Supreme Court Judgments

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

David Raymond Couture

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

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

______________________________

r. v. couture

Her Majesty The Queen                                                                                  Appellant

v.

David Raymond Couture                                                                              Respondent

and

Attorney General of Ontario                                                                          Intervener

Indexed as:  R. v. Couture

Neutral citation:  2007 SCC 28.

File No.:  30975.

2006:  May 15; 2007: June 15.

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

on appeal from the court of appeal for british columbia

Criminal law — Evidence — Hearsay — Admissibility — Spousal incompetency rule — Trial judge admitting into evidence accused’s spouse out‑of‑court statements made to police during marriage — Whether statements admissible under principled exception to hearsay rule — Whether admission of statements would undermine spousal incompetency rule or its underlying rationales.

The accused was convicted of two counts of second degree murder.  His convictions were based, in part, on two out‑of‑court statements made by his spouse C.  She had disclosed to the police that some time before their marriage, she had been the accused’s Christian volunteer counsellor in prison where he was serving time on unrelated offences and that during the course of the counselling, he had confided in her that he had murdered two women.  The first statement was audio taped and the second videotaped, but neither statement was made under oath.  At the time C gave the two statements she was living estranged from the accused.  The couple reconciled shortly after and, at the time of trial, their marriage was valid and subsisting.  As C was not a competent or compellable witness for the Crown, the trial judge, based on the authority of this Court’s decision Hawkins, admitted C’s hearsay statements under the principled exception to the hearsay rule having found that both necessity and threshold reliability had been met.  The Court of Appeal distinguished Hawkins, ruled the statements inadmissible, set aside the convictions, and ordered a new trial.  The sole question before this Court concerns the admissibility of C’s out‑of‑court statements.  The Crown contends that, as a matter of principle, this Court has ruled in Hawkins that the spousal incompetency rule does not extend to a spouse’s out‑of‑court statements and, because necessity is made out by reason of the spouse’s incompetency, any out‑of‑court statement from the spouse may be admitted under the principled exception to the hearsay rule, provided that it is sufficiently reliable.

Held (Bastarache, Deschamps, Abella, and Rothstein JJ. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and Binnie, LeBel, Fish and Charron JJ.:  The spouse’s out‑of‑court statements are inadmissible because their admission under the principled exception to hearsay would, in the circumstances of this case, undermine the spousal incompetency rule and its underlying rationales.  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.  Here, the approach advocated by the Crown and adopted by the trial judge must be rejected.  This approach represents a drastic change in the role played by the spouse in criminal law trials and such a substantial reform of the spousal incompetency rule is a matter better left for Parliament.  Moreover, this approach is not consistent with Hawkins.  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.  Reliability alone cannot overcome the rule because spousal incompetency is not based on any concern about the reliability of a spouse’s testimony.  The evidence is excluded, not because it lacks probative value but, rather, on policy grounds based on broader social interests.  In addition, Hawkins indicates that 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. [51] [54‑55] [62]

Accordingly, 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.  Consideration of the rule is not a matter of residual discretion.  Since the rule is based on rationales that are unconnected to the reliability concerns arising from the hearsay nature of the evidence, the spousal incompetency inquiry must be kept analytically distinct from the hearsay inquiry.  In the spousal competency inquiry, the circumstances surrounding the creation of the evidence are a relevant consideration and, in considering whether the admission of the evidence would undermine the spousal incompetency rule or its underlying rationales, 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, 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.  Here, the Court of Appeal was correct to distinguish Hawkins.  The operation of the principled approach to the hearsay rule would effectively thwart the spousal competency rule and, consequently, cannot provide a basis for admitting the evidence in this case. [63‑66] [70‑71]

There is a second basis for distinguishing Hawkins.  While the Crown has established necessity because C is neither competent nor compellable to testify for the prosecution, her statements were not sufficiently reliable to warrant admission under the principled exception to the hearsay rule.  First, the trial judge erred in finding that the three witnesses upon whom she relied provided any corroborative evidence. Independent evidence that supports the truth of an assertion is corroborative.  The fact that C 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. Second, the trial judge did not apply the correct test.  A trial judge must start from the premise that the statements are presumptively inadmissible and then search for indicia of trustworthiness that can overcome the general exclusionary rule.  Here, the trial judge reversed the onus.  She also failed to consider whether the admission of the evidence under the principled approach would undermine the spousal incompetency rule or its rationales.  In light of these errors, the trial judge’s ruling is not entitled to deference and it is open to this Court to come to its own conclusion on the question of admissibility. [5] [72] [79] [83] [85‑86]

The criterion of reliability is usually met either because of the way in which the statement came about, its contents are trustworthy, or where circumstances permit the ultimate trier of fact to sufficiently assess its worth.  In the circumstances of this case, absent the opportunity to cross‑examine C, there is no basis upon which a court could find that there are adequate substitutes for testing the accuracy and truth of C’s statements.  Neither statement was given under oath and the first statement — the pivotal one — was not videotaped.  Although the police videotaped the second statement, C did not repeat the crucial evidence in that statement.  Because of the exigencies of the spousal incompetency rule, it is not open to the Crown, which bears the onus of showing that there are adequate substitutes, 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 confront his spouse 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.  Moreover, there is nothing about the statements themselves that compels one to trust their truth and accuracy in this untested form.  [80] [89‑91] [94] [101]

Per Bastarache, Deschamps, Abella and Rothstein JJ. (dissenting):  This appeal raises the question of the impact of the spousal incompetence rule on the principled approach to the admission of hearsay evidence.  This Court resolved this issue in Hawkins by finding that the rule does not affect the necessity and reliability assessment but can be considered as a part of a trial judge’s residual discretion to exclude hearsay where to admit a spouse’s statements would result in “unfairness” to the accused.  The majority’s reasons effectively endorse the dissent in Hawkins.  The majority reasons are also a departure from this Court’s previous rulings regarding what gives hearsay evidence circumstantial indicia of reliability that would allow it to be admitted under the principled approach to hearsay. [104]

The trial judge proceeded on the correct assumption that the judgment of this Court in Hawkins determined the principles to be applied when the issue is an out‑of‑court statement of a spouse.  The Crown has established necessity because C is neither competent nor compellable to testify for the prosecution.  With respect to the second requirement, reliability is satisfied where the hearsay statement is made in circumstances which provide sufficient guarantees of its trustworthiness.  While the importance of an oath and cross‑examination cannot be disputed, their availability is not the sine qua non of admissibility under the principled approach to hearsay.  To place too much focus on their absence as a reason for excluding hearsay statements may have the effect of leaving a witness’s otherwise reliable and relevant evidence altogether unutilized.  In this case, the trial judge made a reasonable factual finding that C’s statements met threshold reliability.  She noted the importance of both an oath and a cross‑examination, and their absence in relation to C’s hearsay evidence.  However, after listening to the audiotape of the first statement, watching the videotape of the second interview, reading the transcripts of both interviews and hearing from the police officers who conducted the interviews, she concluded that the hearsay dangers of coercion, leading questions, or other investigatory misconduct on the part of the police were not present during either statement and that the statements were made voluntarily and without suggestion.  The trial judge also concluded on the basis of the evidence at the voir dire that C had no motive to mislead.  The trial judge applied the correct test for determining threshold reliability and placed the onus on the Crown to establish that C’s statements met that threshold.  In the end, her reasons demonstrate that she accepted facts which constitute sufficient indicia to conclude that C’s statements met threshold reliability.  Lastly, it is not open to the Crown to rely on the accused’s exclusive right to call the spouse as a witness in order to meet its burden of proving threshold reliability on the admissibility inquiry.  However, the trial judge’s finding of reliability in no way hung upon the accused’s opportunity to call C at trial. [106] [112‑113] [116‑117] [119‑120] [129] [132‑133]

Under the principled approach to the admission of out‑of‑court statements, even where a particular hearsay statement satisfies the criteria for necessity and reliability, the hearsay statement remains subject to the trial judge’s residual discretion to exclude a statement where its probative value is slight and undue prejudice might result to the accused.  It is at this stage that a policy consideration justifying the spousal incompetency rule may have an impact on the admissibility of an accused’s spouse’s out‑of‑court statements.  The reasons of the trial judge in this case do not indicate that she considered any potential harm to the couple’s marital harmony in finding the statements admissible.  However, it also appears from the record that the accused never raised the issue or tendered any evidence on this point.  A trial judge is not obliged to address a potential issue that the parties have not raised.  Where evidence is led on the issue, the “unfairness” inquiry requires an assessment of whether the admission of the hearsay statement will jeopardize the accused’s marital harmony.  When the marriage took place is irrelevant.  Here, the admission of the hearsay statements would not result in such “unfairness”.  The evidence indicates that the parties reconciled despite the accused knowing that his wife gave voluntary statements to the police.  Their marital bond remained intact up to and including the time of trial.  Any threat to the couple’s marital harmony would have occurred at the time when the accused discovered that his wife voluntarily approached the police.  If this did not jeopardize the couple’s relationship, it is difficult to see how admitting C’s hearsay statements into evidence at trial would do so. [134] [139] [141‑142] [144]

The extent to which the spousal testimonial incompetence rule may preclude the admission of otherwise admissible hearsay statements must be considered in the context of the rationale that weighs heavily in support of admitting the evidence:  the fact that a trial is primarily a truth‑seeking inquiry.  This consideration supports limiting the impact of the rule on the assessment of hearsay admissibility to the analytical framework set out by the majority in Hawkins. [150]

Cases Cited

By Charron J.

Distinguished:  R. v. Hawkins, [1996] 3 S.C.R. 1043; referred to: R. v. B. (K.G.), [1993] 1 S.C.R. 740; Gosselin v. The King (1903), 33 S.C.R. 255; R. v. Amway Corp., [1989] 1 S.C.R. 21; R. v. McGinty (1986), 1 Y.R. 27; Lloyd v. The Queen, [1981] 2 S.C.R. 645; R. v. Salituro, [1991] 3 S.C.R. 654; Hawkins v. United States, 358 U.S. 74 (1958); Trammel v. United States, 445 U.S. 40 (1980); R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57; R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23; R. v. Khan, [1990] 2 S.C.R. 531; R. v. U. (F.J.), [1995] 3 S.C.R. 764.

By Rothstein J. (dissenting)

R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57; R. v. Czibulka (2004), 189 C.C.C. (3d) 199; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. F. (W.J.), [1999] 3 S.C.R. 569; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Jean (1979), 7 C.R. (3d) 338, aff’d [1980] 1 S.C.R. 400; R. v. Henry, [2005] 3 S.C.R. 609, 2005 SCC 76.

Statutes and Regulations Cited

Canada Evidence Act , R.S.C. 1985, c. C‑5 , s. 4 .

Crimes Act 1958 (Vic.), s. 400.

Authors Cited

Canada.  Law Commission.  Beyond Conjugality:  Recognizing and supporting close personal adult relationships.  Ottawa:  The Commission, 2001.

Manson, Allan.  Spousal Testimony in Criminal Cases in Canada.  A Report for the Law Commission, September 2001.

Sankoff, Peter.  “Spousal Incompetence and the Principled Approach to Hearsay Admissibility:  When Ancient and Modern Doctrines Collide” (2006), 35 C.R. (6th) 43.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada, 2nd ed.  Markham, Ontario: Butterworths, 1999. 

Stewart, Hamish.  “Spousal Incompetency and the Charter” (1996), 34 Osgoode Hall L.J. 411.

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 5.  Revised by James H. Chadbourn.  Boston: Little, Brown & Co., 1974.

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 8.  Revised by John T. McNaughton.  Boston: Little, Brown & Co., 1961.

APPEAL from a judgment of the British Columbia Court of Appeal (Esson, Southin and Oppal JJ.A.) (2005), 196 C.C.C. (3d) 564, 211 B.C.A.C. 213, 349 W.A.C. 213, [2005] B.C.J. No. 748 (QL), 2005 BCCA 205, reversing a decision of Morrison J., [2003] B.C.J. No. 3209 (QL), 2003 BCSC 2026, and ordering a new trial.  Appeal dismissed, Bastarache, Deschamps, Abella and Rothstein JJ. dissenting.

Bruce Johnstone, for the appellant.

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

Jamie C. Klukach, for the intervener.

The judgment of McLachlin C.J. and Binnie, LeBel, Fish and Charron JJ. was delivered by

Charron J. —

1.  Overview

1                                   David Couture was convicted of two counts of second degree murder in respect of the 1986 killings of his ex-girlfriend Darlinda Lee Ritchey and her friend Karen Ann Baker.  His convictions were based, in part, on two out-of-court statements made by his spouse Darlene Couture to the police in 1997.   In her statements, Darlene  Couture disclosed that in 1989, some time before their marriage, she had been Mr. Couture’s Christian volunteer counsellor in prison where he was serving time on unrelated offences and that during the course of the counselling, he had confided in her that he had murdered the two women.  This appeal turns on the admissibility of the spouse’s out-of-court statements under the principled exception to the hearsay rule.

