R. v. Couture (D.R.), (2007) 244 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court of Canada
• Case Date: May 15, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 244 B.C.A.C. 1 (SCC);2007 SCC 28;[2007] 8 WWR 579;47 CR (6th) 1;280 DLR (4th) 577;364 NR 1;[2007] SCJ No 28 (QL);220 CCC (3d) 289;[2007] 2 SCR 517;68 BCLR (4th) 1;244 BCAC 1

R. v. Couture (D.R.) (2007), 244 B.C.A.C. 1 (SCC);

  403 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2007] B.C.A.C. TBEd. JN.040

Her Majesty The Queen (appellant) v. David Raymond Couture (respondent) and Attorney General of Ontario (intervenor)

(30975; 2007 SCC 28; 2007 CSC 28)

Indexed As: R. v. Couture (D.R.)

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

June 15, 2007.

Summary:

The accused was charged with two counts of second degree murder.

The British Columbia Supreme Court admitted into evidence two out-of-court statements given to the police by the accused's wife (see [2003] B.C.T.C. Uned. 431). In her statements, the wife disclosed that before her marriage to the accused she had been his Christian counsellor while he was in prison for unrelated offences and that, during that counselling, he had told her that he murdered two women. The statements were given by the wife at a time when she was estranged from the accused. They had since reconciled and the wife was neither competent nor compellable to testify for the Crown. Based on R. v. Hawkins (S.C.C.), the court admitted the wife's statements under the principled exception to the hearsay rule.

The British Columbia Supreme Court, in a decision at [2003] B.C.T.C. Uned. 939, found the accused guilty of the offences. The accused appealed from the convictions.

The British Columbia Court of Appeal, in a decision reported at 211 B.C.A.C. 213; 349 W.A.C. 213, allowed the appeal. The court distinguished R. v. Hawkins, ruled that the wife's statements were inadmissible, set aside the convictions and ordered a new trial. The Crown appealed.

