ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11139
DATE: 2013-07-11
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
WINSTON O’NEIL STEPHENS
Respondent
Stephen Monaghan, for the Applicant
Brian E. Chambers, for the Respondent
HEARD: July 3, 2013
RULING
RADY J.:
Introduction
[1] Mr. Stephens is charged with aggravated assault and possession of a dangerous weapon.
[2] The Crown seeks a ruling with respect to the admissibility of a 911 call and a statement taken by police as part of their investigation of a stabbing on July 16, 2011 at 140 Pine Lawn Avenue in London. The caller to 911 and the person who gave the statement is Sarah Cummings. Her husband is the accused, Mr. Stephens. On the date of the alleged offences, they were not married. However, they married about one week later. They reside together and are now the parents of a young child.
[3] The 911 call and the statement place Mr. Stephens at the scene of the stabbing. Mr. Stephens, in a subsequent statement to police, denied being present. I am advised that the identification evidence of other witnesses who were present may not be particularly strong. It is not difficult to understand why the Crown seeks to have this evidence admitted as part of its case.
The Parties Positions
[4] The Crown submits that the statement and the 911 call recording should be admitted on the basis of a principled exception to the hearsay rule. Ms. Cummings cannot be compelled to testify for the Crown at trial because of the spousal incompetency rule (as articulated in s.4(1) of the Canada Evidence Act¸ R.S.C. 1985, c. C-5). As a result, necessity is established. The Crown submits that the circumstances in which the 911 call was made and the statement given satisfy threshold reliability.
[5] The defence submits that the spousal incompetency rule is squarely engaged and the 911 call recording and the statement cannot be admitted, even if necessity and reliability is met because to do so, conscripts her in the prosecution of her spouse.
The Law
[6] There are two decisions that bear on the analysis. The first is R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043. In that case, Mr. Hawkins was charged with conspiracy to obstruct justice among other things. The Crown believed that Mr. Hawkins, a police officer, provided confidential information regarding an investigation to his co-accused. A key witness in the prosecution was the accused’s girlfriend. At the preliminary hearing, the Crown called the girlfriend to testify and some of her evidence was incriminatory of the accused. She retained counsel and moved successfully to testify again, during which she recanted key portions of the previously given incriminating testimony. Prior to trial, the couple married. The trial judge found that the girlfriend (now wife) was not competent for the Crown. The Crown decided it would not offer evidence in support of a conviction and directed verdicts for acquittal were given. The Court of Appeal agreed that the witness was not competent for the Crown but held that the evidence could be admitted under s. 715 of the Criminal Code or alternatively under the principled exception to the hearsay rule as then developed in Khan, Smith and B. (K.G.). The Supreme Court of Canada dismissed the appeal in a six-three decision. The majority held that the spouse’s testimony could be read into evidence during trial through the principled exception to the hearsay rule. The minority disagreed and held that the common law rule respecting spousal incompetence should not be modified and the testimony at the preliminary hearing could not be read in.
[7] As a preliminary matter, the Court was prepared to recognize the spousal incompetency of the witness where the accused had married her after the preliminary hearing but prior to trial. By analogy, this extension would apply to the facts of this case and counsel did not make any submissions otherwise. The Court reasoned as follows:
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 sec 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.
[8] The majority discussed the rationale for the spousal incompetency rule as follows:
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, sec. 2228, at p. 217.
[9] The Court commented on modern criticism of the traditional rule:
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.
[10] In her separate concurring reasons, Justice L’Heureux-Dubé wrote:
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. ...
[11] The majority of the Court ultimately determined that the earlier testimony could be read in as an exception to the hearsay rule because it was necessary and threshold reliability had been established.
[12] Justice Major, writing for the minority made the following observations:
152 ... 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.
[13] In a subsequent decision, R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, the Court had occasion to revisit the issue. In that case, the accused was convicted of two counts of second degree murder. His convictions were based, in part, on two out-of-court statements made by his spouse. She had disclosed to the police that some time before their marriage, when she was the accused’s counsellor, he confided in her that he had murdered two women. At the time the statements were given, neither under oath, the couple was estranged. They subsequently reconciled.
[14] The trial judge admitted the statements based on the authority in Hawkins. The Court of Appeal disagreed and ordered a new trial. In a five-four decision, the Supreme Court dismissed the appeal. The majority essentially favoured the dissent in Hawkins although it attempted to reconcile the two decisions.