2                                   At the time Mrs. Couture gave the two statements to the police she was living estranged from Mr. Couture.  The couple reconciled  shortly after and, at the time of trial, their marriage was valid and subsisting.  Under the common law rule, a spouse is an incompetent witness in criminal proceedings in which the other spouse is an accused, except where the charge involves the person, liberty or health of the witness spouse. Further exceptions to the incompetency rule are created by statute under s. 4  of the Canada Evidence Act , R.S.C. 1985, c. C-5 .  None of the common law or statutory exceptions applies in this case and, therefore, Mrs. Couture was neither competent nor compellable to testify for the prosecution.

3                                   Based on the authority of this Court’s decision in R. v. Hawkins, [1996] 3 S.C.R. 1043, the trial judge admitted Mrs. Couture’s hearsay statements under the principled exception to the hearsay rule.  Following his trial before a judge sitting without a jury, Mr. Couture was convicted on both counts of second degree murder.  On appeal, the British Columbia Court of Appeal distinguished Hawkins, ruled the statements inadmissible, set aside the convictions, and ordered a new trial.  The Crown appeals from this order.

4                                   The sole question before this Court concerns the admissibility of Mrs. Couture’s out-of-court statements.  At issue is the scope of this Court’s majority ruling in Hawkins holding 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 Crown contends that, as a matter of principle, this Court has ruled in Hawkins that the spousal incompetency rule does not extend to a spouse’s out-of-court statements. Hence, it is argued, because necessity is made out by reason of the spouse’s incompetency, any out-of-court statement from the spouse may be admitted under the principled exception to the hearsay rule, provided that it is sufficiently reliable.  The trial judge adopted this approach in ruling Mrs. Couture’s statements admissible.

5                                   Mr. Couture disagrees with the Crown’s interpretation of this Court’s decision in Hawkins.  He submits that, unlike Hawkins, which was based on unusual circumstances, the ruling sought in this case would be of broad application and would dramatically alter the role of the spouse in the criminal justice system.  This approach, he argues, would be inconsistent with the unanimous holding in Hawkins that any substantial reform of the rule was a matter better left for Parliament.  He therefore submits that the British Columbia Court of Appeal was correct to distinguish Hawkins and to rule Mrs. Couture’s statements inadmissible, not only on the basis that their admission would violate the spirit of the spousal incompetency rule, but also because they were not sufficiently reliable to warrant admission under the principled exception to the hearsay rule.

6                                   In my view, the approach advocated by the Crown and adopted by the trial judge is inconsistent with this Court’s decision in Hawkins.  The Court was unanimous in upholding the common law rule of spousal incompetency.  The Court was divided, however, on the question of whether the admission of the spouse’s preliminary hearing testimony, given before the marriage in relation to the same charges, would violate the spirit of the spousal incompetency rule.  The majority, for different reasons expressed in three concurring judgments, was of the view that it did not.  The minority, on the other hand, concluded that the facts did not permit the use of a principled exception to the hearsay rule.  In applying the principled exception to the hearsay rule, however, the majority did not ignore the spousal incompetency rule and its underlying policy.  Rather, it took great pain to explain how the admission of the evidence in the circumstances of that case would not undermine the rationale for the rule.

7                                   For reasons that follow, I conclude that the admission of the spouse’s out‑of‑court statements would violate the spousal incompetency rule in this case. Consequently, the British Court of Appeal was correct in holding that this case is distinguishable from Hawkins and in ruling the spouse’s out-of-court statement inadmissible.  I would therefore dismiss the appeal.

2.  The Proceedings Below

2.1  The Evidence at Trial

8                                   David Couture was charged with two counts of second degree murder.  His trial was held before Morrison J. of the Supreme Court of British Columbia, sitting without a jury:  [2003] B.C.J. No. 3209 (QL), 2003 BCSC 2026.  On July 3, 2003, he was convicted on both counts and sentenced to life imprisonment without eligibility for parole for 16 years.

9                                   The crimes were committed years earlier.  The victims, Darlinda Lee Ritchey and Karen Ann Baker, were last seen alive on September 12, 1986.  Their badly decomposed bodies were found in December 1986.  No cause of death could be determined.  There were no eyewitnesses to the murders nor was there any forensic evidence linking Mr. Couture to the crimes.  The case for the prosecution was based in large part on circumstantial evidence.  Of particular relevance was the fact that Darlinda and Mr. Couture had been dating and living together before the murders occurred.  There was considerable evidence that their relationship had been a stormy one, that Mr. Couture had been abusive to Darlinda, and that shortly before her disappearance she had been attempting to leave the relationship.  Karen had been a friend of Darlinda.

10                               The case for the Crown was also based on incriminating admissions made by Mr. Couture to several persons, including to his prison Christian counsellor Darlene Schwab (later to become his spouse Darlene Couture) in 1989.   The alleged confession to Darlene is the only evidence of relevance to this appeal. It was adduced at trial in the form of two out‑of-courts statements made by Darlene Couture to the police in 1997.  There is no question that there must be a new trial if this Court finds that this evidence was admitted in error. Since I have concluded that the out-of-court statements are inadmissible, I will not review the evidence at trial or the reasons for conviction.  I will only summarize the evidence and ruling on the voir dire relating to the admissibility of these hearsay statements.

2.2  The Evidence on the Voir Dire

11                               Most of the evidence about the relationship between Darlene Couture and David Couture comes from the contents of the statements themselves.  Darlene Couture met Mr. Couture in 1989 at a prison where she was acting as a Christian volunteer counsellor for the inmates.  Mr. Couture was serving a sentence for unrelated charges.  At the time, Darlene was married to Dennis Schwab, with whom she had two daughters and one stepdaughter.  During the course of the first counselling session, Mr. Couture allegedly confessed to her that he had killed Darlinda and Karen in 1986.  He revealed that he had killed Darlinda because he was jealous, and Karen, who was in the same apartment at the time, because he wanted to silence her.   He also allegedly confessed to committing sexual acts on both bodies after he killed them.  Darlene continued to counsel Mr. Couture and to visit him regularly over the course of his imprisonment.

12                               Later that year, Mr. Couture was placed on parole, one of the conditions being that he live at the Schwab home with Darlene and her family.  He lived with them for 11 or 12 months.  At one point he physically attacked Darlene, as a result of which Dennis Schwab asked Mr. Couture to leave.  After Mr. Couture moved out of the Schwab family home, Darlene maintained a relationship with him.   Darlene subsequently divorced her husband and on February 14, 1996, she married Mr. Couture.

13                               On June 19, 1996, two RCMP officers visited Darlene and Mr. Couture’s home regarding the ongoing double murder investigation.  Mr. Couture was not home at the time and the officers spoke to Darlene.  Darlene told the officers that all she knew of the homicides was that one of the victims was Mr. Couture’s ex-girlfriends.  She later explained in her statement to the police that she did not divulge anything to the officers because she had felt obliged, as a Christian counsellor, to keep Couture’s confession confidential.

14                               Both Jennifer Nickel (Darlene’s daughter) and Jan van Cittert (a friend of Darlene and David Couture’s) testified that Darlene informed them of the statements that Mr. Couture had made to her regarding the two murders.  Jennifer testified that on several occasions she “encouraged her [mother] to do what was right” and go to the police.  Jan van Cittert urged her to do the same.  Darlene also sought advice from other church counsellors and was told that the information she had received from Mr. Couture was not privileged.

15                                On August 21, 1997,  Darlene called Jan van Cittert and met with him.  He testified that she was upset and frightened and also testified that there were problems in her marriage and that there had been some incidents of spousal abuse.  Darlene had left Mr. Couture a few days earlier and wanted to leave the marital home.  Mr. van Cittert was aware that Darlene had received information from Mr. Couture about the murders and urged her to go to the police.  Mr. van Cittert phoned the RCMP and arranged an appointment for the same day.

16                               Mr. van Cittert drove Darlene to the RCMP station. Mr. van Cittert testified that before entering the police station he emphasized to Darlene that, for moral reasons, it was necessary for her to give a statement to the police.  He testified that Darlene talked about being frightened but that she had agreed with him that it was important for her to make a statement.

17                               Before the interview began, Sgt. Mogridge, the RCMP officer who interviewed Darlene on this occasion, explained to Darlene that as Mr. Couture’s wife the Crown could not compel her to testify.  There was evidence that Darlene was already aware of this.  Darlene also expressed concern that her husband would find out she had spoken to the police.  Sgt. Mogridge assured her he would only be sharing the information with the police from the North Vancouver department who were in charge of the murder investigation but that nothing further would be done without consulting her first.

18                               Sgt. Mogridge audio-recorded the statement but did not videotape it.  The statement was not made under oath and when asked on cross-examination why he did not take a “K.G.B.” videotaped statement under oath, Sgt. Mogridge answered that he was taking a statement from a person who was married to a suspect, he was doing it for another department and it was not something that he had considered at the time.  He also did not know what information Darlene had when he embarked on the interview.

19                               A large part of the statement consists of Darlene relating the abuse she suffered at the hands of Mr. Couture.  The fact that Darlene was a victim of spousal abuse was corroborated by the testimony of her daughter Jennifer.  During the course of her statement, Darlene conveyed that she cared for Mr. Couture and also expressed much concern about the implications that her statement could have for Mr. Couture, their marriage, and her safety.

20                               During this first interview with the police, Darlene recounted the information she received from Mr. Couture regarding the murders.  Although she stated that Mr. Couture made some references to the murders at different times during the counselling sessions, it was her recollection that the admissions were essentially all made during the course of the first full counselling session.

21                               Darlene Couture’s first statement was regarded as pivotal by the Crown at trial.  The trial judge agreed, and relied on the following excerpts, among others, in convicting Mr. Couture:

FM: Okay, now let's, let's talk specifically about what he said on this instance then.  That day he said that he was, if I understand what you’re telling me.

DC: Yeah, he ad, he admitted to

FM: What did he say?

DC: That he had murdered those two girls.

FM: Did he say how he had murdered them?

DC: Yes.

FM: How, how did he murder them?

DC: Well, I'm not sure if it was suffocation or strangulation.

FM: Okay.  And did he say why he murdered them?

DC: Well, if I understood him correctly, I believe the motivation was jealousy on behalf of the young lady that was his girlfriend.

FM: Right.  And did he say wa, what he did with the bodies afterwards?

DC: Yes.

FM: What did he say?

DC: That he had removed them and had a truck and took them somewhere and buried them.

FM: And did he involve anyone else, helping him with this?

DC: I don't think so.  Not that I recall.  I don't think so.

FM: You said ah, did he say where this took place?

DC: I believe it was North Van.  I don't remember whether since then he’s told me it was North Van it was under investigation but I believe it took place in North Van.

FM: Did he, did he say where the murder took place?

DC: It was in an apartment in Vancouver.  I don't know whether it was North Van or Vancouver. [A.R., at p. 399]

                                                                   . . .

FM: What else had David told you about the murder?

DC: There were sexual acts committed after, on his behalf.

FM: Okay.  Can you relate those please?

DC: Well my understanding is that the crime was already committed in both situations.

FM: What do you mean ‘both situations’?

DC: Well in both females.

FC: Mm hm.

DC: And that where the sexual act committed after at both of them.

FM: And that sexual act was?

DC: I believe it was from the rear.

FM: Okay.

DC: That’s all I know.

FM: Is that what he said?

DC: Yes.

FM: [I]s that, he had anal intercourse with both of them?

DC: I believe so, yes. [A.R., at pp. 407-08]

                                                                   . . .

FM: So you, you tell me that he says he killed both these girls.

DC: Yes.

FC: Ah how did he do that without one of them running away or how did that happen?

DC: Well, because it was um, they were both sleeping in different rooms and one, one was, one, when David murdered Darlinda then he realized that the other girl would be there and know so he did the same thing.  And that’s when he told me.  I, I’ve never read anything on it, right?  I,

FM: No, that’s okay.

DC: so I

FM: So he says then he, so he says that happened at their place?

DC: Yes.

FM: And the girls’ place?

DC: Yeah.

FM: And so he, did he say why he murdered Darlinda?  Like how that came about?

DC: I know the, I don’t know the, the circumstances, no, I just know that it was over jealousy.  I mean that’s what he’s told me but I don’t know.

FM: And did he say that he was, had gone there to kill her or had gone there for another reason?

DC: I don’t think, my understanding wouldn’t, isn’t that he went there to kill her. [A.R., at p. 410]

22                               After the interview had finished, Mr. Van Cittert drove Darlene home.  He testified that during the drive home Darlene expressed that she felt she had betrayed Mr. Couture and that she was “distraught about the whole situation”.  Further she explained that she felt that “they [the RCMP] weren’t all that concerned about her or her safety, and that she was planning to leave the area as quickly as possible”.

