COURT FILE NO.: CR-18-0-82

DATE: 20191127

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

KARL WALSH

• and -

ANDREW MCKAY, JAMES CHRISTIE, MARTIN BAIN, FRANCIS CHANTIAM

Robert Hubbard and David Friesen,

for the Crown

Lisa Jørgensen and Cat Mercer,

for the accused, Karl Walsh

David Humphrey,

for the accused, Andrew McKay

Julianna Greenspan,

for the accused, James Christie

Louis Strezos and Kaleigh Davidson,

for the accused, Martin Bain

Peter Brauti and Maureen Salama,

for the accused, Francis Chantiam

HEARD: September 10, 2019

K.L. Campbell J.:

Pre-Trial Ruling

Admissibility of Spousal Communications

A. Overview

[1] Does the statutory protection of “spousal privilege” prevent the admission of the electronic records of historical text message communications between a lawfully married couple, when such communications have been subsequently gathered by the police pursuant to a valid general warrant authorizing such a seizure? That is the issue to be resolved on this pre-trial motion.

[2] The five accused, Andrew McKay, Karl Walsh, James Christie, Martin Bain and Francis Chantiam, are all jointly charged with one count of fraud over $5,000. Essentially, the Crown alleges that, during the 18-month period between January 1, 2014 and June 30, 2015, the five accused defrauded the Ontario Provincial Police Association and its members of property and money having a value in excess of $5,000, by concealing that three of the accused, namely, Karl Walsh, James Christie and Martin Bain, had a beneficial interest in PIN Consulting Group Inc., Leximco Ltd. and/or First Response Travel Group.

[3] As part of its case the Crown seeks to introduce a series of text messages that were sent by Karl Walsh to his wife on April 22, 2014. The police subsequently obtained these historical text messages through means of the execution of a judicially authorized general warrant, the validity of which has not been challenged. See R. v. Telus, 2013 SCC 16, [2013] 2 S.C.R. 3, at para. 15.

[4] There is no question that the content of the text messages contains relevant, probative evidence. During one of these text messages, Mr. Walsh appeared to explain to his wife how the “shareholder equity” in the PIN Consulting Group was to be divided between “Francis” Chantiam (35%), “Andy” McKay (25%), and “Karl” Walsh, “Jimmy” Christie and “Martin” Bain (13.33% each). He also told his spouse that PIN Consulting would be the “umbrella group” that would have “several ventures,” including a “travel agency,” and that “our take” on the 13.33% equates to $25,000. In other text messages to his wife, Mr. Walsh noted that this was “exciting … for sure” and that he had asked Andy McKay to “structure it through financing.” Mr. Walsh also indicated that he did not think that “Jimmy” Christie would be able to do it, “which is even better.”

[5] Defence counsel for Mr. Walsh seeks the exclusion of the text messages that Mr. Walsh sent to his wife on the basis that their admission would offend the rule of “spousal privilege,” as statutorily protected by s. 4(3) of the Canada Evidence Act, R.S.C. 1985, chap. C-5, and s. 189(6) of the Criminal Code, R.S.C. 1985, chap. C-46. Defence counsel contends that the Crown cannot avoid the principled application of the spousal privilege rule, by simply creating and seizing the record of these private electronic text message communications which, if they had been face-to-face conversations, or even oral conversations on the phone, would have been protected by the privilege, and excluded from evidence.

[6] The Crown argues, however, that the “spousal privilege” reflected in s. 4(3) of the Canada Evidence Act provides only a limited protection against testimonial compulsion and does not cloak all spousal communications themselves in the privilege. Further, the Crown argues that since the text message communications in issue in the present case do not fall within the ambit of s. 189(6) of the Criminal Code, there is simply no legal basis to exclude the text message communications by Mr. Walsh to his wife, which were lawfully gathered by the investigative authorities pursuant to a valid judicially authorized general warrant.

[7] Following the hearing of this pre-trial motion, I advised the parties that the tendered evidence of these various text messages, from Mr. Walsh to his wife, was admissible and could not properly be excluded on the basis of any existing spousal privilege claim. I also advised the parties that I would subsequently provide reasons explaining this conclusion. These are those reasons.

