R. v. Nero, CITATION: 2014 ONSC 1896

COURT FILE NO.: 1963/13
DATE: 2014-03-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Nero and Fletcher

BEFORE: Mr Justice Ramsay

COUNSEL:
Jeremy Streeter and Andrew Wiese for the DPP

Alan D. Gold and Melanie J. Webb for Nero

Philip Patterson for Fletcher

HEARD: March 17-19, March 25, 2014

Re-issued November 14, 2014 to correct the citation in paragraph 10 and to reflect the expiry of the publication ban.

ENDORSEMENT

[1] The accused are charged with offences against, and conspiracy to commit offences against the Controlled Drugs and Substances Act. Part of the Crown’s case involves intercepted communications from the accused Fletcher to her co-accused Nero. Both of the accused submit that the communications should be ruled inadmissible at trial, and should be excised from the information sworn in support of a search warrant and the affidavit in support of a subsequent authorization, because of marital privilege.

Marital privilege

[2] At common law, accused persons and their spouses were incompetent to testify save in cases that involved the witness spouse's person, liberty or health. The rule has been modified by s.4 of the Canada Evidence Act, which provides:

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

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

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

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

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

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

[3] Subsection 4(3) creates a privilege for marital communications. The question of privilege was not really an issue at common law because spouses, with few exceptions, were not competent to testify. The concept of spousal privilege was therefore created by statute after legislation in the 19th century made spouses competent witnesses. The privilege is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged: R. v. Couture, 2007 SCC 28, [2007] 2 SCR 517.

[4] If privileged communications are overheard, the privilege is lost: R. v. Jean and Piesinger, 1979 ALTASCAD 89, [1979] A.J. No. 58, paragraph 32 (Appellate Division), aff’d 1980 163 (SCC), [1980] 1 SCR 400. However, subsection 189(6) of the Criminal Code provides:

(6) Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.

[5] The result of s.189 (6) is that communications intercepted under Part VI of the Code are not admissible in court without the consent of the person who had the right to refuse to disclose them: R. v. Lloyd, 1981 219 (SCC), [1981] 2 SCR 645. In R. v. Lee, 2001 BCSC 1896, Cullen J. held that the privilege would also prevent the use of intercepted marital communications in an affidavit in support of a wiretap application, although he accepted that the marital privilege is procedural, not substantive.

[6] Crown counsel argues that the privilege does not prevent use of the communications in an investigatory step. Defence counsel points out that authorizing judges generally require monitors to intervene to prevent interception of solicitor client communications, and suggest that the same should be done with respect to marital communications.

[7] I find persuasive Sharpe J.’s observations in R. v. Rendon, [1997] O.J. No. 5505. In that case, Sharpe J. (as he then was) ruled that marital privilege in s.4 (3) does not survive the end of the marriage caused by the death of one of the spouses. But in the course of doing so he said:

With respect to the argument that the very interceptions of those [marital] communications constitute a s. 8 breach, I find as follows: I note first of all that this argument was not raised in the notice of application and was not developed to any significant extent in argument before me. Essentially, Mr. Marko contends that the special protection accorded solicitor-client privilege by the Code and by the practice should also be extended to marital communications. In my view, the argument ignores the very different rationale that exists for these two privileges. Solicitor-client privilege is tied to the legal process itself and the need to provide a means for everyone to obtain legal advice. Full and frank legal advice would not be available without the promise of confidentiality.

As noted, the rationale for protection of husband and wife communications is the preservation of the marital harmony. The interception of private communications under Part VI does constitute a significant invasion of privacy interest but it has been upheld as consistent with the Charter: Findlay and Grelette, (1985), 1985 117 (ON CA), 52 O.R. (2d) 632.

In my view no reason has been shown for putting husband and wife communications on the same high plane as that occupied by solicitor-client communications. It is not difficult to imagine other areas of personal life that most would regard as a similar if not a more serious invasion of privacy than communications with one's spouse.

I note as well that Parliament has extended a significant measure of protection to such communications, through s. 189(6) of the Code, which protects the privilege despite the fact that the conversations have been overheard. Taken as a whole, and especially in light of the protection recorded by s. 189(6), I find that the interception of spousal communications does not in itself constitute an unreasonable search within the meaning of s. 8.

[8] I conclude that the combined effect of s.4(3) of the Canada Evidence Act and s.189(6) of the Criminal Code is that marital communications may be intercepted and then used in subsequent affidavits or informations, but they may not be called in evidence in court without the consent of the spouse who received the information. Subsection 189(6) preserves the testimonial privilege in spite of the interception; it does not add to the privilege by protecting the communications themselves.