23                               On September 23 of the same year, the RCMP called Darlene and asked her to come into the station to make a second statement.  At this time, although Darlene and Mr. Couture were still experiencing problems in their marriage, Darlene was focussed on “re-uniting” with Mr. Couture.  Jennifer drove her mother to the RCMP station for the second interview and testified that her mother seemed angry and nervous during the trip to the police station.  She also testified that during the trip Darlene said “I will only do the bare minimum”, “I shouldn’t have to go back”, ” [T]hey can’t make me put David in prison” (A.R.,_ at pp. 123 and 141).

24                               This interview was video-recorded although not made under oath.  On cross‑examination Sgt. Brad Marks, the officer who interviewed Darlene on this occasion, was asked whether he had given any consideration to taking the statement under oath.  He replied that he had, but that the practice that he and most of his colleagues employed with respect to K.G.B. statements was to “take a statement first to ensure ourselves that the — that the witness or the potential witness is being, in our view, truthful and is being exhaustive in their memory, and then once we’re satisfied that that is the case, then to — to take — to essentially take the statement, then take it again, except proceed on the second occasion with the K.G.B. warning ...”.  Sgt. Marks agreed that what he was planning to do was see how Darlene did on the second statement and then contemplate taking a third statement under oath, but that as a result of her “reticence” in particular areas of her second statement, that he had decided not to take a third statement.  He acknowledged that the reason he decided not to take a third statement under oath was that it was possible that it would have been completely different from the two statements that Darlene had already given.

25                               During this second interview Darlene again reiterated her concern about the implications that her statement could have for Mr. Couture, their marriage, and her safety.  Some of the relevant excerpts are the following:

Q:   Now, did you maintain a counselling relationship or did it develop into a friendship/romance?

A:    I have been, I have been his counsellor.  I have been his Bible teacher. I have been his Pastor.  I have been his best friend, which he would say that, so I can say that.

Q:   Okay.

A:    I have been his wife.

Q:   Okay.

A:    Enemy?  I am not.

Q:   Okay.  Fair enough.  Now since?

A:    You have to remember the cost involved here to me.

Q:   In what sense?

A:    My husband, you know?  From a human standpoint, I lose a husband, you know? So, and I do love the man. No matter what he's done.  It doesn't, hasn't changed the love part, you know? [A.R., at pp. 471- 472]

                                                                   . . .

Q:   Mm hm.  Now, when you say that there’s issues between you and David that you have to resolve.  Do you think one of them is this, is this 1986 incident?

A:    No.

Q:   That’s not one of them?

A:    No, ‘cause I don’t consider it personal.  I mean, personal to me.

Q:   Okay.

A:    No.  Very difficult for me to let it settle in me completely because the personal cost to me is gonna be devastating.

Q.  Mm hm.

A:    You know?  That’s just the way it is.  And I’m trying my darndest to be clean and right about it, and honest about it, you know?  Forthright. But it’s still very difficult, you know?  Very painful, and I don’t think the pain’s gonna get less.  I think the pain’s gonna escalate because sooner or later David will find out I’ve been here and he will feel ...

A.   ... extremely violated by the person he trusts most on this earth.  That’s the way it is.

Q:   What do you think is?  Other, other than this feeling?

A:    You know, that’s when he’s.  I mean, this is gonna feel violated, right?

Q:   Right.  And what’s, what’s his likely response to that?

A:    Oh, I don’t know.  I dare not go there. I mean, I can only go there in my own shoes, you know, if it was myself.  You know?  What would I do when the person I have on this earth, who happens to be my spouse, has violated trust that.  You have to appreciate that as a counsellor, I gave my word to David, believing that. [A.R., at pp. 487-88]

26                               The Crown concedes, and it is obvious from reading the transcript, that throughout the second interview Darlene attempted to downplay the statements she had made in her first statement to the police.  She consistently repeated that she had a bad memory.  Sgt. Marks also testified that, during the interview, he sensed a general reticence from Darlene to discuss the murders.  For example, regarding whether Mr. Couture had told her how he moved the victims’ bodies, Darlene said:  “And I don’t know whether David told me or not, or whether it was my mind, envisioned how he would have removed them.  So I’m not certain.  So I can’t say that as a fact. Right?  Can’t say that as truth, that I know it to be truth ...” (A.R., at p. 453).  It is apparent that Darlene was also reluctant to talk about the incidents of physical abuse which she had revealed in her first statement.  When asked about her relationship with Mr. Couture and the physical abuse, Darlene talked about his “coping skills” and the fact that he was a “great guy”.

27                               After this second interview, Darlene and Jennifer drove back to Jennifer’s house.  Jennifer testified that during the car ride her mother seemed angry and she expressed regret about having given the first statement because she had then been required to make the second statement.

28                               Subsequent to her giving the second statement, Darlene reconciled with Mr. Couture and remained married to him at the date of the trial.

2.3  The Trial Judge’s Ruling, [2003] B.C.J. No. 1697 (QL), 2003 BCSC 988

29                               There was no issue at trial that Darlene Couture, as a spouse of the accused, was not a competent or compellable witness for the Crown, either at common law or under any of the exceptions created by s. 4  of the Canada Evidence Act .  However, on the authority of this Court’s decision in Hawkins, the trial judge considered whether the statements could be admitted under the principled exception to the hearsay rule which allows for the admission of hearsay evidence when the twin criteria of necessity and reliability have been met.

30                               Morisson J. found that because Darlene Couture was neither competent nor compellable that the necessity criterion had been met.  Regarding threshold reliability, the trial judge listed a number of relevant cases and, in particular, noted that this Court in R. v. B. (K.G.), [1993] 1 S.C.R. 740,  “wrote of the impact of a statement taken under oath, the importance of contemporaneous cross-examination, and the ability of the trier of fact to be able to observe the demeanour of the witness at the time that the statement was made, such as videotape would allow” (para. 8).

31                               After noting that the first statement was audio taped, the second videotaped, that neither statement was made under oath, and that there had not been any cross‑examination, the trial judge stated the following (at para. 11):

The circumstances surrounding the first and second statements do not lead to a conclusion that would defeat threshold reliability.  There was no coercion, nor was there a preponderance of leading questions, or any investigatory misconduct on the part of the police in either statement. With regard to the first statement, Darlene Couture was driven to the police station by her friend and advisor, Mr. Van Cittert. Her statement was given with little if any hesitation, and her demeanour, while flat, was conversational. [Emphasis added.]

32                               The trial judge then rejected defence counsel’s suggestion that Darlene Couture had a motive to lie because she had been abused by her husband and was estranged from him at the time, stating “[t]he evidence on the voir dire does not lead me to that conclusion.  Nor did there appear to be any motive by her to mislead” (para. 12).  The trial judge then concluded her analysis on threshold reliability as follows (at paras. 13‑14):

Further, for the purpose of establishing threshold reliability, the wife’s evidence was corroborated to some degree by evidence from Mr. Van Cittert and Marjorie Hopper. And to a lesser degree, by her daughter.

The statements themselves reveal Darlene Couture’s deep concern and feelings for the accused, and her concern that by telling the police, she could lose the trust of Mr. Couture, trust that she seemed to value highly. The circumstances with regard to the statements did not raise the spectre of untruthfulness.  [Emphasis added.]

33                               Having found that both necessity and threshold reliability had been met, the trial judge ruled the statements admissible.

2.4  The Decision on Appeal (2005), 196 C.C.C. (3d) 564, 2005 BCCA 205

34                               Mr. Couture appealed his convictions on two grounds, only one of which is in issue before this Court — the admissibility of Darlene’s out-of-court statements.  Mr. Couture argued that the trial judge erred in admitting the hearsay statements made by his wife Darlene.

35                               Southin J.A., writing for the court, distinguished the case at bar from  Hawkins and concluded that the statements ought not to have been admitted.  In a brief analysis, she gave the following reasons for reaching this conclusion (at paras. 13-19):

The learned judge and both counsel appear to have proceeded on the assumption that the judgment of the Supreme Court of Canada in R. v. Hawkins, [1996] 3 S.C.R. 1043, ... determines the principles to be applied when the issue is an out-of-court statement of a spouse who is neither competent nor compellable.  It may be thought presumptuous of me to say so, but I have always thought that the dissenting judgment of Major J., concurred in by McLachlin J., as she then was, and the late Sopinka J., was persuasive.

There are some points of difference between this case and R. v. Hawkins: first, in R. v. Hawkins, the hearsay admitted was a transcript of evidence given under oath; second, that witness had been cross-examined; and, third, the marriage took place after the evidence was given.  Here the marriage took place before the statements were given to the police.

As to the first point, I note that the Supreme Court of Canada has recently re-emphasized the importance of cross-examination as fundamental to providing a fair trial to an accused.  See R. v. Lyttle, [2004] 1 S.C.R. 193.  The question for this Court, then, becomes whether these differences are such that it is open to this Court to hold that the testimonial incompetence of [Darlene Couture] cannot be overcome by the principled exception to the hearsay rule doctrine.

In my opinion, those differences are such.  As she was testimonially incompetent, her statements ought not to have been admitted.

On that footing, I would order a new trial.

There are many facets to the rule of spousal incompetence.

If this evidence is properly admitted, what if the charge is not murder but growing marihuana and a wife is overheard by a peace officer saying to a friend, “Last year George grew some pot in the basement and is buying the plants to grow some more.”  Is that statement to go into evidence?  In principle, there is no difference between that case and this.

36                               Accordingly, the British Columbia Court of Appeal allowed the appeal, set aside the convictions and directed a new trial.

3.  Analysis

3.1  The Law Respecting Spousal Testimony

37                               Before dealing with the evidentiary issue that occupies us, I will do a brief overview of the current law respecting spousal testimony.  Spousal testimony raises issues of competence, compellability, and privilege that are governed by a combination of common law principles and statutory provisions.

38                               At common law, in civil cases, the parties and their spouses were incompetent to testify.  The same rule applied in criminal cases to accused persons and their spouses, save in cases that involved the witness spouse’s person, liberty or health.  The rule has been abolished in civil cases and, in criminal cases, it has been modified by statute.  Section 4  of the Canada Evidence Act  reads as follows:

  4. (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.

  (2) The wife or husband of a person charged with an offence under subsection 136(1) of the Youth Criminal Justice Act or with an offence under any of sections 151 , 152 , 153 , 155  or 159 , subsection 160(2)  or (3) , or sections 170  to 173 , 179 , 212 , 215 , 218 , 271  to 273 , 280  to 283 , 291  to 294  or 329  of the Criminal Code , or an attempt to commit any such offence, is a competent and compellable witness for the prosecution without the consent of the person charged.

  (3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

  (4) The wife or husband of a person charged with an offence against any of sections 220 , 221 , 235 , 236 , 237 , 239 , 240 , 266 , 267 , 268  or 269  of the Criminal Code  where the complainant or victim is under the age of fourteen years is a competent and compellable witness for the prosecution without the consent of the person charged.           

  (5) Nothing in this section affects a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.

  (6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.

39                               The statute implicitly preserves the common law, subject to the exceptions that it creates.  Section 4(5) makes it clear that the common law exception to spousal incompetency is unaffected and the spouse is therefore both competent and compellable to testify for the prosecution in cases involving the spouse’s person, liberty or health.  Further exceptions are created for specified offences under ss. 4(2) and 4(4).  None of these exceptions apply here.  Therefore, because the marriage between Darlene Couture and the accused was valid and subsisting, at the time of the trial, Darlene was neither competent nor compellable to testify for the Crown.

40                               Under s. 4(1)  of the Canada Evidence Act , the accused and his or her spouse are both competent to testify for the defence.  The words of the section address only competence and not compellability, leaving the question whether the spouse can also be compelled by her spouse to testify still somewhat unsettled.  The provision has been interpreted differently in respect of the accused and the spouse.  This Court in Gosselin v. The King (1903), 33 S.C.R. 255, held that, under the provisions of the Canada Evidence Act, 1893 (which did not include the words “for the defence”), the spouse of an accused was not only a competent but a compellable witness for or against the accused person on a trial for an indictable offence.  However, Sopinka J., in R. v. Amway Corp., [1989] 1 S.C.R. 21, expressed the view that s. 4(1) only deals with competence and not compellability.  He concluded in that case that the provision left intact the common law with respect to the non-compellability of an accused at the instance of the Crown.  While it is unnecessary to settle this issue, I will assume for the purpose of this appeal that Darlene Couture, although not compellable by the Crown, could be compelled to testify for the defence.  Quite apart from any issue of statutory interpretation, it is well‑established at common law  that a competent witness is a compellable witness:  see review of the relevant law in R. v. McGinty (1986),1 Y.R. 27 (C.A.), per McLachlin J.A., as she then was.