B. Analysis

1. The Testimonial Nature of Spousal Privilege

[8] Section 4(3) of the Canada Evidence Act provides that “[n]o 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.” Generally speaking, this statutory provision grants the spousal recipient of any communications the right to assert a testimonial privilege with respect to the admissibility of the communications they received from their spouse during their marriage.

[9] It is important to appreciate, however, that s. 4(3) of the Canada Evidence Act does not protect the admissibility of spousal communications themselves. Rather, the legislation creates a testimonial privilege that protects a married wife or husband from being compelled to testify about the things communicated to them by his or her husband or wife. The Supreme Court of Canada addressed this critical distinction in R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, when Charron J., delivering the judgment of the court, stated, at para. 41:

Section 4(3) creates a spousal privilege in respect of 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. The privilege belongs to the spouse receiving the communication and can be waived by him or her. See R. v. Lloyd, [1981] 2 S.C.R. 645, at pp. 654-55.

[emphasis added]

[10] In the passage from the judgment in R. v. Lloyd, at pp. 654-655, relied upon by Charron J. in R. v. Couture, McIntryre J. similarly observed that s. 4(3) of the Canada Evidence Act “is a testimonial privilege giving a right to withhold evidence, but it cannot be said that the information itself is privileged” [emphasis added]. This legal principle is now well established. See also: R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, at paras. 17-18, 134-135, leave denied, [2015] S.C.C.A. No. 365; R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 186, leave denied, [2016] S.C.C.A. No. 184; R. v. Meer, 2015 ABCA 141, 323 C.C.C. (3d) 98, at paras. 67-70, affirmed, 2016 SCC 5, [2016] 1 S.C.R. 23; S.C. Hill, D.M. Tanovich, L.P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed., 2018), vol. 2, at § 13:40.40; R.W. Hubbard, S. Magotiaux, S.M. Duncan, The Law of Privilege in Canada (2017), vol. 2, at § 7.90.

[11] Married spouses simply do not have any broad substantive right to the privileged confidentiality of all communications that may take place between them during the course of their marriage. As Lamer J., as he then was, stated, in delivering the judgment of the Supreme Court of Canada in R. v. Wildman, [1984] 2 S.C.R. 311, 14 C.C.C. (3d) 321, at p. 332, “[s]pouses do not have a substantive right to the confidentiality as to what either was seen doing by the other or to the confidentiality of what was to the other communicated by either.” See also: R. v. Gosselin (1903), 33 S.C.R. 255, 7 C.C.C. 139, at pp. 277-278; R. v. Heyden, [1997] O.J. No. 5486, 39 W.C.B. (2d) 446 (Gen.Div.), at paras. 12-16.

2. Non-Testimonial Evidence of Spousal Communications is Generally Admissible

a. Introduction

[12] For many years, the governing jurisprudence has consistently confirmed that communications between married spouses, whether by means of more traditional letters or more modern means such as emails or text messages, are admissible in evidence whenever the communications have been independently and lawfully obtained by the police, provided only that they are relevant and otherwise admissible. In short, the testimonial privilege that is contained in s. 4(3) of the Canada Evidence Act does not render such communications inadmissible.

b. Traditional Letters and Correspondence

[13] For decades, letters written by one spouse to another, but intercepted by some third party and ultimately seized by the police, have consistently been held to be admissible. See Rumping v. Director of Public Prosecutions, [1964] A.C. 814, 46 Cr. App. R. 398 (H.L.), at pp. 835, 848, 852, 856, 860-861, 864, 868; R. v. Armstrong (1970), 2 N.S.R. (2d) 204, 1 C.C.C. (2d) 106 (C.A.), at pp. 110-114, leave denied, (1972), 4 N.S.R. (2d) 248 (S.C.C.); R. v. Kotapski (1981), 66 C.C.C. (2d) 78 (Que.S.C.), at pp. 82-88, affirmed, (1984), 13 C.C.C. (3d) 185, 12 W.C.B. 323 (Que.C.A.), leave denied, [1984] S.C.C.A. No. 118; R. v. Illes, 2003 BCSC 756, 59 W.C.B. (2d) 383, at paras. 61-69.