Are the accused persons entitled to the benefit of the marital privilege?

[9] The two accused concerned never married. They claim the benefit of the marital communication privilege in s.4 (3) of the Canada Evidence Act on the basis of their common law relationship. They say that the subsection is invalid for contravention s.15 of the Canadian Charter of Rights and Freedoms. They submit that the legislation is not saved by s.1 of the Charter and that the appropriate remedy is to read into the section words that would extend its application to common law partners.

[10] This court has considered the constitutional validity of s.4 of the Canada Evidence Act in three previous cases. In R. v. Masterson, 2009 36305 (ON SC), [2009] O.J. No. 2941, Hennessy J. ruled that the section contravened s.15 of the Charter, that it was not saved by s.1 and that as a remedy it should be read to include common law partners as that concept is defined in other federal legislation. It would, then, include persons cohabiting in a conjugal relationship, having so cohabitated for a period of at least one year. In R. v. Nguyen, 2010 ONSC 5843, Tulloch J. concluded that the legislation did not offend s.15 of the Charter. The legislation deprives some persons of a benefit based on a ground analogous to those set out in s.15, but it is not discriminatory to require some to forego a benefit from a marital regime that they have chosen not to take part in. It does not perpetuate a disadvantage to common law couples through prejudice or stereotyping, nor does it affect their human dignity. Tulloch J.’s reasoning was essentially along the same lines as that of the minority in Quebec (Attorney General) v. A., 2013 SCC 5.

[11] In R. v. Hall, 2013 ONSC 834, Lofchik J. was the first judge of this court to deal with the question after the release of Quebec v. A. He concluded that s.4 did contravene s.15 of the Charter, that it was not saved by s.1 and that the appropriate remedy was to read the section to include a common law partner, defined in harmony with other federal legislation, as “a person who is cohabiting with the individual in a conjugal relationship having so cohabited for a period of at least one year or having a child together, or entering into a cohabitation agreement.”

Are the applicants common law partners?

[12] Federal statutes refer to a “common law partnership.” They generally require a year of cohabitation. In Miron v. Trudel, 1995 97 (SCC), [1995] 2 SCR 418, the Supreme Court was dealing with a relationship of four years that had produced two children. In Quebec v. A. the parties had cohabited for seven years and produced three children. Before me, the Crown argued that Nero and Fletcher never established a residence, and certainly not a year before the communications were intercepted in the 60 days following February 24, 2012.

[13] Nero deposed that during the relevant period he was on parole for previous offences. As a result he was required to spend his nights at a half-way house on weeknights. During the day he would stay with Fletcher at his house in Virgil and on weekends they would stay in hotels in Toronto. This began in early 2011. In August 2011 they moved into a new residence. Fletcher’s brother and Nero contributed to the down payment. Title was put solely in Fletcher’s name, “but we understood and agreed that we were both joint owners of the property by virtue of our relationship.” They planned eventually to marry and have children. In autumn 2011 Nero gave Fletcher an engagement ring. He considered Fletcher to be his common law wife from early spring of 2011. In 2011 the vernal equinox occurred on March 20. I do not take Nero necessarily to have meant to be so specific. Some of the 60 day period of the authorization would have occurred “in early spring.”

[14] Fletcher deposed to similar effect. She was arrested on May 23, 2012. At the time she had been living with Nero in their residence (owned by her, but jointly occupied by them) since August 29, 2011. Nero stayed on weekends but slept at the half-way house on weeknights. The relationship was serious from early 2011. From early 2011 to August 29, they spent weekends together in Toronto and she saw Nero on weekdays at her house. They would have lived together full time if not for Nero’s parole obligations.

[15] Nero’s parole officer deposed that he supervised Nero from his release on November 3, 2009 to his arrest on May 23, 2012. He never met or heard of Fletcher. He did meet another woman, who Nero said was his fiancée.

[16] Nero reported to the halfway house 12 hours a day at first and then, after a month, from 11:13 pm to 6:30 am. After another month he got a weekend pass for Friday and Saturday nights. After four months of parole he was given passes every weekend. From November 2009 to June 2011 N. was given permission to spend his weekends in the company of the woman who was understood by the parole officer to be Nero’s common law wife, or at Nero’s mother’s house.

[17] The parole officer met Nero and the other woman at what they represented as their residence in Virgil on March 17, 2010. They said that Nero’s plan once on full parole was to live with her. The parole officer met or spoke with the other woman from time to time. In May 2011 she told the officer that she had a new job in Toronto. Nero was then given permission to spend his weekends with her in Toronto at a specified address. In July 2011 the parole office found out that the relationship between N. and this woman was over. She said that she would continue to support N.’s plans for full parole. She told police that she and Nero had been engaged for about a year and a half.

