Hearsay and Out-of-Court Statements

Overview

An employee tells a colleague that a visitor slipped on water. The colleague later testifies. If the account is offered to establish that water caused the fall, its use raises hearsay (ouï-dire). If it is offered to show that a manager received a warning before taking a particular decision, the occurrence of the communication may itself be relevant. The same words can therefore require different analyses in the same case.

Testimony (témoignage) ordinarily relates facts within personal knowledge (connaissance personnelle) through a deposition in the proceeding, under art. 2843 CCQ. Hearing an account gives the listener direct knowledge that it was made, rather than direct knowledge of every event it describes. The testimony lesson explains this distinction and the separate role of expert opinion.

An out-of-court statement (déclaration extrajudiciaire) is assessed relative to the proceeding where it is offered. A sworn deposition from a different case is not automatically testimony in the present case. A signed document, official-looking report or recording likewise requires identification of the legal route supporting its proposed use.

Learning Objectives

• Classify a statement by its proposed use and distinguish a truth purpose from proof of a relevant communication.
• Apply consent, admissions and the statutory routes for absent declarants, testifying declarants and written evidence.
• Separate admissibility, proof of the statement and assessment of its probative weight.

Begin with the purpose of the statement

A truth purpose (fin de véracité) exists where the party asks the court to accept what the declarant asserted as an accurate account of the underlying facts. The ordinary safeguards are weakened when the declarant is absent: the statement was not made under the present proceeding's oath and observation conditions, and the opposing party cannot contemporaneously cross-examine its maker. Cross-examining the person who repeats it cannot fully test the original perception, memory or sincerity.

Article 2843 CCQ and art. 279 CCP supply the ordinary framework. Articles 2869–2874 CCQ govern certain statements received despite the usual conditions, and the Code of Civil Procedure supplies additional routes. Quebec's codification controls the analysis. Common-law terminology can assist explanation, but a familiar exception from another jurisdiction cannot replace the applicable Quebec provision.

Where the words themselves constitute a relevant event, the hearsay prohibition may not apply. A witness who personally heard an allegedly defamatory accusation can establish its utterance without asking the court to accept the accusation as true. The occurrence of representations, a warning or instructions can likewise matter independently of their accuracy. Statements may also help establish a relevant state of mind or explain subsequent conduct, but the proposed inference must be identified precisely.

Merely announcing that a statement is offered “for context” does not establish its relevance. The party must show how the fact of communication bears on an issue in the case. If the reasoning still requires the assertion to be true, calling it context does not avoid the truth-purpose inquiry. Even a legitimate non-hearsay use remains subject to other exclusionary rules.

Worked application: warning and cause

Factual Scenario

The following facts are hypothetical. A visitor falls in a furniture showroom. Noor testifies that an employee told the manager ten minutes earlier, “There is water near the entrance.”

Classify the material and each layer of information

An oral account and a written account can present the same hearsay difficulty. Article 2832 CCQ permits an ordinary writing recording a fact to operate as testimony or an admission against its author, but expressly subjects that possibility to the rules of evidence. The writing's existence does not erase the need for an applicable route.

An investigative report often combines personal observations, summaries of interviews, conclusions and recommendations. An investigator's description of a room personally inspected is different from an interviewee's description of an earlier event. A coroner's report similarly may contain accounts collected from others. The institutional status of the report does not establish that its author personally knew every reported fact.

A newspaper article offered to prove an event may contain double hearsay (double ouï-dire): an absent reporter repeats an absent source. Producing the article does not establish either account's truth. It may be relevant to prove publication or the information that influenced a decision. An alleged admission within it requires proof of the admission through a proper means, including attention to the person who actually heard it.

Medical records deserve a content-specific analysis. Recorded medical facts can have an evidentiary role, including under the business-record framework discussed below. Separate observations made in the course of care from an unverified history supplied by the patient, a third party's account and a specialized conclusion. Calling the entire record “medical” does not answer every question about its contents or purpose.