[14] For example, in the leading decision of the House of Lords in Rumping v. Director of Public Prosecutions, the accused was charged with the murder of a young woman. The accused was a seaman on a ship that had been moored near the location where the deceased woman was found. After the ship sailed, the accused gave his friend, another seaman on the ship, a letter addressed to the accused’s wife, and asked his friend to mail the letter from a foreign port. However, before the letter could be mailed, the accused was arrested, and the letter was ultimately seized by the police. The content of the letter was tantamount to a confession to the murder of the young woman. At trial, the defence sought the exclusion of the letter on the basis of marital privilege. The trial judge rejected this argument, admitted the letter, and the accused was convicted.

[15] The House of Lords upheld the conviction concluding, essentially, that the accused’s letter to his wife was admissible because the testimonial rule of spousal privilege, permitting a spouse to refuse to disclose the contents of communications from his or her spouse, does not impact upon the admissibility of such communications when they are proven through other admissible evidence. In reaching this conclusion, the House relied, in part, upon the decision in Shenton v. Tyler, [1939] Ch.D. 620, [1939] 1 All E.R. 827, at pp. 630-635, 640, 652, and its holding that there was never any common law rule that rendered all communications between spouses inadmissible in evidence. See also: S.B. McNicol, Law of Privilege (1997), at pp. 295-305. In his majority judgment in Rumping, Lord Morris canvassed the relevant jurisprudence and drew the following conclusions, at pp. 848, 852, and 860:

… [The defence 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 accused].

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.

[emphasis added]

c. Modern Electronic Communications – Text and Email Messages

[16] Similarly, and importantly for present purposes, more modern forms of communication, such as text messages and email messages, exchanged between married spouses, have also been consistently held to be admissible in evidence, provided only that they were independently and lawfully obtained by the police, through valid judicial authorization or otherwise. See: R. v. Docherty, 2010 ONSC 467, [2010] O.J. No. 382, at paras. 10, 12-17, reversed on other grounds, 2012 ONCA 784, 292 C.C.C. (3d) 465, leave denied, [2013] S.C.C.A. No. 18; R. v. Siniscalchi, 2010 BCCA 354, 257 C.C.C. (3d) 329, at paras. 30-59; R. v. Oland, 2015 NBQB 247, 446 N.B.R. (2d) 317, at paras. 4, 12, reversed on other grounds, 2016 NBCA 58, at para. 39, leave denied, [2016] S.C.C.A. No. 188; R. v. Grewal, 2017 ONSC 4099, 140 W.C.B. (2d) 529, at paras. 52-54, affirmed, 2019 ONCA 630; R. v. Oland, 2018 NBQB 247, 152 W.C.B. (2d) 430, at paras. 8-15; R. v. Cuthill, 2016 ABQB 60, 130 W.C.B. (2d) 48, at paras. 11-20, affirmed, 2018 ABCA 321, 368 C.C.C. (3d) 261, at paras. 12, 20-25, leave denied, 2019 CarswellAlta 1004 (S.C.C.).

[17] Most recently, in R. v. Cuthill, a wife and her husband were both charged with murder in connection with the death of her former boyfriend. After her relationship with her former boyfriend ended, and the wife and her husband were married, they made plans to adopt the daughter that the wife and her former boyfriend had together. However, the former boyfriend wanted to maintain his own relationship with his daughter and he would not cooperate with these adoption plans. Subsequently, following a visit with his daughter, the former boyfriend was killed. During their investigation, the police recovered, by means of a judicially authorized production order, incriminating text messages that were exchanged between the two accused, discussing their plans to kidnap and kill the deceased. The defence sought the exclusion of this evidence on the basis of spousal privilege, but the evidence was admitted by the trial judge and the accused were convicted of first-degree murder. This argument was renewed on appeal, but the convictions of the accused were affirmed, the Alberta Court of Appeal concluding, just last year, at para. 24:

