he was to limit proof by witnesses because, in so corrupt an age, witnesses were so easily suborned that the plaintiff and the defendant respectively could produce as many for the affirmative as for the negative, especially as their depositions seemed equally proven...... In effect, says Boiceau, the intention was that if a private writ- e "De toutes choses excédant la somme ou valeur de 100 livres pour une fois payer, seront passés contrats par devant notaires et témoins, par lesquels contrats seulement sera faite et reçue toute preuve des dites ma- tières, sans recevoir aucune preuve par témoins outre le contenu au dit contrat, ni sur ce qui serait allégué avoir été dit ou convenu avant celui, lors et depuis". 10.0 livres equal $20.00. ' Analogous provisions are found, for example, in the Statut de Bologne, 1454 ; Statuts de Milan, 1498 and 1552 ; Edit perpetuel des -archiducs de Flandre, 1611-cited by Esmein, op. cit., p. 63.

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ing was produced and it appeared relevant to the issue and as having of itself some merit, it was not to be summarily rejected- emanating from the parties, it set up some presumption that what they had written it was reasonable to assume was true. If the writing was denied by the party against whom it was raised, testimony and comparison of writings were permitted -subornation of perjury was less feared because the writing was there facing the possible perjurer-and it was a kind of preliminary proof which was at least not presumed to be false. If, on the contrary, the parties did not deny the writing, it was taker. as full proof; if it was denied, then testimony was receivable to destroy it. The presumption upon the writing was seen as a "commencement de preuve"-clearly the origin of our Quebec rule as to the "commencement de preuve par écrit". This new rule, resulting from the jurisprudence, came as an alleviation of the harshness of article 54 literally applied.' And the rule of section 54 was found in practice very severe in certain other cases where, for example, a writing which was produced was incomplete. The courts not unreasonably allowed testimony to complete it. There was another unexpected result . The prohibition of the Ordonnance was in terms broad enough, and was intended, to re- quire a writing for all kinds of contracts, whether civil or com mercial, of over 100 livres. Actually, because again the rule was found too severe, it was disregarded in commercial matters, under the influence of the prevalent "custom of merchants". The merchants simply could not be bothered and retarded by the new rule -they ignored it, and their contracts were. proved or disproved in the courts by testimony according to the old rules. The custom thus followed became the rule in practice. For a hundred years the Ordonnance de Moulins was not super- seded. But in 1667, after that dragging century, there came the famous Ordonnance de Procédure. Article II of title XX reproduces the provisions of article 54 of the Ordonnance de Moulins, but in greater detail, and at last puts the private agreement on an equality with the formal notarial document Deeds passed before Notaries or made under private signature are required in all matters where the sum or value in issue exceeds 100 livres, and even in cases of voluntary deposit, and no proof by witnesses shall be received beyond the content of the said deeds or concerning anything alleged to have been said or agreed before, at the time of, or since the execution thereof and even though the amount or 1~ Traité de la Preuve par Témoins en Matière Civile, de Jean Boiceau, par M . Danty (7th ed., 1789).

1953] Sources of the Quebec Law of Evidence 1013

value in issue is less than 100 livres ; without, however, by reason of the foregoing changing the practices observed in the courts of the Judges and Consuls of Merchants.9 The effect of that provision and of others in the Ordonnance marked a great advance: (1) the contract under private signature had absolute probative value, however large or small the sum or value involved ; (2) voluntary deposits were brought under the rule ; (3) testimony to complete an incomplete written agreement was expressly authorized ; (4) testimony was declared acceptable where there was a commencement of proof in writing ; (5) again, expressly, no change was made in respect of testimony in commercial matters-in a word, testimony remained and was now made the rule (previously formed in the jurisprudence) in commercial matters-'so that commercial contracts could be proved or disproved, whether written or . not, by the old rules of testimony. All that was of vast importance to Quebec law. The Ordonnance de Procedure of 1667 became the law of French Canada and was in force at the Conquest of 1759-1760. Our present Code of Proce- dure, first codified in 1867, is quarried out of the Ordonnance, which still remains, except as derogated from or replaced by rules of the Code of Procedure, our common law. The Ordonnance brought into our law that cumbersome distinction, already mentioned, between the rules of evidence in civil and commercial matters, a distinction which is still embedded in our law. and prejudices the administration of justice. Eventually, but not until 1785, we shook off the incubus of the 'French rules of proof by testimony in commercial matters and replaced them by adopting the relevant provisions ofthe English Statute of Frauds -but that again was the product of a long evolution, this time in the English lave.