Affidavits also require a statutory basis where offered in place of ordinary testimony. Swearing a document does not transform second-hand information into personal knowledge. Expert reports follow arts. 293 and 294 CCP: the report stands in place of testimony when properly disclosed and filed, subject to examination rights. Accounts repeated to explain an expert's reasoning do not thereby become independent proof of their truth.

The absent declarant: article 2870 CCQ

Admissibility (recevabilité) under art. 2870 CCQ requires an application, notice to the adverse party and court authorization. The statement must concern facts about which the absent declarant could legally have testified. The applicant bears the burden of establishing the conditions, including necessity (nécessité) and reliability (fiabilité). The inquiry therefore begins before final weighing of the trial evidence.

Facts on which the declarant could legally testify

The route is available for factual observations within the declarant's own knowledge. It does not authorize admission of an absent expert's opinion. An expert's report may contain separable observations from a personal inspection or examination that satisfy art. 2870 CCQ, but the expert's conclusions require the appropriate expert-evidence framework. Facts merely reported to the expert introduce another layer that must be addressed.

Other limits continue to apply. Professional secrecy (secret professionnel) does not disappear because its holder or the professional is absent. Nor does the exception remove relevance requirements or rules restricting testimonial proof of agreements and contradiction of written terms. Article 2862 CCQ, for example, limits testimonial proof of a juridical act between its parties where the value in dispute exceeds $1,500, subject to its exceptions. Reliability alone does not authorize otherwise prohibited testimony. See proof of a juridical act and protected communications.

Some immunities concern compulsory attendance rather than every possible use of an existing factual statement. Determine the exact protection before treating legal unavailability either as a ground for reception or as a complete bar. An inability to compel attendance does not answer whether the particular content could lawfully be disclosed.

Establish impossibility or unreasonableness

Death, illness, incapacity or inability to locate a declarant may establish that attendance cannot be obtained. Unreasonableness is a distinct alternative and depends on the actual circumstances. Distance, expense or difficulty giving evidence must be assessed against the stakes, the statement's significance and the available alternatives. A party's preference for a convenient document is insufficient.

Consider remote testimony, an examination outside the court's presence or another available means of obtaining evidence of comparable quality. If the declarant is abroad but can readily attend by video, distance alone may not justify replacing direct questioning. Conversely, requiring substantial expenditure for a minor point can raise a genuine proportionality issue under art. 18 CCP. The explanation should be supported by concrete efforts and circumstances.

Notice gives the opposing party a fair opportunity to investigate the statement, challenge the conditions and prepare a response. The appellate case law calls for notice before trial and ordinarily before the case is declared ready, absent exceptional circumstances. Serving documents without identifying the intended reliance on art. 2870 CCQ creates unnecessary uncertainty. Do not assume that eventual lack of surprise guarantees relief from procedural non-compliance.

Establish sufficient reliability

The court examines the circumstances in which the statement was made and preserved. Relevant considerations include the declarant's opportunity to perceive, any motive to distort, the time elapsed, the manner of questioning, whether a neutral person recorded the account, and the completeness and accuracy of its transmission. A sworn statement or earlier cross-examination can provide safeguards, but neither label automatically resolves the inquiry.

The test seeks sufficient guarantees rather than absolute certainty. It addresses the risks arising from the absent declarant and the lost opportunity for ordinary questioning. Corroborating circumstances may assist. The credibility of the person reporting the statement also matters, although that person can ordinarily be cross-examined in the present proceeding. Necessity and reliability remain separate conditions: an unavailable witness's account can still be too unreliable to admit.

The statutory presumption

The presumption of reliability (présomption de fiabilité) in art. 2870 CCQ concerns, in particular, documents drawn up in the ordinary course of an enterprise's business, documents entered in a register required by law and spontaneous statements contemporaneous with the facts. The list is not exhaustive. The presumption is rebuttable, consistently with art. 2847 CCQ.