[15] The majority held that the spouse’s out-of-court statements were inadmissible because in the circumstances of that case, the spousal incompetency rule and its underlying rationale to protect marital harmony, would be undermined.
[16] The Court noted that the spousal incompetency inquiry must be kept analytically distinct from the hearsay inquiry. In the first, the circumstances surrounding the creation of the evidence must be considered as well as whether the operation of the principled exception to the hearsay rule would be, objectively speaking, disruptive of marital harmony or give rise to the natural repugnance resulting from one spouse testifying against the other.
[17] The Court noted the following:
54 ... There is no question that the spousal incompetency rule is testimonial in nature. Therefore it is correct to say that the rule does not, as a matter of principle, bar proof of the out-of-court statements of a spouse -- indeed, if it were otherwise, the result in Hawkins could not have been reached. Hence, I am not suggesting, as stated by my colleague Rothstein J. at para. 148, that the spousal incompetency rule creates “a right for the accused to suppress any evidence emanating from his spouse” (emphasis in original). Indeed, no one is contending that the rule should have that effect. In my respectful view, however, the Crown’s submission overstates the holding of the majority in Hawkins. I agree rather with Mr. Couture that the approach advocated by the Crown would represent a drastic change in the role played by the spouse in criminal law trials, a result which, in my view, does not accord with this Court’s decision in Hawkins to leave any substantial reform of the rule to Parliament. Further, this analytical approach would not be consistent with this Court’s jurisprudence on the principled approach to the hearsay rule. I will explain.
55 Unless there is good reason to modify an established common law rule, the modern approach to hearsay should be applied in a manner which preserves and reinforces the integrity of the traditional rules of evidence. This overarching principle was expressly reiterated by Lamer C.J. and Iacobucci J. in Hawkins in their general discussion of the principled approach. The spousal incompetency rule was reaffirmed in Hawkins. The Court was unanimous in finding that any substantial reform of the rule was a matter better left for Parliament. Consequently, it is one of those traditional rules of evidence that should not be undermined by the application of the principled exception to hearsay.
56 However, under the approach suggested by the Crown, the court does not have to consider whether, in the circumstances of the particular case, the admission of the evidence would have the effect of undermining the spousal incompetency rule or its underlying rationales. Under that approach, the spousal incompetency rule is only relevant in providing the basis for establishing the criterion of necessity. Once necessity is made out -- as it would in all cases where the spouse is incompetent to testify for the Crown -- the hearsay statement can be admitted provided it is sufficiently reliable, regardless of whether its admission in the trial would have the effect of undermining the rule or its underlying rationales. In my respectful view, this approach is not the one adopted by the majority in Hawkins. In each concurring judgment, the writer explained, albeit from different perspectives, why the operation of the principled exception in the circumstances of that case would not undermine the rationales of the rule.
[18] The Court continued its analysis:
62 Hence, it is my view that the position advocated by the Crown cannot be sustained on the basis of the reasons given in support of the majority ruling in Hawkins. Hawkins was based on its own particular fact situation and did not create a broad exception that would admit all out-of-court statements made by spouses on the basis of threshold reliability alone. In addition, regard must also be had to the particular circumstances of the case to determine whether the admission of the evidence would undermine the spousal incompetency rule. It should come as no surprise that reliability alone cannot overcome the rule because spousal incompetency is not based on any concern about the reliability of a spouse’s testimony. The rule, rather, is a form of privilege. Privilege, unlike other rules of exclusion, is not intended to facilitate truth-finding. The evidence is excluded, not because it lacks probative value but, rather, on policy grounds based on broader social interests. [Emphasis mine.]
63 Because exclusion of evidence under the spousal incompetency rule has nothing to do with the reliability or probative value of the evidence, I would not characterize the court’s consideration of the rule as a question of “residual discretion”. On this point, I respectfully disagree with the approach adopted by four of the justices in Hawkins and by Rothstein J. As indicated earlier, even when the criteria of necessity and reliability are satisfied, the trial judge has the residual discretion under the principled exception to the hearsay rule to exclude the statement where its probative value is slight and undue prejudice might result to the accused. Consideration of the spousal incompetency rule, however, is a distinct exercise, unrelated to any consideration of the probative value of the evidence under the hearsay analysis. The proposed evidence may be highly probative; it will nonetheless be inadmissible if its admission would undermine the spousal incompetency rule. This is why I say that consideration of the rule is not a matter of “residual discretion” as this term is generally understood. The fact that the rule cannot be ignored is rather a feature of the “principled exception” to the hearsay rule itself. This modern approach, as the coined expression reveals, is based on principle. Unless there is good reason to depart from an established principle, the modern approach to hearsay admissibility must be applied in a manner that preserves its integrity. Hence, as was done in Hawkins, hearsay evidence may be admitted under the principled approach if it meets the twin criteria of necessity and reliability and if its admission would not undermine the spousal incompetency rule or its rationales.