41                               Section 4(3) creates a spousal privilege in respect of marital communications.  The question of privilege was not really an issue at common law because spouses, with few exceptions, were not competent to testify.  The concept of spousal privilege was therefore created by statute after legislation in the 19th century made spouses competent witnesses.  The privilege is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged.  The privilege  belongs to the spouse receiving the communication and can be waived by him or her.  See Lloyd v. The Queen, [1981] 2 S.C.R. 645, at pp. 654-55.   The question of privilege does not arise in this case with respect to the alleged confessions made by Mr. Couture to Darlene in 1989 since these communications were made prior to their marriage on February 14, 1996.  It would arise in respect of any later communications made during the marriage.  The question of spousal privilege must be kept in mind in considering broader implications that may result from any modification to the law respecting spousal testimony.

42                               Historically, different rationales were advanced to support and justify the rule of spousal incompetency, some of which have been overcome in the more modern era with the legal recognition of spouses as being two separate entities.  However, two rationales have survived to this day.  The were explained in R. v. Salituro, [1991] 3 S.C.R. 654, at p. 672, and reiterated in Hawkins, at para. 38.

43                               The first justification for the rule is that it promotes conjugal confidences and protects marital harmony.  The second is that the rule prevents “the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution” (Hawkins, at para. 38).  Wigmore describes this second justification as the “natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other’s condemnation, and to compelling the culprit to the humiliation of being condemned by the words of his intimate life partner” (Wigmore on Evidence (McNaughton rev. 1961), vol. 8, at §2228, p. 217, cited in part in Salituro, at p. 672).  The disruption to marital harmony and “natural repugnance” resulting from one spouse testifying against the other has been aptly described, in words that somewhat reflect the sentiments expressed by Darlene Couture in her statements to the police, by Professor Hamish Stewart in his article “Spousal Incompetency and the Charter” (1996), 34 Osgoode Hall L.J., 411, as follows (at p. 417):

[O]ne can easily envisage that both the accused and his spouse would feel considerable resentment and distrust arising from the mere fact of the spouse’s testifying for the Crown and from cross-examination of the spouse by counsel or indeed by the accused himself, quite apart from the resentment that would arise if the accused were actually convicted as a result of his spouse’s testimony.  There is more than mere sentiment at work in the marital harmony justification. If the marital relationship deserves protection — and most people would agree that it does — then at times other social goals, including even truth-finding, may have to give way before it.

44                               There is no question that the spousal incompetency rule and its underlying rationales have been the subject of significant criticism.  The various bases for this criticism has been discussed at some length in Salituro and again in Hawkins and need not be repeated here.  However, while there seems to be a growing consensus that the rules should be changed, it is less clear how they should be changed.  On the one hand, there would be sound reasons for giving the spouse the choice whether to testify or not. As Iacobucci J. noted in Salituro (at p. 673):

The grounds which have been used in support of the rule are inconsistent with respect for the freedom of all individuals, which has become a central tenet of the legal and moral fabric of this country particularly since the adoption of the Charter. . . .The common law rule making a spouse an incompetent witness involves a conflict between the freedom of the individual to choose whether or not to testify and the interests of society in preserving the marriage bond.

La Forest J. made similar comments about a spouse’s liberty and equality interests in Hawkins (para. 101).  

45                               On the other hand, there are sound reasons for not giving the spouse the choice whether to testify or not. As aptly noted by McLachlin J.A., in McGinty, giving the spouse a choice  “is more likely to be productive of family discord than to prevent it.  It leaves the victim-spouse open to further threats and violence aimed at preventing him or her from testifying, and leaves him or her open to recriminations if he or she chooses to testify” (p. 40).  Based on this rationale, the options for reform appear to be between leaving the rule as it is, or abolishing it altogether making spouses competent and compellable by both the Crown and defence in all cases.

46                               However, it is far from clear that the question is an “all or nothing” proposition.  Other options would be available.  For example, in some Australian states, the spouse is a compellable witness for the prosecution but the trial judge has a discretion to exempt the witness from testifying: Crimes Act 1958 (Vic.), s. 400.  In the United States, the accused’s spouse is competent but the testimony is subject to various privileges, including the spouse’s privilege not to testify against the accused:  see, for example, Hawkins v. United States, 358 U.S. 74 (1958), and Trammel v. United States, 445 U.S. 40 (1980), at p. 44.   (See Law Commission of Canada, Beyond Conjugality: Recognizing and supporting close personal adult relationships (2001); A. Manson, Spousal Testimony in Criminal Cases in Canada (September 2001); and Stewart.

47                               The recurring question before the courts is the extent to which any reform of the rule can or should be made by the courts as opposed to the legislator.  Although recognized, at least implicitly, by statute, the spousal incompetency rule is grounded in common law and hence its scope subject to interpretation by the courts.  For example, this Court held in Salituro that spousal incompetency did not apply where the spouses, although still legally married, were irreconcilably separated because, in such cases, “there is no marital harmony to be preserved”.  However, there are constraints on the power of  courts to change the common law.  In Salituro, Iacobucci J. reflected on the limits of the judiciary’s power in this area:

Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country.  Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law.  As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature.  The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.  [p. 670]

48                               This principle was restated in Hawkins.  Since the import of the holding in Hawkins is at the heart of this appeal, I will review this case in some detail.

3.2  Hawkins and Spouses’ Out-of-Court Statements

49                               In Hawkins, the accused’s then girlfriend testified at his preliminary hearing on charges of obstructing justice and corruptly accepting money. The accused subsequently married the witness.  By the time of the trial, the Crown conceded that the marriage, which was still subsisting, was not a sham.  Consequently, the spouse was incompetent to testify for the prosecution.  The accused was acquitted at trial and the verdict was overturned on appeal.  On further appeal to this Court, the Crown urged the Court to modify the common law spousal incompetency rule and admit an exception in cases where the marriage was solemnized after the charges had been laid or, alternatively, where an accused married a witness for the purpose of insulating that witness from being called by the prosecution.

50                               The Court was unanimously of the view that the facts in Hawkins did not warrant modifying the rule as suggested by the Crown and reiterated that any substantial reform of the rule, which has remained largely unchanged for 350 years, was a matter better left for Parliament.  The Court, however, was divided on the question of whether the admission of the spouse’s preliminary hearing testimony, given before the marriage in relation to the same charges, would undermine the rationales underlying the spousal incompetency rule.  The majority, for different reasons expressed in two main concurring judgments, was of the view that it did not and ruled the preliminary hearing transcript admissible under the principled exception to the hearsay rule.  The necessity criterion was met because the spouse was incompetent to testify.  The threshold reliability requirement was also met.  Although the statement itself was not inherently trustworthy (indeed the spouse had given contradictory statements under oath), there were adequate substitutes for testing the evidence:  it was given under oath and subject to contemporaneous cross-examination in a hearing involving precisely the same issues.  Major J., in writing for the three dissenting justices, disagreed, finding that the facts did not permit the use of a principled exception to the hearsay rule.  In his view, reading in the spouse’s “testimony from the preliminary inquiry equates with forcing her to give testimony against her husband” contrary to the spirit of the common law rule and s. 4  of the Canada Evidence Act  (para. 159).

51                               No case has been made here to depart from the Court’s holding in Hawkins that any substantial reform of the rule is a matter better left for Parliament.  Indeed, unlike Hawkins, where the Crown expressly urged this Court to create a new exception to the common law rule of spousal incompetency, no modification of the rule is sought in this case.  The parties are divided, rather, on the extent to which the existing common law rule, as interpreted in Hawkins, should have any bearing on the court’s application of the principled exception to the hearsay rule in respect of a spouse’s out-of-court statements.

52                               As noted earlier, it is the Crown’s position, that this Court has ruled in Hawkins that the spousal incompetency rule, as a matter of principle, does not apply to a spouse’s out-of-court statements.  Hence, under this approach, rather than being a bar to admissibility, spousal testimonial incompetence provides the basis upon which the criterion of necessity is satisfied and a spouse’s out-of-court statement may be admitted in any case, provided that it is sufficiently reliable.  Further, in order to meet the reliability criterion, it is argued that whenever the spouse is available, as here, the accused’s ability to call the hearsay spouse as a witness provides a unique and significant compensation for the absence of cross-examination, oath and demeanour.  The Crown submits therefore that the trial judge was correct to admit Darlene’s hearsay statements under this approach and that the Court of Appeal should have deferred to her ruling on threshold reliability.

53                               Mr. Couture disagrees with this interpretation of the decision in Hawkins.  He submits that, unlike Hawkins, which was based on unusual circumstances, the ruling sought in this case would be of broad application and would dramatically alter the role of the spouse in the criminal justice system.  As he puts it in his factum (at para. 26), “[i]t would encourage the creation of an institutionalized procedure whereby the police take statements of spouses out-of-court, with the express intention of having them introduced as evidence at court, contrary to the policy of section 4 of the CEA ”.  This approach, Mr. Couture  argues, would be inconsistent with the unanimous holding in Hawkins that any substantial reform of the rule was a matter better left for Parliament.  He therefore submits that the British Columbia Court of Appeal was correct to distinguish Hawkins and to rule Darlene Couture’s statements inadmissible, not only on the basis that their admission would violate the spirit of the spousal incompetency rule, but also because they were not sufficiently reliable to warrant admission under the principled exception to the hearsay rule.

54                               I do not accept the Crown’s position.  There is no question that the spousal incompetency rule is testimonial in nature.  Therefore it is correct to say that the rule does not, as a matter of principle, bar proof of the out-of-court statements of a spouse — indeed, if it were otherwise, the result in Hawkins could not have been reached.  Hence, I am not suggesting, as stated by my colleague Rothstein J. at para. 148, that the spousal incompetency rule creates “a right for the accused to suppress any evidence emanating from his spouse” (emphasis in original).  Indeed, no one is contending that the rule should have that effect.  In my respectful view, however, the Crown’s submission overstates the holding of the majority in Hawkins.  I agree rather with Mr. Couture that the approach advocated by the Crown would represent a drastic change in the role played by the spouse in criminal law trials, a result which, in my view, does not accord with this Court’s decision in Hawkins to leave any substantial reform of the rule to Parliament.  Further, this analytical approach would not be consistent with this Court’s jurisprudence on the principled approach to the hearsay rule.  I will explain.

55                               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 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.

56                               However, under the approach suggested by the Crown, the court does not have to consider whether, in the circumstances of the particular case, the admission of the evidence would have the effect of undermining the spousal incompetency rule or its underlying rationales.  Under that approach, the spousal incompetency rule is only relevant in providing the basis for establishing the criterion of necessity.  Once necessity is made out —  as it would in all cases where the spouse is incompetent to testify for the Crown — the hearsay statement can be admitted provided it is sufficiently reliable, regardless of whether its admission in the trial would have the effect of undermining the rule or its underlying rationales.  In my respectful view, this approach is not the one adopted by the majority in Hawkins.   In each concurring judgment, the writer explained, albeit from different perspectives, why the operation of the principled exception in the circumstances of that case would not undermine the rationales of the rule.

57                               Lamer C.J. and Iacobucci J. (Gonthier and Cory JJ. concurring) considered the issue of spousal incompetence as part of their analysis on the question of residual discretion.  Under the principled exception to the hearsay rule, even when the criteria of necessity and reliability are satisfied, the trial judge has the residual discretion to exclude the statement where its probative value is slight and undue prejudice might result to the accused.  I will say more about the residual discretion later.  For a number of reasons unrelated to the question that occupies us, Lamer C.J. and Iacobucci J. concluded that the trial judge had erred in excluding the evidence.  On the question of spousal incompetency, they reviewed the two justifications for the rule and concluded that neither of those interests was at stake in the circumstances of the case.  They explained it as follows (at paras. 93, 94 and 96):

The admission of the transcripts at trial would not undermine the established protection of the spousal incompetency rule.  The rule serves to protect the appellant's dual interests in preserving his marital harmony and in avoiding the “natural repugnance” of having his spouse testify against him in the course of the marriage.  But neither of those interests is threatened in this instance.

If Graham was compelled to testify at trial for the prosecution following her marriage with Hawkins, his marital harmony would indeed be jeopardized. However, we do not believe that his marital bond would be similarly threatened if the prosecution simply read into evidence the testimony which Graham willingly gave before an adjudicative proceeding prior to the marriage.

                                                                   . . .

Furthermore, it is difficult to see how the admission of the transcripts would result in an incident of "natural repugnance" to the marriage.  As Wigmore explained this second surviving justification of the spousal incompetency rule, the law must prevent the inherent human harshness in permitting an accused’s spouse to assume the stand to assist in the accused's prosecution. But since the Crown may not call or compel Graham to assume the stand, Graham is not being conscripted and the threat of a repugnant spectacle is avoided.  In short, the operation of the principled exception to the hearsay rule would not thwart the purposes underlying the spousal competency rule.  [Emphasis added.]