The Supreme Court of Canada, Bastarache, Deschamps, Abella and Rothstein, JJ., dissenting, dismissed the appeal. The court held that admission of the wife's out-of-court statements would violate the spousal incompetency rule in this case. Consequently, the British Columbia Court of Appeal was correct in holding that this case was distinguishable from R. v. Hawkins and in ruling the wife's out-of-court statement inadmissible. The court also held that the trial judge had erred in her assessment of the statements' threshold reliability.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Supreme Court of Canada stated that "Although there are no hard and fast rules about the manner of conducting the hearsay admissibility inquiry, there are good reasons to look first at whether there are adequate substitutes for testing the evidence. The presence or absence of adequate substitutes is usually more easily ascertainable. Further, whenever the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement's truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact" - See paragraph 87.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Supreme Court of Canada stated that "Unless there is good reason to modify an established common law rule, the modern approach to hearsay should be applied in a manner which preserves and reinforces the integrity of the traditional rules of evidence. This overarching principle was expressly reiterated by Lamer, C.J., and Iacobucci, J., in [R. v.] Hawkins in their general discussion of the principled approach (para. 69). The spousal incompetency rule was reaffirmed in Hawkins. The court was unanimous in finding that any substantial reform of the rule was a matter better left for Parliament. Consequently, it is one of those traditional rules of evidence that should not be undermined by the application of the principled exception to hearsay" - See paragraph 55.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - In R. v. Hawkins (S.C.C.), the majority ruled that a spouse's preliminary hearing testimony, given before her marriage to the accused, was admissible under the principled exception to the hearsay rule - The Supreme Court of Canada stated that "Hawkins was based on its own particular fact situation and did not create a broad exception that would admit all out-of- court statements made by spouses on the basis of threshold reliability alone. In addition, regard must also be had to the particular circumstances of the case to determine whether the admission of the evidence would undermine the spousal incompetency rule" - The court further stated that it would not characterize the court's consideration of the spousal incompetency rule as a matter of "residual discretion" under the principled exception to the hearsay rule - The court stated that "the fact that the rule cannot be ignored is rather a feature of the 'principled exception' to the hearsay rule itself. This modern approach, as the coined expression reveals, is based on principle. Unless there is good reason to depart from an established principle, the modern approach to hearsay admissibility must be applied in a manner that preserves its integrity. Hence, as was done in Hawkins, hearsay evidence may be admitted under the principled approach if it meets the twin criteria of necessity and reliability and if its admission would not undermine the spousal incompetency rule or its rationales" - See paragraphs 62 to 63.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - In R. v. Hawkins (S.C.C.), the majority ruled that a spouse's preliminary hearing testimony, given before her marriage to the accused, was admissible under the principled exception to the hearsay rule - The Supreme Court of Canada stated that Hawkins did not create a broad exception that would admit all out-of-court statements made by spouses on the basis of threshold reliability alone - In addition, it had to be determined whether admission of the evidence would undermine the spousal incompetency rule - The court stated that "The question to be answered is whether, in the circumstances of the particular case, the evidence may be admitted under the principled exception without undermining the spousal incompetency rule. It is important to keep the spousal incompetency inquiry analytically distinct from the hearsay inquiry. As explained earlier, the spousal incompetency rule is based on different rationales that are unconnected to the reliability concerns arising from the hearsay nature of the evidence. Analytically, nothing turns on whether the spousal incompetence inquiry is considered before the hearsay analysis or after when the impact of admitting the evidence may be easier to ascertain. However, when the impact is clear, considering the spousal incompetency issue first may promote judicial economy. The preferred approach will depend on the particular facts" - See paragraph 64.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - In R. v. Hawkins (S.C.C.), the majority ruled that a spouse's preliminary hearing testimony, given before her marriage to the accused, was admissible under the principled exception to the hearsay rule - The Supreme Court of Canada stated that Hawkins did not create a broad exception that would admit all out-of-court statements made by spouses on the basis of threshold reliability alone - In addition, it had to be determined whether admission of the evidence would undermine the spousal incompetency rule - The court stated that "In determining the spousal competency issue, the circumstances surrounding the creation of the evidence are a relevant consideration - while the rule is testimonial in nature and only prevents a spouse from testifying against the accused spouse, its underlying rationales, particularly the preservation of marital harmony, necessarily extend beyond the actual trial itself. The effect of admitting the evidence on the trial process itself is also relevant, particularly having regard to the second rationale of the rule - preventing the indignity of conscripting an accused's spouse to participate in the accused's own prosecution" - See paragraph 65.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - In R. v. Hawkins (S.C.C.), the majority ruled that a spouse's preliminary hearing testimony, given before her marriage to the accused, was admissible under the principled exception to the hearsay rule - The Supreme Court of Canada stated that Hawkins did not create a broad exception that would admit all out-of-court statements made by spouses on the basis of threshold reliability alone - In addition, it had to be determined whether admission of the evidence would undermine the spousal incompetency rule - The court stated that "In considering whether the admission of the evidence would undermine the spousal incompetency rule or its underlying rationales, it is my view that the inquiry should not be focussed on the individual marriage ... The rule is triggered by the very existence of a valid and subsisting marriage. Unless the accused and the spouse are irreconcilably separated, thus giving rise to the exception in Salituro, the extent to which there is marital harmony or marital discordance in the particular marriage is irrelevant. The question rather is whether, from an objective standpoint, the operation of the principled exception to the hearsay rule in the particular circumstances of the case would be disruptive of marital harmony or give rise to the natural repugnance resulting from one spouse testifying against the other" - See paragraph 66.