Wednesday, July 30, 2008
Til Disclosure Do Us Part, Take 2: B.C. Supreme Court Finds Spousal Testimonial Privilege Precluded Admission of Wife's Statements To Police
A recent opinion of the B.C. Supreme Court reveals that our neighbors to the north still have the spousal testimonial privilege, at least in criminal cases. In 2003, David Couture was found guilty of two counts of second degree murder in connection with the 1986 slayings of his then girlfriend and her friend. Couture's conviction hinged largely upon audiotaped and videotaped statements made by his wife, Darlene, to police in 2003 in which she claimed that he admitted to the murders (at the time David allegedly made these statements, Darlene was David's Christian volunteer counsellor in prison, where he was serving time on unrelated offences). When Darlene spoke to the police, David and she were recently separated but still married, and they later reconciled and remained married at the time of his trial.
After David was convicted, he appealed to the B.C. Court of Appeal, claiming that the trial court improperly admitted his wife's audiotaped and videotaped statements. The Court of Appeal agreed, ruled the statements inadmissible, set aside the convictions, and ordered a new trial. The Crown then appealed from this order, but the B.C. Supreme Court affirmed. Why?
The B.C. Supreme Court noted that "[a]t common law, in civil cases, the parties and their spouses were incompetent to testify. The same rule applied in criminal cases to accused persons and their spouses, save in cases that involved the witness spouse’s person, liberty or health." The Court then noted that while the rule was abolished in civil cases, in criminal cases, it was codified in Section 4 of the Canada Evidence Act, which implicitly preserved the common law, subject to exceptions that were inapplicable in Couture's case.
Technically, speaking, however, Darlene did not testify; instead, her statements to police were admitted. So, why did the Court find her statements admissible when it acknowledged that "[t]here is no question that the spousal incompetency rule is testimonial in nature." Well, it found that "[u]nless 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." And the Court found no such good reason, rejecting the Crown's argument that Darlene's statements were admissible under Canada's principled exception to the hearsay rule because the circumstances in which they were given rendered them reliable. The Court rejected this argument "[b]ecause exclusion of evidence under the spousal incompetency rule has nothing to do with the reliability or probative value of the evidence."
The Court did acknowledge that in a previous case -- Hawkins -- it had admitted out-of-court statements made by a spouse under the principled exception, but it agreed with the Court of Appeals that Hawkins was very much limited to its facts because in that case:
(1) the hearsay admitted was a transcript of evidence given under oath (Darlene's statements were not given under oath);
(2) the witness had been cross-examined; and
(3) the marriage took place after the evidence was given.
The Court thus rejected the Crown's argument and concluded that "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." I agree with the opinion of the B.C. Supreme Court and disagree with the contrary conclusion of Michigan Court of Appeals, which recently strictly construed Michigan's confidential marital communications privilege (which is somehwat similar to the spousal testimonial privilege) and found that a spouse's statements are admissible through other witnesses as long as they meet an applicable hearsay exception (Here is my post on the Michigan opinion).