R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043

R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043

Kevin Roy Hawkins and Claude Morin Appellants

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Hawkins

File No.: 24633, 24634.

1996: March 18; 1996: November 28.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law -- Evidence -- Witnesses -- Competency and compellability -- Spouses -- Police officer charged with obstruction of justice after allegedly providing motorcycle club president with confidential information -- Officer’s girlfriend key witness against him at preliminary inquiry -- Officer and girlfriend legally married prior to trial -- Trial judge finding witness not competent to testify at trial -- Whether common law rule of spousal incompetence should be modified in circumstances of case.

Criminal law -- Evidence -- Witnesses -- Evidence previously taken -- Police officer charged with obstruction of justice after allegedly providing motor cycleclub president with confidential information -- Officer’s girlfriend key witness against him at preliminary inquiry -- Officer and girlfriend legally married prior to trial -- Trial judge finding witness not competent to testify at trial -- Whether Crown should have been able to read preliminary inquiry testimony into evidence at trial under s. 715 of Criminal Code -- Criminal Code, R.S.C., 1985, c. C-46, s. 715.

Criminal law -- Evidence -- Hearsay -- Exceptions to hearsay rule -- Police officer charged with obstruction of justice after allegedly providing motorcycle club president with confidential information -- Officer’s girlfriend key witness against him at preliminary inquiry -- Officer and girlfriend legally married prior to trial -- Trial judge finding witness not competent to testify at trial -- Whether Crown should have been able to read preliminary inquiry testimony into evidence at trial as principled exception to hearsay rule -- Whether witness’s prior statements satisfy necessity and reliability requirements.

Pursuant to an internal investigation, the Crown believed that H, a police officer, had provided the co-accused M, a former president of a motorcycle club, with confidential information concerning police surveillance of the club in return for money. The key figure in the Crown's investigation was G, H’s girlfriend. At the preliminary inquiry, the Crown called G as a competent and compellable witness, and she made a number of statements under oath and cross-examination which incriminated H. However, shortly thereafter, G retained her own counsel and sought to testify again. This application was granted, and, in her subsequent testimony, G recanted key portions of her previous statements, offering explanations with respect to the events in question that were in direct contradiction to what she had previously told the court. Following the completion of the preliminary inquiry, and prior to trial, G and H were legally married. The trial judge found that G was not competent for the Crown, owing to the common law rule of spousal incompetence. Following the ruling on the motion, the Crown decided that it would not offer any evidence in support of a conviction. Accordingly, the jury rendered directed acquittals of the two accused. The majority of the Court of Appeal agreed that the witness was not competent for the Crown, but held that the evidence could have been admitted pursuant to s. 715 of the Criminal Code or alternatively under the principled exception to the hearsay rule developed in Khan, Smith and B. (K.G.). The court set aside the acquittals and ordered a new trial.

Held (Sopinka, McLachlin and Major JJ. dissenting): The appeals should be dismissed.

(1) The common law rule of spousal incompetence should not be modified in the circumstances of this case.

(2) G’s testimony at the preliminary inquiry cannot be read into evidence at trial pursuant to s. 715 of the Criminal Code.

(3) Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ. (Sopinka, McLachlin and Major JJ. dissenting): G’s testimony at the preliminary inquiry may be read into evidence at trial through a principled exception to the hearsay rule.

(1) Spousal incompetence

The circumstances of this case do not warrant modifying the common law rule of spousal incompetence. Both the trial judge and the Court of Appeal were correct in holding that G was not a competent witness for the Crown at the trial, as she had entered into a valid and genuine marriage with H. The common law rule is that 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. While the traditional rule has been modified by s. 4 of the Canada Evidence Act, these statutory exceptions aside, 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 still applies. At common law, it was well accepted that the rule of spousal incompetency renders a spouse incapable of testifying in relation to events which occurred both before and during the marriage. While it is true that this Court has signalled its willingness to adapt and develop common law rules to reflect changing circumstances in society at large, it is clear that the courts will only make incremental changes to the common law. By contrast, complex changes to the law with uncertain ramifications should be left to the legislature. Both of the changes proposed by the Crown, whereby a spouse would be rendered competent if the marriage was solemnized after the issuance of an information or indictment and, alternatively, where an accused marries a witness for the purpose of insulating that witness from being called by the prosecution, far from being incremental, would strike at the heart of the traditional rule of spousal incompetency. A marriage entered into following the swearing of an indictment may be perfectly valid and genuine, and there may indeed be a marital bond worthy of protection. Similarly, a marriage which is motivated by a desire to take advantage of the spousal incompetency rule may nonetheless be a true marriage, deserving of the law’s protection.

(2) Section 715 of the Criminal Code

The Court of Appeal erred in concluding that G’s testimony before the inquiry could be read into evidence pursuant to s. 715 of the Criminal Code. As it presently reads, s.715 provides that where a person whose evidence was given at a previous trial on the same charge or was taken in the course of the investigation or on the preliminary inquiry refuses to be sworn or to give evidence, or is now dead, insane, so ill as to be unable to travel or testify, or is absent from Canada, then that person's testimony may be read as evidence in the proceedings without further proof. The evidence must also have been given in the presence of the accused. However, even if preliminary inquiry evidence satisfies these criteria, s.715 preserves a residual discretion in the trial judge to exclude such evidence. G’s marriage clearly cannot be read into the section as grounds for admitting the transcripts of her preliminary inquiry evidence as it does not represent a refusal to give evidence: the common law rule of spousal incompetency disqualifies a spouse from giving evidence, regardless of the spouse's choice.

(3) Principled exception to the hearsay rule

Per Lamer C.J. and Gonthier, Cory and Iacobucci JJ.: The Court of Appeal was correct in concluding that G’s testimony at the preliminary inquiry could be admitted for the truth of its contents through a principled exception to the hearsay rule at common law. Evidence at trial of statements made by a witness in a prior adjudicative proceedings represents a form of hearsay. Under the modern principled framework for defining exceptions to the hearsay rule, a hearsay statement will be admissible for the truth of its contents if it meets the separate requirements of "necessity" and "reliability". These two requirements serve to minimize the evidentiary dangers normally associated with the evidence of an out-of-court declarant. Consistent with the spirit of this modern approach, the twin requirements of "necessity" and "reliability" must always be applied in a flexible manner. If a hearsay statement satisfies these two requirements, the trial judge may put the statement to the trier of fact, subject to appropriate safeguards and to cautions regarding weight. At the same time, this modern framework should also be applied in a manner which preserves and reinforces the integrity of the traditional rules of evidence. Accordingly, the new hearsay analysis should not permit the admission of statements which the declarant, if he or she had been available and competent at trial, would not have been able to offer into evidence through direct testimony because of the operation of an evidentiary rule of admissibility.

Under the modern principled framework, hearsay evidence will be necessary in circumstances where the declarant is unavailable to testify at trial and where the party is unable to obtain evidence of a similar quality from another source. Here G was unavailable to testify on behalf of the Crown for the purposes of the necessity criterion. The prosecution could not call upon G to testify as a result of her spousal incompetency, and there was no other means of presenting evidence of a similar value before the court. The requirement of reliability will be satisfied where the hearsay statement was made in circumstances which provide sufficient guarantees of its trustworthiness. In particular, the circumstances must counteract the traditional evidentiary dangers associated with hearsay. The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact. A witness's testimony before a preliminary inquiry will generally satisfy this threshold test of reliability since there are sufficient guarantees of trustworthiness. The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross-examination, more than adequately compensate for the trier of fact's inability to observe the demeanour of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not to its admissibility. G’s statements before the inquiry satisfy the criterion of reliability. They were made under oath before a properly constituted preliminary inquiry, and they were subject to the opportunity of contemporaneous cross-examination by counsel for both accused. As well, G’s statements were transcribed under circumstances which support their authenticity.

Even where a particular hearsay statement satisfies the criteria of necessity and reliability under the reformed framework, the statement remains subject to the judge's residual discretion to exclude the statement where its probative value is slight and undue prejudice might result to the accused. Here the trial judge should not have exercised his discretion to exclude the evidence of G's testimony before the preliminary inquiry. The risk of undue prejudice arising from her testimony did not substantially exceed the potential probative value of such evidence at trial. G’s prior testimony was not devoid of probative value as a result of the internal contradictions of her testimony. The simple fact of recantation does not provide a basis for the exclusion of a witness's testimony. Nor did G’s exposure to numerous outside influences deprive her testimony of its potential probative value. Notwithstanding the contradictions in and outside influences upon G's testimony, the trier of fact may indeed derive significant probative value from her statements at the preliminary inquiry. Finally, the reception of G's prior testimony through a principled exception to the hearsay rule would not result in undue prejudice or unfairness to H. There is no evidence indicating how the admission of G’s preliminary inquiry testimony would actually prejudice the accused and the trial process. Nor would admitting the statements undermine H’s relationship with G. If G was compelled to testify at trial for the prosecution following her marriage with H, his marital harmony would indeed be jeopardized. However, his marital bond would not be similarly threatened if the prosecution simply read into evidence the testimony which G willingly gave before an adjudicative proceeding prior to the marriage.

In the balance of considerations, and notwithstanding considerations of “unfairness” to the accused in his marital relationship, the risk of prejudice arising from the admission of G's preliminary inquiry testimony did not significantly exceed the potential probative value of such evidence at trial. The trial judge should not have exercised his residual discretion to exclude her testimony, and the transcripts ought to have been put to the trier of fact, subject to appropriate safeguards and instructions. The Crown would of course be obliged to present G’s preliminary inquiry testimony before the trier of fact in its entirety.

Per La Forest and L’Heureux-Dubé JJ.: In determining whether statements made by a spouse prior to trial can be admitted for their substantive content as exceptions to the hearsay rule, the threshold question which must be asked is whether the evidence is precluded from being admitted because it is barred by the spousal incompetence rule. If the answer to this question is in the negative, there is no need to consider “fairness” on a case-by-case basis. The evidence obtained from the witness in this case, in the form of testimony at a preliminary inquiry, fits rather easily into the principled exception to the hearsay rule. Since it was not created in a manner which offends the spousal incompetence rule, there is no need to prevent its admission.

The spousal incompetence rule does not prevent the admission of the out-of-court statements of a spouse. The rule is grounded in the common law, and its scope is thus subject to the interpretation of the courts. The incompetence of a witness does not necessarily preclude the admission of his or her evidence by another route. Evidentiary principles which constrain the truth-seeking process should be carefully tailored so that they do not exceed what is strictly necessary to accomplish the goal for which they are designed. Two surviving policy grounds support the spousal incompetence rule: preventing the threat to marital harmony, and avoiding the natural repugnance of compelling a spouse to testify and having to witness this “spectacle” in court. Since the second rationale is not of concern where the evidence of a spouse is adduced through a hearsay exception, the question to be considered is whether a complete exclusionary rule to statements made prior to trial is warranted on the basis of marital harmony.

The marital harmony rationale becomes considerably less convincing where the evidence is tendered via a third party and not by the spouse on the witness stand. 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. 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, most of the damaging effect to the marriage will already have occurred by the trial. Balanced against this reduced threat to marital harmony are two pressing rationales which weigh heavily in favour of allowing the admission of this evidence: the recognition that the spousal incompetence rule severely hinders the freedom of individual choice, and the fact that the trial is primarily a truth-seeking inquiry.

The totality of these concerns tilts the balance decidedly in favour of admitting the evidence. The need to allow individuals to freely choose whether to speak, and the importance of the trial as a truth-seeking inquiry designed to redress harms to society, outweigh any need to prevent the reduced threat to marital harmony where the statement is made prior to trial. It is not strictly necessary to decide the competence question here as the witness is clearly not willing to testify.

Per La Forest J.: The issue of competency, which it is not strictly necessary to address here since the wife in this case is unwilling to testify, would raise issues on a quite different plane from those raised by the question of compellability. A rule prohibiting a spouse from testifying if he or she so wishes raises serious questions about whether it unreasonably infringes on a person’s liberty and equality interests protected by the Canadian Charter of Rights and Freedoms. Such an infringement would require justification at a level akin to that followed in the case of an alleged breach of Charter rights by legislative means. With respect to the wife’s evidence given voluntarily at the preliminary hearing, if it is hearsay, it is admissible under the principled exception to the hearsay rule. If it is not hearsay, it is highly relevant evidence and there is no reason to reject it: it was not covered by the rule of spousal immunity, and the considerations that favour its admission under the principled exception to the hearsay rule militate against exclusion under the broad discretionary rule described in Corbett and Potvin.

Per Sopinka, McLachlin and Major JJ. (dissenting): The principled exception to the hearsay rule created by the majority to allow hearsay statements of incompetent spouses into evidence violates the policy underlying s. 4 of the Canada Evidence Act by forcing spouses to provide evidence against each other. The common law recognized in s. 4 of the Canada Evidence Act has the main policy goals of the maintenance of marital harmony and the prevention of the natural repugnance that results in having one testify against his or her accused spouse. While the policy supporting s. 4 may be seen to militate against the search for truth, for the overriding reason of marital harmony, it is grounded in statute and is recognized in the provisions of the Canada Evidence Act so that if it is to be changed it clearly falls to Parliament to do so. Should the previous testimony of G be used to convict H, it would violate the policy foundation of s. 4 and have the potential to destroy an otherwise successful marriage. This is so whether the evidence is given at the trial or given at the preliminary hearing before the marriage and read in at the trial. The admission of the evidence offends both the letter and the spirit of the spousal incompetence rule. The Crown would not be permitted to obtain through direct testimony the evidence it is attempting to introduce through a principled exception to the hearsay rule. G could not take the stand at trial. Reading in her testimony from the preliminary inquiry equates with forcing her to give testimony against her husband. This is using the so-called back door to overcome the prohibition acknowledged in s. 4 of the Canada Evidence Act. A principled exception to hearsay should not be used to allow the Crown to introduce lower quality evidence when they are barred by the spousal incompetence rule from introducing direct testimony from her to the same effect. This violates the law and is contrary to express legislative policy.

Cases Cited

By Lamer C.J. and Iacobucci J.