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was convicted of two counts of second degree murder - The trial judge admitted into evidence two out-of-court statements given to the police by the accused's wife - In the statements, the wife disclosed that before her marriage to the accused, he had told her that he murdered two women - The statements were given by the wife at a time when she was estranged from the accused - They had since reconciled and the wife was neither competent nor compellable to testify for the Crown - One statement was audiotaped and one was videotaped, and neither was given under oath - Based on R. v. Hawkins (S.C.C.), the trial judge admitted the wife's statements under the principled exception to the hearsay rule - On appeal, the British Columbia Court of Appeal distinguished Hawkins, ruled the statements inadmissible and ordered a new trial - The Crown appealed - The Supreme Court of Canada dismissed the appeal - The court held that admission of the wife's out-of-court statements would violate the spousal incompetency rule in this case - Consequently, the British Columbia Court of Appeal was correct in holding that this case was distinguishable from Hawkins and in ruling the wife's out-of-court statement inadmissible - The court also held that the trial judge erred in her hearsay analysis and that the wife's statements did not meet the threshold requirement of reliability - See paragraphs 68 to 102.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was convicted of two counts of second degree murder - The trial judge admitted into evidence two out-of-court statements given to the police by the accused's wife - In the statements, the wife disclosed that the accused had told her that he murdered two women - The trial judge admitted the statements under the principled exception to the hearsay rule - The Supreme Court of Canada held, inter alia, that the trial judge erred in her assessment of the statements' threshold reliability - The trial judge had to start from the premise that the statements were presumptively inadmissible and then search for indicia of trustworthiness that could overcome the general exclusionary rule - However, the trial judge reversed the onus - She started her analysis with the statement that "[t]he circumstances surrounding the first and second statement, do not lead to a conclusion that would defeat threshold reliability" and ended it by concluding that "[t]he circumstances with regard to the statements did not raise the spectre of untruthfulness" - In reading her reasons as a whole, the court could only conclude that she effectively reversed the onus - See paragraph 85.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was convicted of two counts of second degree murder - The trial judge admitted into evidence two out-of-court statements given to the police by the accused's wife - In the statements, the wife disclosed that before her marriage to the accused he had told her that he murdered two women - The wife was estranged from the accused when she gave the statements - They had since reconciled and the wife was neither competent nor compellable to testify for the Crown - Based on R. v. Hawkins (S.C.C.), the trial judge admitted the wife's statements under the principled exception to the hearsay rule - The Supreme Court of Canada held, inter alia, that the trial judge erred in her assessment of the statements' threshold reliability - Absent the opportunity to cross-examine the wife, there was no basis upon which the court could find that there were adequate substitutes for testing the accuracy and truth of her statements - The court further stated that "because of the exigencies of the spousal incompetency rule, it is not open to the Crown to rely on the accused's ability to cross-examine his spouse as his own witness in order to meet its burden on the admissibility inquiry. The accused, in order to properly test the evidence put against him, would be forced to call his spouse as his witness, confront her in cross-examination, and ultimately also risk being convicted on the basis of her evidence. This approach would clearly undermine the rationales underlying the spousal incompetency rule and therefore cannot be countenanced by this court" - See paragraph 94.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was convicted of two counts of second degree murder - The trial judge admitted into evidence two out-of-court statements given to the police by the accused's wife - In the statements, the wife disclosed that before her marriage to the accused he had told her that he murdered two women - The wife was estranged from the accused when she gave the statements - They had since reconciled and the wife was neither competent nor compellable to testify for the Crown - Based on R. v. Hawkins (S.C.C.), the trial judge admitted the wife's statements under the principled exception to the hearsay rule - The Supreme Court of Canada held, inter alia, that the trial judge erred in her assessment of the statements' threshold reliability - The court stated that "The only circumstances the trial judge points to in support of her conclusion that the statements were sufficiently reliable are the following: 'no coercion', no 'preponderance of leading questions', no 'investigatory misconduct on the part of the police', and no 'motive to lie'. In addition, she places some reliance on the facts that the 'statement was given with little if any hesitation, and her demeanour, while flat, was conversational'. With respect, I see nothing in these circumstances that makes either one of [the wife's] statements such that 'even a sceptical caution would look upon it as trustworthy'. The circumstances identified by the trial judge, while relevant, in essence simply point to an absence of factors that, if present, would detract from an otherwise trustworthy statement. While the contents of the statements - an alleged disclosure of a suspect's confession to two murders - are unusual, there is nothing about the statements themselves that compels one to trust their truth and accuracy in this untested form. To the contrary, there is good reason to exercise particular caution - the declarant was an estranged spouse of the suspect recounting events from years previous" - See paragraphs 100 to 101.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was convicted of two counts of second degree murder - The trial judge admitted into evidence two out-of-court statements given to the police by the accused's wife - In the statements, the wife disclosed that before her marriage to the accused he had told her that he murdered two women - The wife was estranged from the accused when she gave the statements - They had since reconciled and the wife was neither competent nor compellable to testify for the Crown - Based on R. v. Hawkins (S.C.C.), the trial judge admitted the wife's statements under the principled exception to the hearsay rule - The Supreme Court of Canada held, inter alia, that the trial judge erred in her assessment of the statements' threshold reliability - The court stated, inter alia, that "The trial judge erred in finding that the three witnesses upon whom she relied provided any corroborative evidence. Each witness testified, in varying degrees, about being told by [the wife] that [the accused] disclosed information to her about the murders. This does not in any way constitute corroboration. Independent evidence that supports the truth of an assertion is corroborative. The fact that [the wife] may have disclosed similar information to others is neither independent nor supportive of the truth of her assertions about [the accused's] involvement in the murders" - However, the court stated that the wife's statements to other people, depending on the circumstances in which they were made, could be relevant to the question of the wife's motive to lie - See paragraph 83.

