R. v. Nguyen (B.Q.) et al., 2015 ONCA 278

• Judge: Weiler, Gillese and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 06, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 278;(2015), 333 O.A.C. 199 (CA)

R. v. Nguyen (B.Q.) (2015), 333 O.A.C. 199 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.033

Her Majesty the Queen (respondent) v. Bao Quoc Nguyen, Kien Binh Tu and Bao Tri Nguyen (appellants)

(C51500; C52619; C52618; 2015 ONCA 278)

Indexed As: R. v. Nguyen (B.Q.) et al.

Ontario Court of Appeal

Weiler, Gillese and van Rensburg, JJ.A.

April 24, 2015.

Summary:

A man was shot and killed in a bar. The shooter was never identified. Bao Quoc Nguyen (Bao) and Kien Binh Tu (Binh) were convicted of first degree murder. Bao Tri Nguyen (Tri) was found guilty as an accessory after the fact to murder. As part of its case at trial, the Crown called as witnesses the common law spouses of both Bao and Tri. The Crown also led evidence of certain out-of-court statements made by Bao's common law spouse shortly after the shooting. Bao, Binh and Tri appealed their convictions, arguing that the trial judge erred in failing to extend the spousal incompetence rule to the common law spouses of Bao and Tri.

The Ontario Court of Appeal dismissed the appeals. The court declined to extend the spousal incompetency rule to common law spouses. The court held that limiting the scope of the rule to married spouses discriminated against common law spouses within the meaning of s. 15(1) of the Charter. "However, that limit also leaves the spouse of the accused person competent to testify. Testimonial competence affirms the dignity and autonomy of an individual. Therefore, the limit to the spousal incompetency rule has the effect of affirming the dignity and self-worth of witness spouses, except where those individuals have chosen to marry and thereby accept the state-imposed responsibilities and protections flowing from that status. Accordingly, in my view, the limit can be demonstrably justified under s. 1 of the Charter".

Civil Rights - Topic 925

Discrimination - Marital status - Common law relationships - At issue was whether the spousal incompetency rule should be extended to common law spouses - The Ontario Court of Appeal held that the spousal incompetency rule created a distinction between married and common law spouses based solely on the analogous ground of marital status and that distinction discriminated in a substantive sense - Accordingly, the spousal incompetency rule violated the equality rights in s. 15(1) of the Charter - However, the court held that the limit established by the spousal incompetency rule, namely, its application to married spouses only, was reasonable and justifiable under s. 1 of the Charter - Restricting the spousal incompetency rule to married spouses supported the objective of ensuring that a witness spouse was not deprived of the freedom of choice, individual autonomy and human dignity associated with testimonial competence, unless both common law spouses had chosen to marry and thereby accepted the state-imposed responsibilities and protections associated with that status - Furthermore, the impairment of the rights of common law spouses was minimized by the availability of the choice to marry - See paragraphs 68 to 132.

Civil Rights - Topic 5679.13

Equality and protection of the law - Evidence rules - [See Civil Rights - Topic 925 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 925 ].

Evidence - Topic 1712

Hearsay rule - Exceptions - Spontaneous exclamations - What constitutes - The victim was murdered in a karoke bar - One of the three accused, Bao, had a common law spouse (Quynh), who was also at the bar at the time of the incident - A waitress at the bar (Tran), testified as to certain out of court statements that Quynh made to her about Bao's conversations with the victim before the shooting - At issue was whether the trial judge erred in admitting Quynh's out-of-court statements to Tran about events leading up to the shooting under the spontaneous declaration exception to the hearsay rule - The trial judge found that the statements were made while Quynh was in a state of shock shortly after the shooting - The statements were made several minutes after the event - The Ontario Court of Appeal found no basis on which to interfere with the trial judge's ruling - See paragraphs 138 to 153.

Evidence - Topic 4181

Witnesses - Privilege - Husband and wife (incl. common law spouses) - General - [See first and second Evidence - Topic 5546 ].

Evidence - Topic 5546

Witnesses - Competency and compellability - Competency - Spouses (incl. common law spouses) - The Ontario Court of Appeal reviewed the distinct but related concepts of spousal competence, compellability and privilege - See paragraphs 10 to 20.

Evidence - Topic 5546

Witnesses - Competency and compellability - Competency - Spouses (incl. common law spouses) - The Ontario Court of Appeal stated that "Despite the trend towards testimonial competence, spouses of accused persons are competent and compellable witnesses for the prosecution only: 1) at common law, where the charge involves the person, liberty or health of the witness spouse; and 2) under ss. 4(2) and (4) of the CEA [Canada Evidence Act], in respect of certain enumerated offences: see R. v. Couture, 2007 SCC ... Spouses are, however, competent witnesses for the defence in criminal proceedings: s. 4(1) of the CEA" - Apart from those limited exceptions, married spouses of accused persons were neither competent nor compellable witnesses for the Crown (i.e., the spousal incompetency rule) - The court noted that the general common law rule was that competence implied compellability - However, the court noted that whether a spouse who was a competent witness for the prosecution was also compellable at the instance of the prosecution had not been finally resolved - See paragraphs 14 and 15.