So far, it will be seen, the law of evidence in anything like -its

9 "Seront passés actes par devant Notaires, ou sous signature privée, de toutes choses excédant la somme ou valeur de cent livres, même pour dépôts volontaires, et ne sera recue aucune preuve par témoins, contre et outre le contenu aux actes; ni sur ce qui serait allégué avoir dit avant, lors, ou depuis les actes encore qu'il s'agit d'une somme ou valeur moindre de cent livres ; sans toute fois rien innover pour ce regard, en ce qui s'observe en la Justice des Juges et Consuls des Marchands".

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modern form is not of ancient origin in France. The same is true of England. There was no place for it in the primitive law of either country. For centuries the real problems of a valid law of evidence were not seen. Experience alone, as society became more ordered, could raise the problems and suggest solutions. The primitive Anglo-Saxon trial by ordeal, the Anglo-Norman trial by battle, and the trial by compurgation which was used even after the Nor- man conquest, gave way gradually to what we call the inquisitorial system-from the twelfth through the sixteenth century the most common method of trial and the forerunner of the modern trial by jury. The inquisitorial was simply an investigation of the facts - by inquiry among neighbours, by a pooling of what the inquisitors themselves knew or could learn-fact, rumour, fancy and opinion During this formative period there was no need for the law of evidence. The inquisitors heard no evidence; they determined disputes by comparing with each other their own previous information upon the facts. . . . Not until the time of Elizabeth could witnesses be compelled to testify before the jury. The independent witness was frowned upon as an intermeddler . Even as late as 1670, in Bushell's case, Chief Justice Vaughn permitted the jury to rely upon their own knowledge to nullify the evidence of witnesses given in court. It was not until the latter part of the eighteenth century that the practice of using independent juries to decide upon facts gained through witnesses presented before them was firmly established. The transition was gradual from an inquisitorial to an adversary system of trial. The law of evidence as we think of it today began to emerge with the advent of the adversary system under which juries decided solely upon the knowledge of witnesses .'° As the adversary system of trial came more into use, objections to the competency and the credit of witnesses increased . The exclusions were very numerous, though less than in the mediaeval civil and canon law from which they were borrowed. Even in his time Bentham remarked that the rules of evidence, taking them in general, seemed devised to prevent evidence being given at all rather than as an aid to finding truth and doing justice. Under the stimulus of his criticism the exclusions were during the nineteenth century almost entirely eliminated in the common law. They were in full effect, however, at the time of the Restoration when the first striking attempt at reform was made. In 1677, ten years after the Or- donnance de Proc6dure of 1667, the famous Statute of Frauds was enacted in England (29 Charles 11, c. 3), and for the same general reasons-the prevalence of perjury, the great number and variety 'u Dean Mason Ladd, American Law Institute, Model Code of Evi- dence, 1942, p. 333 .