58                               L’Heureux-Dubé J. (La Forest J. concurring) reached the same conclusion but for different reasons.  First, she disagreed with Lamer C.J. and Iacobucci J.’s analytical framework.  In her view, the question of whether the spousal incompetency rule constituted a bar to the admission of the evidence should not be answered based on an “abstract measuring of ‘unfairness’ to the accused” (para. 108).  In her view, this approach was fraught with evidentiary difficulties because in most cases it “would depend on a speculative appraisal of the potential for damage to an accused's marriage because of the admission of a statement made prior to trial by his or her spouse” (para. 108).  As she stated:

This potential harm would be almost impossible to predict:  David Medine, “The Adverse Testimony Privilege: Time to Dispose of a ‘Sentimental Relic’” (1988), 67 Oreg. L. Rev. 519, at p. 555.  An analysis of the theoretical disruption of an accused's marriage on a case-by-case basis is simply an inadequate manner to proceed with this problem.  [para. 108]

59                               Although L’Heureux-Dubé J. disagreed with Major J.’s conclusions, she preferred his approach:  the issue of whether the spousal incompetency rule constituted a bar to the admission of the evidence was a threshold question.  In her view, this question was also one that should be kept analytically distinct from the hearsay question (paras. 107-10).  While under this approach Major J. would preclude the Crown from ever admitting the hearsay evidence of a husband or wife on the ground that it would violate the spousal incompetency rule,  L’Heureux-Dubé J. disagreed.  In her view, the testimonial incompetence of a spouse did not bar proof of that spouse’s out-of-court statements.

60                               At first blush,  L’Heureux-Dubé J.’s approach in determining, as a threshold question, that testimonial incompetence did not bar proof of a spouse’s out-of-court statements, appears to lend some support to the Crown’s position that any such statement  would be admissible under the principled exception to the hearsay rule, provided the reliability criterion was met.  However, it is apparent from L’Heureux-Dubé J.’s reasons that her conclusion was very much premised on the particular circumstances of that case and on her view that neither the creation nor the admission of the evidence offended the spousal incompetence rule.

61                               For example, L’Heureux-Dubé J. framed the question on appeal in very specific terms:  “The question that remains, therefore, is whether the statements made at the preliminary inquiry, while the witness was not yet — although she later became — the spouse of the appellant, can nonetheless be admitted as an exception to the rule against hearsay” (para. 105 (emphasis added)).  Likewise, she stated her conclusion by making reference to the manner in which the statement was created:  “The evidence in the case at bar was not created in a manner which offends the spousal incompetence rule, and therefore, there is no need to prevent its admission” (para. 141(emphasis added)).  In addition, L’Heureux-Dubé J. placed much emphasis on the fact that the spouse would not be involved in the presentation of the evidence at trial because the preliminary hearing transcript would simply be read in.  (See, for example, at para. 127.)  Indeed, she expressly acknowledged that “in deciding this case I did not have to consider the potential impact of the rationale that a spouse’s testimony at trial would cause a natural repugnance” (para. 139).  As we shall see, the circumstances are much different here.

62                               Hence, it is my view that the position advocated by the Crown cannot be sustained on the basis of the reasons given in support of the majority ruling in Hawkins.  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.  It should come as no surprise that reliability alone cannot overcome the rule because spousal incompetency is not based on any concern about the reliability of a spouse’s testimony.  The rule, rather, is a form of privilege.  Privilege, unlike other rules of exclusion, is not intended to facilitate truth-finding.  The evidence is excluded, not because it lacks probative value but, rather, on policy grounds based on broader social interests.

63                               Because exclusion of evidence under the spousal incompetency rule has nothing to do with the reliability or probative value of the evidence, I would not characterize the court’s consideration of the rule as a question of “residual discretion”.  On this point, I respectfully disagree with the approach adopted by four of the justices in Hawkins and by Rothstein J. As indicated earlier, even when the criteria of necessity and reliability are satisfied, the trial judge has the residual discretion under the principled exception to the hearsay rule to exclude the statement where its probative value is slight and undue prejudice might result to the accused.  Consideration of the spousal incompetency rule, however, is a distinct exercise, unrelated to any consideration of the probative value of the evidence under the hearsay analysis.  The proposed evidence may be highly probative; it will nonetheless be inadmissible if its admission would undermine the spousal incompetency rule.  This is why I say that consideration of the rule is not a matter of “residual discretion” as this term is generally understood.  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.

64                               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.  What matters is that the question be answered.

65                               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.

66                               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.  On this point, I agree with L’Heureux‑Dubé J. that the ultimate conclusion on admissibility cannot rest on “a speculative appraisal of the potential for damage” to the individual marriage (para. 108).  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.

67                               The question that remains is whether Darlene Couture’s statements to the police should have been admitted in the circumstances of this case.

3.3  Hawkins Distinguished

68                               As noted earlier, in Hawkins, neither the creation of the hearsay evidence nor its admission undermined the underlying policy to the spousal incompetence rule.  The preliminary hearing testimony was given by the spouse prior to her marriage to the accused, therefore not giving rise to concern about spousal incompetency and the underlying policy for the rule.  Further, the hearsay difficulties presented by the unavailability of the maker of the statement were easily overcome by the presence of adequate substitutes:  the preliminary hearing transcript, where there had been an opportunity to cross-examine the witness in a hearing that dealt with essentially the same issues.  Hence, threshold reliability was met by the simple reading of the transcript without having to rely on the accused’s ability to call his spouse as a witness at trial and thus involving the spouse in the trial process.  I will come back to this point later.

69                               The British Columbia Court of Appeal distinguished Hawkins from the case at bar on the basis of three factors (at para.14):

(1) the hearsay admitted was a transcript of evidence given under oath;

(2) the witness had been cross-examined; and

(3) the marriage took place after the evidence was given.

In the court’s view, these differences were such that “the testimonial incompetence of [Darlene Couture] cannot be overcome by the principled exception to the hearsay rule doctrine” (para. 15).

70                               Although the Court of Appeal did not provide much analysis in support of its conclusion, it is implicit that it was of the view that the operation of the principled approach to hearsay in the circumstances of this case would undermine the common law rule of spousal incompetency.  In my view, the Court of Appeal was correct to distinguish Hawkins.  I also agree that the three factors identified by the Court of Appeal lend support to its conclusion.  I will explain.

71                               From the outset, it can readily be appreciated that the circumstances surrounding the creation of the evidence in this case raise concerns about the spousal  incompetency rule.  Unlike the situation in Hawkins, in the present case the spouse’s statements were given during the course of the marriage.  While no issue respecting  privileged communications made during the course of a marriage arises here and a spouse is at liberty to speak to the police, I agree with Mr. Couture’s submission that, as a matter of principle, the taking of a statement by the police for the express purpose of introducing it in evidence against the declarant’s spouse raises concerns about the spousal incompetency rule and its underlying rationales.  The police in this case did not obtain a videotaped statement under oath in accord with the requirements set out in B. (K.G.) for the purpose of introducing it in evidence.  Nonetheless, as noted earlier, Darlene Couture expressed serious concerns about the implications that giving a statement would have on her marriage (see para. 25).  If this Court were to rule that statements made by spouses can be admitted at trial based solely on threshold reliability without further regard to the spousal incompetency rule, I agree with Mr. Couture’s contention that this would encourage the institutionalized taking of spousal statements for the express purpose of introducing them at trial, a practice that would seriously undermine the  preservation of marital harmony.  This result would constitute a significant inroad on Parliament’s policy choice to maintain the rule against spousal incompetency, a result not intended by the majority in Hawkins.  For that reason, I would conclude that this factor alone is sufficient to distinguish this case from Hawkins.  The operation of the principled approach to the hearsay rule would effectively thwart the spousal competency rule and, consequently, cannot provide a basis for admitting the evidence in this case.

72                               In light of this conclusion, it is not strictly necessary to embark on any hearsay analysis to dispose of this appeal.  However, I believe it is instructive to do so in the particular circumstances of this case because, in my view, there is a second basis for distinguishing Hawkins which only becomes apparent after conducting the hearsay analysis.  This second basis for distinguishing Hawkins is  related to the other two factors identified by the Court of Appeal.  As I will explain, unlike the situation in Hawkins, it is my view that the Crown cannot meet its onus on the reliability criterion by simply filing the hearsay statements without having to rely on the accused’s ability to call his spouse as a witness at trial.  Thus, the prospect of calling Darlene Couture at the accused’s trial raises additional concerns about the spousal incompetency rule and its second rationale — preventing the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution.  My conclusion on this second point can best be explained by reviewing the trial judge’s application of the principled hearsay exception to the facts of this case, which I will do below.  I also find it important to consider the trial judge’s hearsay analysis because, unlike Rothstein J., it is my view that the trial judge committed reversible errors in her analysis.

3.4  Principled Approach Applied to the Facts

73                               This Court has recently revisited the principled exception to the hearsay rule and its underlying rationale in R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57.  I will follow the approach set out in that case.

74                               The first question to be determined, of course, is whether the proposed evidence constitutes hearsay.  There is no issue that Darlene Couture’s statements to the police constitute hearsay.  The Crown seeks to adduce the statements to prove the truth of their contents and there was no contemporaneous opportunity to cross-examine her at the time she gave the statements:  see Khelawon, at paras. 35-41, for a discussion on the defining features of hearsay.  (I note that La Forest J., in brief concurring reasons in Hawkins expressed a reservation on whether the preliminary hearing evidence was hearsay at all.)

75                               It is also clear that the principled exception applies only to hearsay evidence that would otherwise be admissible through the direct testimony of the declarant, had the declarant been available and competent to testify at trial:  B. (K.G.), at p. 784; Hawkins, at para. 69.  There is no issue that if Darlene had been available and competent to testify at trial, she would have been able to offer the evidence through direct testimony.  Although any direct testimony about David Couture’s statements made to her would itself  constitute hearsay, admissions from an accused fall within a well-recognized exception to the hearsay rule.  Further, since Darlene is not a person in authority, no special burden is required.

76                               As I suggested in Khelawon (at para. 57), putting one’s mind to the defining features of hearsay at the outset serves to better focus the admissibility inquiry.  The fact that the out‑of-court statement is adduced for its truth should be considered in the context of the issues in the case so that the court may better assess the potential impact of introducing the evidence in its hearsay form.  In this case, the statements consist of alleged confessions by the accused to the commission of two murders.  The accused could potentially be convicted on the basis of that evidence alone.

77                               Further, by putting one’s mind, at the outset, to the second defining feature of hearsay — the absence of an opportunity for contemporaneous cross-examination of the declarant, the admissibility inquiry is focussed on the dangers of admitting the hearsay evidence.  As discussed in Khelawon, the inability to test the evidence is the central concern underlying the hearsay rule.  A trial judge is well placed to appreciate the extent to which this limitation is of concern in the particular case, and whether it can be sufficiently overcome.

78                               Having determined that Darlene’s statements constitute hearsay, the evidence is  presumptively inadmissible, unless it falls within a recognized exception to the rule.  The evidence does not fall under any of the traditional exceptions to the hearsay rule.  It may nonetheless be admitted on a case-by-case basis if indicia of reliability and necessity are established on a voir dire:  R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15.  The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities.

79                               The criterion of necessity is intended to ensure that the evidence presented to the court be in the best available form, usually by calling the maker of the statement as a witness.  There is no issue here that the Crown has established necessity because Darlene Couture is neither competent nor compellable to testify for the prosecution.  If the evidence is to be adduced at all by the Crown, it can only be presented in its hearsay form.  The hearsay admissibility inquiry in this case turns rather on the question of threshold reliability.

80                               Since the central underlying concern about hearsay is the inability to test the truth and accuracy of the statement, the reliability requirement is aimed at identifying those cases where this concern is sufficiently overcome to justify receiving the evidence regardless of this difficulty.  As explained in Khelawon, the criterion of reliability is usually met either because of the way in which the statement came about, its contents are trustworthy, or where circumstances permit the ultimate trier of fact to sufficiently assess its worth.  These two ways of demonstrating sufficient reliability are not mutually exclusive and factors relevant to one can complement the other.  I now turn to the trial judge’s ruling on this question. 

81                               As I have stated earlier, the trial judge is well placed to assess the extent to which the hearsay dangers are of concern in the particular case and whether they can be sufficiently overcome.  Hence, the trial judge’s ruling on admissibility is usually entitled to deference.  However, in this case, it is my view that the trial judge’s conclusion is based on erroneous principles of law.  I repeat here for convenience, the gist of the trial judge’s reasons for finding that the statement was sufficiently reliable:

The circumstances surrounding the first and second statements do not lead to a conclusion that would defeat threshold reliability.  There was no coercion, nor was there a preponderance of leading questions, or any investigatory misconduct on the part of the police in either statement.  With regard to the first statement, Darlene Couture was driven to the police station by her friend and advisor, Mr. Van Cittert.  Her statement was given with little if any hesitation, and her demeanour, while flat, was conversational.