The trial judge dismissed this argument, noting that spousal communication privilege applies only to the testimony of the spouse but does not otherwise protect spousal communications themselves: R. v. Couture, … at para 41. That position was echoed by this court in R. v. Meer, … at paras 69-70. Other appellate courts have taken the same position: see R. v. Siniscalchi, … at para 32; and R. v. Nero, at para 186. It follows that spousal communications discovered independently, for example by being overheard or contained in a letter found by another, are not subject to privilege: see R. v. Docherty …

[emphasis added – citations omitted]

d. Conclusion

[18] In summary, the governing jurisprudence, developed over many years, but including many quite recent judicial authorities, uniformly supports the admissibility of the text messages now tendered by the Crown in this case. The three provincial appellate courts that have expressed their views on this question – the British Columbia Court of Appeal in R. v. Siniscalchi, the New Brunswick Court of Appeal in R. v. Oland, and the Alberta Court of Appeal in R. v. Cuthill – have all reached the same conclusion as to the admissibility of such evidence. Moreover, I am aware of no judicial authority on this point, at any level of Canadian court, which is to the contrary.

[19] Further, two judges of this court, namely, Wein J. in R. v. Docherty, and Fairburn J., as she then was, in R. v. Grewall, have already followed this unbroken line of judicial authority. As Strathy J., as he then was, noted in R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644, at para. 43, “decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them.” I see no reason to depart from the conclusion reached in these earlier decisions of this court. More particularly: (1) the validity of these earlier judgments has not been affected by any subsequent decisions; (2) neither judge overlooked binding case law or a relevant statute; (3) neither decision was otherwise made without full consideration; and (4) neither of these decisions is “plainly wrong” – indeed, I agree with the legal principles that they propound, and the many judicial authorities which uniformly support their conclusions. See also Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, [1954] B.C.J. No. 136 (S.C.), at pp. 591-592; R. v. Northern Electric Co., [1955] O.R. 431, 111 C.C.C. 241 (H.C.), at pp. 255-260; R. v. Hussein, 2017 ONSC 4202, 141 W.C.B. (2d) 231, at paras. 28-29; R. v. Millard, 2018 ONSC 1299, 146 W.C.B. (2d) 625, at para. 45; R. v. W.M., 2018 ONSC 5990, 150 W.C.B. (2d) 340, at paras. 10-11; R. v. McMillan, 2019 ONSC 5616, at paras. 4, 10.

3. The Jurisprudence is Consistent with the Rationales for Spousal Privilege

[20] It is noteworthy that the admission of such evidence is not at all inconsistent with the operation of the testimonial spousal privilege provided by s. 4(3) of the Canada Evidence Act. This is so because the admission of such evidence does not conscript an accused’s spouse to testify or participate in the prosecution of the accused, nor does it undermine matrimonial harmony. These are, of course, the two modern justifications for the spousal privilege rule. See R. v. Hawkins, [1996] 3 S.C.R. 1043, 111 C.C.C. (3d) 129, at para. 38; R. v. Couture, at paras. 42-43, 65. Simply put, in tendering the evidence of such spousal communications, the Crown is not enlisting the compelled testimony of the accused’s spouse. Rather, the evidence is admissible and can be properly adduced through other witnesses, provided that it was lawfully collected by the police, without enlisting any testimonial assistance from the accused’s spouse.

[21] An accused who has sent incriminating text messages to his or her spouse, for example, has no reason to be upset with his or her recipient spouse when the Crown seeks to tender the record of such lawfully collected text messages. Their recipient spouse has done nothing but possess an electronic device that received the incriminating text messages sent to them by the accused. The recipient spouse cannot sensibly be blamed for the existence of the evidence, or for its use by the Crown in the trial of the accused. The recipient spouse is not called to testify, nor do they need to participate in any way in the prosecution. In short, the recognized modern rationales for the continued existence of spousal privilege, as reflected in s. 4(3) of the Canada Evidence Act, are not in any way advanced or promoted by the exclusion of such private text message communications. Said another way, and paraphrasing the language of Charron J. in R. v. Couture, at para. 65, the admission of such private text messages does not require the recipient spouse to testify against his or her accused spouse, nor does it in any way conscript the recipient spouse to participate in the prosecution against his or her accused spouse.