Referred to: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915; R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; R. v. Hawkins (1991), 1991 7148 (ON CA), 52 O.A.C. 114, aff’d 1992 42 (SCC), [1992] 3 S.C.R. 463; R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654; Lord Audley's Case (1631), Hutt. 115, 123 E.R. 1140; Bentley v. Cooke (1784), 3 Doug. K.B. 422, 99 E.R. 729; R. v. Bissell (1882), 1 O.R. 514; Pedley v. Wellesley (1829), 3 C. & P. 558, 172 E.R. 545; R. v. Lonsdale (1973), 1973 ALTASCAD 125, 15 C.C.C. (2d) 201; Trammel v. United States, 445 U.S. 40 (1980); Hoskyn v. Metropolitan Police Commissioner, [1979] A.C. 474; Gosselin v. The King (1903), 1903 42 (SCC), 33 S.C.R. 255; Re Spencer and The Queen (1983), 1983 3111 (ON CA), 145 D.L.R. (3d) 344, aff’d 1985 4 (SCC), [1985] 2 S.C.R. 278; R. v. S. (R.J.), 1995 121 (SCC), [1995] 1 S.C.R. 451; R. v. McGinty (1986), 1986 116 (YK CA), 27 C.C.C. (3d) 36; Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608; Watkins v. Olafson, 1989 36 (SCC), [1989] 2 S.C.R. 750; Lutwak v. United States, 344 U.S. 604 (1953); R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525; R. v. Snelgrove (1906), 1906 110 (NS SC), 12 C.C.C. 189; Cuff v. Frazee Storage & Cartage Co. (1907), 14 O.L.R. 263; Caufield v. The King (1926), 1926 491 (QC CS), 48 C.C.C. 109; R. v. Thompson, [1982] 1 All E.R. 907; Wright v. Doe d. Tatham (1834), 1 Ad. & E. 3, 110 E.R. 1108; R. v. Beeston (1854), Dears. 405, 169 E.R. 782; R. v. Lee (1864) 4 F. & F. 63, 176 E.R. 468; R. v. Hall (P.B.), [1973] 1 Q.B. 496; Walkertown (Town) v. Erdman (1894), 1894 9 (SCC), 23 S.C.R. 352; R. v. Scaife (1851), 2 Den. 281, 169 E.R. 505; R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764; R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595; R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829; Ohio v. Roberts, 448 U.S. 56 (1980); R. v. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701; R. v. Clarke (1993), 1993 14647 (ON SC), 82 C.C.C. (3d) 377, aff'd (1994), 1994 1314 (ON CA), 95 C.C.C. (3d) 275, leave to appeal refused, [1995] 3 S.C.R. vi; R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577.

By L’Heureux-Dubé J.

Not followed: Ivey v. United States, 344 F.2d 770 (1965); referred to: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915; R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; United States v. Archer, 733 F.2d 354 (1984); R. v. Kobussen (1995), 1995 6015 (SK QB), 130 Sask. R. 147; R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654; R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829; R. v. Levogiannis, 1993 47 (SCC), [1993] 4 S.C.R. 475; R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206; Trammel v. United States, 445 U.S. 40 (1980); United States v. Tsinnijinnie, 601 F.2d 1035 (1979); United States v. Brown, 605 F.2d 389 (1979); United States v. Doughty, 460 F.2d 1360 (1972); United States v. Cleveland, 477 F.2d 310 (1973); United States v. Chapman, 866 F.2d 1326 (1989); United States v. Donlon, 909 F.2d 650 (1990); Ballard v. State, 311 S.E.2d 453 (1984); R. v. McKinnon (1989), 1989 9924 (ON CA), 70 C.R. (3d) 10; R. v. Jean, 1980 163 (SCC), [1980] 1 S.C.R. 400, aff’g (1979), 1979 ALTASCAD 89, 7 C.R. (3d) 338; Lloyd v. The Queen, 1981 219 (SCC), [1981] 2 S.C.R. 645; R. v. Andrew (1986), 1986 1150 (BC SC), 26 C.C.C. (3d) 111; Rumping v. Director of Public Prosecutions, [1962] 3 All E.R. 256; R. v. Smithies (1832), 5 C. & P. 332, 172 E.R. 999; R. v. Bartlett (1837), 7 C. & P. 832, 173 E.R. 362; R. v. Czipps (1979), 1979 2095 (ON CA), 48 C.C.C. (2d) 166.

By La Forest J.

Referred to: R. v. Bernard, 1988 22 (SCC), [1988] 2 S.C.R. 833; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670; R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525.

By Major J. (dissenting)

R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654; R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531; R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829; Ivey v. United States, 344 F.2d 770 (1965); R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; R. v. Kobussen (1995), 1995 6015 (SK QB), 130 Sask. R. 147; Trammel v. United States, 445 U.S. 40 (1980).

Statutes and Regulations Cited

Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30, s. 30.

Act further to amend The Canada Evidence Act, 1893, S.C. 1906, c. 10, s. 1.

Administration of Justice Act (No. 1) (U.K.), 11 & 12 Vict., c. 42, s. 17.

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 4 [am. c. 19 (3rd Supp.)], 16, 17.

Canadian Charter of Rights and Freedoms, s. 11(d).

Criminal Code, R.S.C., 1985, c. C-46, ss. 8(3), 120(a), 139(2), 465(1)(c), 691(2)(a), 715 [am. 1994, c. 44, s. 77].

Federal Rules of Evidence, Rule 804(b)(1).

Immigration Regulations, 1978, SOR/78-172, s. 4(3) [ad. SOR/84-140, Schedule, s. 1(1)].

Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, s. 80.

Authors Cited

Canada. Law Reform Commission. Law of Evidence Project. Study Paper No. 1. Evidence: Competence and Compellability. Ottawa: Law Reform Commission of Canada, 1972.

Canada. Law Reform Commission. Report on Evidence. Ottawa: The Commission, 1975.

Cross and Tapper on Evidence, 8th ed. By Colin Tapper. London: Butterworths, 1995.

Federal/Provincial Task Force on Uniform Rules of Evidence. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswell, 1982.

Louisell, David W., and Christopher B. Mueller. Federal Evidence. Rochester, New York: Lawyers Co-operative Publishing Co., 1985.

McCormick on Evidence, vol. 2, 4th ed. By John William Strong, general editor. St. Paul, Minn.: West Publishing, 1992.

Medine, David. “The Adverse Testimony Privilege: Time to Dispose of a ‘Sentimental Relic’” (1988), 67 Oreg. L. Rev. 519.

Phipson on Evidence, 14th ed. By M. N. Howard, Peter Crane and Daniel A. Hochberg. London: Sweet & Maxwell, 1990.

Regan, Milton C. Jr. “Spousal Privilege and the Meanings of Marriage” (1995), 81 Va. L. Rev. 2045.

Schiff, Stanley A. Evidence in the Litigation Process, 4th ed. Scarborough, Ont.: Carswell, 1993.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.

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

APPEALS from a judgment of the Ontario Court of Appeal (1995), 1995 1859 (ON CA), 37 C.R. (4th) 229, 22 O.R. (3d) 193, 96 C.C.C. (3d) 503, 79 O.A.C. 241, allowing the Crown’s appeal from the directed acquittals of the appellants on charges of conspiracy to obstruct justice and of the appellant Hawkins on charges of corruptly accepting money and obstruction of justice. Appeals dismissed, Sopinka, McLachlin and Major JJ. dissenting.

Peter B. Hambly, for the appellant Hawkins.

Harald A. Mattson, for the appellant Morin.

Catherine Cooper and Jamie Klukach, for the respondent.

\The Chief Justice and Iacobucci J.\

The judgment of Lamer C.J. and Gonthier, Cory and Iacobucci JJ. was delivered by

1The Chief Justice and Iacobucci J. -- The co-appellant Kevin Roy Hawkins was a police officer with the Waterloo Regional Police Force. Pursuant to an internal investigation of Hawkins conducted in 1987-88, the Crown believed that Hawkins had provided the co-appellant Claude Morin, a former president of the Satan's Choice Motor Cycle Club, with confidential information concerning police surveillance of the Club in return for money. The key figure in the Crown's investigation was Cherie Graham, the girlfriend of Hawkins. At the time of the preliminary inquiry, the Crown called Graham as a competent and compellable witness, and Graham made a number of statements under oath and cross-examination which incriminated Hawkins. However, shortly after this appearance, Graham retained her own counsel and sought to testify again. This application was granted, and, in her subsequent testimony, Graham recanted key portions of her previous statements, offering explanations with respect to the events in question that were in direct contradiction to what she had previously told the court. Following the completion of the preliminary inquiry, and prior to trial, Graham and Hawkins were legally married.

2The question in these appeals is whether the Crown should have been able to compel Graham to testify at trial, and if not, whether the Crown should have been able to read her preliminary inquiry testimony into evidence at trial. The trial judge found that Graham was not competent for the Crown, owing to the common law rule of spousal incompetence. The majority of the Court of Appeal agreed that the witness was not competent for the Crown, but held that the evidence could have been admitted pursuant to s. 715 of the Criminal Code, R.S.C., 1985, c. C-46, or under the principled exception to the hearsay rule as developed in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, and R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740. The minority would have admitted the evidence through a modification of the common law rule of spousal incompetence, such that a spouse would only be incompetent if married to the accused person at the time of the charge.

3In our view, the circumstances of this case do not warrant modifying the common law rule of spousal incompetence. Both the trial judge and the Court of Appeal were correct in holding that Graham was not a competent witness for the Crown at the trial, as she had entered into a valid and genuine marriage with the co-appellant Hawkins. The Court of Appeal was incorrect in concluding that the testimony of Graham before the inquiry could be read into evidence pursuant to s. 715 of the Criminal Code. However, in our opinion, the Court of Appeal was correct in concluding that the testimony could be admitted for the truth of its contents through a principled exception to the hearsay rule at common law. The statements of Graham before the preliminary inquiry satisfy the requirements of necessity and reliability under the Khan, Smith and B. (K.G.) framework. While the trial judge enjoyed a residual discretion to exclude her prior statements, we are not persuaded that the risk of prejudice to Hawkins and Morin outweighs the probative value of the statements. The Crown was entitled to put these statements to the trier of fact, subject to appropriate considerations and instructions relating to weight. Accordingly, we would dismiss the appeals and affirm the order of a new trial.

I. Factual and Procedural Background

4During the early 1980s, the co-appellant Constable Kevin Roy Hawkins was assigned responsibility for gathering intelligence on the activities of motorcycle clubs, in particular the Satan's Choice Motor Cycle Club, operating within the Kitchener-Waterloo area. At the time, the co-appellant Claude Morin was the president of the Satan's Choice Club in Kitchener. Pursuant to an internal police investigation of Hawkins, the Crown believed that Hawkins had provided Morin with confidential information relating to on-going police surveillance of the Club's alleged trafficking activities, and that Hawkins had received a $5,000 bribe from Morin in exchange for his assistance. The cornerstone of the investigation was the information provided by Cherie Graham.

5Cherie Graham was a dancer at the Breslau Hotel in Kitchener. Hawkins met Graham at the hotel in March 1984. Hawkins was married at the time, but he soon left his wife and moved in with Graham. In the ensuing years, the two embarked on several joint financial ventures, including the management of a donut shop and the purchase and sale of a number of houses.

6The relationship, however, was stormy and volatile and was marked by a series of separations and reconciliations. In March 1987, Graham confided in two friends (who were police officers) that Hawkins was physically abusive towards her. She also told them that Hawkins had engaged in questionable dealings with Morin. On the basis of this information, the police opened an investigation into Hawkins.

7On June 22, 1987, in response to further threats from Hawkins, Graham formally contacted the police and was interviewed by Sgt. Doug Lawrence. During this taped conversation, Graham disclosed more details of her boyfriend's involvement with Morin. More specifically, she stated that Hawkins had received $5,000 from Morin in exchange for information relating to on-going police investigations, and that Hawkins was expecting to receive a further $7,000 to $10,000 from a planned drug transaction. On November 28, 1987, Graham met with Sergeant Lawrence again. During that brief conversation (also taped), Graham generally confirmed her previous statements. She also said that Hawkins had become increasingly suspicious of her, and that she feared for her safety.

8On November 29 and 30, Hawkins spoke with Inspector J. MacDonald on the telephone. He asked the inspector whether marriage to Graham would render her non-compellable. A week later, Hawkins made similar inquiries to Staff Sergeant Koniuch and the two men concluded that spouses were competent but not compellable to testify against one another. Hawkins then said to Koniuch: "I guess I'm going to have to marry her."

9On January 29, 1988, Hawkins and Morin were jointly charged with conspiracy to obstruct justice under ss. 465(1)(c) and 139(2) of the Criminal Code. Hawkins was also charged with having corruptly accepted money and obstruction of justice under ss. 120(a) and 139(2) of the Code. Over the following months, Graham and Hawkins stayed in contact and met to discuss the possibility of marriage as a means of preventing Graham’s testifying at trial.

10At the end of March, Hawkins, his lawyer and Graham met to discuss the effects of marriage upon Graham's competence and compellability for the Crown. On June 16, 1988, Hawkins spoke to Constable Stuebing about marrying Graham so that she would be incompetent for the Crown.

11In July 1988, Graham left Hawkins to enter the witness protection program.

12A preliminary inquiry was convened on September 7 and 8, 1988. The Crown called Graham as a competent and compellable witness. Under oath, Graham described her abusive relationship with Hawkins, and repeated the contents of her two conversations with Sergeant Lawrence. In particular, she testified that Hawkins and Morin were friends. Morin would frequently call Hawkins at home during the evenings, and Hawkins would then go and meet Morin. Graham stated that one night Hawkins came home with an envelope containing $5,000 which he told her Morin had given him in exchange for information in relation to police surveillance. She stated that Hawkins told her that he was expecting to receive another $7,000 to $10,000 from Morin in relation to a narcotic transaction, but the transaction ultimately fell through. Graham further testified that Hawkins had brought photographs of bikers and copies of police files on individual bikers to their home which he later gave to Morin. Finally, she acknowledged that she and Hawkins had previously discussed marriage as a means of avoiding her appearance before the court. Graham's testimony was subject to cross-examination by four defence counsel (counsel for the two appellants, as well as counsel for two other accused), but she stood by the substance of her statements. Her testimony was transcribed, but it was not completely recorded on audiotapes.

13On October 3, 1988, Graham retained independent counsel and asked the court to be recalled as a witness. The judge granted her request over the Crown's objection, and a continuation of the inquiry was scheduled for January 19, 1989, and February 20, 1989. In the intervening period, Graham removed herself from the witness protection program and reconciled with Hawkins. The couple purchased a house together, but Hawkins continued to live in a separate apartment. A judicial order was issued in December prohibiting Hawkins from communicating with Graham, but it appears that she nonetheless continued to communicate with Hawkins.

14In her second appearance before the inquiry, Graham recanted most of her earlier testimony with respect to Hawkins' alleged corrupt dealings with Morin. She explained that most of her previous testimony, as well as her earlier recorded conversations with Sergeant Lawrence, had been coached by the police. She did not retract her previous statements in relation to her fear of Hawkins, his threats of abuse and violence, his threats to her life, his friendly connections with Morin, or her discussions with Hawkins on marriage as a means for preventing her from testifying at trial.

15Hawkins and Morin were committed to stand trial on March 21, 1989. One week later, Hawkins and Graham obtained a marriage licence, and, on March 31, 1989, they were married. At the date of this Court's hearing, the couple remained married.

II. Relevant Statutory Provisions

16A. Criminal Code, R.S.C., 1985, c. C-46

715. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person

(a) is dead,

(b) has since become and is insane,

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada,

and where it is proved that the evidence was taken in the presence of the accused, it may be read as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

B. Canada Evidence Act, R.S.C., 1985, c. C-5

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 against subsection 50(1) of the Young Offenders Act or with an offence against 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.