[18] I am not satisfied on the preponderance of the evidence that Nero and Fletcher cohabited any sooner than August 29, 2011, when they bought a house together. The lies to the probation officer and the involvement of the other woman cast doubt on Nero’s credibility in this matter. I think Fletcher must have known about the deception and I am not prepared to take her word either. Their stays in hotels in Toronto are documented by receipts, but they were not necessarily cohabiting at that point.

[19] For present purposes it is not simply a question of cohabitation in any event. In Miron v. Trudel, at paragraph 88 L’Heureux-Dubé J. defined the relationship that can be compared to marriage for the purposes of s.15 of the Charter as “unmarried persons who are in a relationship analogous to marriage (i.e. of some degree of publicly acknowledged permanence and interdependence). Obviously, by its nature this relationship can take different forms, but it must to some degree be publicly acknowledged.

[20] In the present case the element of publicly acknowledged permanence and interdependence is entirely absent. This was a secret relationship. It was actively hidden from the parole authorities. It is in no way analogous to marriage. It is nothing like marriage. At best, the parties may have intended to establish a common law partnership at some point in the future.

[21] I do not think that Nero and Fletcher are entitled to the protection of s.4 of the Canada Evidence Act whatever the merit of their legal argument under s.15 of the Charter.

Does s.4 (3) of the Canada Evidence Act offend s.15 of the Charter?

[22] I do not have to say, but in the light of Quebec v. A, Lofchik J.'s conclusion in Hall that s.4 (3) of the Canada Evidence Act is discriminatory seems inescapable. I am not so sure that s.4 (3) is not saved by s.1 of the Charter. If denial of spousal support is a reasonable limit because it enhances autonomy and freedom of choice, I do not see why the much lesser benefit accorded by s.4 (3) of the Canada Evidence Act could not also be a reasonable limit. However, if I thought that the discrimination inherent in the marital privilege was not a reasonable limit, I would not give the remedy that Lofchik and Hennessy JJ. chose.

[23] I do not think that this is a case in which the court should in effect legislate by adding to invalid legislation. In Miron v. Trudel the Supreme Court read into under-inclusive insurance legislation the definition of common law spouse that had since been enacted in the very same legislation. Even in those circumstances the court recognized the remedy as unusual (para. 118) and exceptional (para. 180). In that case, by the time of the court’s decision, the legislature had already decided how to define the family for the purposes of future cases. Parliament has not yet had a chance to determine how the domestic unit should be defined for the purposes of s.4 of the Canada Evidence Act.

[24] It is not a simple matter of harmonizing the evidence statute with other federal legislation. Tax, benefits, immigration and other legislation are of vital importance and must be made to work within the framework of the constitution. On the other hand, given the chance, Parliament could well decide that on balance marital privilege might better be abolished than expanded. The Supreme Court has several times mentioned the controversial nature of this privilege and the scathing (but not unanimous) academic criticism to which it has been subjected: R. v. Salituro, 1991 17 (SCC), [1991] 3 SCR 654; R. v. Hawkins, 1996 154 (SCC), [1996] 3 SCR 1043; R. v. Couture.

[25] Balancing the benefits of this much criticized privilege, which is more the product of history than logic, against the value of the truth-finding objective of litigation, would it be better to eliminate the privilege altogether? Even the privilege in s.4 (1) has so many exceptions that husbands and wives routinely testify against each other. Elimination of the privileges altogether would hardly be a shock.

[26] The Supreme Court of Canada has three times (in Salituro, Hawkins, and Couture) declined to modify the privilege beyond the limited extent of ruling that the privilege does not survive irreconcilable separation. I am hardly better equipped than the Supreme Court to make the required policy decision. Expanding the privilege would not be an incremental change in the law. It would be a complex change with uncertain ramifications. It should be left to the legislature. In my view this is not one of the exceptional cases in which legislation should be “read up.” Rather, it is a case in which adding to the legislation would do more harm than good.

[27] I think that the appropriate remedy would have been to declare s.4 (3) of the Canada Evidence Act inoperative and to suspend the declaration for a reasonable time.

Disposition of the application

[28] The intercepted communications will not be excised from the information to obtain the search warrant or the affidavit in support of the second authorization. The application to exclude them on other grounds having failed, the communications will also be admissible at trial.

J.A. Ramsay J.

Date: 2014-03-25