[22] Accordingly, contrary to the submission of defence counsel for Mr. Walsh, the admissibility of such spousal communications does not “frustrate” the operation of the rule of spousal privilege protected by s. 4(3) of the Canada Evidence Act. Rather, the admission of such non-testimonial spousal communications merely confines the operation of this statutory rule of testimonial spousal privilege to its proper legal scope.

4. The Statutory Exception for Intercepted Communications Under Part VI of the Code

[23] Section 189(6) of Part VI the Criminal Code, which deals with the interception of private communications by means of an “electro-magnetic, acoustic, mechanical or other device,” provides that any information “obtained by 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.” Accordingly, where private, privileged communications between spouses are lawfully intercepted by means of a wiretap authorization, such privileged private communications remain privileged and inadmissible, subject only to a potential waiver of the privilege. See R. v. Jean (1979), 15 A.R. 147, 46 C.C.C. (2d) 176 (Alta.C.A.), at p. 187, affirmed, [1980] 1 S.C.R. 23, 51 C.C.C. (2d) 192; R. v. Lloyd, at pp. 648-651.

[24] This statutory provision has no potential application in the present case, however, as the police did not intercept the private text message communications between Mr. Walsh and his wife pursuant to any Part VI authorization. Rather, the police subsequently obtained these historical text messages through means of the execution of a judicially authorized general warrant, the validity of which has not been challenged. Therefore, s. 189(6) of the Code is simply “not operative in this case,” and can provide no basis for the exclusion of the text messages sent by Mr. Walsh to his wife. See R. v. Grewal, at para. 54.

[25] Section 189(6) of the Code is currently the only statutory exception to the general rule that third parties outside the marriage are not precluded from giving evidence of spousal communications that are lawfully gathered by investigative authorities pursuant to valid judicial authorization. As Groberman J.A. stated, in delivering the judgment of the British Columbia Court of Appeal in R. v. Siniscalchi, at para. 44:

The general proposition that third parties are not precluded from giving evidence of statements made by one spouse to another is qualified, in Canadian law, only in respect of communications intercepted pursuant to authorizations under the Criminal Code.

[emphasis added]

5. Conclusions

[26] There is no doubt that text messaging, as a means of modern communication, engages a reasonable expectation of privacy on the part of the participants to such electronic communications, regardless of whether or not the participants are married to each other. As McLachlin C.J.C. noted, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 31-37, it is difficult to think of a medium of communication that is “capable of promising more privacy than text messaging” and, accordingly, such communications have the capacity to broadcast a “wealth of personal information capable of revealing personal and core biographical information about the participants in the conversation,” as well as “intimate details of [their] lifestyle and personal choices.”

[27] That said, the fact that the participants in private text message communications have a reasonable expectation of privacy in relation to their electronic conversations, does not mean that the electronic records of such communications can never be lawfully gathered by investigative police authorities pursuant to a valid judicial authorization. Nor do such reasonable expectations of privacy serve invariably to somehow convert all such text message conversations into privileged communications whenever the participants are married to each other. To so hold would, in my view, wrongly judicially expand, quite significantly, the long-recognized legislative scope of testimonial spousal privilege prescribed by Parliament in s. 4(3) of the Canada Evidence Act.

C. Conclusion

[28] Accordingly, as there is no privileged-based reason to exclude the tendered text message communications by Mr. Walsh to his wife, and no other objection has been raised as to the admission of the evidence, and as these text messages contain relevant, probative evidence, the tendered evidence must be ruled admissible.

[29] In the result, as I have already advised the parties, the application brought on behalf of Mr. Walsh, to exclude the evidence of his text message communications to his wife, is dismissed. The evidence is admissible at the behest of the Crown.

Kenneth L. Campbell J.

Released: November 27, 2019

COURT FILE NO.: CR-18-0-82

DATE: 20191127

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

KARL WALSH

PRE-TRIAL RULING

Admissibility of Spousal Communications

K.L. Campbell J.

Released: November 27, 2019