Court File and Parties

Court File No.: 12-11883DV

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christopher Chevalier

Before: Justice Lloyd Dean

Heard: January 8, 9, and February 15, 2013

Counsel:

• Tom Meehan, for the Crown
• Christina Sweet, for the Accused

Ruling

Introduction

[1] This matter is before me as a result of an application brought by defence counsel. The relief sought is for the complainant in this matter, who is the spouse of the accused, to be found incompetent to testify in relation to two mischief to property charges (s. 430(4) of the Criminal Code). They pertain to damage done to two doors at the matrimonial residence. The accused is also charged with assault (s. 266). The spouse is the alleged victim of the assault.

[2] The three offences have different offence dates. One of the mischiefs is alleged to have occurred between June 1st and 30th, 2012. The assault is alleged to have occurred on September 24th, 2012. The other mischief is alleged to have occurred on September 30th, 2012.

[3] This matter came to be in my court on January 8, 2013. It was originally scheduled in a different courtroom on that same date. As a result of the matters that had been scheduled in my court being completed, for one reason or another, shortly before the lunch break, I offered to take a trial from one of the other trial courts operating that day. At approximately 12:40 pm both counsel advised they were ready to proceed with the matter. They were both optimistic the matter could be completed before the end of the court day.

[4] As the proceedings began defence counsel advised they were making the application which is now the subject of my ruling. Crown counsel was, understandably so, taken off-guard by the application. I say understandably so as the Crown counsel who was conducting the trial was the same Crown counsel who had started the day in my court and would not have had an opportunity to prep the matter prior to it being transferred to my court. Nonetheless, after defence indicated the grounds for the application, Crown counsel was able to articulate the position of the Crown, with reference to the Supreme Court case of R. v. Couture, 2007 SCC 28. Crown counsel made his submissions with the hope that he be allowed to make further submissions on the point after being given the opportunity to review the case. Crown counsel then suggested, in the interest of moving the matter forward, the Crown call the witness spouse to give evidence on the assault charge. The Crown submitted the court would end up hearing the evidence surrounding the mischief charges as it related to the assault charge, as it could be heard by the court in terms of the court gaining an appreciation of the context of the relationship. Crown counsel also submitted it could become relevant to explaining the conduct of the complainant/witness spouse. The Crown suggested the court could then hear submissions by counsel on the application and then decide whether the mischief charges should proceed or not.

[5] Unfortunately, without giving it the proper thought I should have, I agreed with that proposal. It is clear to me now that a voir dire should have been held to determine the issue of competency prior to any evidence being called on the trial, see: R. v. Maida [1979] O.J. No. 3413, para. 4 and R. v. Czipps [1979] O.J. No. 4323, para. 9.

[6] The court heard evidence from the witness spouse and from a police officer who investigated the incident which occurred on September 30th, 2012.

Evidence of Witness Spouse as it Relates to the Mischief Charges

[7] With respect to the mischief charge arising from the incident which occurred sometime in June 2012, the witness spouse testified she was on the sofa feeding her youngest child of three when she heard a knock at the front door. She testified she whispered to her son, Wyatt, to "open the door for Daddy". She told him to go quietly. Before Wyatt made it to the door, the door was smashed down to the floor off its hinges in front of him. The witness spouse testified when the door landed on the floor it landed in front of Wyatt, maybe an inch away. Wyatt stood there for a moment then started crying and went back to his mom.

[8] The witness spouse testified she believed the accused felt he was being locked out. She indicated the accused said he had knocked and tried to get in the back door. She had not heard him knocking at the back door. She testified as soon as she heard the knock on the front door she immediately told the son to open the door. She asked him why he knocked the door off and his response was that "he had to get in". She indicated the accused's demeanor was calm, but firm. She asked again why he knocked the door off and he repeated, he had to get into his house. During cross-examination she indicated she did not believe the accused had any intention of harming her or her son, he just wanted to get in.