65 In determining the spousal competency issue, the circumstances surrounding the creation of the evidence are a relevant consideration — while the rule is testimonial in nature and only prevents a spouse from testifying against the accused spouse, its underlying rationales, particularly the preservation of marital harmony, necessarily extend beyond the actual trial itself. The effect of admitting the evidence on the trial process itself is also relevant, particularly having regard to the second rationale of the rule — preventing the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution.
66 In considering whether the admission of the evidence would undermine the spousal incompetency rule or its underlying rationales, it is my view that the inquiry should not be focussed on the individual marriage. On this point, I agree with L’Heureux‑Dubé J. that the ultimate conclusion on admissibility cannot rest on “a speculative appraisal of the potential for damage” to the individual marriage. The rule is triggered by the very existence of a valid and subsisting marriage. Unless the accused and the spouse are irreconcilably separated, thus giving rise to the exception in Salituro, the extent to which there is marital harmony or marital discordance in the particular marriage is irrelevant. The question rather is whether, from an objective standpoint, the operation of the principled exception to the hearsay rule in the particular circumstances of the case would be disruptive of marital harmony or give rise to the natural repugnance resulting from one spouse testifying against the other. [Emphasis in original.]
[19] The Court observed that if statements made by spouses were to be admitted based simply on threshold reliability without regard for the spousal incompetency rule, the institutionalized practice of taking such statements would follow and seriously undermine the preservation of marital harmony.
[20] The Court concluded with the following comments:
94 There is no question that a spouse is competent, and presumably compellable, to testify for the defence and hence, in and of itself, the fact that an accused calls his spouse as a witness does not violate the spousal incompetency rule. However, here, the Crown bears the onus of showing that there are adequate substitutes for testing the hearsay evidence or that the evidence is otherwise sufficiently reliable. In my view, because of the exigencies of the spousal incompetency rule, it is not open to the Crown to rely on the accused’s ability to cross-examine his spouse as his own witness in order to meet its burden on the admissibility inquiry. The accused, in order to properly test the evidence put against him, would be forced to call his spouse as his witness, confront her in cross-examination, and ultimately also risk being convicted on the basis of her evidence. This approach would clearly undermine the rationales underlying the spousal incompetency rule and therefore cannot be countenanced by this Court.
95 Further, far from being exceptional, this approach would be of broad application and would virtually abolish the rule. B. (K.G.) statements (under oath and videotaped) could be routinely taken by the police and, in any case where the spouse is physically available, the Crown would be able to invoke the accused’s ability to call the spouse at his or her trial to meet its onus on the admissibility inquiry. Since the opportunity to cross-examine is the most powerful factor favouring admissibility, the admissibility of the evidence would likely become the rule rather than the exception.
Analysis
[21] I have concluded that the evidence that the Crown seeks to tender is inadmissible. There can be no doubt that the evidence is relevant. However, its admission would undermine the spousal incompetency rule. Its effect would be to conscript the accused’s spouse to participate in his prosecution. In my opinion, the Crown would be doing indirectly what it clearly cannot do directly. To adopt the words of the minority in Hawkins, it would make otherwise inadmissible evidence admissible “through the back door”.
[22] I agree with Mr. Chambers that if this evidence were admitted, the defence would have no choice but to call Ms. Cummings as part of its case. She would be a defence witness who could not be cross-examined by the accused unless declared hostile as that term is legally defined. This seems an unlikely scenario. The difficulty that this raises is obvious particularly in testing ultimate reliability.
[23] There is no suggestion that this is a sham marriage. Indeed, the evidence points otherwise. Consequently, the operation of the principled exception to the hearsay rule viewed objectively, would be disruptive of marital harmony.
[24] For these reasons, the proffered evidence is not admissible.
“The Honourable Madam Justice H. A. Rady”
The Honourable Madam Justice H. Rady
Released: July 11, 2013
R. v. STEPHENS, 2013 ONSC 4688
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
– and –
WINSTON O’NEIL STEPHENS
Respondent
Ruling
Rady J.
Released: July 11, 2013