III. Judgments Below

A. Ontario District Court -- Motion

17In a pre-trial motion before LeSage Dist. Ct. J. (as he then was), the Crown sought a declaration that Graham was a competent and compellable witness for the Crown. The Crown argued that the marriage was a "sham" entered into for the sole purpose of preventing Graham from being called as a prosecution witness at trial. Alternatively, the Crown argued that Graham's prior testimony before the preliminary inquiry was admissible under s. 715 of the Code.

18On July 27, 1990, LeSage Dist. Ct. J. denied the motion. He concluded that the marriage was "valid and legitimate", and did not represent a "sham". As well, he held that s. 715 could not be used to circumvent the common law rule of spousal incompetence. Upon a further motion by the appellants, on December 24, 1990, LeSage J. stayed the prosecution on grounds of unreasonable delay. However, the Ontario Court of Appeal subsequently set aside the stay and remitted the matter to the General Division for trial: (1991), 1991 7148 (ON CA), 52 O.A.C. 114, aff’d 1992 42 (SCC), [1992] 3 S.C.R. 463.

B. Ontario Court (General Division) -- Trial

19At the outset of the trial, a new motion was brought before Philp J. to have Graham declared a competent and compellable witness for the Crown. While the Crown abandoned its original position, conceding that the marriage was genuine, it now contended that, since one of the purposes of the marriage was to frustrate the administration of justice, the traditional common law rule should not be allowed to operate. In support of its position, the Crown relied on Hawkins' inquiries to his fellow officers, and Graham's admission before the preliminary inquiry that the couple had discussed marriage as a means of avoiding her appearance at trial. The Crown also continued to argue that even if Graham was not competent and compellable, her original testimony before the preliminary inquiry ought to be admitted under s. 715 of the Code, or under a principled exception to the hearsay rule.

20Philp J. denied the motion. He found that Graham was not a competent or compellable witness for the Crown. He acknowledged the incremental change to the common law rule made by this Court in R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, but declined to create a new exception to the rule where the accused has entered into a "marriage of convenience". He concluded that such an exception would be contrary to the very purpose of spousal incompetence, which is "to preserve marital harmony and also to prevent the natural repugnancy that results in a spouse testifying against his or her accused spouse".

21Philp J. further found that Graham's preliminary inquiry testimony could not be admitted under s. 715 of the Code. In his view, the spousal incompetency of Graham did not amount to a refusal to give evidence, as required by the section. In the alternative, Philp J. found that admitting the evidence would operate unfairly against Hawkins. Therefore, he chose to exercise his discretion, which is preserved by s. 715, to exclude evidence which would unduly prejudice the accused. The prejudice would arise from the difficulty facing the trier of fact in judging the truthfulness of Graham's statements from written transcripts or from the playing of audio tapes. Philp J. also found that it would be unfair to permit the Crown to read Graham's preliminary inquiry testimony into evidence when it was barred from admitting the same evidence through direct testimony.

22Finally, Philp J. held that Graham's prior testimony could not be admitted under a principled exception to the hearsay rule pursuant to Khan, Smith, and B. (K.G.). The trial judge was satisfied that the requirement of necessity was met, but he was not persuaded that the prior testimony before the inquiry was sufficiently reliable. He was particularly troubled by the fact that the jury would not have the opportunity to observe the demeanour and expressions of Graham in the witness box. Furthermore, he underscored the contradictory nature of her successive statements, and the numerous external influences which may have permanently contaminated her testimony. As he explained:

. . . because of the events leading up to the giving of the two versions, the involvement of the police, the involvement of Mr. Hawkins, and the many threats made against Ms. Graham, the beatings to which she was subjected and the promises apparently held out to her by the police, as well as the apparent influence the police had on her in obtaining the statements, and then the subsequent testimony in September which was given while she was under the witness protection programme, then the subsequent January recantation after having spent some time back with her husband, I cannot find the necessary ingredient of reliability necessary to allow her prior evidence to be read into this trial.

He noted that, even if the statements satisfied the requirements of reliability and necessity, they should nonetheless be excluded because the risk of prejudice outweighed the probative value of the evidence. Furthermore, the creation of a principled exception in this instance would undermine the purpose of the common law rule of spousal incompetency and endanger the harmony of the accused's marriage.

23Following the ruling on the motion, the Crown decided that it would not offer any evidence in support of a conviction. Accordingly, the jury rendered directed acquittals of the two appellants on May 25, 1993.

C. Ontario Court of Appeal (1995), 1995 1859 (ON CA), 37 C.R. (4th) 229

1. Arbour J.A. (Galligan J.A. concurring)

24On February 28, 1995, a majority of the Ontario Court of Appeal allowed the appeal. Arbour J.A. found that Graham was incompetent and uncompellable to testify against Hawkins, as the marriage between Graham and Hawkins was still in existence. In her view, so long as the marriage is not fraudulent or a sham, marital partners are entitled to the full legal benefits which the union entails. She rejected the Crown’s invitation to create an exception to the common law rule.

25However, Arbour J.A. found that Graham's previous testimony before the preliminary inquiry could be admitted under s. 715 of the Code. She was of the view that Graham's decision to wed Hawkins was equivalent to a "refusal to testify", as "[Graham] deliberately put herself beyond the reach of the court" (p. 242). Unlike the trial judge, Arbour J.A. was satisfied that the admission of the statements under s. 715 would not result in unfairness to the accused. She did not believe that it would be unfair for the jury to weigh the contradictory statements without an opportunity to witness Graham's demeanour in the stand. Furthermore, the admission of such statements through s. 715 would not indirectly circumvent the purpose of the spousal incompetency rule. As she explained (at pp. 243-44), “Cherie Graham cannot be called by the Crown to give evidence. It does not follow, however, that her evidence is inadmissible if it can be put before the court by some other means”.

26Alternatively, Arbour J.A. was persuaded that the statements could be admitted under a principled exception to the hearsay rule pursuant to Khan, Smith, and B. (K.G.). The dual criteria of necessity and reliability were both satisfied in this instance. She agreed that it was reasonably necessary to admit the hearsay evidence of Graham, because of her unavailability for trial. With regard to reliability, while there were serious contradictions in Graham's testimony, Arbour J.A. stressed that "when reliability is used as a condition of admissibility of hearsay evidence, it must not be confused with the ultimate reliability or truth of the hearsay statement" (p. 245). Rather, the examination of reliability must focus on circumstantial guarantees of trustworthiness, in particular, the opportunity of contemporaneous cross-examination, the administration of an oath, and the presence of the declarant in court. While the admission of Graham's previous testimony would lack the third circumstantial guarantee of trustworthiness, Arbour J.A. nonetheless concluded that the statements were sufficiently reliable (at pp. 249-50):

The evidence which [the Crown] sought to have admitted in this case was an accurately recorded sworn statement which was fully cross-examined in the presence of the respondents by their counsel. I do not wish to overstate the importance of actual cross-examination. A mere opportunity to cross-examine may suffice to render the statement admissible, as is the case under s. 715 of the Code. In this case, a full cross-examination did take place. Thus, the only possible hearsay danger that would stand in the way of admissibility is what was referred to in K.G.B. as "presence". Considering the circumstantial guarantees of trustworthiness offered by the oath and cross-examination, that single factor is insufficient, in my opinion, to provide a principled basis upon which to bar the admissibility of Cherie Graham's evidence. Had she died, become ill, left the country, or had she stated in court that she refused to testify, the Crown would have been entitled to introduce her evidence given at the preliminary inquiry without having to show that it was "reliable". I can find nothing in the principles upon which the hearsay rule is based which commands a different result in this case. [Emphasis added.]

27She rejected the claim that the admission of such evidence under a principled exception would operate unfairly against the accused, maintaining that, if Hawkins needed to, he could always call Graham as a witness (at p. 250):

I find the proposition that an accused is being treated unfairly by being deprived an opportunity to cross-examine the evidence of a witness that only he can call to be untenable.

Thus, subject to proper instructions to the jury, Arbour J.A. would have permitted Graham’s testimony to be read into evidence at trial.

2. Weiler J.A. (concurring in the result)

28Weiler J.A. would have similarly allowed the appeal, but for different reasons. She first considered s. 4 of the Canada Evidence Act, and noted that it does not ratify the common law rule of spousal incompetence, but rather, presumes its existence and restricts its application in the circumstances described in subss. (2) and (4). Section 4(5) allows a spouse to be called as a witness without the consent of the other spouse where the common law permits an exception to the rule of spousal incompetence. These common law exceptions, as stated in Salituro, supra, are not static, but evolve over time.

29Weiler J.A. identified two conflicting values at stake: the public interest in a fair trial and the preservation of marital harmony. Because she rejected the submission that Graham’s evidence could be admitted pursuant to s. 715, she found that the only way to ensure a fair trial was to make Graham a competent and compellable witness for the Crown. This required a modification of the common law rule of spousal incompetence.

30According to Weiler J.A., the timing of a marriage is a relevant consideration in the application of the competency rule. She referred to s. 4(5) of the Canada Evidence Act, which says:

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.

In her view, a plain reading of this section indicates that the rule of spousal incompetency should only apply to persons who were married at the time the spouse was charged. Since Hawkins married Graham following the indictment, Weiler J.A. found that the Crown could compel Graham to testify.

31However, the modified rule would limit the spouse’s testimony to conversations which occurred prior to the marriage. In this way, the competency rule would be made consistent with the spousal privilege accorded by s. 4(3) of the Canada Evidence Act.

32In contrast to the majority, Weiler J.A. declined to admit Graham's previous testimony through the operation of s. 715. She concluded that the language of s. 715 could not be read so as to encompass a witness rendered incompetent by virtue of her "condition or state" (p. 268).

33Weiler J.A. went on to hold that the statements of Graham given before the inquiry could not be read into evidence through a principled exception to the hearsay rule. In her view, the statements did not satisfy the threshold test of reliability as articulated in Smith and B. (K.G.). More specifically, the statements lacked sufficient circumstantial guarantees of trustworthiness: the oath had apparently had no effect on Graham's veracity before the inquiry; and the trier of fact would have no opportunity to observe Graham's demeanour at trial.

34The co-appellants appeal to this Court as of right from the overturning of an acquittal under s. 691(2)(a) of the Code.

IV. Issues

35 1. Did the Ontario Court of Appeal err in holding that the common law rule of spousal incompetency should not be modified in the circumstances of this case?

2. Did the Ontario Court of Appeal err in holding that transcripts of Graham's preliminary inquiry testimony could be read in at trial pursuant to s. 715 of the Criminal Code?

3. Did the Ontario Court of Appeal err in holding that Graham's preliminary inquiry testimony was admissible through a principled exception to the hearsay rule?

V. Analysis

A. Should the common law rule of spousal incompetency be modified?

36 The common law rule is that 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. See, e.g., Lord Audley's Case (1631), Hutt. 115, 123 E.R. 1140, at p. 1141; Bentley v. Cooke (1784), 3 Doug. K.B. 422, 99 E.R. 729; R. v. Bissell (1882), 1 O.R. 514 (Q.B.). The traditional rule has been modified by the passage of the Canada Evidence Act. Section 4(1) of the Act makes a spouse competent to testify on behalf of the accused in a criminal trial, and s. 4(2) makes the spouse both competent and compellable for the Crown for certain specified offences which generally tend to implicate the health and security of the witness spouse. But these statutory exceptions aside, the Act 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.

37 At common law, it was well accepted that the rule of spousal incompetency renders a spouse incapable of testifying in relation to events which occurred both before and during the marriage: Pedley v. Wellesley (1829), 3 C. & P. 558, 172 E.R. 545. See Wigmore on Evidence (McNaughton rev. 1961), vol. 8, at § 2230. This principle was more recently underscored by the Alberta Court of Appeal in R. v. Lonsdale (1973), 1973 ALTASCAD 125, 15 C.C.C. (2d) 201. Citing common law authorities continued under s. 4(5) of the Canada Evidence Act, Sinclair J.A. held for the Court of Appeal, at p. 203, that the Crown may not call the spouse of an accused as a competent witness to testify in relation to events which occurred prior to the marriage.

38 Numerous justifications for the rule have been advanced over the history of the common law, but only two appear to have survived to the modern era. As originally noted by Lord Coke, in his Institutes of the Laws of England, the first justification for the rule is that it promotes conjugal confidences and protects marital harmony. The second justification is that the rule prevents the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution. Wigmore describes this latter 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” (emphasis in original): Wigmore on Evidence, supra, vol. 8, § 2228, at p. 217.

39 However, as this Court recognized in Salituro, supra, at pp. 672-73, serious criticisms have been levelled against these two surviving justifications of the traditional rule. It has been called arbitrary for excluding other familial relationships, and antiquated, because it is based on outmoded notions of marriage. Perhaps most importantly, rendering a person incapable of testifying solely on the basis of marital status does strip an individual of key aspects of his or her autonomy. As Iacobucci J. noted for the Court at p. 673:

There is in my opinion a more fundamental difficulty with the reasons for the rule. 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.

40 Some have suggested an alternative approach whereby a spouse could be declared competent against his or her spouse, but not compellable. The United Kingdom recently endorsed such a rule with the passage of s. 80 of the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60. For a discussion of the Act, see Cross and Tapper on Evidence (8th ed. 1995), at pp. 236-40; Phipson on Evidence (14th ed. 1990), at pp. 154-55. The United States Supreme Court adopted a similar modification of the common law rule. The court held that under the Federal Rules of Evidence, a spouse is a competent but not compellable witness for the prosecution, with the witness spouse having the privilege to refuse to testify adversely: Trammel v. United States, 445 U.S. 40 (1980). See Uniform Rules of Evidence, Rule 504. In Canada, the Federal/Provincial Task Force on Uniform Rules of Evidence has also recommended the abolition of the traditional rule in favour of a modern rule which makes a spouse a competent but not compellable witness for the prosecution: Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), at pp. 256-60; Uniform Rules of Evidence, s. 92(1). See also, Law Reform Commission of Canada, Report on Evidence (1975), at pp. 88-90 (Evidence Code, at ss. 54-57) (recommendation that spouse of accused be competent but not compellable if the value of the testimony outweighs any potential disruption to the relationship).

