Court File and Parties
Court File No.: 2811 998
Ontario Court of Justice
(Central East Region)
Between:
G. O'Driscoll and Michael Malleson, Her Majesty The Queen Counsel for the Crown
- and -
Sharon Baksh Paul Burstein and Pierre Plourde, Counsel for the Defendant
Heard: May 15, 2014 Ruling Delivered: June 5, 2014
Ruling on Spousal Privilege
Block J:
Spousal Status and Common-Law Spouses
[1] The first issue to be considered is whether Mr Gould's status as a witness falls under s. 4 of the Canada Evidence Act. Mr Gould claims the status of a common-law spouse. The formal language of the above-noted section does not impose spousal incompetence on him. In Masterson, [2009] O.J. No. 2941, Ontario Superior Court Justice Hennessy ruled that s.4 of the Canada Evidence Act should be read to include common law spouses where there is a reference to husband or wife.
[2] In paragraphs 55, 56, 57, 58 and 59 of that decision Justice Hennessy made it clear that his ruling was intended as a charter declaration intended to be applied in future cases to "cure an injustice that otherwise would continue to apply to a historically disadvantaged group of common law spouses."
Charter Jurisdiction and Application
[3] I have no jurisdiction to craft any charter remedy in a preliminary inquiry. But courts of inherent jurisdiction, such as the Superior Court of Ontario, have the power to grant Charter declarations flowing from the operation of s. 52(1) of the Constitution Act. A Charter declaration of a Superior Court, absent a stay of the ruling or a successful appeal, takes effect from the moment of the ruling. (See Nova Scotia v Martin (2003) SCC 54 at paragraph 28; Her Majesty the Queen v Ferguson 2008 SCC 6, [2008] 1 S.C.R. 96, paragraph 65.)
[4] In this preliminary inquiry s.4 of the C.A.E. will be read as required by Her Majesty the Queen v Masterson.
Common-Law Exception to Spousal Incompetence
[5] The second issue upon which this Court must rule is whether the common-law exception to s. 4 of the Canada Evidence Act adopted by the Ontario Court of Appeal in Her Majesty the Queen v Czipps, (1979), 25 O.R. (2d) 527 applies, assuming Mr Gould is a common-law spouse of Ms Baksh. The Court adopted this exception from the Alberta Court of Appeal ruling in Schell (2004) 2004 ABCA 143, 188 C.C.C. (3d) 254 and the British Columbia Court of Appeal in Sillars, 45 C.C.C. (2nd) 283. All three courts held that a spouse is a compellable witness even when they are not the alleged victim of the charge before the court, where the evidence of surrounding circumstances discloses a threat to the person, liberty or health of the witness spouse.
Surrounding Circumstances and Compellability
[6] The agreed statement of facts filed in this application discloses, at a minimum, the following factors:
A fact-rich narrative in the surrounding circumstances links an assault with a weapon by Ms Baksh on Mr Gould with the killing of Ms Rusnell later the same day. Following this knife attack by a drunken Ms Baksh on Mr Gould he fled their home. His injuries, and/or his complaint of injury, were noted by others. His flight deprived Ms Baksh of the money for alcohol, drugs and, apparently, cigarettes. She sought funds through a burglary of Ms. Rusnell's apartment. During this burglary she is alleged to have killed Ms Rusnell.
A close temporal connection can be found between the knife attack on Mr Gould, around 2 PM on June 1, 2013 and the murder of Ms Rusnell, likely between 5 PM and 7pm that day.
Powerful forensic evidence links the two acts including, but not limited to, the DNA of both Mr Gould and Ms Rusnell on two knives found in the home.
[7] Czipps and the other cases referred to above do not limit the facts which may lead to spousal compellability to the same transaction. The phrase "surrounding circumstances" suggest that the three factors referred to above compel this court to recognize that the evidence of the assault with a weapon on Mr Gould is a vital piece of the narrative of the death of Ms Rusnell. It matters not a whit that one of the purposes to which the evidence of this offence may be put is to negative an alternative suspect theory which may never be advanced by the defence.
Marital Harmony Consideration
[8] I disagree with the ably-advanced contention that I must take into account the presumed effect on marital harmony in this determination. The Supreme Court of Canada in Her Majesty the Queen v Salituro, [1991] 3 S.C.R. 654, has commented acidly on the antique mess that is s.4 of the Canada Evidence Act.
Joinder of Murder and Assault Charges
[9] The next issue with which I must deal is whether the information properly charges both murder and assault weapon.
[10] Counsel for Ms Baksh have advanced the cases of Volpi, [1987] O.J. No. 530 (C.A.) and Webster, [1993] 1 S.C.R. 3 for the proposition that the Justice presiding at preliminary inquiry has the authority to rule on the validity of the information. Both cases deal with the powers to rule on whether an information had enough detail to provide fair notice of the offences charged. This is an entirely different issue than application of s. 589.
[11] The court is essentially being asked to rule on a blended issue of severance and whether the assault and murder alleged are part of the same transaction. Section 548(1)(a) provides the regime under which a preliminary inquiry justice may consider whether there is sufficient evidence to put the accused to trial for other offences in respect of the same transaction. Parliament has clearly indicated that the appropriate time for this determination is after "all evidence has been taken by the justice".
[12] If I have the jurisdiction to consider the "same transaction" exception to the general rule in s.589 forbidding murder joined to other indictable counts, the appropriate time for determination would be after the evidence had been taken. I am not convinced I have this jurisdiction at any time. S. 589 is situated in Part XX of the Criminal Code, Procedure in Jury Trials, under the heading "Joinder or Severance of Counts". It is trite to say a preliminary inquiry justice has no jurisdiction to rule on severance.
[13] If I am mistaken in respect of my jurisdiction to apply s. 589, I would adopt the more expansive interpretation of "transaction" employed in Melaragni [1992] O.J. No. 2294, Ontario Court of Justice (General Division) and rule that the two crimes alleged in the information before this court be considered a single transaction. In that case Mr Justice Moldaver ruled on a defence application for severance of accused in a murder trial and found that "transaction" should be interpreted less restrictively in relation to s. 589 than s. 548(1)(a).
Conclusion
[14] In the event, it is not necessary to conduct a voir dire into the issue of Mr Gould's spousal status. He is a competent and compellable witness in this proceeding.