                                                                   . . .

The statements themselves reveal Darlene Couture’s deep concern and feelings for the accused, and her concern that by telling the police, she could lose the trust of Mr. Couture, trust that she seemed to value highly.  The circumstances with regard to the statements did not raise the spectre of untruthfulness.  [Emphasis added; paras. 11 and 14.]

In addition, the trial judge found that Darlene Couture’s statements were  corroborated to some degree by the evidence of three witnesses who testified on the voir dire.

82                               In my respectful view, the trial judge committed two reversible errors in her assessment of the statements’ threshold reliability.  I will deal first with the question of corroboration.

83                               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 Darlene that David Couture 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 Darlene may have disclosed similar information to others is neither independent nor supportive of the truth of her assertions about David Couture’s involvement in the murders.  My colleague agrees that “this evidence does not provide independent corroboration of the substance of the evidence that Darlene was providing — i.e., that Mr. Couture was responsible for the murders” (para. 127).  He finds, however, that evidence showing that Darlene may have made statements about the murders before her estrangement from her husband  had the important function of showing that Darlene had no motive to lie at the time of giving the statements (para. 128).  The trial judge in her reasons did not expressly relate this evidence to the question of motive but I take no issue with the logic of the proposition advanced by my colleague.  Darlene’s statements to other people, depending on the circumstances in which they were made, could be relevant to the question of motive.  The fact remains that Mr. Couture stands to be convicted on the substance of Darlene’s statements about his commission of the two murders, not on the presence or absence of the declarant’s motive.

84                               This Court clarified in Khelawon that corroboration can be considered in assessing the threshold reliability of a statement.  Indeed, corroboration can be powerful to substantiate the trustworthiness of a statement.  Recall the semen stain in R. v. Khan, [1990] 2 S.C.R. 531.  For example here, Darlene told the police that Mr. Couture had admitted to sexually assaulting both victims after their death.  There was no forensic evidence of this nature on the voir dire or at trial.  However, assuming that there had been evidence that the victims had indeed been sexually assaulted, and that this evidence was not likely to have been known by anyone other than the investigators and the perpetrator at the time of the statement, this corroborative evidence would lend much cogency to the statement.  However here, the evidence erroneously relied upon by the trial judge as corroborative is of no assistance in assessing the inherent trustworthiness of Darlene’s statements.

85                               Second, the trial judge did not apply the correct test.  As discussed earlier, the trial judge must start from the premise that the statements are presumptively inadmissible and then search for indicia of trustworthiness that can overcome the general exclusionary rule.  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 ” (para. 11 (emphasis added)) and ended it by concluding that “[t]he circumstances with regard to the statements did not raise the spectre of untruthfulness” (para.14 (emphasis added)).  Had the trial judge pointed to circumstances that did indeed make Darlene Couture’s statements stand out as particularly cogent, I would conclude that the two book ends to her analysis only amounted to an unfortunate choice of language.  But in reading her reasons as a whole, I can only conclude that she effectively reversed the onus.

86                               In addition, as I have explained, the trial judge erred by failing to consider whether the admission of the evidence under the principled approach would undermine the spousal incompetency rule or its rationales.  In light of these errors, the trial judge’s ruling is not entitled to deference and it is open to this Court to come to its own conclusion on the question of admissibility.

87                               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.  Recall the facts in Hawkins where the witness had given contradictory versions under oath.  There was certainly no basis to admit the hearsay evidence on the ground that it was inherently trustworthy.  The evidence was admitted on the sole basis that there were ample substitutes for testing the evidence:  it was given under oath and was subject to contemporaneous cross-examination in a hearing involving precisely the same parties  and the same issues that would be dealt with at trial.  The Court therefore did not engage in any threshold assessment of the trustworthiness of the preliminary hearing testimony itself.

88                               The usual hearsay dangers and the rationale for requiring that they be sufficiently overcome have been discussed at length by this Court’s in previous cases, most recently in Khelawon and there is no need to repeat the discussion here.  Suffice it to recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination.  On the admissibility inquiry, the search is for adequate substitutes that  give the trier of fact a sufficient basis to assess the statement’s truth and accuracy, thereby warranting its admission.

89                               In this case, neither statement was given under oath.  Nor were the statements given in circumstances that could arguably be akin to the taking of an oath where the importance of telling the truth and the consequences of making a false statement were properly emphasized to Darlene Couture.  There was certainly evidence that she felt morally bound to disclose to the police what David Couture had told her when he was in prison.  However, her conscience did not appear to bind her to the same extent by the time she gave her second statement to the police when she was focussed rather on reuniting with her estranged husband.

90                                The pivotal statement — the first one given to Sgt. Mogridge that contains the alleged confessions — was not videotaped.  The audiotape assists in ascertaining the accuracy of the recording but there is limited opportunity to observe the declarant as she is making her statement.  The second statement was videotaped and would provide the trier of fact with a better basis for assessing the evidence, but Darlene does not repeat the crucial evidence in the second statement.

91                               Absent the opportunity to cross-examine Darlene Couture, it is my view that there is no basis upon which a court could find in this case that there are adequate substitutes for testing the accuracy and truth of Darlene Couture’s statements.  The Crown, however, submits that there is an opportunity to cross-examine the witness in this case.  Darlene Couture is available and the accused has the unique opportunity to call her as his witness.  In all likelihood, given the adversity of interest, he could also obtain leave from the trial judge to cross-examine her.  Assuming that Darlene, if unwilling to testify, would also be compellable by the defence, the Crown is correct in this contention.  In addition, the Crown could also cross-examine the witness if she were called by the defence.

92                               In the usual case, the availability of the declarant for cross-examination goes a long way to satisfying the requirement for adequate substitutes.  See, for example,  B. (K.G.) and R. v. U. (F.J.), [1995] 3 S.C.R. 764.  The fact that the accused had an opportunity to cross-examine the declarant at the preliminary hearing was also a crucial factor in the Court’s decision to admit the evidence under the principled approach in Hawkins.  Therefore, on the  hearsay analysis, it is at least arguable that the reliability requirement has also been met here.  However, the court must ask itself if the admissibility of the evidence on that basis would undermine the spousal incompetency rule.

3.5  Spousal Incompetency

93                               It is on the spousal incompetency analysis, in my view, that this case must be distinguished from Hawkins.  In that case, the testimony had been given and cross-examination had taken place before the marriage — hence the simple filing of the transcript at trial gave rise to no concern about spousal incompetency.  The situation is different here.  The prospect of Darlene Couture testifying at trial raises different concerns on the question of whether the admission of the evidence would run afoul of the spousal incompetency rule and its underlying rationales.

94                                There is no question that a spouse is competent, and presumably compellable, to testify for the defence and hence, in and of itself, the fact that an accused calls his spouse as a witness does not violate the spousal incompetency rule.  However, here, the Crown bears the onus of showing that there are adequate substitutes for testing the hearsay evidence or that the evidence is otherwise sufficiently reliable.  In my view, 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.

95                               Further, far from being exceptional, this approach would be of broad application and would virtually abolish the rule.  B. (K.G.) statements (under oath and videotaped) could be routinely taken by the police and, in any case where the spouse is physically available, the Crown would be able to invoke the accused’s ability to call the spouse at his or her trial to meet its onus on the admissibility inquiry.  Since the opportunity to cross-examine is the most powerful factor favouring admissibility, the admissibility of the evidence would likely become the rule rather than the exception.

96                               I therefore conclude on this basis as well  that the operation of the principled approach to hearsay would undermine the spousal incompetency rule.

97                               Rothstein J. shares my view that “it is not open to the Crown to rely on the accused’s exclusive right to call the spouse as a witness in order to meet its burden of proving threshold reliability” (para. 133).  However, because he nonetheless concludes that the evidence was sufficiently reliable to warrant admission, I will say a few words on the question whether the hearsay statements are themselves sufficiently trustworthy to overcome the hearsay dangers without relying on the accused’s ability to call his spouse as a witness.

3.6  Trustworthiness of the Contents of the Statements

98                               When there is no real concern about a statement’s truth and accuracy because of the circumstances in which it came about, there is no good reason why it should not be considered by the trier of fact, regardless of its hearsay form.

99                               In some cases, the trustworthiness of the statement itself may be combined with the presence of adequate substitutes for testing it to meet the criterion of reliability. Recall U. (F.J.) where the striking similarities between the complainant’s statement and the independent statement made by the accused were so compelling that the only likely explanation was that they were both telling the truth.  In addition, the complainant was available to be cross-examined.  Here, however, in assessing the statements’ trustworthiness under this branch of the reliability test, it is important to keep in mind that the evidence, if admitted, will go largely untested.  Because there are no adequate substitutes for testing the evidence on the facts of this case, there must be some compelling feature about the statement that commands sufficient trust in its truth and accuracy to warrant its admission regardless.  Wigmore explains it well in these words:

There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished.  If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured.  [Emphasis added.]

Wigmore on Evidence (Chadbourn rev. 1974), vol. 5, at §1420, p. 252)

100                           Hence, what must be shown is a certain cogency about the statements that removes any real concern about their truth and accuracy.  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”.

101                           With respect, I see nothing in these circumstances that makes either one of Darlene Couture’s statements such that “even a sceptical caution would look upon it as trustworthy” (emphasis added).  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.  I explained earlier that the principled exception to the hearsay rule is not intended to supplant all other rules of evidence.  Nor is it intended to provide a substitute for the usual rigours of the criminal trial process.

4.  Disposition

102                           For these reasons, I would dismiss the appeal and confirm the order for a new trial.

The reasons of Bastarache, Deschamps, Abella and Rothstein JJ. were delivered by

103                           Rothstein J. — I have read the reasons of my colleague Justice Charron.  However, I find myself unable to agree with her.

104                           This appeal raises the question of the impact of the spousal incompetence rule on the principled approach to the admission of hearsay evidence.  This Court, by a majority in R. v. Hawkins, [1996] 3 S.C.R. 1043, resolved this issue by finding that the rule does not affect the necessity and reliability assessment but can be considered as a part of a trial judge’s residual discretion to exclude hearsay where he or she finds that to admit a spouse’s statements would result in “unfairness” to the accused.   With respect, I do not think that Charron J. merely departs from that principle in her reasons.  In my view, she is overturning Hawkins completely without a compelling reason to do so. In addition, her reasons are also a departure from this Court’s previous rulings regarding what gives hearsay evidence circumstantial indicia of reliability that would allow it to be admitted under the principled approach to hearsay.

I.  Analysis

105                           I agree with Charron J.’s overview of the law respecting spousal testimony in paras. 37-48.  It is on the issue of the effect that the spousal incompetence rule has on the assessment of the admissibility of hearsay evidence that we disagree.  I believe that Hawkins is clear that the underlying rationale of the spousal testimonial incompetence rule is only relevant at the residual discretion stage of the hearsay analysis.  In my view, Charron J.’s reasons, on the other hand, effectively endorse the dissent in Hawkins.

106                           In the present case,  Darlene Couture’s valid and subsisting marriage to the accused made her incompetent to testify for the Crown.  The Crown nevertheless sought to have Darlene’s prior statements to the police admitted at trial under the principled approach to hearsay.  The trial judge and both counsel appear to have proceeded on the  — correct, in my view — assumption that the judgment of this Court in Hawkins determined the principles to be applied when the issue is an out‑of‑court statement of a spouse who is neither competent nor compellable.  After a voir dire, the trial judge found the statements to be both necessary and reliable and admitted them: [2003] B.C.J. No. 1697 (QL), 2003 BCSC 988.

107                           The Court of Appeal disagreed with the trial judge’s ruling and found that Darlene’s statements to the police were not admissible: (2005), 196 C.C.C. (3d) 564, 2005 BCCA 205.  A new trial was ordered.  Southin J.A., writing for a unanimous court, expressed her preference for the dissenting reasons in Hawkins at para. 13: “It may be thought presumptuous of me to say so, but I have always thought that the dissenting judgment of Major J., concurred in by McLachlin J. (as she then was) and the late Sopinka J., was persuasive.”  Southin J.A. went on to list three reasons to justify why the case before her warranted a different result from Hawkins:

(1)   the hearsay admitted in Hawkins was a transcript of evidence given under oath;

(2)   the witness had been cross‑examined; and,

(3)   the marriage took place after the evidence was given. 

108                           For the reasons I will explain, my view is that none of these features (the first two relating to reliability and the last relating to “preservation of marital harmony” considerations) distinguish the present appeal from Hawkins so as to preclude the admission of the hearsay statements.

109                           In Hawkins, six judges of this Court agreed that spousal testimonial incompetence does not preclude the admission of hearsay evidence. The only point of disagreement among the six judges in the majority was related to the trial judge’s residual discretion to exclude the spouse’s hearsay statements on the basis that to admit them would cause some “unfairness” to the accused by undermining his or her marital harmony.