19531 Sources ofthe Quebec Law ofEvidence 1015

of the exclusions, the extravagant abundance of litigation encour- aged by the laxity of the rules as to testimonial evidence, and. the excessive costs thus incurred. In 1677 Canada was a French colony and continued so until the Conquest of 1759-1760, after which in general the French law remained in force. But the merchant class was largely English, and upon them weighed the burden of the laxity of the old French law as to testimony in commercial contracts in particular. They were not unaware of the English Statute of Frauds, and at last, in 1785, by the statute 25 Geo. III, chapter 2, section 10, those parts of the Statute of Frauds relating to commercial matters (sections 4 and 17) were adopted as part of our Quebec law, to the exclusion of the French rules in commercial matters . It has been remarked that the law of evidence has developed more slowly than almost any other branch of law. Though experience in the English courts brought to light serious loopholes in the Statute of Frauds of 1677, it was not until Lord Tenterden's Act of 1828 (9 Geo. IV, c. 14) that a serious attempt was made to overcome them, by extending the provisions of the Statute of Frauds to various doubtful cases, particularly to sales of goods subject to future delivery, and by requiring a writing in commercial matters over $50:00 in the case of the interruption of prescription or the renunciation of prescription acquired, of promises after the age of majority to pay debts incurred during minority, and of any. representation or assurance in favour of a person to enable him to obtain credit, money or goods thereupon. It was not until 1847 (10 & 11 Viet., c. 11) that Lord Tenterden's Act was taken into Quebec law-now part of article 1235 C.C.

IV In, 1866 there came the codification of our law, the general con- figuration of which I have earlier explained. It is an original document, attempting to distil and retain the best of two great systems of law. Broadly speaking, the English law admits testimony as the general rule, unless .a writing exists. The old common law of France, except as altered by the Ordonnance de Moulins and the Ordon nance de Procédure, permitted proof by testimony as the general rule, in some jurisdictions even preferring it to written proof. Our Civil Code clearly departs from both the French and the English concepts, and makes proof by witnesses the exceptional method.

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Mignault notes that, while the Ordonnance de Moulins was the first source of article 1233, there is no clearly corresponding article in the Code Napoléon ." That testimony is the exception is a logical conclusion for several reasons : First, article 1233 expressly lists the cases where testimony is admissible, and the list is regarded as limitative . Having done so, it expressly says that "in all other matters proof must be made by writing or by the oath of the adverse party" ; and article 1234 expressly provides that testimony cannot in any case be received to contradict or vary the terms of a valid written instrument. Secondly, while the first paragraph of article 1233 permits proof by testimony in commercial matters, as one of the listed exceptions, article 1235 provides an exception limiting that exception by requiring that even in commercial matters, if the sum of money or value in question exceeds fifty dollars, there must be a writing signed by the debtor ; though in the case of a sale of goods, of a value over fifty dollars, if there is no writing signed by the buyer, proof by testimony may be made that he has accepted or received part of the goods or given something in earnest to bind the bargain. That leniency as regards sales is embedded in the text of the law because of its importance in commercial practice and customs. Yet article 1233, when one analyzes it, is also very lenient toward the admission of testimony in both civil and commercial matters. It recognizes the practical human need of testimony in certain difficult cases-where, for example, material facts are involved and where a writing would be unusual or unobtainable . In one instance it is severe-proof by testimony of a writing is permissible only where it is first proved that the writing has been "lost by unfore- seen accident"-"par cas imprévu". The English common law is less severe, it being sufficient to prove that the writing has been lost "and cannot after reasonable search be found". And article 1348 C.N. is much more severe-the writing must be lost "par suite d'un cas fortuit, imprévu, et résultant d'une force majeure" . Then there is the practice of the courts, which are lenient about admitting testimony, moved doubtless by a feeling of equity and a desire to get the whole relevant story ill order to do justice. The judge's rule is generally accepted as a passive one. He is a kind of umpire in the adversary game being played out before him. He rarely asks questions-though many must occur to him and though "facts" are proved or conclusions drawn upon which his common sense or actual knowledge casts serious doubt. Article 1233, it has il Mignoult, Vi, p. 62 (note a).