41 Another possible alternative, recognized in Salituro, supra, at p. 676, is that the spouse of an accused could be declared as both a competent and a compellable witness for the Crown. This would be consistent with the general common law rule that competence implies compellability. See Hoskyn v. Metropolitan Police Commissioner, [1979] A.C. 474 (H.L.), at p. 484, per Lord Wilberforce, at p. 500, per Lord Edmund-Davies. In Canada, see Gosselin v. The King (1903), 1903 42 (SCC), 33 S.C.R. 255, at pp. 276-77 (spouse of accused both competent and compellable by prosecution, prior to An Act further to amend The Canada Evidence Act, 1893, S.C. 1906, c. 10, s. 1); Re Spencer and The Queen (1983), 1983 3111 (ON CA), 145 D.L.R. (3d) 344 (Ont. C.A.), at p. 351 aff’d 1985 4 (SCC), [1985] 2 S.C.R. 278; R. v. S. (R.J.), 1995 121 (SCC), [1995] 1 S.C.R. 451, at p. 522, per Iacobucci J. (“the general rule that witnesses are compellable”), and at pp. 619-20, per Sopinka J. The Law Reform Commission of Canada has previously argued that making the witness spouse both competent and compellable would relieve the witness of the difficult pressures of choosing to testify against his or her life partner. The Commission has further contended that such an approach would open the artificially closed list of offences defined in s. 4(2) and 4(4) of the Canada Evidence Act. See Law of Evidence Project, Study Paper No. 1, Competence and Compellability (1972), at pp. 6-7. It has also been argued that this approach would reduce the incidence of spousal abuse, as accused spouses would be unable to abuse their competent partners to dissuade them from testifying. See R. v. McGinty (1986), 1986 116 (YK CA), 27 C.C.C. (3d) 36 (Y.T.C.A.), at p. 60. We are of the view that both these approaches, by vesting the spouse of an accused with the choice to testify against his or her partner, are arguably more consistent with the protection of the marital bond as well as the autonomy and dignity of the individual.

42 While such alternative approaches to the rule of spousal incompetency may serve to promote the autonomy and dignity of an individual spouse, it is our opinion that any significant change to the rule should not be made by the courts, but should rather be left to Parliament.

43 The common law rule of spousal incompetence has remained largely unchanged for some 350 years. The respondent has submitted that there is ample scope for judicial development of the rule. While it is true that this Court has signalled its willingness to adapt and develop common law rules to reflect changing circumstances in society at large (see, e.g., Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608; Watkins v. Olafson, 1989 36 (SCC), [1989] 2 S.C.R. 750; Khan, supra), it is clear that the courts will only make incremental changes to the common law. So, for example, the change implemented in Salituro, did not strike at the original justifications of marital harmony and repugnance which animated the substance of the common law rule. As the Court stated at p. 674:

Where spouses are irreconcilably separated, there is no marriage bond to protect and we are faced only with a rule which limits the capacity of the individual to testify.

By contrast, complex changes to the law with uncertain ramifications should be left to the legislature.

44 On the basis of the criticisms of the common law rule, discussed above, the respondent advanced two arguments. First, the Crown advocated a modification of the traditional rule along the lines suggested by Weiler J.A., whereby a spouse would be rendered competent if the marriage was solemnized after the issuance of an information or indictment. Alternatively, the respondent invited this Court to create an exception to the rule of spousal incompetency where an accused marries a witness for the purpose of insulating that witness from being called by the prosecution.

45 Both of the proposed changes, far from being incremental, would strike at the heart of the traditional rule of spousal incompetency. A marriage entered into following the swearing of an indictment may be perfectly valid and genuine, and there may indeed be a marital bond worthy of protection. Furthermore, as noted previously, this proposed exception runs afoul of the settled view that the rule of spousal incompetence applies to testimony relating to events which precede the marriage (i.e., events which precede the marriage even if the marriage was solemnized after the laying of formal charges).

46 Similarly, a marriage which is motivated by a desire to take advantage of the spousal incompetency rule may nonetheless be a true marriage, deserving of the law’s protection. It has long been recognized at common law that a spouse is entitled to rely on the benefits of spousal incompetency even if one of the purposes of the marriage was to preclude testimony before a court. See, e.g., Wigmore on Evidence, supra, at §2230; Cross and Tapper on Evidence, supra, at p. 236 (the rule of spousal incompetency applies “whatever the motive for marrying”).

47 In this instance, the Crown has conceded that the marriage of Hawkins and Graham is genuine. At the time of this Court's hearing, the couple were approaching their seventh wedding anniversary. There was no evidence that either of the two partners had failed to fulfil their reciprocal obligations of care and support. Under the circumstances, making Graham compellable by the Crown would threaten the couple’s genuine marital harmony and undermine the purpose of the spousal incompetency rule. In this regard, we note the position of the trial judge:

I have difficulty, however, in the case at bar in being satisfied that there does not exist at this time a good and successful marriage, hence the need to preserve matrimonial harmony in this case still exists and must be of paramount concern. . . . I would also be concerned with whether the exception in this particular case would result in difficulties and repercussions in the apparently on-going successful marriage of the witness and the accused.

To create such an exception, thereby allowing Ms. Graham to testify, would be contrary to the purpose of the common law rule to preserve marital harmony and also to prevent the natural repugnancy that results in a spouse testifying against his or her accused spouse. It would encourage perjury by her to preserve the marriage or, if truthful, a break-down of the marriage. [Emphasis added.]

48 Either of the two proposed changes to the common law rule of spousal incompetency would amount to far more than an incremental change in the law. Such a change is unprecedented and of uncertain consequences. As the trial judge said:

. . . I am of the opinion that to create such a new exception as requested would create uncertainty as to the consequences resulting from such a change that would be completely out of the control of the courts.

49 Furthermore, the change advocated by the respondent would be unworkable. It would require the courts to examine the motivation for marriage in this case. Absent evidence that the marriage was a sham, we fail to see how the court can begin to inquire into the reasons for the marriage. There is no justification for such an inquiry unless there should be concrete evidence that the marriage was legally invalid. Courts and tribunals are permitted to inquire into this most personal of realms only in specific, limited circumstances as prescribed by the legislature or Parliament, for example, in the immigration context (see s. 4(3) of the Immigration Regulations, 1978, SOR/78-172, which provides that a Canadian citizen may not sponsor a spouse where that spouse "entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse")).

50 We emphasize that the matter may be different if the evidence clearly established that the only purpose of the marriage was to avoid criminal responsibility by rendering a key witness uncompellable and that the partners had no intention of fulfilling their mutual obligations of care and support. In such circumstances, the marriage would be a "sham", and the court may be willing to take this into account. For instance, in Lutwak v. United States, 344 U.S. 604 (1953), the U.S. Supreme Court held that the spouse of an accused could not invoke the rule of incompetency, as the evidence clearly demonstrated that the parties had no intention of living together as spouses. However, this is not the case in the Hawkins-Graham marriage.

51 For these reasons, we are in agreement with the trial judge, and the majority of the Court of Appeal, that no modification of the common law rule of spousal incompetence should be made in this case. Graham was not a competent witness for the Crown, and, accordingly, her viva voce evidence could not be admitted at trial. We express no opinion as to whether Graham, even if competent, would have also been compellable in this instance. However, it remains to be seen whether her evidence could have been admitted by an alternative means.

B. May Graham's testimony before the preliminary inquiry be read into evidence at trial through s. 715 of the Criminal Code?

52 Assuming that Graham is found to be an incompetent witness at trial, the Crown alternatively seeks to have the transcripts of Graham's testimony before the preliminary inquiry read into evidence under s. 715 of the Criminal Code.

53 Section 715 traces its origins to An Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30, s. 30. The original version of s. 715 was modelled on comparable English legislation regarding the admission of evidence taken at preliminary hearings. See Administration of Justice Act (No. 1), 11 & 12 Vict., c. 42, s. 17 (1848). As it presently reads, s. 715 provides that where a person whose evidence was given at a previous trial on the same charge or was taken in the course of the investigation or on the preliminary inquiry refuses to be sworn or to give evidence, or is now dead, insane, so ill as to be unable to travel or testify, or is absent from Canada, then that person's testimony may be read as evidence in the proceedings without further proof. The evidence must also have been given in the presence of the accused. However, even if preliminary inquiry evidence satisfies these criteria, s. 715 preserves a residual discretion in the trial judge to exclude such evidence: R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525.

54 Graham’s marriage clearly cannot be read into the section as grounds for admitting the transcripts of her preliminary inquiry evidence. The marriage of Graham and Hawkins does not represent a refusal to give evidence: the common law rule of spousal incompetency disqualifies a spouse from giving evidence, regardless of the spouse's choice. Indeed, there is no way of knowing whether Graham actually would have refused to testify; she may have chosen to testify for the defence.

55 For these reasons, it is our opinion that the majority of the Court of Appeal erred in holding that transcripts of Graham's preliminary inquiry testimony could be read in at trial pursuant to s. 715 of the Criminal Code. It is therefore unnecessary to express any view on the nature of a trial judge's residual discretion to exclude previous testimony under s. 715, and whether this residual discretion should have otherwise been exercised in this instance. However, we do not believe that our conclusion regarding the application of s. 715 necessarily precludes the potential admission of the transcripts at common law.

56 On its face, s. 715 does not indicate whether it was intended to displace the pre-existing common law governing the admission of prior testimony. Some cases earlier this century suggested that the provision was indeed exhaustive, i.e. that preliminary inquiry evidence may only be admitted at a criminal trial through the operation of s. 715. See R. v. Snelgrove (1906), 1906 110 (NS SC), 12 C.C.C. 189 (N.S.S.C.); Cuff v. Frazee Storage & Cartage Co. (1907), 14 O.L.R. 263 (Div. Ct.); Caufield v. The King (1926), 1926 491 (QC CS), 48 C.C.C. 109 (Que. K.B.). The Nova Scotia Supreme Court in Snelgrove defended this interpretation on two separate grounds: first, the Criminal Code was generally intended to be a comprehensive criminal statute; second, the predecessor of s. 8(3) of the Code (continuing common law justifications and excuses) implicitly excluded other rules of common law. Professor Schiff, however, suggests that the exhaustiveness of s. 715 remains an open question: Evidence in the Litigation Process (4th ed. 1993), at pp. 431-32, nn. 13-14. See, as well, The Law of Evidence in Canada, at p. 274, n. 420.

57 We believe that the preferable interpretation is that s. 715 is not a "comprehensive code" governing the admissibility of preliminary inquiry testimony. As noted by Schiff, supra, at p. 431, the provision was originally modelled after the Administration of Justice Act (1848) in the United Kingdom, and English courts have held consistently that this statute and its successors did not displace the common law. See, e.g., R. v. Thompson, [1982] 1 All E.R. 907 (C.A.), at p. 912. Furthermore, this interpretation is consistent with the Criminal Code's general approach to the law of evidence. The substantive offences articulated by the Code presume the existence of a body of rules of evidence derived from the common law. While the Code modifies and abolishes some rules, it does so only in specific instances and through language to that effect. Accordingly, if preliminary inquiry testimony does not meet the requirements for admissibility under s. 715, it remains open for the trial judge to consider whether such testimony may still be read into evidence by reference to the principles of the common law.

C. May Graham's testimony before the preliminary inquiry be read into evidence at trial through a principled exception to the hearsay rule?

58 The prevailing view in the common law world is that evidence at trial of statements made by a witness in a prior adjudicative proceedings ("former testimony" or "prior testimony") represents a form of hearsay. The great historical opponent of this view, however, was Wigmore. Wigmore strongly advocated a definition of hearsay which was centred on the party's inability to cross-examine the declarant. Because preliminary inquiry testimony is subject to contemporaneous cross-examination, Wigmore argued that statements made by a declarant in prior adjudicative proceedings where cross-examination was available were substantively admissible in a subsequent proceeding, as such statements did not constitute hearsay.

59 However, the vast majority of scholars disagree with Wigmore and maintain that testimony in former proceedings falls within an expansive definition of the hearsay rule. See Cross and Tapper on Evidence, supra, at p. 721; McCormick on Evidence (4th ed. 1992), vol. 2, at § 301; Phipson on Evidence, at p. 931; The Law of Evidence in Canada, at p. 270.

60 We similarly find that such prior testimony falls within the ambit of the hearsay rule. In the past, this Court has generally declined to adopt a single comprehensive definition of the hearsay rule, for fear that an exhaustive definition of the rule may fail to capture the full breadth of circumstances where a statement by an out-of-court declarant will raise one or more of the traditional hearsay dangers (namely, the lack of oath, the lack of contemporaneous cross-examination, and the lack of demeanour evidence). See Smith, at p. 924. The testimony of a declarant in a prior proceeding, prima facie, raises a hearsay danger because the trier of fact cannot examine the demeanour of the declarant at trial. Indeed, if such testimony did not represent hearsay, there would be no need for provisions similar to s. 715, as such prior testimony would be substantively admissible in all circumstances, even if the declarant was otherwise available to testify.

61 Regardless of the appropriate characterization of such former testimony, the common law was historically prepared to admit such evidence either as non-hearsay or as an exception to the hearsay rule in specific circumstances where the declarant was generally unavailable to testify at trial.

62 Early in the history of the common law, English courts held that prior testimony given in a previous proceeding may be read into evidence in a subsequent civil proceeding where the parties were the same and where the testimony was open to cross-examination: Wright v. Doe d. Tatham (1834), 1 Ad. & E. 3, 110 E.R. 1108, at pp. 18-19, per Tindal C.J. The courts equally held that prior testimony could be read into evidence in subsequent criminal proceedings for the truth of its contents where the declarant had died prior to trial: R. v. Beeston (1854), Dears. 405, 169 E.R. 782 (C.C.A.); R. v. Lee (1864), 4 F. & F. 63, 176 E.R. 468. See R. v. Hall (P.B.), [1973] 1 Q.B. 496 (C.A.), at p. 504, per Forbes J. See Wilson J.’s discussion of the position of the common law in Potvin, supra, at p. 540.

63 In Canada, the relevant authority on the admission of such testimony in civil proceedings appears to be Walkertown (Town) v. Erdman (1894), 1894 9 (SCC), 23 S.C.R. 352. In Erdman, the plaintiff commenced an action against the town, and an examination de bene esse was held prior to trial. Erdman, however, subsequently died, and his wife pursued a distinct action against the town. Even in the absence of any statutory rule, the Court held that the record of the examination was admissible, as the town had the opportunity to cross-examine Erdman (which it in fact exercised), and the same issues were raised in both actions.

64 Some early cases had indicated that prior testimony could only be admitted in a criminal trial where the witness was unavailable as a result of death or by “procurement” of the court: R. v. Scaife (1851), 2 Den. 281, 169 E.R. 505, at p. 507. But more modern cases have been willing to admit such evidence in circumstances of "unavailability" beyond death. See Thompson, supra, at pp. 912-13 (prior testimony admitted in circumstances of illness). See also Cross and Tapper on Evidence, at p. 721; Phipson on Evidence, at p. 933.

65 However, in Canada, the development of the common law rule for the reception of prior testimony in criminal proceedings was halted with the adoption of the predecessor of s. 715 of the Code shortly after Confederation. We believe that the proper course would be to examine whether Graham’s preliminary inquiry evidence ought to have been admitted through a principled exception to the hearsay rule.