[9] The facts surrounding the mischief allegation of September 30, 2012 are as follows. In the middle to late afternoon the accused told the witness spouse he was going to help his father with farming. He indicated he would be back in about an hour. When he didn't come back then, she called and texted him over and over again numerous times. She acknowledged the text messages were not of a friendly nature, describing them as "snotty". When she did eventually speak to him it was about 10 pm and she told him if he didn't want to tell her when he was going to be home, or didn't want to be home with the children, she was going to lock the windows and doors. He said he didn't care and then hung up. She admitted during cross-examination she had threatened this in the past many times. This time she did lock the windows and doors and then she and the children went to bed. Around 11 pm she heard a very loud noise and went to investigate. The accused was banging on the back door really hard. He told her, using expletives, to let him in. She felt she had no reason to let him in as angry as he was and she was a little worried. She told him to calm down, that he was going to wake the kids up and scare them. He told her "no, open the door" in a loud and screaming voice. The accused told her at some point that if she didn't open the door he was going to kick it in. She told him if he did she was going to call the police. He said he "didn't fuckin care". She then told him she was going to stand in front of the door so he couldn't smash it down because if he did he would hurt her. She said she didn't think he would or she would have never said that. He then smashed the door with his foot and the door opened. She immediately dialed 911 and then told him she was on the phone with police. She said he was calm and backed off. She then went upstairs while still on the phone with police. The accused then came upstairs to get some things and said he was going to take some stuff and then he left.

[10] In cross-examination the witness spouse admitted she gets frustrated when the accused is gone from the house so much because she misses him and so do the children. She also said she regrets locking the windows and doors that night. In hindsight she agrees she forced a confrontation, but at the time she felt if she let him in she was letting the accused treat her as a doormat. She also said she didn't open the door because she felt like he needed to calm down. She indicated the accused has never punched or smacked her or been vicious in that way but he was very angry and if she waited he might realize if he calms down she will open the door.

[11] The Crown then called the officer who investigated the incident of September 30, 2012. His evidence consisted of what he did and observed on arrival. Photos of the damage caused to the back door were entered as exhibits during his testimony. Nothing of significance with respect to this ruling arises from his evidence other than as a result of the officer's attendance at the residence on this day he learned of the earlier incidences which led to the assault charge and other mischief charge.

[12] After the officer finished testifying, the Crown closed its case. By then, we were at the end of the court day. We had the good fortune of both counsel and I being available the next day to continue with the trial.

January 9, 2013

[13] As the matter got underway defence counsel asked the court to make a ruling on the application before putting the accused to his election as to whether to call any evidence. Crown counsel at that time advised they were going to invite the court to dismiss the assault charge based on the evidence that was heard by the court the day before, but they were still pursuing the mischief allegations. The Crown then suggested the court could put the accused to his election and if the accused chose to testify there would be no prejudice to him for me to hear his evidence, as the mischief allegations would fail or succeed on the basis of the witness spouse's evidence. That is to say, if the court ultimately ruled the spouse was incompetent then the Crown would not be able to meet its case on the mischief charges as there was no other evidence the Crown had to prove those allegations. The Crown did acknowledge that if the accused took the stand then it might be that the court would convict him on his own evidence or other evidence called by the defence. I believe the Crown realized at that point in his submissions that possibility made putting the accused to his election before the court's ruling on the application problematic. At that point, fortunately, I made the proper decision to not put the accused to his election before ruling on the application.

[14] I then heard submissions from counsel as to whether the proper approach on the first day should have been to conduct a voir dire before starting the trial proper. Both counsel were of the view that even if that should have been done they were not concerned with how the matter had proceeded up to this point and did not feel it necessary for me to declare a mistrial. Defence counsel was content that I simply apply the evidence I heard to a voir dire, if a voir dire should have been conducted.