1953] Sources of the Quebec Law ofEvidence 1017

been definitely settled, 12 is not a law of public policy, hence trial courts are not bound proprio motu to reject testimony as illegal, but only if parties raise and maintain an objection. If in doubt, upon an objection being raised, courts incline to allow the evidence "under reserve"-de bene esse-and subject to further delibera- tion. In France, the rule excluding testimony where a writing is expressly required is generally, though opinions differ, deemed one of public order enacted in the public interest . Hence in the stricter view illegal evidence tendered could or should be rejected, and parties would not be permitted to consent to testimonial proof where it is forbidden. While our rules are also enacted in the public interest, we are-more lenient-even hearsay or, other evidence let in by error and not objected to, or irregular or illegal proof taken by consent, will not be struck out. But illegal proof, properly objected to, though admitted by the trial judge, remains a nullity which may be raised later in the case and in appeal. There has been not a little criticism of the practice of allowing in doubtful evidence de bene esse, because of the influence it may have, though later declared illegal, upon the opinion forming in the minds of jury or ofjudge. It might be difficult to show that in any of those instances essential justice had not resulted. The struggle for an. increasing exercise of discretion by the courts centres around the best evidence rule and the hearsay rule. In Quebec we have the definite rule of article 1204, which must in principle be observed, that The proof produced must be the best of'which the case in its nature is susceptible. Secondary or inferior proof cannot be received unless it is first shown that the best or primary proof cannot be produced. Langelier states that the "best evidence rule" has never been known in France. Our article 1204 is based on the texts offered by Green- leaf and by Taylor at the time of the Quebec codification . And Langelier considers that for its interpretation we must go to English law. We regard the best evidence rule as necessarily excluding hearsay. Chief Baron Gilbert, in his pioneer book on Evidence (1756) first formulated the rule which had been taking shape in the jurisprudence since the beginning of that century: The first and most signal rule in relation to evidence is this, that a man must have the utmost evidence that the nature of the fact is capable of. The true meaning of which is that no such evidence shall be 12 Gervais v. McCarthy (1905), 35 S.C.R. 14. 0

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brought which ex upturn rei supposes a greater evidence behind its the party's own possession or power. In Chief Baron Gilbert's view that rule excluded hearsay and secondary evidence of existing decuments. The rule was no sooner formulated than Bentham attacked it, as indeed he did most of the rules, as one more example that "the human mind is too apt to establish rules which only increase the probabilities of a bad decision", and the courts, to escape the se- verity of the rule and to do essential justice, made so many exceptions that the rule became of doubtful utility. More than fifty years ago Thayer and Phipson, because of the exceptions, criticized the rule and considered that the consequences drawn from it would exist in its absence. The editors ofPhipson, in the new 1952 edition, repeat that opinion. Mignault remarks that the ambit of the rule has been greatly exaggerated and that, taken literally, it would necessarily admit hearsay if that was the best evidence that could be offered'"-a point of view that might cause Chief Baron Gilbert to reconsider his statement "that a man must have the utmost evidence that the nature of the fact is capable of". And Langelier, writing over fifty years ago, speaking of the severe attitude of courts in Quebec toward the hearsay rule when it is invoked, says that we observe a good English rule "par une imitation servile et inintelligente". What he means is, in a word, that if the rule is invoked, as regards hearsay or secondary proof, an exception is not manufactured by the court-the rule in its original strictness is enforced and the evidence bluntly refused-unless of course it is admitted de bene esse.14 Langelier points out that in France the hearsay rule does not exist and in Scotland is not enforced to exclude declarations of a person no longer living-for the reason, accepted in both coun- tries, that the judge decides both the facts and the law and is presumed to be honest, cautious and intelligent. In the English-law provinces of Canada statements made by persons since deceased are admissible in several circumstances, and in a second group, not depending on the death of the declarant, which are listed by Dean Bowker in an excellent article ; and he adds that "the recent trend is toward broadening the exceptions".15 The difficulty is to give courts a wider discretion to admit hear- 13 Vol, 6, p. 7. 14 De la Preuve, Nos. 105, 106. 15 W. F. Bowker, The Law of Evidence (1948), 26 Can. Bar Rev. 246, at pp. 259-60.