110                           Three judges dissented in Hawkins.  Writing for himself, McLachlin J. and Sopinka J., Major J. was of the view that the spousal incompetence rule precluded the Crown from ever admitting the hearsay evidence of a husband or wife.  According to him, given that the policy behind the common law rule is designed to prevent spouses from having to provide evidence against each other, it should not be confined solely to testimony at trial; rather it should effectively bar one spouse from helping to convict the other, regardless of how that evidence is provided.

111                           Despite the diverging opinions amongst the majority in Hawkins regarding the impact of the spousal incompetence rule on a judge’s residual discretion, all six  judges of this Court held in that case that, as a matter of principle, pre-trial spousal statements are admissible under the principled approach to hearsay despite testimonial incompetence at the time of trial so long as certain requirements are met, each of which I discuss below.

A.  Necessity

112                           Under this Court's principled framework, hearsay evidence like Darlene’s statements to the police in the present case is admissible if it meets the dual requirements of necessity and reliability.  With regard to the first of the two criteria, the 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: R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 796.  Both Charron J. and I agree that the Crown has established necessity because Darlene is neither competent nor compellable to testify for the prosecution. 

B.  Reliability

(1)       The Two Methods of Assessing Reliability

113                           The requirement of reliability will be satisfied where the hearsay statement was made in circumstances which provide sufficient guarantees of its trustworthiness: Hawkins, at para. 74; B. (K.G.), at p. 787.  In particular, the circumstances must counteract the traditional evidentiary dangers associated with hearsay.

114                           In R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57, at paras. 61-64, this Court noted that the threshold reliability requirement will generally be met by showing (1) that there is no real concern about whether the statement is true or not because of the circumstances in which it came about or (2) that there is no real concern about whether the statement is true or not because there are substitutes for the safeguards that courts have traditionally relied upon to determine the truth or falsity of evidence, such as contemporaneous cross‑examination, the oath and the ability to observe the declarant's demeanour at the time the statement was made.  See also R. v. Czibulka (2004), 189 C.C.C. (3d) 199 (Ont. C.A.), at para. 24.

115                           In assessing whether Darlene’s statements were reliable, my colleague appears to focus much attention on the latter of the two ways.  She emphasizes in her reasons that in Hawkins, unlike the present appeal, the hearsay evidence was given under oath and was subject to contemporaneous cross-examination in a hearing involving precisely the same parties and the same issues that would be dealt with at trial.  Charron J. notes at para. 92, for example, that the fact that the accused had an opportunity to cross-examine the declarant at the preliminary hearing was a “crucial” factor in Court’s decision to admit the hearsay evidence in Hawkins.  At para. 91, she says, “Absent the opportunity to cross-examine Darlene Couture, it is my view that there is no basis upon which a court could find in this case that there are adequate substitutes for testing the accuracy and truth of Darlene Couture’s statements” (emphasis added).  In my opinion, this approach (as well as that of the Court of Appeal) overemphasizes the need for an oath and contemporaneous cross-examination in hearsay exception cases involving incompetent spouses, if not in general. 

116                           While the importance of an oath and cross-examination cannot be disputed, their availability is by no means the sine qua non of admissibility under the principled approach to hearsay.  R. v. Khan, [1990] 2 S.C.R. 531, and R. v. Smith, [1992] 2 S.C.R. 915, are both examples of cases where the hearsay statements were not made under oath and were not subject to cross-examination but were nevertheless found to meet the threshold reliability under the first method described in Khelawon. In other words, the hearsay evidence was made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken: Smith, at p. 933. 

117                           It will be very unusual that hearsay statements that parties are seeking to have admitted at trial will have been made under oath or been the subject of cross-examination.  To place too much focus on their absence as a reason for excluding hearsay statements may have the effect of leaving a witness’s otherwise reliable and relevant evidence altogether unutilized.  As noted by McLachlin J. in R. v. F. (W.J.), [1999] 3 S.C.R. 569, at paras. 31-32:

Generally, the common law insists that evidence be presented under oath and subjected to cross‑examination.  But “[w]here the test of cross‑examination is impossible of application, by reason of the declarant’s death or some other cause rendering him now unavailable as a witness on the stand, we are faced with the alternatives of receiving his statements without that test, or of leaving his knowledge altogether unutilized” (Wigmore, supra, §1420 (italics in original; underlining added)).  This is precisely the choice that faced the trial judge in this case.  The witness’s incapacity, for whatever reason, to produce meaningful evidence, faced the court with the spectre of either receiving her out‑of‑court statements without the test of cross‑examination, or of leaving her potentially reliable and clearly relevant knowledge of the crimes with which the accused was charged altogether unutilized.

The question then becomes whether the interests of justice, or to use Wigmore’s term, “the interests of efficient investigation” (§1420), would suffer more from the first alternative of receiving the out‑of‑court statements or the second alternative of leaving the witness’s knowledge entirely unused. Wigmore’s answer is that the first alternative is preferable, provided that there is sufficient indication of the trustworthiness of the witness’s statement. [Emphasis added.]

In my view, to place such weight on contemporaneous cross-examination in the face of numerous indicia of reliability found by the trial judge (discussed below) is a departure from this Court’s jurisprudence as to what makes a hearsay statement circumstantially reliable, regardless of whether or not the spousal incompetence rule is at play.

(2)       The Trial Judge’s Reliability Assessment on the Voir Dire

118                           I now turn to the trial judge’s actual assessment of the circumstantial reliability of Darlene’s statements.  Charron J. in her reasons concludes that the trial judge erred in finding that Darlene’s statements met threshold reliability.  With respect, I disagree.  In order to explain why, I will review the trial judge’s voir dire ruling with regard to the indicia of reliability. 

119                           The trial judge began her ruling on the admissibility of Darlene’s statements by noting the importance of both an oath and a cross-examination, and their absence in relation to Darlene’s hearsay evidence.  She then proceeded to determine the threshold reliability by assessing whether there were other indicia of circumstantial trustworthiness and accuracy of Darlene’s statements.

120                           Morrisson J. listened to the audiotape of the first police statement, watched the videotape of the second interview, read the transcripts of both interviews that were put in evidence as exhibits and heard from the police officers who conducted the interviews.   She concluded that the hearsay dangers of coercion, leading questions, or other investigatory misconduct on the part of the police were not present during either statement.  Her consideration of these factors is consistent with this Court’s statements in B. (K.G.) and R. v. U. (F.J.), [1995] 3 S.C.R. 764, at para. 49, (both involving hearsay in the form of police statements) that the trial judge must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.

121                           Morrisson J. also concluded that Darlene’s statements were given with little if any hesitation, and her demeanour, while flat, was conversational.  In both Khan and Khelawon, this Court found that considerations of a deponent’s demeanour at the time of giving the statement could be an indication of trustworthiness.  Khelawon at para. 39 identified the question “in what condition was [the witness] at the time she made the statement?” to being a relevant consideration going to trustworthiness.

122                           Charron J. is critical at para. 101 of the considerations that the trial judge took into account in assessing reliability.  I fail to understand what is objectionable about the trial judge’s consideration of these factors. As demonstrated above, these are all factors that this Court has previously identified as relevant to the determination of threshold reliability.

123                           In addition,  a proper reliability inquiry has been characterized as entertaining the type of factors that would likely be inquired into during a course of cross-examination: see Khelawon, at para. 71.  The presence of police coercion, leading questions or other type of investigatory conduct, and whether the deponent had a motive to lie are precisely the type of factors that would be inquired into during an effective cross-examination.

124                           The strongest argument made against the reliability of Darlene’s statements at the voir dire was that, because of her estrangement at the time from her husband, she would have a motive to lie.  Whether the deponent had a motive to mislead has been viewed as a crucial factor in determining trustworthiness in several of this Court’s principled hearsay exception cases: see Khelawon, at para. 107, Khan, at p. 548, Smith, at p. 936; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40, at para. 215.  Defence counsel took the argument even further by positing that because her husband had been abusing her, this was her opportunity to incriminate him, and he would be jailed and that would solve her present problems with him.

125                           The trial judge rejected the argument that Darlene had a motive to lie, finding that “the evidence on the voir dire does not support such a theory” (para. 12).  In reaching that conclusion, the trial judge noted at para. 12:

Mrs. Couture’s concern for her husband remained evident.  The evidence does not establish that she appeared to be under tremendous pressure to incriminate Mr. Couture, either for her own reasons or for any reasons that might have been provided by, for example, her daughter or Mr. Van Cittert.

126                           To support her conclusion that Darlene’s statements were circumstantially trustworthy, the trial judge also added that she found corroboration of Darlene’s evidence in the testimony of her friend Jan van Cittert, her councillor Majorie Hopper, and her daughter, Jennifer Nickel, who all testified at the voir dire (para. 13).  Each of these witnesses testified about having been told by Darlene at earlier times that David Couture disclosed information to her about the murders.

127                           I agree with Charron J. that this evidence does not provide independent corroboration of the substance of the evidence that Darlene was providing — i.e., that Mr. Couture was responsible for the murders.  However, what it does provide support for — or “corroborates” to use the term employed by the trial judge — is that Darlene Couture had no motive to lie at the time of giving the statements.  If Darlene disclosed similar information to others at times prior to her estrangement from her husband, then the estrangement itself could not serve as motivation for concoction.  The witnesses’ also testified that Darlene remained concerned for Mr. Couture’s well-being throughout their separation, even at the time of contemplating approaching the police, which further support that her actions were not motivated by a sense of vengeance arising from spousal abuse.

128                           Thus, I cannot agree with my colleague that the evidence relied on by the trial judge as corroborative of the fact that Mrs. Couture had no motive to lie is “no[t] supportive of the truth of her assertions ” (para. 83) and “is of no assistance in assessing the inherent trustworthiness of Darlene’s statements” (para. 84).  This evidence serves an important function, which is to show that Darlene was not motivated out of bitterness from her separation with the accused to concoct a story about his confession to her. 

(3)       The Onus of Proof Regarding Reliability

129                           Charron J. concludes at para. 85 that the trial judge did not apply the correct  test for determining threshold reliability, finding that the trial judge started from the premise that the statements made by Darlene were presumptively admissible, thereby reversing the onus.  I agree with Charron J. that in assessing the admissibility of hearsay statements under the principled approach, the trier of fact must start from the premise that such statements are presumptively inadmissible and then search for indicia of trustworthiness that can overcome the general exclusionary rule.  Unlike Charron J., however, I am satisfied that Morrisson J. placed the onus on the Crown to establish that Darlene’s statements met threshold reliability.  Her reasons demonstrate that she accepted facts which constitute sufficient indicia to conclude that Darlene’s statements met threshold reliability.  As already discussed above, the trial judge found that, among other things, Darlene’s statements were made voluntarily and without suggestion, she had no motive to mislead and there was a transcript of the first interview and a videotape of the second one.

130                           I recognize that the trial judge did employ some language in her reasons that might  be interpreted as suggesting that the reliability of the hearsay evidence had to be negated in order to be excluded.  In order to explain why the trial judge might have  used the language that she did, I  refer to Lamer C.J.’s oft-cited explanation in Smith (a case cited by the trial judge in her voir dire ruling) as to what makes a statement “reliable”:

If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established. [Emphasis added; p. 933.]

This excerpt can be found in the first paragraph of the section dealing with the “reliability” criterion in J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at para. 6.80.  In my view, the passage goes a long way towards explaining why the trial judge may have chosen the language that she did.  While the trial judge’s choice of language may not have been ideal, I think it is important for appellate courts to be cautious not to seize on an ambiguous or less than exemplary choice of words as indicative of legal error absent an examination of the judgment as a whole.  As noted by Binnie J. in R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 26: “The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.”

(4) Additional Evidence Supporting Reliability

131                           There are a number of other factors which I think add to the circumstantial trustworthiness of Darlene’s statements.  The Crown notes that prior to the first statement, the interviewing officer told Darlene that he wanted her to tell the truth, and that as an officer that was all he was seeking.  The officer  receiving the second statement emphasized his job as a seeker of truth and that was all he was interested in.  It is obvious that she suffered great conflict between her conscience and her love of the accused in deciding to approach the police.  As the trial judge observed, “[t]he statements themselves reveal Darlene Couture’s deep concern and feelings for the accused, and her concern that by telling the police, she could lose the trust of Mr. Couture, trust that she seemed to value highly” (para. 14).   Darlene also received advice from people she trusted that she had an obligation to God, to the parents of the victim and even to Mr. Couture himself to disclose what she knew.

(5) Conclusions Regarding Reliability

132                           For the reasons above, it is my view that the trial judge did not reverse the onus and made a reasonable factual finding that Darlene’s statements met threshold reliability.  The trial judge’s finding of reliability in no way hung upon the accused’s opportunity to call Mrs. Couture at trial.  I question whether there was a basis for  Charron J. to substitute the trial judge’s finding of reliability with her own.  As stated by the majority in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, the trial judge’s factual determination is entitled to a high standard of deference and should not be disturbed absent a palpable and overriding error.  In my view, the trial judge’s findings were amply supported by the facts.

