R. v. Hawkins (K.R.) and Morin (C.), (1996) 96 O.A.C. 81 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 28, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 96 O.A.C. 81 (SCC)

R. v. Hawkins (K.R.) (1996), 96 O.A.C. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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

Kevin Roy Hawkins and Claude Morin (appellants) v. Her Majesty The Queen (respondent)

(24633, 24634)

Indexed As: R. v. Hawkins (K.R.) and Morin (C.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

November 28, 1996.

Summary:

A police officer and another were charged with conspiracy to obstruct justice, contrary to ss. 139(2) and 465(1)(c) of the Criminal Code. The officer was also charged with corruptly accepting money (s. 120(a)) and four counts of attempting to obstruct justice (s. 139(2)). At the preliminary inquiry, the officer's girlfriend (Graham) first testified that the officer accepted a bribe from the other accused. She then recanted, denying the truth of her earlier testimony. The officer and Graham married after the information charging the officer was laid, but before the trial commenced. The trial judge ruled that (1) Graham, as the officer's spouse, was not a compellable witness for the Crown, (2) that the testimony she gave at the prelimi­nary inquiry was not admissible under s. 715 of the Criminal Code, because there was no evidence that she refused to testify and (3) that her preliminary inquiry testimony was not admissible under any exception to the hear­say rule, because although the evidence was necessary it was not reliable. The Crown offered no evidence after these rul­ings and the accused were acquitted. The Crown appealed.

The Ontario Court of Appeal, in a judg­ment reported 79 O.A.C. 241, allowed the appeal, set aside the acquittals and ordered a new trial. Arbour and Galligan, JJ.A., re­fused to extend the exceptions to the com­mon law rule of spousal incompetence to make Graham a compellable witness for the Crown. They held that her preliminary inquiry testimony was admissible under s. 715 of the Criminal Code and, alternatively, that it was admissible as an exception to the hearsay rule, because the testimony was both necessary and reliable. Weiler, J.A., concur­ring in the result, would have extended the exceptions to the spousal incompetence rule to make Graham compellable by the Crown, where Graham and the officer were not married when the accused was charged in an information or directly indicted. Weiler, J.A., would not admit the testimony under s. 715 (no refusal to testify) or as an exception to the hearsay rule (testimony involved incon­sistent statements, not sufficiently reliable). The accused appealed.

The Supreme Court of Canada, Major, Sopinka and McLachlin, JJ., dissenting, dismissed the appeals and affirmed the order for a new trial. The court declined to extend the exceptions to the common law rule of spousal incompetence to make Graham a compellable witness for the Crown. The preliminary inquiry evidence was admissible as an exception to the hearsay rule, because the testimony was both necessary and reli­able and otherwise admissible (i.e., did not offend the spousal incompetence rule). The court held that the evidence was not admis­sible under s. 715 of the Criminal Code, because there was no "refusal" to testify.