It concerns the reliability requirement, not the truth of everything asserted and not automatic satisfaction of the entire admission process. The party must still establish the applicable category, the declarant's lawful ability to testify to the facts, necessity and the procedural conditions. The opposing party can contest reliability, and the judge later assesses persuasive value.

For business documents, explain how the document arose in the enterprise's activities and where its information came from. A document assembled for the dispute or financial figures based only on management's unverified assertions should not simply be assumed reliable. Supporting accounting records and knowledgeable testimony may establish a stronger basis.

For spontaneous statements, both spontaneity and temporal proximity matter. A reaction made as events unfold differs from a considered narrative prepared later. A prompt statement is not necessarily spontaneous if there was an opportunity to construct an account. The circumstances, rather than the chosen label, must support the claimed presumption.

The declarant testifies: article 2871 CCQ

A prior statement (déclaration antérieure) of a person who appears as a witness may be admitted under art. 2871 CCQ if it concerns facts on which that person may legally testify and its reliability is sufficiently guaranteed. This route does not require the impossibility or unreasonableness applicable to an absent declarant. It also does not reproduce art. 2870 CCQ's special application-and-notice requirement, although ordinary procedural fairness and disclosure remain relevant.

The witness's presence makes questioning about the earlier account possible. Establish when, how and why it was given, whether it was accurately recorded and whether the witness acknowledges or disputes it. Leaving the statement unexplained while relying on its reliability deprives the court of information that the witness could provide directly.

Both consistent and inconsistent accounts can qualify. A contradiction may affect the present account without proving that the earlier one is true. Conversely, a sufficiently reliable prior statement can be admitted as testimony and support the underlying fact. Article 2845 CCQ then governs weight. Repetition alone does not make a narrative more persuasive; the court considers circumstances and the full record.

Worked application: the changing account

Factual Scenario

The following facts are hypothetical. At trial, Camille says the floor was dry. An earlier signed statement says Camille saw water immediately after the fall.

Other procedural routes and consent

Article 292 CCP permits production as testimony of a written witness statement, including a bailiff's ascertainment, designed only to prove a fact secondary to the dispute and previously notified to the other parties. Another party may require the witness's presence before the scheduled trial date or obtain authorization to examine the witness outside the court's presence. The secondary-fact limit prevents using this ordinary route to replace the witness whose account supplies the central contested event.

Where the simplified recovery rules apply, art. 535.14 CCP provides a separate route for a written witness statement on the facts of the dispute, previously notified. It limits the statement to five pages, subject to exceptional authorization on serious grounds for additional pages. This provision does not reproduce art. 292 CCP's restriction to secondary facts. Confirm that the proceeding actually falls within that special regime before invoking the difference.

Both provisions use “affidavit” in their English text and “déclaration écrite” in their French text. This difference in statutory terminology calls for attention to both texts when determining the document's formal requirements. It should be distinguished from the express sworn-statement framework of arts. 105 and 106 CCP.

Articles 105 and 106 CCP govern affidavits required in specified procedural settings, including the means of testing their factual assertions. The affidavit must contain relevant evidence the declarant can attest. An opposing party may require examination on its truth, and failure to submit without valid cause carries the rejection consequences specified by art. 105 CCP. The affidavit procedure does not create permission to assert everything the declarant has heard from others.

An examination before trial also has its own production rules. Under art. 227 CCP, the examining party ordinarily chooses whether to introduce the deposition or extracts, subject to disclosure and filing requirements. Where the witness dies before trial, art. 2870 CCQ can allow the other party to seek reception of that earlier testimony despite the examining party's ordinary choice. The court must still address the statutory conditions.

Consent is expressly recognized by arts. 2843 and 2869 CCQ. The parties can agree to receive a statement rather than call its maker. A failure to object in time can amount to implied consent to reception. Specify whether an agreement concerns the document's authenticity, its admissibility, or acceptance of particular facts; these are different concessions. A hearsay objection should therefore be raised promptly, with its proposed scope. See objections to evidence.