133                           Lastly, I agree with Charron J. that it is not open to the Crown to rely on the accused’s exclusive right to call the spouse as a witness in order to meet its burden of proving threshold reliability on the admissibility inquiry.  However, the conclusion of the trial judge with respect to the reliability of Darlene’s statements did not turn on the fact that Mr. Couture had the opportunity to call on her to testify.

C.  Residual Discretion and Unfairness to the Accused

134                           Under the principled approach to the admission of out-of-court statements, even where a particular hearsay statement satisfies the criteria for necessity and reliability, the hearsay statement remains subject to the trial judge’s residual discretion to exclude a statement where its probative value is slight and undue prejudice might result to the accused.  According to Hawkins, it is at this stage that a policy consideration justifying the spousal incompetency rule may have an impact on the admissibility of an accused’s spouse’s out-of-court statements. 

135                           In Hawkins and R. v. Salituro, [1991] 3 S.C.R. 654, this Court noted that there are only two surviving policy considerations justifying the spousal incompetency rule: preserving marital harmony and avoiding the “natural repugnance” of having the accused’s spouse testify against him or her.  In Hawkins, all six judges in the majority agreed that the admission of a spouse’s hearsay statements does not offend the second rationale.  As stated by Lamer C.J. and Iacobucci J. at para. 96:

[I]t is difficult to see how the admission of the transcripts would result in an incident of "natural repugnance" to the marriage.  As Wigmore explained this second surviving justification of the spousal incompetency rule, the law must prevent the inherent human harshness in permitting an accused's spouse to assume the stand to assist in the accused's prosecution.  But since the Crown may not call or compel Graham to assume the stand, Graham is not being conscripted and the threat of a repugnant spectacle is avoided.  In short, the operation of the principled exception to the hearsay rule would not thwart the purposes underlying the spousal competency rule.

L’Heureux-Dubé J. agreed with this observation in her concurring reasons at para. 121: “As the Chief Justice and Iacobucci J. correctly state, this second rationale simply does not concern us where the evidence of a spouse is adduced through a hearsay exception.”

136                           While all six judges in the majority agreed that the “natural repugnance” consideration was not a consideration with regard to admitting hearsay statements, they disagreed about whether trial judges should consider whether admitting a spouse’s hearsay statements would result in “unfairness” to the accused by compromising his or her marital harmony.  In writing for four members of the Court, Lamer C.J. and Iacobucci J. in their joint opinion argued that only prejudice of this sort is relevant to the exercise of a trial judge’s residual discretion.  L’Heureux-Dubé J. disagreed, finding at para. 108:

The admission of evidence through a hearsay exception should not depend in any way upon an abstract measuring of “unfairness” to the accused.  In my view, it is not open to an accused to argue that he or she will be unfairly convicted merely because a rule of evidence, in this case the spousal incompetence rule, did not apply in his or her favour. [Emphasis in original.]

This was because, in her view, there was little or no impact on the policy considerations protected by spousal incompetency when a spouse’s statements were tendered through the principled exception to hearsay:

The main rationale for the spousal incompetence rule loses much of its conviction where the evidence is tendered via a third party and not by the spouse on the witness stand.  This is so for several reasons.  First, the spouse who makes the statement is not put through the stress of having to decide whether or not to testify, as this choice is already made by the time the trial occurs and the Crown seeks to admit the statement.  Thus, he or she is not put in the position of having to actually stand and convict his or her spouse at trial.  There is none of the internal and external pressure, in and of itself damaging to marital harmony, which exists where a spouse must decide whether to give damning testimony or face a charge of contempt.  Second, the husband and wife will not be put through the strain of actually sitting through the difficult testimony at trial, and having to face each other directly as “accuser” and “accused”.  Finally, as Louisell and Mueller point out, most of the damaging effect to the marriage will already have occurred by the trial.  In the majority of cases, the marital bond will have been broken by the actual making of the statement, or conversely, it will have survived to trial and will not be made worse by the reading in of the evidence: Trammel, supra, at p. 52. [para. 127]

137                           While there was a divergence of opinion amongst the majority on this residual discretion issue, the reasons of Lamer C.J. and Iacobucci J. for four judges would suggest that prejudice to an accused’s marriage can be a consideration of the trial judge when exercising residual discretion.  I will therefore consider it in this case.

138                           Charron J. at para. 86 finds that “the trial judge erred by failing to consider whether the admission of the evidence under the principled approach would undermine the spousal incompetency rule or its rationales”.

139                           It is true, as Charron J. says, that the reasons of the trial judge in this case do not indicate that she considered any potential harm to the Coutures’ marital harmony in finding the statements admissible.  However, it also appears from the record that Mr. Couture never raised the issue, nor was any evidence led to this effect.  Mr. Couture’s counsel only challenged the reliability of the hearsay statement at trial.  I would not fault a trial judge for not addressing in his or her reasons an issue for which no evidence was tendered and over which no argument was made.  When it comes to the unfairness inquiry permitted by Hawkins, absent evidence or at least some argument on the point, I am of the opinion that a trial judge is not obliged to address a potential issue that the parties have not raised.

140                           Nonetheless, while “unfairness” to the accused as it relates to marital harmony considerations was not in issue before the trial judge, I will address it, both because the Court of Appeal appears to have made it an issue (by distinguishing this case from Hawkins on the basis of when the accused’s marriages took place) and because my colleague addresses it. 

141                           In my view, where evidence is led on the issue, the “unfairness” inquiry requires an assessment of whether the admission of the hearsay statement will jeopardize the accused’s marital harmony. In Hawkins, Lamer C.J. and Iacobucci J. considered the issue and found at para. 95 that no such threat had been established, or even seemed feasible in that case:

It is hard to accept, conceptually or practically, that Graham’s testimony caused any lasting disharmony between them, when one reviews the sequence of events and the conduct of the parties.  The preliminary inquiry was held on September 7 and 8, 1988.  Graham appeared voluntarily as a witness for the Crown. ... Despite these incriminating words of Graham’s, Hawkins nonetheless married Graham on March 31, 1989.  If this previous testimony did not irreparably harm their romantic and emotional bond prior to their nuptials, looking at all the circumstances, it is difficult to see how the production of transcripts accurately recounting this testimony would do so now. [Emphasis added.]

142                           I would similarly conclude that the admission of the hearsay statements in the present case would not result in “unfairness” to Mr. Couture’s marital harmony.  The facts in Hawkins and in this case are indistinguishable in all relevant respects.  At the time of giving the statements to the police, Mr. and Mrs. Couture were separated.  Afterwards, the parties reconciled despite Mr. Couture knowing that his wife gave voluntary statements to the police.  The evidence is that their marital bond remained intact up to and including the time of trial.  Any threat to the couple’s marital harmony would have occurred at the time when Mr. Couture discovered that his wife voluntarily approached the police.  If this did not jeopardize the couple’s relationship, it is difficult to see how admitting Mrs. Couture’s hearsay statement into evidence at trial would do so.

143                           Therefore, absent evidence to indicate that the admission of the hearsay statement at trial would jeopardize the marriage when it did not do so when the accused first learned that his or her spouse gave voluntary statements to the police or the prosecution, the courts are entitled to find that any damaging effect on the marriage will have occurred prior to trial.

144                           Another basis on which Charron J. and the Court of Appeal differentiate this case from Hawkins is that in Hawkins, the parties were unmarried at the time the hearsay statements were made, and here, the parties were already married.  Charron J. finds that this factor alone was “sufficient to distinguish this case from Hawkins” (para. 71) but fails, in my view, to effectively explain why this creates any meaningful distinction between that case and this one.  As previously discussed, the two accepted rationales underlying the spousal incompetence rule are the preservation of marital harmony and avoiding the “natural repugnance” of one spouse taking the stand against the other.  The second rationale simply does not concern us where the evidence of a spouse is adduced through a hearsay exception.  Therefore, the only relevant question is what effect the admission of the hearsay statements will have on the couple’s marital harmony.  When the marriage took place is irrelevant. 

145                           In addition, if one examines the marriages in question in Couture and Hawkins, it appears to me that the fact that Darlene was already married to the accused when she made the statements to the police would be a reason to support the statements’ admissibility.  As noted by P. Sankoff in his article “Spousal Incompetence and the Principled Approach to Hearsay Admissibility: When Ancient and Modern Doctrines Collide” (2006), 35 C.R. (6th) 43:

In Hawkins, the accused could have argued that the statements were made at a time when marital harmony was not in issue, and that admitting them consequent to the marriage of the spouses would jeopardize the relationship. This line of argument was not available in Couture, and in the absence of any evidence detailing the impact admission would have on the marriage, it is difficult to see any reason why the evidence should have been excluded under the residual discretion. [p. 48]

146                           As a final point on the issue of residual discretion I observe that Charron J. in her reasons does not agree with the Lamer C.J. and Iacobucci J.’s finding in Hawkins that considerations related to the rationale behind the spousal incompetence rule should be confined to the trial judge’s residual discretion.  She says at para. 63: “consideration of the [spousal incompetence] rule is not a matter of ‘residual discretion’”.  Instead, Charron J.’s approach is to have a trial judge determine whether the hearsay evidence of the spouse is necessary, reliable, and if its probative value does outweigh its prejudicial effect and, as a “distinct exercise” (para. 63), ask whether to admit it would undermine the rationale for the rule.  Charron J. further adds that the determination of whether to admit the hearsay evidence would undermine the rationale for the rule is an objective one:

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. [Emphasis added; para. 66.]

147                           In my view, this approach effectively shuts down the admissibility of hearsay statements emanating from spouses because Charron J. is essentially saying that a trial judge should presume harm to all subsisting marriages.  This would mean that the only time that the admission of a spouse’s hearsay statements would not — from an objective standpoint — have the potential to disrupt an accused’s marriage is if the couple is irreconcilably separated at the time of the trial, in which case the admission of the spouse’s hearsay statements would be unnecessary in any event because he or she would be competent to testify pursuant to this Court’s decision in Salituro.   My colleague’s approach thus obliterates this Court’s decision in Hawkins.  Under her approach, I fail to see how even the hearsay statements in Hawkins itself could have been admitted, given that the marriage of the accused and his wife in that case was subsisting at the time of trial.  Indeed, any necessity and reliability assessment will be superfluous because the spouse’s out-of-court statement could never be admitted. 

II.  Conclusion

148                           In my respectful view, an analysis of whether a spouse’s out-of-court statements are admissible based on whether they “undermine the rationale” for the spousal incompetence rule effectively transforms the law of spousal testimonial incompetency into a right for the accused to suppress any evidence emanating from his spouse.  Such an approach considerably expands, rather than preserves or limits, the scope of the rule defined by this Court in Hawkins.  In addition, I am concerned that this approach may have the effect of expanding the rule in other ways.  For example, it is well established in Canadian law that third persons who have either intentionally or accidentally overheard or intercepted a communication passing between a husband and wife are allowed to and may be compelled to testify with respect to the communication: R. v. Jean (1979), 7 C.R. (3d) 338 (Alta. S.C., App. Div.), at p. 348 (affirmed by the Supreme Court of Canada [1980] 1 S.C.R. 400); Sopinka, Lederman and Bryant, at para. 14.140.  Is such evidence to be excluded in the future on the basis that it undermines the rationale for the spousal testimonial incompetence rule?

149                           Finally, as noted by Charron J., the spousal incompetence rule has been the subject of significant — and in my view, legitimate — criticism.  Many courts and commentators have argued that it should be abolished altogether.  The authors of The Law of Evidence in Canada, at para. 14.151, for example, say this: “it is submitted that [marital harmony] is not of such a high policy interest so as to warrant the exclusion of relevant, probative evidence bearing on the issues of the case.”

150                           While this Court has declined to go that route, it is my view that the extent to which the spousal testimonial incompetence rule may preclude the admission of otherwise admissible hearsay statements must be considered in the context of the rationale that weighs heavily in support of admitting the evidence: the fact that a trial is primarily a truth‑seeking inquiry.  In my opinion, this consideration supports limiting the impact of the rule on the assessment of hearsay admissibility to the analytical framework set out by the majority in Hawkins.  Further, this Court should not overturn its precedent without a compelling reason to do so: R. v. Henry, [2005] 3 S.C.R. 609, 2005 SCC 76, at para. 44.

151                           For the above reasons I would allow the appeal.

Appeal dismissed, Bastarache, Deschamps, Abella and Rothstein JJ. dissenting.

Solicitor for the appellant:  Ministry of the Attorney General of British Columbia, Vancouver.

Solicitors for the respondent:  Crossin Coristine Woodall, Vancouver.

Solicitor for the intervener:  Crown Law Office, Toronto.