Position of the Parties (with Respect to the Application)

[15] The Crown submits the application is entirely without merit. The Crown relied on Czipps, supra, as supporting the Crown's position more than the defence's position. The Crown pointed to paragraph four of that decision which reads as follows:

4 At common law a spouse was generally not a competent witness against the other spouse. An exception was where the charge in a criminal prosecution alleged interference with the person, liberty or health of the other spouse. In the present case the charge does not so allege but the Crown alleges that the evidence of the respondent's husband will disclose such interference. That question has very recently been considered by the British Columbia Court of Appeal in the unreported case of [R. v. Sillars [since reported, 45 C.C.C. (2d) 283, [1979] 1 W.W.R. 743]](https://www.canlii.org/en/bc/bcca/doc/1978/1978canlii2433/1978canlii2433.html). In that case Craig, J.A., delivering the judgment of the Court, after reviewing the principal authorities said at p. 8 of his judgment [p. 287 C.C.C.]:

In this case, of course, we are concerned with the issue of whether a wife should be competent to testify for the prosecution against her husband not only in a case where the charge alleges that the husband has interfered with the person, liberty or health of the wife -- for example, that he has assaulted her -- but also in the case where the charge does not make such an allegation but the evidence of the wife as to the circumstances surrounding the incident on which the charge is based would reveal that the husband had threatened her person, liberty or health.

I cannot see why there should be a distinction between the two cases. If a wife is competent to testify against her husband where the charge against him alleges interference with the wife's person, liberty or health, she should, logically, be competent to testify where the evidence of surrounding circumstances discloses a threat to her person, liberty or health, even although the charge does not allege such a threat. Either case should be regarded as an exception to the general rule that a spouse should not be permitted to testify against the other spouse because to permit such testimony would cause dissension in the matrimonial home, or disrupt matrimonial harmony.

[Emphasis added]

[16] The Crown points to the highlighted portion of the above excerpt from Czipps and argues that in the case at bar it is the evidence of the witness spouse as to the circumstances surrounding the incident on which the charges are based that would reveal the accused had threatened his spouse's person, liberty or health. In the case of Sillars, referred to in the excerpt above, the accused was charged with dangerous driving and the court concluded if the surrounding circumstances disclosed a threat to the spouse's person, liberty or health, even though the charge does not allege a threat, it should be regarded as an exception to the general common law rule. As a result, the court ruled the spouse was a competent witness for the Crown. Crown counsel argued that I should look at the surrounding circumstances in the case at bar which includes an alleged assault and make the same ruling as in Sillars. The Crown submits it would be a perverse use of section 4 of the Canada Evidence Act ("CEA") to say it is intended to promote harmony in a marriage but we are going to protect the accused by preventing the spouse from disclosing the use of violence towards that spouse.

[17] The Crown then brought up the issue again as to whether a voir dire should have been held. He wondered if the Crown or defence would have done anything different. He ultimately said he was prepared to do it either way. I took that to mean he was content to proceed in the manner the case had preceded so far, or if the court felt a different course of action needed to be taken he was content with that as well. Defence counsel took objection to changing course at this point in the case, indicating that her client has taken the last two days off of work and she does not want to drag the matter out.

[18] The matter was put over to January 15th to allow Crown counsel further opportunity to conduct research, as he was hopeful to find some authority surrounding the competence and compellability of a spouse where the charges alleged were charges of mischief, as in the case at bar.

January 15th

[19] The Crown was not able to find a case involving charges of mischief. They continued to rely on Czipps, supra. Crown counsel submitted that case was dispositive of the issue. It supports, he says, the Crown's position that the spouse is a competent witness in the case at bar. Crown counsel argued section 4 of the CEA is designed to protect spousal privilege and there was no privileged communication in this case, but rather observations made by the spouse - what she saw and heard. The Crown submits there is no privilege attached to observations. Once again the Crown submitted it would be a perverse use of the section if used to protect the accused from evidence of the observations of a spouse, against alleged crimes against that spouse. The Crown urged the court to look at what the intention of Parliament was when it enacted section 4 of the CEA. Was it designed to protect alleged perpetrators, who are spouses, of violence from their alleged crimes on their spouses, asks the Crown?

[20] Crown counsel then pointed to the definition of mischief contained in Black's Law Dictionary, which included "a wanton or reckless injury to persons or property". He argued the court is required to look at the entire context of the charges which are assault, plus two mischief charges.

[21] Once again the issue of whether a voir dire was or is necessary was discussed. Crown counsel acknowledged the parties had consented on the first day to proceed in the manner chosen. Discussions between counsel and the court took place regarding the way the case had preceded, following which both counsel once again expressed their satisfaction.