66 In Khan and Smith, this Court signalled the beginning of a modern principled framework for defining exceptions to the hearsay rule. The Court rejected the traditional approach of the common law premised on rigid, categorical exceptions to the hearsay rule in favour of a more flexible approach which seeks to give effect to the underlying purposes of the rule. As Lamer C.J. said in Smith, at p. 932:

. . . Khan should not be understood as turning on its particular facts, but, instead, must be seen as a particular expression of the fundamental principles that underlie the hearsay rule and the exceptions to it. What is important, in my view, is the departure signalled by Khan from a view of hearsay characterized by a general prohibition on the reception of such evidence, subject to a limited number of defined categorical exceptions, and a movement towards an approach governed by the principles which underlie the rule and its exceptions alike.

With this Court's subsequent holdings in B. (K.G.), supra, and, most recently, in R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, this new approach has become firmly entrenched in our jurisprudence.

67 Under this reformed framework, a hearsay statement will be admissible for the truth of its contents if it meets the separate requirements of "necessity" and "reliability". These two requirements serve to minimize the evidentiary dangers normally associated with the evidence of an out-of-court declarant, namely the absence of an oath or affirmation, the inability of the trier of fact to assess the demeanour of the declarant, and the lack of contemporaneous cross-examination.

68 Consistent with the spirit of this modern approach, the twin requirements of "necessity" and "reliability" must always be applied in a flexible manner. As Lamer C.J. stressed in U. (F.J.), at p. 787:

Khan and Smith establish that hearsay evidence will be substantively admissible when it is necessary and sufficiently reliable. Those cases also state that both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case and ensuring that our new approach to hearsay does not itself become a rigid pigeon-holing analysis.

If a hearsay statement satisfies these two requirements, the trial judge may put the statement to the trier of fact, subject to appropriate safeguards and to cautions regarding weight.

69 At the same time, as underscored in B. (K.G.), this modern framework should also be applied in a manner which preserves and reinforces the integrity of the traditional rules of evidence. Accordingly, the new hearsay analysis should not permit the admission of statements which the declarant, if he or she had been available and competent at trial, would not have been able to offer into evidence through direct testimony because of the operation of an evidentiary rule of admissibility. As Lamer C.J. stated, at p. 784, in discussing the application of the Khan and Smith approach to the evidentiary use of prior inconsistent statements:

. . . prior inconsistent statements will only be admissible if they would have been admissible as the witness's sole testimony. That is, if the witness could not have made the statement at trial during his or her examination-in-chief or cross-examination, for whatever reason, it cannot be made admissible through the back door, as it were, under the reformed prior inconsistent statement rule. [Emphasis added.]

For the purposes of illustration, the Chief Justice, at pp. 784-86, identified two categories of statements which the declarant could not have made as part of his or her sole testimony if the declarant was capable of testifying at trial: hearsay statements which in themselves fell outside a recognized exception to the hearsay rule, and statements (where the declarant is a state actor) repeating an admission obtained in violation of the accused’s right to silence under R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595. In both such cases, the declarant could not have offered such statements into substantive evidence through his or her sole testimony as a result of an exclusionary rule of evidence. Thus, in the absence of the declarant at trial, the principled framework should not be applied to permit the admission of such statements for the truth of their contents through the back door.

70 With these principles in mind, we turn to examine whether Graham’s preliminary inquiry testimony is sufficiently necessary and reliable to permit its reception at a subsequent criminal trial under a principled exception to the hearsay rule.

1. Necessity

71 Under this Court's principled framework, hearsay evidence will be necessary in circumstances where the declarant is unavailable to testify at trial and where the party is unable to obtain evidence of a similar quality from another source: B. (K.G.), at p. 796. Consistent with a flexible definition of the necessity criterion, there is no reason why the unavailability of the declarant should be limited to closed, enumerated list of causes. As Wigmore articulated the necessity criterion (Wigmore on Evidence, supra, at §1421):

(1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing. [Italics in original; underlining added.]

But as this Court indicated in B. (K.G.), at pp. 797-98, the statement of a declarant may still meet the necessity criterion in limited circumstances where the declarant is not unavailable in the strict physical sense. See, e.g., R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829, at para. 20, per McLachlin J.

72 For the purposes of these appeals, it will suffice to hold that the preliminary inquiry testimony of a witness will satisfy the criterion of necessity where the witness is generally unavailable to testify at trial. Without restricting the precise content of "unavailability", the categories of absence recognized under s. 715, specifically death, illness, and insanity, offer a helpful guide to the types of circumstances under which it will be sufficiently necessary to consider the admission of the witness's former testimony.

73 In this instance, we are satisfied that Graham was unavailable to testify on behalf of the Crown for the purposes of the necessity criterion. The prosecution could not call upon Graham to testify as a result of her spousal incompetency, and there was no other means of presenting evidence of a similar value before the court. In both Khan, at p. 548, and Rockey, supra, at para. 20, the Court similarly found that the necessity criterion would be met in circumstances where a child declarant was legally incompetent to give viva voce evidence at trial.

2. Reliability

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

The history of the common law exceptions to the hearsay rule suggests that for a hearsay statement to be received, there must be some other fact or circumstance which compensates for, or stands in the stead of the oath, presence and cross-examination.

75 The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.

76 We are persuaded that a witness's testimony before a preliminary inquiry will generally satisfy this threshold test of reliability since there are sufficient guarantees of trustworthiness. A preliminary inquiry will involve precisely the same issues and the same parties as the trial. The hearsay dangers associated with testimony in such an adjudicative proceeding are minimal. Preliminary inquiry testimony is given under oath, and is also subject to the adverse party's right to contemporaneous cross-examination. It is only tainted by the lack of the declarant's presence before the trier of fact. As this Court previously stressed in B. (K.G.), at p. 792, the inability to observe the declarant's demeanour on the stand can handicap the trier of fact's ability to assess the credibility of the declarant:

When the witness is on the stand, the trier can observe the witness's reaction to questions, hesitation, degree of commitment to the statement being made, etc. Most importantly, and subsuming all of these factors, the trier can assess the relationship between the interviewer and the witness to observe the extent to which the testimony of the witness is the product of the investigator's questioning. Such subtle observations and cues cannot be gleaned from a transcript, read in court in counsel's monotone, where the atmosphere of the exchange is entirely lost.

77 However, the existence of this sole danger is not fatal to the threshold reliability of prior testimony. In both Smith and Khan, the trier of fact was unable to observe the demeanour of the declarant, but this Court nonetheless found that surrounding indicia of reliability compensated for this disadvantage. Indeed, under many of the recognized exceptions to the hearsay rule, the trier of fact will not enjoy the opportunity to observe the declarant on the stand. See, e.g., Ares v. Venner, supra (business records exception). In our view, this limited danger is more than compensated by the circumstantial guarantees of trustworthiness inherent in the adversarial, adjudicative process of a preliminary inquiry. A declarant's statements before an inquiry are given under oath or affirmation before the adverse party, and the accuracy of the statement is certified by a written transcript which is signed by the judge. Most importantly, the statement is subject to contemporaneous cross-examination and, as Arbour J.A. noted, the party against whom the hearsay evidence is tendered has the power, at trial, to call the witness whose out-of-court statement is being offered. Indeed, it is difficult to imagine more reliable circumstances for a declarant to utter an out-of-court statement which is then tendered into evidence.

78 In this regard, it is worth repeating that the early common law was prepared to admit former testimony under certain circumstances, thus implicitly accepting the general reliability of former testimony notwithstanding the lack of the declarant's presence. In both the United States and Great Britain, legislators have concluded that testimony in preliminary hearings is sufficiently reliable to permit its substantive reception at trial. In Great Britain, Parliament has effectively codified the historical position of the common law through a number of statutes. See Cross and Tapper on Evidence, at p. 721. In the U.S., Rule 804(b)(1) of the Federal Rules of Evidence permits the use of the prior testimony of an unavailable witness through an exception to the hearsay rule where the adverse party had the opportunity to cross-examine the declarant. The U.S. Supreme Court has underscored the "guarantees of trustworthiness in the accoutrements of the preliminary hearing itself": Ohio v. Roberts, 448 U.S. 56 (1980), at p. 73. McCormick stated that "few [hearsay] exceptions measure up in terms of the reliability of statements under former testimony": McCormick on Evidence, at p. 322.

79 For these reasons, we find that a witness's recorded testimony before a preliminary inquiry bears sufficient hallmarks of trustworthiness to permit the trier of fact to make substantive use of such statements at trial. The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross-examination, more than adequately compensate for the trier of fact's inability to observe the demeanour of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not to its admissibility.

80 In this instance, the statements of Graham were made under oath before a properly constituted preliminary inquiry, and they were subject to the opportunity of contemporaneous cross-examination by counsel for both Hawkins and Morin (an opportunity which appears to have been vigorously exercised in this instance). As well, the statements of Graham were transcribed under circumstances which support their authenticity. Accordingly, we find that the statements of Graham before the inquiry satisfy the criterion of reliability.

81 The trial judge held that Graham's testimony before the preliminary inquiry was so inherently unreliable that it failed to pass the test of threshold reliability set out in Khan, Smith and B. (K.G.). In his view, the value of her testimony was permanently corrupted as a result of its internal contradictions, and as a result of her exposure to numerous threats and inducements during the inquiry. We disagree with the trial judge's application of the principled framework. These considerations relate to the actual probative value of Graham's testimony, and thus relate to the question of "ultimate reliability" rather than "threshold reliability". As stressed previously, the test of threshold reliability is limited to an examination of the surrounding circumstances of the prior statements to determine whether there are sufficient guarantees of trustworthiness to counteract the traditional hearsay dangers. However, considerations of the weight and probative value of a declarant's statements may be relevant to the exercise of the trial judge's residual discretion to exclude evidence. Thus, we shall defer our analysis of the judge’s conclusions on the inherent plausibility of Graham’s testimony to our discussion of the court’s residual discretion.

3. Initial Conclusions

82 In cases where the testimony of a witness before a preliminary inquiry is not rendered admissible by s. 715 of the Code, the testimony may still be substantively admissible at the ensuing trial under a principled exception to the hearsay rule if the witness’s prior statements meet the dual requirements of “necessity” and “reliability”. In our view, statements before the inquiry will generally be necessary at trial where the witness is no longer available to testify. Such prior statements will also generally be reliable where they were delivered under oath and subject to the opportunity of cross-examination within a larger adjudicative proceeding which promotes the search for truth. Accordingly, under the Khan, Smith and B. (K.G.) framework, a trial judge may permit the trier of fact to consider such statements for the truth of their contents if the witness could have offered such statements into evidence as a competent and available witness at trial according to the ordinary rules governing the admissibility of evidence. Where necessary, the trial judge should properly caution the jury in relation to the proper weight to be attached to such statements given the witness's lack of presence in court. The trial judge, of course, continues to be vested with the residual discretion to exclude such statements where their probative value is outweighed by their risk of prejudice.

83 For the purposes of these appeals, we are not called upon to decide whether testimony given in a prior adjudicative proceeding other than a preliminary inquiry may be similarly received into evidence at a criminal trial under a principled exception to the hearsay rule. See, e.g., R. v. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701, at pp. 852-55, per Cory J. (admissibility of prior deposition in absence of cross-examination in context of war crime prosecution). Similarly, it is unnecessary to determine whether testimony delivered before a preliminary inquiry in one criminal proceeding may be read into evidence at a criminal trial in a separate criminal proceeding (i.e., a trial involving a different charge, or a different accused). Finally, we have not considered whether and under what circumstances a witness's preliminary inquiry testimony may be admitted for its substantive use as a prior inconsistent statement in accordance with the principles of B. (K.G.) and U. (F.J.). See R. v. Clarke (1993), 1993 14647 (ON SC), 82 C.C.C. (3d) 377 (Ont. Ct. (Gen. Div.)), aff'd (1994), 1994 1314 (ON CA), 95 C.C.C. (3d) 275 (Ont. C.A.), leave to appeal refused, [1995] 3 S.C.R. vi.

84 In this instance, we are persuaded that Graham's statements before the inquiry on September 7 and 8, 1988, and January 19 and February 20, 1989, are sufficiently necessary and reliable to permit the Crown to make substantive use of such statements at trial under a principled exception to the hearsay rule. We also hold that the body of Graham's statements was properly admissible as direct testimony before the preliminary inquiry. The substance of her incriminating statements represented party admissions (i.e., "Hawkins told me X"), which fall under a recognized exception to the hearsay rule. To the extent that some of her statements may have been improperly received before the inquiry under the ordinary rules governing the admissibility of evidence, they should not then be admitted at trial under the principled hearsay framework. Thus, it will be open to the co-appellants to object to the reception of specific statements on this basis during their new trial.

4. The Trial Judge's Residual Discretion

85 It remains to be seen whether the trial judge ought to have nonetheless excluded Graham's evidence before the inquiry under his residual discretion at common law. Even where a particular hearsay statement satisfies the criteria for necessity and reliability under the reformed framework, the statement remains subject to the judge's residual discretion to exclude the statement where "its probative value is slight and undue prejudice might result to the accused": Smith, supra, at p. 937. The existence of this discretion, of course, is constitutionalized by the guarantee of a fair trial under s. 11(d) of the Canadian Charter of Rights and Freedoms: R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, at p. 579. And as underscored by McLachlin J. in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at p. 610, the meaning of “prejudice” must be broadly understood as encompassing both prejudice to the accused and prejudice to the trial process itself.

86 In his discussion of the court’s residual discretion under both s. 715 and the principled framework, the trial judge suggested that the admission of the transcripts of Graham's prior testimony at trial would result in undue prejudice to the co-appellant Hawkins. It was submitted that the probative value of her testimony was slight in light of the direct contradictions within her testimony and her exposure to numerous outside influences. This probative value was arguably further diminished by the inability of the trier of fact to assess the credibility of Graham on the stand. Furthermore, the trial judge found that the reception of such evidence would result in unfairness to Hawkins, as it would indirectly undermine the operation of the spousal incompetency rule and endanger the harmony of his “on-going successful” marriage with Graham. The majority of the Court of Appeal disagreed, holding that the admission of such testimony under a principled exception would not operate unfairly against the co-appellants Hawkins and Morin.

87 We find that the trial judge should not have exercised his discretion to exclude the evidence of Graham's testimony before the preliminary inquiry. In our view, the risk of undue prejudice arising from Graham's testimony did not substantially exceed the potential probative value of such evidence at trial.

(a) Probative Value

88 To begin, we do not accept that Graham's prior testimony was devoid of probative value as a result of the internal contradictions of her testimony. The simple fact of recantation, in our view, does not provide a basis for the exclusion of a witness's testimony. Indeed, if it were otherwise, it is difficult to see how a prior inconsistent statement which met the requirements of B. (K.G.) and U. (F.J.) could ever survive exclusion under a trial judge's residual discretion. In a typical situation of a recantation on the stand, the trier of fact will be able to observe the witness's contradictory testimony under both direct examination and cross-examination. Notwithstanding the internal inconsistencies of such testimony, the trier of fact may reasonably conclude on the basis of all the evidence before it that the witness's original story ought to be preferred over the witness's subsequent recantation, or vice versa.