Evidence - Topic 5546

Witnesses - Competency and compellability - Competency - The Ontario Court of Appeal stated that "The implications of the spousal incompetency rule extend beyond the in-person testimony of the witness spouse. At paras. 64-66 of Couture [SCC 2007], Charron J., writing for the majority, explains that the question to be answered when considering a spouse's out-of-court statement is whether the statement may be accepted into evidence as admissible hearsay without undermining the spousal incompetency rule or its underlying rationales. She emphasizes that it is important to keep the spousal incompetency rule inquiry analytically distinct from the hearsay inquiry" - See paragraph 19.

Evidence - Topic 5546

Witnesses - Competency and compellability - Competency - Spouses (incl. common law spouses) - [See Civil Rights - Topic 925 ].

Evidence - Topic 5603

Witnesses - Competency and compellability - Compellability - Particular persons - Spouses (incl. common law spouses) - [See first and second Evidence - Topic 5546 ].

Cases Noticed:

R. v. D.I., [2012] 1 S.C.R. 149; 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 11].

R. v. D.A.I. - see R. v. D.I.

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 13].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 14].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 15].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 15].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 262 O.A.C. 1; 2010 SCC 16, refd to. [para. 16].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 59].

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 61].

R. v. Masterson (F.), [2009] O.T.C. Uned. H34; 245 C.C.C.(3d) 400, refd to. [para. 68].

R. v. Hall (J.), [2013] O.T.C. Uned. 834; 114 O.R.(3d) 393; 2013 ONSC 834, refd to. [para. 68].

R. v. Legge (T.N.) (2014), 572 A.R. 29; 609 W.A.C. 29; 310 C.C.C.(3d) 404; 2014 ABCA 213, refd to. [para. 68].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 73].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 73].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 75].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 77].

A. v. B., [2013] 1 S.C.R. 61; 439 N.R. 1; 2013 SCC 5, refd to. [para. 82].

Quebec (Attorney General) v. A. - see A. v. B.

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 96].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 96].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 97, footnote 2].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 99].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 99].

Halpern et al. v. Canada (Attorney General) et al. (2003), 172 O.A.C. 276; 65 O.R.(3d) 161 (C.A.), refd to. [para. 99].

R. v. Morin (2009), 265 C.C.C.(3d) 285; 2009 QCCA 1131, refd to. [para. 140].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 145].

R. v. Khan (1988), 27 O.A.C. 142; 42 C.C.C.(3d) 197 (C.A.), affd. [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 146].

R. v. Dakin (W.E.) (1995), 80 O.A.C. 253 (C.A.), refd to. [para. 147].

R. v. Michaud (J.W.), [2004] O.A.C. Uned. 295 (C.A.), refd to. [para. 150].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 156].

R. v. Sekhon (A.S.), [2014] 1 S.C.R. 272; 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 161].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 164].

R. v. Soobrian (K.); R. v. Beaudry (J.R.) (1994), 76 O.A.C. 7; 21 O.R.(3d) 603 (C.A.), refd to. [para. 182].

R. v. Figliola (M.) et al. (2011), 281 O.A.C. 306; 105 O.R. (3d) 641; 2011 ONCA 457, refd to. [para. 182].

R. v. Sarrazin (R.) et al., [2011] 3 S.C.R. 505; 422 N.R. 214; 284 O.A.C. 170; 2011 SCC 54, refd to. [para. 188].

R. v. Haughton (D.), [1994] 3 S.C.R. 516; 179 N.R. 1; 79 O.A.C. 319, refd to. [para. 188].

Gilbert v. R., [2000] H.C.A. 15 (Austl. H.C.), refd to. [para. 191].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4(1) [para. 64].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 95]; sect. 15(1) [para. 72].

Authors and Works Noticed:

Bryant, Alan W., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (4th Ed. 2014), pp. 869 to 891 [para. 12].

Roach, Kent, The Spousal Incompetence Rule and Marital Privilege: Where an Anachronism Meets Reality (2012), 59 C.L.Q. 109, generally [para. 205].

Stuesser, Lee, Abolish Spousal Incompetency (2007), 47 C.R.(6th) 49, generally [para. 205].

Counsel:

James Lockyer and Brian Snell, for the appellants;

Jamie Klukach and Karen Papadopoulos, for the respondent.

This appeal was heard on November 6, 2014, before Weiler, Gillese and van Rensburg, JJ.A., of the Ontario Court of Appeal. The following opinions were released on April 24, 2015:

Gillese, J.A. (van Rensburg, J.A., concurring) - see paragraphs 1 to 157;

Weiler, J.A. (concurring) - see paragraphs 158 to 207.