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admis­sion at trial of evidence taken at prelimi­nary inquiry - Section 715(1) of the Crim­inal Code made testimony given at a preliminary inquiry admissible at trial where, inter alia, the witness refused to testify at trial - Graham gave contradictory testimony at the preliminary inquiry, first implicating the accused, then recanting - Graham married the accused before the trial and was now neither competent nor compellable by the Crown - The Ontario Court of Appeal held that Graham "re­fused" to testify within the meaning of s. 715 - By marrying the accused before trial, Graham deliberately rendered herself noncompellable - It did not matter that she did not specifically refuse to testify at trial - The Supreme Court of Canada held that the Court of Appeal erred - The common law rule of spousal incompetency disqual­ified Graham from giving evidence, even if she wanted to - There was no "refusal" to testify - The preliminary inquiry evi­dence was not admissible under s. 715 - See paragraphs 50 to 55.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - Graham gave contradictory testimony at a preliminary inquiry, first implicating the accused and then recanting - The testimony was under oath, fully and accurately recorded and transcribed, and she was cross-examined - Graham married the accused before trial, so she was neither competent nor compellable as a Crown witness - The Supreme Court of Canada affirmed that her testimony was admissible at trial (sub­ject to the trial judge's residual discretion to exclude) as an exception to the hearsay rule, because the hearsay was both neces­sary and reliable - The court held that the trial judge should not have exercised his discretion to exclude the evidence - Lamer, C.J.C., Iacobucci, Gonthier and Cory, JJ., held that whether the hearsay evidence should be excluded depended upon "fairness" to the accused (i.e., would admission subjectively violate the spousal incompetence rule) - L'Heureux-Dubé and La Forest, JJ., stated that the threshold question for exclusion was whether admis­sion would violate the spousal incompe­tence rule, without determining "fairness" on a case-by-case basis - Major, Sopinka and McLachlin, JJ., stated that admission of the evidence would offend the spousal incompetence rule - See paragraphs 56 to 96, 100 to 137, 147 to 162.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Supreme Court of Canada stated that "hearsay evi­dence will be necessary in circumstances where the declarant is unavailable to tes­tify at trial and where the party is unable to obtain evidence of a similar quality from another source ... Consistent with a flexible definition of the necessity cri­terion, there is no reason why the unavailability of the declarant should be limited to closed, enumerated list of causes. ... the preliminary inquiry testi­mony of a witness will satisfy the criterion of necessity where the witness is generally unavailable to testify at trial." - See para­graphs 69 to 70.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Supreme Court of Canada stated that "the require­ment of reliability will be satisfied where the hearsay statement was made in cir­cumstances which provide sufficient guar­antees of its trustworthiness. ... The cri­terion of reliability is concerned with threshold reliability, not ultimate reliabil­ity. The function of the trial judge is limited to determining whether the par­ticular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evalu­ating the truth of the statement. ... The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact. We are persuaded that a witness's testimony before a preliminary inquiry will generally satisfy this threshold test of reliability since there are sufficient guarantees of trustworthiness. A preliminary inquiry will involve pre­cisely the same issues and the same parties as the trial. The hearsay dangers associated with testimony in such an adjudicative proceeding are minimal. Preliminary inquiry testimony is given under oath, and is also subject to the adverse party's right to contemporaneous cross-examination. It is only tainted by the lack of the declar­ant's presence before the trier of fact." - See paragraphs 72 to 74.

Evidence - Topic 5546

Witnesses - Competency and compella­bility - Competency - Spouses - Two accused were charged with criminal offen­ces - Graham (one accused's girl­friend) gave contradictory testimony at the pre­liminary inquiry, first implicating the accused, then recanting - Graham and the accused married before trial - The Ontario Court of Appeal held that even if the marriage was intended to render Graham incompetent and noncompellable as a Crown witness, the court would not extend the exceptions to the common law rule of spousal incompetence - The marriage was valid and still in existence, so there was a marital bond worth preserving - Unless the marriage was fraudulent or a sham, which the Crown did not allege, testimo­nial incompetence and noncompellability applied - The Supreme Court of Canada affirmed that "no modification of the com­mon law rule of spousal incompetence should be made in this case" - See para­graphs 34 to 49.

Evidence - Topic 5546

Witnesses - Competency and compella­bility - Competency - Spouses - The Supreme Court of Canada stated that "the rule of spousal incompetency renders a spouse incapable of testifying in relation to events which occurred both before and during the marriage" - The remaining two justifications for the rule were (1) the promotion of conjugal confidences and protection of marital harmony and (2) prevention of the natural repugnance against conscripting an accused's spouse to participate in the accused's own prosecu­tion - The court stated that although the rule may be antiquated and even be con­trary to the autonomy and dignity of an individual spouse, any significant change to the rule should be made by Parliament, not the courts - Courts will make only incremental changes to the common law; complex changes with uncertain ramifica­tions should be left to Parliament - See paragraphs 35 to 42.

Evidence - Topic 5603

Witnesses - Competency and compella­bility - Compellability - Spouses - [See both Evidence - Topic 5546 ].

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 2].

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

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 2].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125; 68 C.C.C.(3d) 289, refd to. [para. 19].

R. v. Audley (Lord); Castlehaven's (Earl) Case (1631-1632), Hut. 115; 123 E.R. 1140 (H.L.), refd to. [para. 34].

Audley's (Lord) Case - see R. v. Audley (Lord); Castlehaven's (Earl) Case.

Bentley v. Cooke (1784), 3 Doug. K.B. 422; 99 E.R. 729, refd to. [para. 34].

R. v. Bissell (1882), 1 O.R. 514 (C.A.), refd to. [para. 34].

Pedley v. Wellesley (1829), 3 C. & P. 558; 172 E.R. 545, refd to. [para. 35].

R. v. Lonsdale (1973), 15 C.C.C.(2d) 201 (Alta. C.A.), refd to. [para. 35].

Trammel v. United States (1980), 445 U.S. 40, refd to. [para. 38].

Hoskyn v. Metropolitan Police Commis­sioner, [1979] A.C. 474 (H.L.), refd to. [para. 39].

Gosselin v. R. (1903), 33 S.C.R. 255, refd to. [para. 39].