89 In this instance, even in the absence of Graham's presence in court, we believe that the transcripts of the inquiry have probative value in determining whether or not the co-appellants committed the alleged offences. The trier of fact will still be able to scrutinize the content of Graham's transcribed testimony, including her choice of words and verbal hesitations, under both direct and cross examination. When these transcripts are viewed in light of the other surrounding evidence presented by the Crown, the trier of fact may still be able to conclude reasonably that one of her contradictory versions of events ought to be preferred over the other. Additionally, Graham's preliminary inquiry testimony has probative value in relation to the matters in respect of which she did not contradict herself (e.g. Hawkins' propensity for abuse and Hawkins’ general knowledge of Morin).

90 Finally, we do not agree that Graham's exposure to numerous outside influences deprived her testimony of its potential probative value. We are not persuaded that the myriad of individuals pressuring Graham so contaminated her testimony that she was reduced to a mere puppet of outside interests. Furthermore, there was no evidence that the police or Hawkins elicited her testimony by direct inducement or by coercion. In summary, notwithstanding the contradictions in and outside influences upon Graham's testimony, we find that the trier of fact may indeed derive significant probative value from her statements at the preliminary inquiry. The trier is ultimately free to discount select portions of her former testimony, or to reject her testimony in its entirety, based on their findings of credibility. But we are not persuaded that Graham’s testimony was so corrupted and its evidentiary value so slight that a reasonable and well-instructed jury would be unable to draw any inferences from it.

(b) Prejudice and Unfairness

91 The trial judge found that Hawkins would suffer undue prejudice from the admission of Graham's former testimony since the admission of such evidence would effectively remove the legal protection Hawkins enjoys under the spousal incompetency rule. Specifically, Philp J. reasoned that, if the Crown is precluded from calling Graham as a competent witness at trial out of respect for Hawkins’ marital harmony, then that same respect should prevent the Crown from reading Graham's preliminary inquiry testimony into evidence.

92 The Court of Appeal, by contrast, saw no unfairness to the accused. As Arbour J.A. stated (at pp. 243-44): "Cherie Graham cannot be called by the Crown to give evidence. It does not follow, however, that her evidence is inadmissible if it can be put before the court by some other means."

93 We should first point out that there has been no evidence indicating how the admission of Graham’s preliminary inquiry testimony would actually prejudice the accused and the trial process. It is only this sort of prejudice that is relevant to the exercise of discretion. Nonetheless, to this point, the concern has been whether admitting Graham’s statements would result in any “unfairness” and undermine the accused’s relationship with her. In this respect, we agree with the conclusions of the Court of Appeal. The reception of Graham’s prior testimony through a principled exception to the hearsay rule would not result in undue unfairness to the co-appellant. 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.

94 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.

95 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. She later appeared before the resumed inquiry in early 1989 and partially recanted her previous testimony. She did not retract her previous statements in relation to her fear of Hawkins, his threats of abuse and violence, his friendly connections with Morin, his threats to her life and her discussions with Hawkins on marriage as a means for preventing her from testifying at trial. 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.

96 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.

(c) Conclusion

97 In the balance of considerations, and notwithstanding considerations of “unfairness” to the accused in his marital relationship, the risk of prejudice arising from the admission of Graham's preliminary inquiry testimony did not significantly exceed the potential probative value of such evidence at trial. The trial judge should not have exercised his residual discretion to exclude her testimony, and the transcripts ought to have been put to the trier of fact, subject to appropriate safeguards and instructions. The Crown, of course, would be obliged to present Graham’s preliminary inquiry testimony before the trier of fact in its entirety (i.e., both of her appearances). We reiterate that the credibility of Graham at various points during the inquiry and the ultimate weight to be attached to her evidence remain within the province of the trier of fact.

VI. Conclusions and Disposition

98 We have reached the following conclusions. The Court of Appeal was correct in concluding that Graham was an incompetent witness for the Crown, and that an exception to the common law rule of spousal incompetence should not be made on the facts of this case. However, with respect, the Court of Appeal did err in holding that the transcripts of Graham’s preliminary inquiry could be read in at trial under s. 715 of the Criminal Code. But the Court of Appeal was correct in its alternative conclusion that the substance of the transcripts could be read into evidence at common law under a principled exception to the hearsay rule. The reception of the transcripts at trial would not result in unfairness to either of the co-appellants. The Crown was entitled to put the transcripts before the trier of fact for the truth of their contents, subject to appropriate considerations and instructions relating to weight.

99 We accordingly dismiss the appeals and affirm the order of a new trial.

\La Forest J.\

The following are the reasons delivered by

100 La Forest J. -- I agree with Justice L’Heureux-Dubé and simply wish to add two observations.

101 The first has to do with the issues concerning whether the wife is a competent and compellable witness. As L’Heureux-Dubé J. points out, the wife in this case is unwilling to testify, so it is in strictness only necessary to address the question of compellability. The issue of competency would raise issues on a quite different plane. A rule prohibiting a spouse from testifying if he or she so wishes raises serious questions about whether it unreasonably infringes on a person’s liberty and equality interests protected by the Canadian Charter of Rights and Freedoms. Such an infringement would, in my view, require justification at a level akin to that followed in the case of an alleged breach of Charter rights by legislative means; see my comments in R. v. Bernard, 1988 22 (SCC), [1988] 2 S.C.R. 833, at pp. 891-92. This would seem to me to raise a very significant challenge, one that could, however, be avoided by adapting the common law to limit the rule to cases of compulsion.

102 My second point relates to the wife’s evidence given voluntarily at the preliminary hearing. I do not have to get into the issue of whether or not it is hearsay. If it is hearsay, I agree that it is admissible under the principled exception to the hearsay rule. If it is not hearsay, it is highly relevant evidence and I see no reason to reject it: it was not covered by the rule of spousal immunity, and the considerations that favour its admission under the principled exception to the hearsay rule militate against exclusion under the broad discretionary rule described in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, and R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525.

\L’Heureux-Dubé J.\

The following are the reasons delivered by

103 L’Heureux-Dubé J. -- This case raises the issue of the scope and extent of the spousal incompetence rule in criminal cases. I have read the reasons for judgment of my colleagues, and I agree with the Chief Justice and Justice Iacobucci that these appeals should be dismissed. I come to this result, however, by a different route, and wish to elaborate upon what I see as the key issue in this case: when can statements made by a spouse prior to trial be admitted for their substantive content as exceptions to the hearsay rule?

104 Before addressing this issue, I wish to note that I am in substantial agreement with the Chief Justice and Iacobucci J. regarding the first two issues raised in this case. On the question of whether the appellant’s spouse in this case could be compelled to testify, I agree that given the evidence of a valid marriage between the appellant and his spouse, the common law should not be varied to allow the Crown to compel this witness’s testimony. I am also of the view that s. 715 of the Criminal Code, R.S.C., 1985, c. C-46, does not offer an opportunity to admit the preliminary inquiry testimony in this case.

105 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, as developed by this Court in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, and R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740. The Chief Justice and Iacobucci J. have determined that the preliminary inquiry testimony is both reliable and necessary, thus fulfilling the criteria to admit hearsay evidence. I agree with this conclusion. The issue that separates them from the opinion of Justice Major is whether, despite the indicia of reliability and necessity, the evidence should nevertheless be excluded as it offends the spirit and purpose of the spousal incompetence rule.

106 Both opinions address this residuary question quite differently. The Chief Justice and Iacobucci J. deal with it under the rubric of “fairness”. They ultimately conclude that the trial judge exercised a discretion to exclude the evidence on this ground, but was incorrect in so doing. Fairness, as defined, apparently depends upon whether an accused can establish that his marriage would suffer in a way which is incompatible with the goals behind the spousal incompetence rule. Since in this case it was not demonstrated, the Chief Justice and Iacobucci J. conclude that the evidence should have been properly admitted.

107 Major J. approaches this question from a notably different perspective. In his view, the question of discretion does not have to be addressed. He would preclude 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.

108 While I am unable to agree with his ultimate conclusions, I prefer the approach of Major J. in this case. 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. The position of the Chief Justice and Iacobucci J. is also fraught with evidentiary difficulties. In most cases, a determination of “unfairness” 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. 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.

109 I agree with Major J. that the threshold question which must be asked is whether such evidence is precluded from being admitted because it is barred by the spousal incompetence rule. If the answer to this question is in the negative, there is no need to consider “fairness” on a case-by-case basis. I note that this issue has been dealt with at length in the United States and by lower courts and has always proceeded in the manner I have set out; see for example: United States v. Archer, 733 F.2d 354 (5th Cir. 1984); R. v. Kobussen (1995), 1995 6015 (SK QB), 130 Sask. R. 147 (Q.B.).

110 In addressing this issue, it is essential to keep the hearsay question analytically distinct from the issue of spousal competence. For example, here, the Crown legally obtained evidence from a witness, in the form of testimony at a preliminary inquiry. Because of the spousal incompetence rule, the Crown was precluded from calling this witness at trial. Nevertheless, the statement still existed as evidence in a tangible form, and an attempt was then made to introduce it. While, generally, statements of this sort cannot be led at trial because of the hearsay rule, it is not so where the evidence fits into a recognized exception. This is a proper manner of adducing evidence, and if the preliminary inquiry testimony is not prohibited by the hearsay rule, it should be admitted unless some other rule of evidence prevents this route.

111 Given this approach, I have some difficulty with Major J.’s repeated concern that this evidence is going through “the back door”. With respect, admitting evidence through a hearsay exception always proceeds through this so-called “back door”, and yet this Court has consistently found this to be a permissible avenue. Obviously, if it were possible to adduce the evidence directly, the Crown would not need to use a hearsay exception. There is nothing inherently wrong in making use of available evidence. Major J. states that allowing hearsay statements into evidence is equivalent to “forcing spouses to provide evidence against each other” (para. 153). I cannot agree with this conclusion. In this case, for example, the witness was clearly not “forced” to give evidence. On the contrary, she approached the police herself and volunteered to testify. I fail to see how admitting the evidence as hearsay suddenly imbues the evidence with a coercive quality. It is quite a different matter where there is actual coercion. In those cases, the hearsay evidence will often be excluded as it will lack the indicia of reliability necessary for admission. I reiterate that evidence which is prima facie admissible should only be excluded where some other evidentiary rule trumps it and precludes admission.

112 Major J. agrees that the evidence here is reliable, and ostensibly “necessary”, but he suggests that it should not be admitted via the principled exception to the hearsay rule, as the testimony was not available from the witness directly. He cites from the judgment of the Chief Justice in B. (K.G.), supra, at p. 784, in support of his proposition:

. . . I would adopt the requirement embodied in the provision proposed by the Law Reform Commission of Canada, and in the English Civil Evidence Act 1968, that prior inconsistent statements will only be admissible if they would have been admissible as the witness's sole testimony. That is, if the witness could not have made the statement at trial during his or her examination-in-chief or cross-examination, for whatever reason, it cannot be made admissible through the back door, as it were, under the reformed prior inconsistent statement rule.

Major J. concludes from this passage that the out-of-court statements in the case at bar should not have been introduced:

Although Lamer C.J.’s statement of the rule is in the context of prior inconsistent statements, and discusses the issue as a preliminary matter, it can be applied to the case at bar. This was also the view of Weiler J.A. in the Ontario Court of Appeal at p. 269 C.R.:

If Graham were called to testify at Hawkins’ trial (without any modification of the common law) she could not make any statement because she would be considered incompetent. In this sense, the evidence would not satisfy the precondition for the admissibility of hearsay evidence required under K.G.B. One cannot admit statements through the “back door” when a witness could not make those statements at trial.

The Crown is attempting to introduce evidence through a principled exception to hearsay, evidence which the Crown would not be permitted to obtain through direct testimony. This is using the so-called back door, to overcome the prohibition acknowledged in s. 4 of the Canada Evidence Act.

113 I strongly disagree with this position. In my view, following this logic to its ultimate conclusion would completely obliterate every exception to the hearsay rule. In any case where the Crown is attempting to tender hearsay testimony it is unable to obtain the testimony through direct evidence. In the so-called Khan situation, for example, the child witness is first ruled incompetent, and thus, is unable to directly provide testimony. According to the reasoning of Major J., the Crown should not be able to then attempt to admit the hearsay statements of the child as it could not have access to them directly. This would be a rather peculiar proposition and contrary to the very object of the principled exception to the hearsay rule. As the Chief Justice and Iacobucci J. correctly point out, the hearsay analysis focuses on whether the statement could have been made by the witness, if he or she were competent and available to testify at trial. B. (K.G.) simply does not stand for the proposition for which Major J. has cited it.

114 In my view, this evidence fits rather easily into the principled exception to the hearsay rule. It remains, therefore, to deal with the substantive question of whether the spousal incompetence rule prevents the admission of the out-of-court statements of a spouse. I am of the view, for the reasons which follow, that this question should be answered in the negative.

Rationales Behind the Spousal Incompetence Rule

115 The basis for not permitting a spouse to testify for the prosecution is the common law rule presuming spousal incompetence. This rule has been extensively criticized, most recently by this Court in R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654; see also John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (1992), at p. 616. Nevertheless, it is at least tacitly recognized by s. 4 of the Canada Evidence Act, R.S.C., 1985, c. C-5. I would not, however, go as far as Major J. in stating that “[s]ection 4 ensures that spouses, otherwise credible witnesses, who possess relevant evidence never testify in court” (para. 152). Rather, I agree with the Chief Justice and Iacobucci J. that this rule is grounded in the common law, and thus the scope of the rule is subject to the interpretation of the courts; see also Professor Schiff, Evidence in the Litigation Process (4th ed. 1993), at p. 212.

116 The question at the very heart of this case, therefore, is what exactly is the extent of this rule? Does the incompetency of a spouse merely prevent testimony at trial, or is it intended to exclude all evidence which emanates from a spouse? The first part of an answer to this question is easily discernible from the case law. Like Major J., I am of the view that the incompetence of a witness does not necessarily preclude the admission of his or her evidence by another route: Khan, supra; R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829. Strictly speaking, whether evidence from an incompetent witness can be admitted through the testimony of a third party depends on the underlying reason for the incompetency.

117 In this regard, I would note that the question of whether statements made prior to trial by a spouse can be admitted has apparently never been addressed in this country. What the appellant appears to be asking is for the court to extend the scope of the spousal incompetence rule to prevent not only the in-court testimony of a spouse, but the out-of-court statements as well. If this is to be the result, such an extension must be warranted; furthermore, this conclusion must be justified in light of the modern day position on spousal incompetence. As Iacobucci J. stated in Salituro, supra, at p. 673:

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.

While Iacobucci J. stated that it was not necessary for the purposes of deciding Salituro to determine the result of the conflict, I believe that the ultimate decision on whether to admit such out-of-court statements mandates a certain degree of inquiry into this area.

