Domestic harmony and judicial disharmony

Where a witness is not competent to be a prosecution witness without the consent of the accused, can hearsay evidence from that person nevertheless be admissible if it is reliable? Both these common law rules received consideration in R v Couture [2007] SCC 28 (15 June 2007), and the Supreme Court of Canada split 5 – 4. The minority accused the majority of departing from the approach established in R. v. Hawkins, 1996 CanLII 154 (S.C.C.), [1996] 3 S.C.R. 1043, which was that the competency rule may be used to exclude hearsay evidence that would otherwise be admissible if it was unfair to admit the evidence. Interpretations of the judgments that were delivered in Hawkins differed in Couture. Essentially, the difference is between whether or not the exclusion of the evidence of an incompetent witness is a matter for residual discretion, or whether it is a consideration independent of the criteria for hearsay admission. The majority in Couture, in a judgment delivered by Charron J, approached the competence issue independently of the hearsay issue (para 63), whereas the minority (in a judgment delivered by Rothstein J) regarded it as a residual matter (para 105).

This interesting interplay of two common law rules arose at the accused’s trial for murder. The prosecution wished to adduce evidence from his spouse in the form of statements she had made, during a period of matrimonial discord, to the police, in which she said her husband had admitted the killings to her. Being the accused’s spouse, she was not competent as a prosecution witness under Canadian common law, without the accused’s consent. The prosecution argued that the statements were sufficiently reliable to be admitted pursuant to the “principled exception” to the hearsay rule (also known, in its New Zealand version, as the residual exception, although here the term “residual” is a bit confusing, so I will use the Canadian expression), and that there was no reason to exclude them as marital communications under the residual discretion to exclude evidence if its probative value would be outweighed by its illegitimately prejudicial effect or if it would be unfair to admit the evidence.

The majority examined the underlying rationales for the existence of the spousal incompetency rule (para 43):

“The first justification for the rule is that it promotes conjugal confidences and protects marital harmony. The second is that the rule prevents “the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution” (Hawkins, at para. 38). Wigmore describes this second 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” (Wigmore on Evidence (McNaughton rev. 1961), vol. 8, at §2228, p. 217 …).”

Noting the controversy over whether the rule should be changed, the majority confronted the role of the courts as compared with the legislature, quoting (para 47) the following from Iacobucci J in R. v. Salituro, 1991 CanLII 17 (S.C.C.), [1991] 3 S.C.R. 654:

“Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. [p. 670]”

In New Zealand, the legislature has abolished the spousal non-compellability rule (as it had existed here), making spouses both eligible and compellable as witnesses: Evidence Act 2006, s 71. The New Zealand Law Commission, proposing this change, had observed (NZLC R55, Vol 1, para 342 – 343) that non-compellability could not be supported by logic or policy, citing the same edition of Wigmore (at para 2228) as that cited by the Couture majority, above, for the proposition that marital immunity is a mere anachronism and an indefensible obstruction to truth.

For the majority in Couture, Charron J concluded, on the incompetence point (para 71):

“…If this Court were to rule that statements made by spouses can be admitted at trial based solely on threshold reliability without further regard to the spousal incompetency rule, I agree with Mr. Couture’s contention that this would encourage the institutionalized taking of spousal statements for the express purpose of introducing them at trial, a practice that would seriously undermine the preservation of marital harmony. This result would constitute a significant inroad on Parliament’s policy choice to maintain the rule against spousal incompetency, a result not intended by the majority in Hawkins. For that reason, I would conclude that this factor alone is sufficient to distinguish this case from Hawkins. The operation of the principled approach to the hearsay rule would effectively thwart the spousal competency rule and, consequently, cannot provide a basis for admitting the evidence in this case.”

This made it unnecessary to consider what the position would have been if the principled exception to the hearsay rule applied. The policy of avoiding risk to marital harmony was dominant. However, since the other justification for the incompetence rule, namely the indignity of having one spouse participate in the other’s prosecution, became apparent in the light of the hearsay exception, that was considered too. In the circumstances of this case, the defence could only challenge the reliability of the spouse’s evidence by calling her as a witness (she being competent and compellable for the defence), and that would raise this second justification for the incompetence rule.

Here the trial judge’s application of the principled exception to the hearsay rule was wrong, and reviewable on appeal, in two respects: the judge had regarded the wife’s repetition of the alleged confessions to other people as corroboration (whereas a person cannot corroborate himself), and the judge had reversed the onus, effectively requiring the defence to show why the hearsay was unreliable (paras 83 – 85). This allowed the Supreme Court to substitute its own assessment, and the majority held that there were, here, no adequate substitutes for the inability to cross-examine the witness in testing the reliability of the evidence (para 91). It was not the sort of evidence that even a sceptical person would regard as trustworthy (para 101).

The minority differed on this point, holding that the evidence was sufficiently reliable to be admissible, and the absence of cross-examination insufficiently important to require its exclusion. The residual discretion therefore, on the minority’s approach, came into play: was there unfairness sufficient to outweigh the probative value of the evidence? The only unfairness that could arise here would be from the stress that the giving of the evidence would place on the defendant’s marriage, and it was held (para 142) that was minimal.

This difference in approaches to the hearsay exception calls to mind my discussion of the admissibility of hearsay confessions (see paper linked in blog for 28 May 2007). I argued there that the reliability threshold for the admission of hearsay evidence was in danger of being eroded if reliance was placed instead on the discretion to exclude improperly prejudicial evidence. Couture, itself a hearsay confession case, saw a split in whether the evidence was sufficiently reliable to be admissible as hearsay. Such a difference is of itself an illustration of why the reliability requirement should be applied rigorously. The rule should be strong because of the potential variety in assessments of the facts.

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