At authorization of a class action, the case law applies evidentiary rules less rigidly in light of the screening function under art. 575 CCP. That procedural setting does not establish a general entitlement to prove the merits of an ordinary civil action through hearsay. Identify the stage before carrying an evidentiary ruling into a different context.

Admissions require a separate analysis

An extrajudicial admission (aveu extrajudiciaire) escapes the ordinary hearsay prohibition because it acknowledges a fact capable of producing legal consequences against its maker, under art. 2850 CCQ. The adverse consequence and the identity of the party against whom it is invoked matter. An account favourable to its maker does not become an admission simply because it was written or signed.

If a furniture maker acknowledges having received the customer's payment, the customer may seek to use that acknowledgment against the maker. A bystander's statement that payment occurred is an ordinary third-party account. An acknowledgment in a different judicial proceeding remains extrajudicial relative to the current proceeding.

Article 2867 CCQ requires the admission to be proved by a means admissible to prove the fact it concerns. The exception therefore does not validate every second-hand report of an acknowledgment or overcome all restrictions on testimonial proof. Identify and plead the admission, establish who made it and prove it through a proper source. The admissions lesson explains the distinction from judicial admissions and their effects.

Prove the statement after identifying the admission route

Articles 2872–2874 CCQ address how a statement is proved. They do not independently authorize use of its contents for their truth. A party must establish both a reception route and the legally required proof that the statement was made in the asserted form.

Under art. 2872 CCQ, a statement originally made in writing is proved by producing that writing. An oral statement is ordinarily proved by the declarant or someone with personal knowledge of the statement. A witness who only heard another person's report of it adds a further hearsay layer. Establish the chain instead of assuming the first exception covers every intermediary.

Article 2873 CCQ allows a writing prepared by someone other than the declarant to prove the statement when the declarant acknowledged its faithful reproduction. It also permits this where the writing was prepared at the declarant's request or by someone performing their duties, if the circumstances justify presuming faithful reproduction. A properly prepared examination transcript illustrates the latter possibility. Neither an informal summary nor a signature whose meaning is unexplained automatically establishes those conditions.

Article 2874 CCQ permits proof through a reliable recording technique, with separate proof of authenticity. For a technological document, that separate proof is required only in the situation identified by the third paragraph of s. 5 of the Act to establish a legal framework for information technology: the medium or technology allows neither affirmation nor denial that integrity is ensured. Authentication (authentification), the integrity of the medium and the reliability of the factual account remain distinct questions. Preserve the complete recording, identify its origin and explain any extracts, transfers or alterations. See technological records.

Determine what the received statement proves

Probative weight (force probante) is assessed under art. 2845 CCQ after reception and proof of the statement. Authorization under art. 2870 CCQ or a presumption of reliability does not compel a finding that the account is true. The court can give a received account little or no weight in light of contradictions, weak perception, inaccurate transmission or stronger evidence.

Keep the permitted use visible through the final reasoning. A statement received only to show notice proves a communication relevant to knowledge, not automatically the danger reported. A statement received for its truth can contribute to the factual finding, but its origin and safeguards remain relevant to weight. This three-step method avoids confusing permission to consider an account with proof of the ultimate claim.

Practice Checklist

• Identify the declarant, each intermediary and the precise fact sought to be established.
• State the truth or other relevant purpose before selecting an exception.
• Check personal knowledge and any independent exclusion, including professional secrecy.
• For art. 2870 CCQ, prepare notice, application, necessity and reliability evidence.
• For art. 2871 CCQ, ensure the witness appears and can explain the earlier account.
• Verify the actual affidavit, expert-report or special procedural route and its conditions.
• Separate consent to authenticity, consent to admissibility and agreement about facts.
• Prove the statement under arts. 2872–2874 CCQ and address each additional hearsay layer.
• Evaluate weight against the whole record while respecting any limitation on use.