118 I would add that the spousal incompetence rule must also be considered in light of the trial’s goal as a truth-seeking inquiry. As I have stated on more than one occasion, the pre-eminent role of the trial is to ascertain the truth: see for example, R. v. Levogiannis, 1993 47 (SCC), [1993] 4 S.C.R. 475; R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206. Evidentiary principles which constrain the truth-seeking process should be carefully tailored so that they do not exceed what is strictly necessary to accomplish the goal for which they are designed. In this regard, I agree with the comments of Burger C.J. of the United States in Trammel v. United States, 445 U.S. 40 (1980), at pp. 50-51, who, in deciding upon the scope of a spouse’s ability to give evidence, said:

Testimonial exclusionary rules and privileges contravene the fundamental principle that “‘the public ... has a right to every man’s evidence.’” United States v. Bryan, 339 U.S. 323, 331 (1950). As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J., dissenting). Accord, United States v. Nixon, 418 U.S. 683, 709-710 (1974).

119 With that in mind, I will proceed to examine the rule itself and its underlying rationales. In Salituro, supra, at p. 672, Iacobucci J. discussed the various justifications which exist for the spousal competence rule and stated:

The general testimonial incompetence of a wife for or against her husband was accepted in Lord Audley's Case (1631), Hutt. 115, 123 E.R. 1140, at p. 1141.

Since that time, at least four distinct justifications have been advanced for the rule but only two of these survive today. The most important justification is that the rule protects marital harmony. The danger to marital harmony of making a spouse a competent witness was first mentioned by Lord Coke, and was most recently emphasized in the decision of the Court of Appeal in the case at bar, in R. v. Bailey, supra, and in R. v. Sillars, supra. A second reason sometimes mentioned is what Wigmore called the "natural repugnance to every fair‑minded person to compelling a wife or husband to be the means of the other's condemnation" (Wigmore on Evidence (McNaughton rev. 1961), vol. 8, p. 217, § 2228 (emphasis in original)).

The two justifications which have not survived are that a spouse is an incompetent witness because husband and wife are in law a single person (although this justification survived into the eighteenth century), and that husband and wife are disqualified from being witnesses for or against each other because their interests are identical.

120 As Iacobucci J. points out, the early justifications for the rule mandated a strong and absolute rule of spousal incompetency. Essentially, spouses could not be trusted to give evidence at trial, and thus it was necessary to ensure that no evidence was adduced by them, as it was thought to be manifestly unreliable. Similarly, if the spouse and the accused were to be regarded as “one” person, it would have been unfair to compel testimony from this “unit” in order to convict one of its component members. Both of these thoroughly discredited rationales today are, of course, based on archaic notions of a woman’s role in society and within the marriage. If they continued to exist today, however, and were justifiable, I would have no difficulty concluding that out-of-court statements could not be admitted at trial. The logic would clearly extend to the situation before us. Of course, given that the rationales themselves are not soundly based, we no longer recognize or rely upon them.

121 What remains, therefore, are two surviving policy grounds which support the rule: (1) preventing the threat to marital harmony, and (2) avoiding the natural repugnance of compelling a spouse to testify, and having to witness this “spectacle” in court. 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. Thus, we must consider whether a complete exclusionary rule to such statements made prior to trial is warranted on the basis of marital harmony.

122 This very question has been discussed at length in the United States. My colleague Major J. states that marital harmony is affected equally by testimony and where statements made out of court by a spouse are tendered as evidence. He goes on to subscribe to the view of the U.S. Court of Appeal, 5th Circuit, in Ivey v. United States, 344 F.2d 770 (1965), at p. 772, which said:

[The hearsay witness’s] testimony relating what [the accused’s wife] had told him about [the accused’s] participation in the importation not only violates the rule against admitting hearsay testimony but also the rule against admitting testimony of one spouse against the other.

She might as well be permitted to testify against her husband in open court as to permit the introduction of a statement she had made against him out of court.

123 It is worth noting, in my view, that the case cited for this proposition is no longer good law in the United States. In fact, virtually every court which has considered this case has explicitly decided not to follow it. As one court observed, Ivey has been “distinguished . . . into oblivion”: United States v. Archer, supra, at p. 358. Essentially, the American courts have concluded that introducing a statement made prior to trial does not have the same effect as having a spouse testify at trial. I agree.

124 Of course, the law relating to spousal incompetence in the United States has been markedly different from the law in Canada since the decision of the Supreme Court in Trammel, supra, made the spousal testimonial privilege one which gave the potential witness the discretion to decide whether to invoke it, rather than an absolute bar. (See Milton C. Regan, Jr., “Spousal Privilege and the Meanings of Marriage” (1995), 81 Va. L. Rev. 2045, for an outline of the law in different American jurisdictions.) Nevertheless, even prior to Trammel, when the law was virtually identical to our own, and spouses were generally unable to testify for the prosecution, U.S. courts concluded that hearsay statements from a spouse should be admitted.

125 In United States v. Tsinnijinnie, 601 F.2d 1035 (9th Cir. 1979), the prosecution attempted to tender a hearsay statement, otherwise admissible, made by the accused’s wife. Despite objections from the accused, the court decided to admit the hearsay statement as it determined that the rationales behind the spousal testimony privilege simply did not apply where the evidence was admitted via a third party (at pp. 1038-39):

. . . we should consider whether the purposes of the privilege would be furthered by extending it to testimony by a third person. Hawkins v. United States, [358 U.S. 74 (1958)], outlined two justifications for the spousal privilege: fostering marital harmony and avoiding the spectacle of pitting one spouse against the other. It is unlikely that either goal is served by excluding a spouse’s out-of-court statements.

In United States v. Mackiewicz, 401 F.2d 219 (2d Cir. 1968), . . . hearsay statements of a husband implicating his wife were admitted. The spouses were co-defendants and the admission could have been justified as co-conspirator admissions, but the Second Circuit considered whether the marital privilege was even applicable to third party testimony. It concluded it was not, because the impact on marital harmony would be slight:

“This is not a case where the prosecution called the husband to the stand. If he had testified under those circumstances, the common law rule would have been violated. Here, however, we are one step removed from actual testimony. Therefore, there is no chance that we might be repulsed by a spouse actually testifying against his mate, see McCormick, Evidence § 66. Nor is there a chance that marital frictions will be aggravated, . . . for there is the convenient buffer of the third person actually making the remarks.”

We agree that the marital privilege should not be extended to bar a witness from relating an excited utterance by a spouse. The possible benefits that would derive from such an extension cannot justify excluding the evidence which is relevant and often highly probative.

This reasoning has been repeatedly followed: United States v. Archer, supra; United States v. Brown, 605 F.2d 389 (8th Cir. 1979); United States v. Doughty, 460 F.2d 1360 (7th Cir. 1972); United States v. Cleveland, 477 F.2d 310 (7th Cir. 1973); United States v. Chapman, 866 F.2d 1326 (11th Cir. 1989); United States v. Donlon, 909 F.2d 650 (1st Cir. 1990); Ballard v. State, 311 S.E.2d 453 (Ga. 1984).

126 Similarly, Professors Louisell and Mueller in Federal Evidence (1985), vol. 2, at pp. 874-75, have described the state of the U.S. jurisprudence in the following manner:

Pretty clearly the privilege does not bar proof of the out-of-court statements of a spouse: Assuming that they are relevant, that they are not within the other spousal privilege (the one for spousal confidences, which is considered in the next section), that hearsay objections are overcome, and that they are provable by the testimony of some third person, they are not excludable by virtue of the spousal testimony privilege. No married person holds a privilege to stop his or her spouse from making statements abroad in the world which are adverse to his interests, and when such statements by one spouse are offered against another in court, any resultant strain upon the marriage and affront to human dignity comes at least as much from the out-of-court conduct of the spouse as from the trial itself.

127 I agree with these conclusions. 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.

128 I recognize that there is still some potential damage to a couple’s marital harmony. In this regard, it is important to note that we do not have an independent doctrine of marital harmony which operates to preserve marriages at the expense of obtaining evidence. It is well established that the police during the course of investigation may enlist the spouse of an accused in gathering evidence to aid in a prosecution: R. v. McKinnon (1989), 1989 9924 (ON CA), 70 C.R. (3d) 10 (Ont. C.A.); United States v. Archer, supra, at p. 358. Surely, where the police obtain the aid of a witness during an investigation which leads to the conviction of his or her spouse, this cannot be any better for marital harmony than where the spouse testifies at trial; still, this type of evidence has traditionally been admitted.

129 Furthermore, the conclusion of Major J. is also at odds with prior decisions of this Court. In R. v. Jean, 1980 163 (SCC), [1980] 1 S.C.R. 400, in a brief judgment this Court affirmed in full the reasons of Moir J.A. in the Alberta Court of Appeal (1979), 1979 ALTASCAD 89, 7 C.R. (3d) 338. That case concerned the intercepted communications by wiretap of a conversation between a husband and wife. While the statements of the spouses were ultimately excluded based on the statutory provision under consideration, all the judges agreed that the evidence would have been admissible at common law, as “[i]t would appear logical that it does not matter how the conversation is overheard or intercepted if the person who overheard the conversation or the tape that recorded it could be produced in court” (p. 352).

130 Similarly, in Lloyd v. The Queen, 1981 219 (SCC), [1981] 2 S.C.R. 645, this Court affirmed the principles set out in Jean, although the evidence was once again excluded pursuant to a specific statutory provision. There, a husband and wife were both charged with conspiracy to traffic a narcotic. The Crown had obtained wiretap evidence of a conversation between the two of them which the accused tried to have excluded. During the course of his opinion, McIntyre J. (Martland J. and Lamer J. (as he then was) concurring), in dissent but not on this issue, made the following remarks with respect to s. 4(3) of the Canada Evidence Act, which attaches a privilege to marital communications (at pp. 654-55):

The privilege created by s. 4(3) is against compulsory disclosure of marital communications. The spouse, to whom the communication has been made, however, while he or she may not be compelled to disclose it, is of course free to do so if he or she wishes. It is evident then that the privilege, the right to elect whether the communication will be disclosed or not, is personal to the recipient spouse, and it is equally evident from the wording of s. 4 that the privilege is one pertaining to a spouse giving evidence in Court. In other words, it is a testimonial privilege giving a right to withhold evidence, but it cannot be said that the information itself is privileged. [Emphasis added.]

See also R. v. Andrew (1986), 1986 1150 (BC SC), 26 C.C.C. (3d) 111 (B.C.S.C.); United States v. Archer, supra, at p. 358.

131 Sopinka, Lederman and Bryant in The Law of Evidence in Canada, supra, at pp. 684-85, have succinctly summed up the issue as follows:

Third persons, who have either intentionally or accidentally overheard or intercepted a communication passing between a husband and wife, by means other than electronic surveillance by some agency of the state, are allowed to and may be compelled to testify with respect to the communication.

132 I note that the same reasoning has been applied in the United Kingdom. In Rumping v. Director of Public Prosecutions, [1962] 3 All E.R. 256 (H.L.), the accused mailed a letter to his wife which contained certain admissions. It was intercepted and adduced against him as evidence. The House of Lords examined a line of older cases for the purpose of determining the extent of the marital communication privilege. The factual situation in Rumping was quite different from what we are faced with in the case at bar, as there, it was the accused who made the out-of-court communication. Lord Morris canvassed the 19th century jurisprudence and discovered cases which would have allowed testimony of communications by the non-accused spouses as well, if testified to by third parties: R. v. Smithies (1832), 5 C. & P. 332, 172 E.R. 999; R. v. Bartlett (1837), 7 C. & P. 832, 173 E.R. 362. When those cases were decided, of course, a spouse was not competent to give any evidence. Lord Morris concluded by stating (at pp. 268, 271 and 276) that:

[The appellant’s submissions] involve the further contention, which now calls for inquiry, that at common law there were two separate rules: that apart from what I may call the general common law rule that one spouse was incompetent to give evidence concerning the other there was a separate and distinct rule that no person at all could give any evidence of any communication between spouses.

My Lords, though authority is not lacking which pronounces the general rule that at common law husbands and wives were not allowed to give evidence for or against each other, I can find no authority in support of the suggested separate and distinct rule.

Though, subject to certain exceptions, the general common law rule applied in criminal cases, such authorities as there are appear rather to negative than to support the existence of a rule as contended for on behalf of the appellant. . . . [I]n R. v. Bartlett a ruling was given which was similar to that in R. v. Smithies. When a prisoner was in custody his wife came into the room and it was proposed to give in evidence what she said in his presence. Objection was taken on the ground that as the wife could not be examined on oath against the prisoner what she said could not be used as evidence against him. The objection was overruled.

My Lords, a survey of the authorities and of the statutory provisions leads me to the view that there has never been a rule at common law that no evidence may be given by anyone as to communications made between husband and wife during marriage.

See also the reasons of Lord Hodson at pp. 278-79.

133 While these cases deal with a somewhat different issue concerning the marital communications privilege, the reasoning remains inconsistent with the judgment of Major J. In each case, a spouse made statements in conversation with the accused which, if not prevented by a statutory provision, were admitted to aid the prosecution. According to Major J., these statements could never be admitted, not because they would be protected by privilege, but because they would be excluded on the grounds of an extended spousal incompetency rule. In my view, this reasoning is simply incompatible with the jurisprudence as it currently stands.

134 In summary, I am of the view that the marital harmony rationale becomes considerably less convincing where a spouse makes statements in the presence of third parties prior to trial. Balanced against this reduced threat to marital harmony are two pressing rationales which weigh heavily in favour of allowing the admission of this evidence. First is the recognition that this rule severely hinders the freedom of individual choice. As Iacobucci J. stated in Salituro, supra, at p. 673, this freedom is “a central tenet of the legal and moral fabric of this country particularly since the adoption of the Charter”. The entire thrust of the rule goes against the notion that a person is free to make his or her own choices.

135 Similarly, Sopinka, Lederman and Bryant, the authors of The Law of Evidence in Canada, supra, at p. 616, have commented:

In any event, the spouse is still not generally competent or compellable on behalf of the Crown. This seems to be an archaic position, at least on the issue of competency. First, there is an anomalous distinction between common-law and legal marital relationships. Secondly, it is paternalistic. If a husband or a wife wishes to testify against the other spouse, why should society determine that it is in the best interests of that relationship that the testimony not be received? As Professor McCormick stated [McCormick on Evidence (2nd ed. 1972), § 65, at pp. 145-46]:

The privilege has sometimes been defended on the ground that it protects family harmony. But family harmony is nearly always past saving when the spouse is willing to aid the prosecution. The privilege is an archaic survival of a mystical religious dogma and of a way of thinking about the marital relation that is today outmoded. [Emphasis added.]