[22] Defence counsel relied on its submissions on the last two dates but wished to provide the court with two cases from the Supreme Court in response to the Crown's submissions. The matter was adjourned to February 5th for that purpose.

February 5th

[23] On this date, defence counsel provided two Supreme Court decisions to support its position. They were R. v. Hawkins, [1996] 3 S.C.R. 1043 and R. v. Couture, [2007] S.C.R. 517.

[24] Crown counsel argued that neither case, Hawkins or Couture, supra, applies to the case at bar. He argued both cases are distinguishable. With regards to Hawkins, the Crown submitted the court was dealing with whether the principled approach to hearsay could overcome the spousal incompetency rule, on the facts in that case. With regards to Couture, the Crown argued the facts in that case did not involve any threat or violence, or apprehended threat or violence to the spouse herself. Neither case, says the Crown, engages s.4(5) of the CEA as neither case involved the spouse as an alleged victim of either violence or a threat to the person, liberty or health of the spouse. In the case at bar, the Crown submits, there was a threat to the spouse's safety, as well as the son, Wyatt. With respect to Wyatt, the Crown submits he was close to the door when it was kicked off its hinges, as the mother had instructed him to open the door for the accused. The accused had previously been pounding on the door, demanding to be let in.

Analysis

[25] 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 CEA: see Czipps, Hawkins, Sillars and Couture, supra.

[26] 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.

[27] Section 4(5) makes it clear 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). The statutory exceptions aside, the section otherwise preserves the general common law rule that the spouse of an accused, willing or not, is not competent to testify against the accused at the behest of the Crown: see Couture, supra, para. 39.

[28] Paragraph 42 and 43 of Couture sets out the rationale for the rule:

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. They were explained in R. v. Salituro, [1991] 3 S.C.R. 654, at p. 672, and reiterated in Hawkins, supra, 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.

[29] The parties were married and living together at the time of the incident, married at the time of trial and remain married today. In the case at bar it is important to note the three charges on which the accused is being tried all have different offence dates. That is what distinguishes the case at bar from Sillars, supra. Neither of the mischief charges surrounds the circumstances of the alleged assault, as this court often hears. Each mischief charge arises out of an isolated incident, in one case, at least three months before the alleged assault and in the other case, several days after the alleged assault. Therefore, in my view the circumstances surrounding the assault allegation cannot be used to import some element of violence or threat of violence to the charges of mischief, as the Crown suggests.

Conclusion

[30] It is my view the two situations surrounding the mischief charges is exactly the kind of situation for which the common law rule is designed. Although perhaps not to the extent of a door being knocked off its hinges or kicked open, the fact situation in each case no doubt sounds familiar to anyone who has lived life long enough. A spouse becoming upset with the other spouse over not coming home when expected is not all that unusual or alarming. I might also say that it is not unusual to hear that the aggrieved spouse locks the other spouse out. Arguments between spouses are a normal, perhaps natural part, of every relationship. The exception to the common law rule and s. 4(5) of the CEA rightly protects a spouse against violence or threats of violence (i.e. to the person, liberty or health of the spouse), but in my view the rationale or justification for the rule was intended for the type of incident surrounding both of the mischief charges before the court. When one views the entire context of the evidence it is my view that what occurred were not incidences involving the witness spouse's person, liberty or health. The witness spouse indicated such with regard to the front door mischief, when she said she does not believe the accused had any intention to harm her or their child, Wyatt. With respect to the second incident, it is clear from the witness spouse's evidence that she had become frustrated with the accused not coming home and decided to lock him out. When he was pounding on the door to get in she told him she was going to stand in front of the door so that if he did smash it in he would end up hurting her. I suppose there is an argument to be made that once the accused was told that and still decided to force the door open he was threatening the person, liberty or health of the witness spouse. But when the entirety of the evidence surrounding this incident is considered it is not, in my view, a situation the exception to the common law rule was meant to cover.

[31] While the cases of Hawkins and Couture are distinguishable on their facts, the principles of law enunciated in each case are applicable here. Having applied those principles I have concluded the spouse of the accused is not a competent witness in this case.

Dated April 30, 2013

Justice Lloyd Dean

Ontario Court of Justice