R. v. Spencer (1983), 145 D.L.R.(3d) 344 (Ont. C.A.), affd. [1985] 2 S.C.R. 278; 62 N.R. 81; 11 O.A.C. 207, refd to. [para. 39].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 39].

R. v. McGinty (1986), 27 C.C.C.(3d) 36 (Y.T.C.A.), refd to. [para. 39].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 41].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81; 61 D.L.R.(4th) 577; [1989] 6 W.W.R. 481; 39 B.C.L.R.(2d) 294; 50 C.C.L.T. 101, refd to. [para. 41].

Lutwak v. United States (1953), 344 U.S. 604 (U.S.S.C.), refd to. [para. 48].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258; 47 C.C.C.(3d) 289, refd to. [para. 51].

R. v. Snelgrove (1906), 12 C.C.C. 189 (N.S.S.C.), refd to. [para. 54].

Cuff v. Frazee Storage & Cartage Co. (1907), 14 O.L.R. 263 (C.A.), refd to. [para. 54].

Caufield v. R. (1926), 48 C.C.C. 109 (Que. K.B.), refd to. [para. 54].

R. v. Thompson, [1982] 1 All E.R. 907 (C.A.), refd to. [para. 55].

Wright v. Doe d. Tatham (1834), 1 Ad. & El. 3; 110 E.R. 1108, refd to. [para. 60].

R. v. Beeston (1854), Dears. C.C. 405; 169 E.R. 782 (C.C.A.), refd to. [para. 60].

R. v. Lee (1864), 4 F. & F. 63; 176 E.R. 468, refd to. [para. 60].

R. v. Hall, [1973] 1 Q.B. 496 (C.A.), refd to. [para. 60].

Walkertown (Town) v. Erdman (1894), 23 S.C.R. 352, refd to. [para. 61].

R. v. Scaife (1851), 2 Den. 281; 169 E.R. 505, refd to. [para. 62].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 64].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, refd to. [para. 67].

R. v. Rockey (S.E.) (1996), 204 N.R. 214; 95 O.A.C. 134 (S.C.C.), refd to. [para. 69].

Ohio v. Roberts (1980), 448 U.S. 56, refd to. [para. 76].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, refd to. [para. 81].

R. v. Clarke (R.) (1993), 82 C.C.C.(3d) 377 (Ont. Gen. Div.), affd. (1994), 95 C.C.C.(3d) 275 (C.A.), leave to appeal refused [1995] 3 S.C.R. vi; 196 N.R. 239; 89 O.A.C. 160, refd to. [para. 81].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 83].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117, refd to. [para. 83].

United States v. Archer (1984), 733 F.2d 354 (5th Cir.), refd to. [para. 104].

R. v. Kobussen (G.P.) (1995), 130 Sask.R. 147 (Q.B.), refd to. [para. 104].

R. v. Levogiannis, [1993] 4 S.C.R. 475; 160 N.R. 371; 67 O.A.C. 321, refd to. [para. 113].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 113].

Ivey v. United States (1965), 344 F.2d 770 (Ct. App. 5th Cir.), refd to. [para. 117].

United States v. Tsinnijinnie (1979), 601 F.2d 1035 (9th Cir.), refd to. [para. 120].

United States v. Brown (1979), 605 F.2d 389 (8th Cir.), refd to. [para. 120].

United States v. Doughty (1972), 460 F.2d 1360 (7th Cir.), refd to. [para. 120].

United States v. Cleveland (1973), 477 F.2d 310 (7th Cir.), refd to. [para. 120].

United States v. Chapman (1989), 866 F.2d 1326 (11th Cir.), refd to. [para. 120].

United States v. Donlon (1990), 909 F.2d 650 (1st Cir.), refd to. [para. 120].

Ballard v. State (1984), 311 S.E.2d 453 (Ga.), refd to. [para. 120].

R. v. McKinnon (1989), 33 O.A.C. 114; 70 C.R.(3d) 10 (C.A.), refd to. [para. 123].

R. v. Jean and Piesinger, [1980] 1 S.C.R. 400; 31 N.R. 410; 20 A.R. 360, affing. (1979), 15 A.R. 147; 7 C.R.(3d) 338 (C.A.), refd to. [para. 124].

R. v. Lloyd and Lloyd, [1981] 2 S.C.R. 645; 39 N.R. 474, refd to. [para. 125].

R. v. Andrew (1986), 26 C.C.C.(3d) 111 (B.C.S.C.), refd to. [para. 125].

Rumping v. Director of Public Prosecu­tions, [1962] 3 All E.R. 256 (H.L.), refd to. [para. 127].