Evidence - Topic 5203

Witnesses - Corroboration - General principles - What constitutes corroboration - [See last Evidence - Topic 1527 ].

Evidence - Topic 5546

Witnesses - Competency and compellability - Competency - Spouses - [See second, third, fourth, fifth, sixth, seventh and ninth Evidence - Topic 1527 ].

Evidence - Topic 5603

Witnesses - Competency and compellability - Compellability - Particular persons - Spouses (incl. common law spouses) - [See second, third, fourth, fifth, sixth, seventh and ninth Evidence - Topic 1527 ].

Cases Noticed:

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, dist. [para. 3]; refd to. [para. 104].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [paras. 30, 112].

Gosselin v. The King (1903), 33 S.C.R. 255, refd to. [para. 40].

Canada v. Amway Corp. et al., [1989] 1 S.C.R. 21; 91 N.R. 18, refd to. [para. 40].

R. v. McGinty (1986), 1 Y.R. 27 (C.A.), refd to. [para. 40].

R. v. Lloyd and Lloyd, [1981] 2 S.C.R. 645; 39 N.R. 474; 64 C.C.C.(2d) 169, refd to. [para. 41].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [paras. 42, 135].

Hawkins v. United States (1958), 358 U.S. 74, refd to. [para. 46].

Trammel v. United States (1980), 445 U.S. 40, refd to. [para. 46].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [paras. 73, 114].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 195 C.C.C.(3d) 225; 2005 SCC 23, refd to. [para. 78].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [paras. 84, 116].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [paras. 92, 120].

R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), refd to. [para. 114].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 116].

R. v. W.J.F., [1999] 3 S.C.R. 569; 247 N.R. 62; 180 Sask.R. 161; 205 W.A.C. 161, refd to. [para. 117].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449; 2000 SCC 40, refd to. [para. 124].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 130].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 132].

R. v. Jean and Piesinger (1979), 15 A.R. 147; 7 C.R.(3d) 338 (C.A.), affd. [1980] 1 S.C.R. 400; 31 N.R. 410; 20 A.R. 360, refd to. [para. 148].

R. v. Henry (D.B.), [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 150].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4 [para. 38].

Authors and Works Noticed:

Canada, Law Commission, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001), generally [para. 46].

Manson, Allan, Spousal Testimony in Criminal Cases in Canada (2001), generally [para. 46].

Sankoff, Peter, Spousal Incompetence and the Principled Approach to Hearsay Admissibility: When Ancient and Modern Doctrines Collide (2006), 35 C.R.(6th) 43, p. 48 [para. 145].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 6.80 [para. 130]; 14.140 [para. 148]; 14.151 [para. 149].

Stewart, Hamish, Spousal Incompetency and the Charter (1996), 34 Osgoode Hall L.J. 411, generally [para. 46]; p. 417 [para. 43].

Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1974), vol. 5, p. 252, §1420 [para. 99].

Wigmore, John Henry, Evidence in Trials at Common Law (McNaughton Rev. 1961), vol. 8, p. 217, §2228 [para. 43].

Counsel:

Bruce Johnstone, for the appellant;

Susan M. Coristine and M. Kevin Woodall, for the respondent;

Jamie C. Klukach, for the intervenor.

Solicitors of Record:

Ministry of the Attorney General of British Columbia, Vancouver, British Columbia, for the appellant;

Crossin Coristine Woodall, Vancouver, British Columbia, for the respondent;

Crown Law Office, Toronto, Ontario, for the intervenor.

This appeal was heard on May 15, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on June 15, 2007, including the following opinions:

Charron, J. (McLachlin, C.J.C., Binnie, LeBel and Fish, JJ., concurring) - see paragraphs 1 to 102;

Rothstein, J., dissenting (Bastarache, Deschamps and Abella, JJ., concurring) - see paragraphs 103 to 151.