136 Second, we must remember that the trial is primarily a truth-seeking inquiry. The spousal incompetence rule has been called “a legal irony” in that it prevents the state from having access to probative and relevant testimony because of an extrinsic social policy. As David Medine, supra, at pp. 545-46, stated, summarizing the theory of a noted commentator on evidence law:

Wigmore also found a certain irony in the balance struck between society’s interest and that of the marital parties. If A has wronged B, and A’s spouse’s testimony is needed to establish the wrong, is it a sensible policy to protect A’s marriage at the expense of B’s ability to prove the wrong? According to some commentators, the privilege protects little more than the wrongdoer who hides behind it.

137 In my view, the totality of these concerns tilts the balance decidedly in favour of admitting the evidence. The damage to marital harmony from admitting the hearsay evidence is considerably reduced where the statement is made prior to trial. In this regard, the need to allow individuals to freely choose whether to speak, and the importance of the trial as a truth-seeking inquiry designed to redress harms to society, outweigh any need to prevent this reduced threat.

138 I am mindful of the fact that the conclusion I have reached also casts serious doubt on at least the “incompetence” aspect of the rule preventing spouses from giving evidence in a criminal trial. It may well be that where a spouse is willing to testify at trial, the rationale of marital harmony is not enough to prevent this individual choice. This was the conclusion reached by the United States Supreme Court in Trammel, supra. Whether or not this witness would be compellable, of course, is another question entirely.

139 It is not necessary, however, for me to decide the competence question today. Here, the witness is clearly not willing to testify, and the parties made their arguments strictly on this basis. In addition, 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. That factor, along with the more severe threat to the harmony of marriage which would result from permitting the trial testimony of a spouse, would have to be considered.

140 I note that maintaining the incompetence rule would be a peculiar result, as it would mean that a spouse willing to give evidence could do so out of court, yet would be forbidden from testifying at trial. In my view, this unstable situation further demonstrates that this area of the law contains “significant inconsistencies and is in serious need of rationalization at the legislative level”; per Morden J.A. in R. v. Czipps (1979), 1979 2095 (ON CA), 48 C.C.C. (2d) 166 (Ont. C.A.), at p. 172. That statement, made over 15 years ago, continues to ring out today, and would be wisely heeded.

Conclusion

141 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. Similarly, there is no need to consider any potential “unfairness” to the appellant’s marriage arising from the admission as part of a case-by-case inquiry. I would dispose of this case in the manner proposed by the Chief Justice and Iacobucci J.

\Major J.\

The reasons of Sopinka, McLachlin and Major JJ. were delivered by

142 Major J. (dissenting) -- I agree with the reasons of the Chief Justice and Justice Iacobucci except on two issues. The first is their use of the principled exception to the hearsay rule to avoid the policy underlying s. 4 of the Canada Evidence Act., R.S.C., 1985, c. C-5. The second is their interference with the trial judge’s residual discretion to exclude evidence.

143 As my view on the first issue results in allowing the appeals it is unnecessary to elaborate on the second issue.

144 The appellant Hawkins and the co-accused were jointly charged with conspiracy to obstruct justice. Hawkins was also charged with having corruptly accepted money and obstruction of justice. Graham, the girlfriend of Hawkins, provided damaging evidence against him at the preliminary inquiry on these charges. She later returned to the preliminary inquiry and recanted much of her previous testimony. Before trial, Hawkins and Graham married. The trial judge found her not compellable to give testimony at trial against her husband, the appellant, citing the common law rule of spousal incompetence that underlies s. 4 of the Canada Evidence Act. The Crown then sought to introduce a transcript of the evidence given by Graham at the preliminary inquiry before their marriage. The trial judge refused to allow the admission of the transcript.

145 The Ontario Court of Appeal overturned the trial judge, and would have allowed the admission of the transcript: (1995), 1995 1859 (ON CA), 37 C.R. (4th) 229, 22 O.R. (3d) 193, 96 C.C.C. (3d) 503, 79 O.A.C. 241. Arbour J.A. based her decision to admit the evidence alternatively on s. 715 of the Criminal Code, R.S.C., 1985, c. C-46, and the principled exception to hearsay. In a concurring opinion, Weiler J.A. would have modified the common law rule of spousal incompetence to allow the Crown to compel Graham to testify, but would not have found the prior testimony admissible under either theory accepted by Arbour J.A. At the date of this Court’s hearing, the couple remained married.

146 The spousal incompetence rule has been part of the common law for more than two hundred years. Its present form, recognized and slightly modified by s. 4 of the Canada Evidence Act, renders the spouse of an accused person incompetent to testify for the prosecution against their accused spouse. It was argued before this Court that the rule should be incrementally modified in this case, similar to what was done in R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, to allow the Crown to compel Graham to testify against her husband. I agree with my colleagues, at their para. 45, that the “proposed changes, far from being incremental, would strike at the heart of the traditional rule of spousal incompetency”. I also agree that making Graham compellable by the Crown would threaten the couple’s genuine marital harmony. The Chief Justice and Iacobucci J. are correct in their conclusion that the common law rule of spousal incompetence does not need modification.

147 I agree with the Chief Justice and Iacobucci J. that s. 715 of the Criminal Code is not applicable to these facts. It is not accurate to describe Graham’s marriage to Hawkins as a refusal to give testimony. The law renders her incompetent to give testimony, regardless of her choice.

148 I disagree with their conclusion that the facts in this case permit the use of a principled exception to the hearsay rule.

Overriding Spousal Incompetence

149 To introduce evidence through the principled exception to the hearsay rule, two elements must be satisfied: necessity and reliability. My colleagues find the necessity element easily satisfied; see para. 73 of their reasons:

In this instance, we are satisfied that Graham was unavailable to testify on behalf of the Crown for the purposes of the necessity criterion. The prosecution could not call upon Graham to testify as a result of her spousal incompetency, and there was no other means of presenting evidence of a similar value before the court. In both Khan, at p. 548, and Rockey, supra, at para. 20, the Court similarly found that the necessity criterion would be met in circumstances where a child declarant was legally incompetent to give viva voce evidence at trial.

This reasoning appears to ignore the fact that in both R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, and R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829, per McLachlin J., what created the necessity for the use of hearsay testimony was s. 16 of the Canada Evidence Act, and not the common law underlying s. 4 as in the present case. The sections have different policy goals, and must be treated differently in the analysis of the necessity element of the principled exception to hearsay.

150 For ease of reference the relevant parts of the sections read:

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.

5. (1) Where a proposed witness is a person under fourteen years of age or a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

151 The policy behind s. 16 is to ensure that witnesses who take the stand are able and likely to be telling the truth. The section renders certain potential witnesses incompetent to give testimony because the law doubts their testimonial ability to enhance the search for truth. Individual statements, however, may have been made in the past by these incompetent witnesses in such circumstances that the court is reasonably sure of the statements’ veracity. Normally, these out-of-court statements are separately barred from admission by the hearsay rule. In the cases of Khan and Rockey this Court used a principled exception to the hearsay rule to introduce these individual statements into evidence through a hearsay witness where there existed circumstantial guarantees of trustworthiness surrounding their making. The element of necessity, required to introduce these statements, is that of witness incompetence under s. 16. By using an exception to hearsay, the court is actually fulfilling the policy of s. 16 in ensuring that the search for truth includes this trustworthy evidence that would not normally be heard in court.

152 On the other hand, the common law recognized in s. 4 of the Canada Evidence Act has the main policy goals of the maintenance of marital harmony and the prevention of the natural repugnance that results in having one testify against his or her accused spouse. The policy supporting s. 4 is very different from that behind s. 16. Section 4 ensures that spouses, otherwise credible witnesses, who possess relevant evidence never testify in court. The policy may be seen to militate against the search for truth, for the overriding reason of marital harmony. However, the policy is grounded in statute and is recognized in the provisions of the Canada Evidence Act so that if the policy is to change it clearly falls to the Parliament of Canada to do so.

153 The principled exception to hearsay created by my colleagues to allow hearsay statements of incompetent spouses into evidence violates the policy of s. 4 by forcing spouses to provide evidence against each other. It amounts to an extension of the principled exception to hearsay to make the evidence admissible through the so-called back door. This should not happen. It is clear the best form of this evidence, direct testimony, is barred from the courtroom for policy reasons. We should not use the very policy that bars the direct testimony to allow the introduction of lower quality hearsay testimony.

154 I cannot accept that the admission of this evidence could not have a detrimental effect on the marriage of Hawkins and Graham. It was conceded that this is not a “sham” marriage, but one that has lasted over seven years. The parties have fulfilled their mutual obligations of care and support. Should the previous testimony of Graham be used to convict Hawkins, it would violate the policy foundation of s. 4 and have the potential to destroy an otherwise successful marriage.

155 This is so whether the evidence is given at the trial or given at the preliminary hearing before the marriage and read in at the trial. The fact that the evidence was in existence prior to the marriage creates at most a distinction without any difference. The admission of the evidence offends both the letter and the spirit of the spousal incompetence rule. My colleagues concede that this is not a case where the common law rule of spousal incompetence should be modified. This should also apply with equal force to Graham’s testimony given at the preliminary inquiry.

156 I subscribe to the view expressed by the U.S. Court of Appeal for the Fifth Circuit in Ivey v. United States, 344 F.2d 770 (1965), at p. 772:

[The hearsay witness’s] testimony relating what [the accused’s wife] had told him about [the accused’s] participation in the importation not only violates the rule against admitting hearsay testimony but also the rule against admitting testimony of one spouse against the other.

She might as well be permitted to testify against her husband in open court as to permit the introduction of a statement she had made against him out of court. [Emphasis added.]

157 This is not an entirely new issue. In Wigmore on Evidence (McNaughton rev. 1961), vol. 8, at §2232, the learned authors comment that:

It can be argued that that which is privileged is the testimonial utterance in any form, by the wife or husband, offered against the other. Hearsay statements -- oral or documentary -- are testimonial utterances. Hence, it would follow that they are equally privileged with testimony on the stand.

The authors of Wigmore are referring, in this section, to the use of hearsay exceptions in general. It is important to affirm this statement. When evidence is excluded for policy reasons, that policy should not form the basis for the admission of that evidence by the indirect method proposed by my colleagues.

158 In §2232, quoted above, the authors of Wigmore cross-reference §2325, on attorney-client privilege, which states:

Clearly the privilege could not permit an evasion by receiving the voluntary extrajudicial disclosures of the attorney. Supposing them to be somehow admissible in spite of the hearsay rule, they would be equally a violation of the privilege with his voluntary disclosures on the stand. If his disclosure has taken the form of handing a confidential document to a third person, the objection is equally forcible, and the question is not complicated with the hearsay rule.

It is hardly arguable that the necessity element of the principled exception to hearsay would be satisfied by the accused’s assertion of solicitor-client privilege over a “piece” of hearsay evidence. It is unlikely that my colleagues would even consider the use of the principled exception at all. It would subvert the policy underlying privilege. So too does the use of the principled exception in the present case avoid the policy underlying the spousal incompetence rule.

159 A species of this argument has been considered by this Court. In R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, Lamer C.J. discussed the threshold that must be met before the admission of prior inconsistent statements through the principled exception to hearsay (at p. 784):

. . . I would adopt the requirement embodied in the provision proposed by the Law Reform Commission of Canada, and in the English Civil Evidence Act 1968, that prior inconsistent statements will only be admissible if they would have been admissible as the witness’s sole testimony. That is, if the witness could not have made the statement at trial during his or her examination-in-chief or cross-examination, for whatever reason, it cannot be made admissible through the back door, as it were, under the reformed prior inconsistent statement rule.

Although Lamer C.J.’s statement of the rule is in the context of prior inconsistent statements, and discusses the issue as a preliminary matter, it can be applied to the case at bar. This was also the view of Weiler J.A. in the Ontario Court of Appeal, at p. 269 C.R.:

If Graham were called to testify at Hawkins’ trial (without any modification of the common law) she could not make any statement because she would be considered incompetent. In this sense, the evidence would not satisfy the precondition for the admissibility of hearsay evidence required under K.G.B. One cannot admit statements through the “back door” when a witness could not make those statements at trial.

The Crown is attempting to introduce evidence through a principled exception to hearsay, evidence which the Crown would not be permitted to obtain through direct testimony. This is using the so-called back door to overcome the prohibition acknowledged in s. 4 of the Canada Evidence Act. Graham could not take the stand at trial. Reading in Graham’s testimony from the preliminary inquiry equates with forcing her to give testimony against her husband.

160 There appears to be little Canadian jurisprudence on this question. However, the same situation arose almost contemporaneously in Saskatchewan. In R. v. Kobussen (1995), 1995 6015 (SK QB), 130 Sask. R. 147 (Q.B.), the girlfriend of the accused gave evidence at a preliminary inquiry. They married before the trial. As she was therefore incompetent to testify against her husband at trial, the Crown attempted to introduce into evidence a transcript of her preliminary inquiry testimony. Baynton J. cited the section of Lamer C.J.’s judgment in B. (K.G.) quoted above for the proposition that the reformed prior inconsistent statements rule should not be used to admit evidence that would be inadmissible as direct testimony, and then held (at p. 152) that:

If this admissibility principle or condition applies to hearsay statements in general, and not just those that are [sic] constitute prior inconsistent statements, it can be argued that the Crown in tendering Ms. Myden’s testimony at the preliminary inquiry is doing indirectly what it cannot do directly at the trial. The Crown is prevented by a rule of evidence, (not just the old hearsay rule, but a common law rule of competency and compellability often referred to by the case law and legal authors as a “spousal privilege”), from calling Ms. Myden as a witness at trial. If her testimony at the preliminary inquiry is allowed in, it is in many respects equivalent to her testifying on behalf of the Crown at the trial of her husband. Her testimony at the trial is what the common law and s. 4 [of] the Canada Evidence Act preclude.

If it is the testimony of the spouse as a witness at the trial that is precluded or privileged, then it seems contrary to the principles of “spousal privilege” (that involves not only compellability but competence), that the testimony of that spouse can nevertheless be introduced by the Crown on the basis of an expanded hearsay admissibility rule.

It was clear to Baynton J. that using a hearsay exception would avoid the policy of spousal incompetence.

161 In Trammel v. United States, 445 U.S. 40 (1980), the United States Supreme Court modified the common law rule on spousal incompetence to give the witness-spouse, rather than the accused spouse, control over whether they would give testimony in a case where their spouse is the accused. This was done by modifying the common law, and not overriding a statute like s. 4 of the Canada Evidence Act. I have already agreed with my colleagues that we should not modify the rule of spousal incompetence. Nor should we avoid that rule by the use of a hearsay exception.

162 A principled exception to hearsay should not be used to allow the Crown to introduce lower quality evidence (the transcript of Graham’s preliminary inquiry testimony) when they are barred by the spousal incompetence rule from introducing direct testimony from her to the same effect. This violates the law and is contrary to express legislative policy. I would restore the decision of Philp J. to exclude this evidence.

163 It may be that the policy excluding spousal evidence does not serve societal interests. If that is so it seems apparent that the change should be legislative.

164 I would allow the appeals and restore the decision of Philp J.

Appeals dismissed, Sopinka, McLachlin and Major JJ. dissenting.