R. v. Smithies (1832), 5 C. & P. 332; 172 E.R. 999, refd to. [para. 127].

R. v. Bartlett (1837), 7 C. & P. 832; 173 E.R. 362, refd to. [para. 127].

R. v. Czipps (1979), 48 C.C.C.(2d) 166 (Ont. C.A.), refd to. [para. 135].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, refd to. [para. 138].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385; 28 B.C.L.R.(2d) 145, refd to. [para. 139].

Statutes Noticed:

Administration of Justice Act (No. 1), 1848 (U.K.), 11 & 12 Vict., c. 42, sect. 17 [para. 51].

Canada Evidence Act, 1893, An Act fur­ther to amend, S.C. 1906, c. 10, sect. 1 [para. 39].

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4 [para. 15]; sect. 16(1), sect. 16(2), sect. 16(3), sect. 16(4) [para. 148].

Canadian Charter of Rights and Freedoms, sect. 11(d) [para. 83].

Criminal Code, R.S.C. 1985, c. C-46, sect. 120(a), sect. 139(2), sect. 465(1)(c) [para. 9]; sect. 691(2)(a) [para. 33]; sect. 715(1) [para. 15].

Immigration Act Regulations (Can.), Im­migration Regulations, SOR/78-172, sect. 4(3) [para. 47].

Immigration Regulations - see Immigra­tion Act Regulations (Can.).

Justices of the Peace, out of Sessions, in relation to persons charged with Indict­able Offences, An Act respecting the duties of, S.C. 1869, c. 30, sect. 30 [para. 51].

Authors and Works Noticed:

Canada, Federal/Provincial Task Force on Uniform Rules of Evidence, Report of (1982), pp. 256 to 260 [para. 38].

Canada, Law Reform Commission, Law of Evidence Project, Study Paper No. 1, Evidence: Competence and Compellability (1972), pp. 6, 7 [para. 39].

Canada, Law Reform Commission, Report on Evidence (1975), pp. 88 to 90 [para. 38].

Cross and Tapper on Evidence (8th Ed. 1995), pp. 236 [para. 44]; 237 to 240 [para. 38]; 721 [paras. 57, 62, 76].

Louisell, David W., and Mueller, Christopher B., Federal Evidence (1985), vol. 2, pp. 874, 875 [para. 121].

McCormick on Evidence (4th Ed. 1992), vol. 2, §301 [para. 57]; 322 [para. 76]

Medine, David, The Adverse Testimony Privilege: Time to Dispose of a "Senti­mental Relic" (1988), 67 Oreg. L. Rev. 519, pp. 545, 546 [para. 131]; 555 [para. 103].

Phipson on Evidence (14th Ed. 1990), pp. 154, 155 [para. 38]; 931 [para. 57]; 933 [para. 62].

Regan, Milton C. Jr., Spousal Privilege and the Meanings of Marriage (1995), 81 Va. L. Rev. 2045, generally [para. 119].

Schiff, Stanley A., Evidence in the Litiga­tion Process (4th Ed. 1993), pp. 212 [para. 110]; 431, 432 [para. 54].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 270 [para. 57]; 274 [para. 54]; 616 [paras. 110, 130]; 684, 685 [para. 126].

Wigmore, John Henry, Evidence in Trials at Common Law (McNaughton Rev. 1961), vol. 8, §1421 [para. 69]; §2228 [para. 36]; §2230 [paras. 35, 44]; §2232 [para. 155]; §2325 [para. 156].

Counsel:

Peter B. Hambly, for the appellant, Kevin Roy Hawkins;

Harald A. Mattson, for the appellant, Claude Morin;

Catherine Cooper and Jamie Klukach, for the respondent.

Solicitors of Record:

Peter B. Hambly, Kitchener, Ontario, for the appellant, Kevin Roy Hawkins;

Harald A. Mattson, Kitchener, Ontario, for the appellant, Claude Morin;

Catherine A. Cooper and Jamie Klukach, Toronto, Ontario, for the respondent.

These appeals were heard on March 18, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On November 28, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, C.J.C., and Iacobucci, J. (Gon­thier and Cory, JJ., concurring) - see paragraphs 1 to 97;

L'Heureux-Dubé, J. - see paragraphs 98 to 136;

La Forest, J. - see paragraphs 137 to 139;

Major, J., dissenting (Sopinka and Mc­Lachlin, JJ., concurring) - see para­graphs 140 to 162.