1953] Sources of the. Quebec Law of Evidence 1019

say, and yet to curb it to avoid an exercise of absolute powei in- herently dangerous. There are two principles which might guide that discretion : the patent relevancy of the hearsay offered ; and, secondly, its effect or tendency as being per se truly prejudicial rather than of practical probative value 16 -the underlying need be- . ing that courts should in a degree be free to decide disputes, at times -at least, on the kind of evidence in practice accepted by honest men of common sense in their ordinary transactions, or even. as do those administrative boards which are expressly declared not, bound by the rules of legal evidence. It is a striking fact that the War Crimes Act (Can. 1946, c. 73, Schedule, Regulation 10) con- tains.broad provisions for the admission of hearsay evidence against persons charged under it-and the maximum penalty is death.17 The hearsay, if it were admitted, may contain the grain of truth upon which the essential justice of the dispute may depend ." To some extent those limitations are compensated for by our trial system, which is based on English practice. It differs radically from -the French system. In France, in general, the hearing of evi dence is a process apart from the final adjudication. A case being ready to proceed, a court makes an order stating what facts are to be proved, and what proof is to be made, and refers the taking of. evidence to a judge or commissioner (juge-commissaire), who alone interrogates the witnesses. The parties or their counsel put no questions, addressing only the judge, but may suggest questions to be put. There is no cross-examination, but the judge may put any, questions he chooses. The record, with the written depositions, is. then sent to the court, which decides the case by applying the law to the facts thus presented, without seeing the witnesses. That, to us, extraordinary procedure had no counterpart in early . Roman law, where a case was tried very much as it would be tried today in common-law jurisdictions or in Quebec. Bonnier says it is a vestige of the middle ages, when witnesses were not heard in open court, to prevent them starting a pitched battle, and also was favoured by the canonical courts because of its secrecy.19 is C. A. Wright, 'The Law of Evidence (1942), 20 Can Bar Rev. pp. 714,718.. . . 17 w. F. Bowker, The Law of Evidence (1948),26 Can. Bar Rev. at p. 258. Is The best evidence rule requires that a witness speak from his personal knowledge and not from his opinion-except of course in the case of ex- perts, though courts are by no means bound by their opinions. The rule that a witness must speak from personal knowledge was only taking form in England during the eighteenth century. It was not mentioned in Chief Barbn Gilbert's book on Evidence of 1756, and seems to have been first stated in I'eake's Treatise on Evidence in 1801, and in Starkie's Treatise in 1824. is Bonnier, op. cit., pp. 228 et seq. ; Best, On Evidence (11th ed.) p. 89.

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Those who defend the French or civil law system assert that it makes for certain justice: there being no cross-examination, the witness is less able to explain or shift his evidence ; if he is mis- understood or makes a mistake, well, that may happen in any case; being cross-examined, he would possibly be timid, confused, brow- beaten, cr contradict himself. Lies are told in a private hearing that would not so brazenly be told in a public hearing, but they are told nevertheless in either case, and study of the demeanour of the. witness is hence of little importance. In Quebec we follow the English system of an open hearing, whether before a judge and jury, or before a judge alone-though in a jury case there is of course a preliminary judgment fixing what facts are to be proved, but not indicating the extent or the nature of the evidence to be made. The parties confront one another in open court, witnesses are produced in any order chosen by counsel and they are cross-examined at once, those who have not been heard can be excluded from the room until severally called in to testily. Rightly or wrongly, we are convinced that our system, worked in the full light of publicity, is more apt to reveal the truth and make for certain justice.

V We in Quebec are slow to make radical changes. But the world's population is increasing rapidly, disputes are more numerous, judges are over-burdened ; in the rush of events administrative tri- bunals and arbitration boards are taking over much of the work of courts and settling disputes free from technicalities and legal- isms, what Gorphe calls the "formalisme anglo-américain" .° This is a period of transition and the old ways and means of maintaining the rule of law are being questioned, if not brushed aside. Perhaps the French system, which ignores the best evidence rule and allows the judge to ask what questions he likes, leaving with him the responsibility for the answers, has merit for us if we conclude that our adversary system, which is dedicated to victory after battle and thrives on technicalities, has reached a point where it puts the rule of law in jeopardy and makes a nightmare of the ordinary citizen's day in court. Best, loc. cit., says this system, with a few modifications, prevailed in English courts of equity before the Judicature Acts. 2u François Gorphe, L'Appréciation des Preuves en Justice (Paris, 1947) passim.