Nov 29, 2014

Facts:

David Couture was charged with the second degree murder of an ex-girlfriend and her friend. While in prison on other charges, David was visited by a woman named Darlene, who was a “Christian Volunteer Counsellor”. She was married to someone else: a man named Schwab, at the time. During the visits, David had confided to her that he had killed his ex-girlfriend and one of her friends. He told Darlene that he had killed his girlfriend out of jealousy, and then killed her friend because she had seen him kill the girlfriend. He then noted that, after having killed them, he’d had anal sex with both of them. He was released on parole. One of the conditions of parole was that he had to go and live with Darlene and her husband, Mr. Schwab.

While in that home, Couture physically assaulted Darlene. Schwab demanded that he leave the home, and he did. Unbeknownst to Mr. Schwab, Darlene stayed in contact with Couture. Then one day she decided that, given that this guy’s a double murderer who has sex with corpses and beats me from time to time, I should probably marry him and divorce my nice Husband. The two were married in February, 1996.

In June of 1996 Police Officers visited David’s home in connection with the murder investigation. He wasn’t home at the time, so they spoke to Darlene. David had, apparently, continued to be abusive, and Darlene was thinking of leaving him. She told the Cops that David had confessed the murders to her while she was his counsellor, and said she’d never come forward before because she felt that her position as a Christian Counsellor called for confidentiality.

She subsequently left David and made a series of official statements to the police, detailing everything David had told her about the murders and acts of necrophilia. After making these statements, she reconciled with David, and went back to cops to downplay what she said before. She didn’t exactly recant, but suggested that her memory wasn’t all that it should be.

Reasoning:

On the basis of her evidence (as well as some other material), David was charged. The marriage continued to be valid throughout. She was, as a result, incompetent to give evidence against her husband. The trial judge applied Hawkins and admitted the evidence of her out-of-court statements as an exception to the hearsay rule.

oNote that this is a special kind of hearsay: it’s what we call “double hearsay”. Someone else will testify that they heard Couture say something (which is hearsay). But what they heard Couture say was that SHE heard David say something (i.e., that he killed someone). The evidence is ultimately being tendered as proof of the truth of what David said. The case for its admissibility is accordingly very tenuous.

The only question before the SCC was the question of the admissibility of Mrs. Couture’s statements. The Court refused to abrogate the Common Law Rules regarding spousal competence and compellability: they reaffirmed the fact that, despite its patronizing nature, the rule of spousal incompetence remains the law in Canada.

As for Hearsay --- the Court modified the holding in Hawkins somewhat, and said that there are two questions to ask, on a case-by-case basis, namely (1) is the out-of-court statement by the spouse (a) necessary, and (b) reliable, and (2) would its admission undermine the rationales for the spousal incompetence rule?

In answering the second question (i.e., would its admission undermine the rationales for the spousal incompetence rule), the court says that you shouldn’t look at the individual marriage to inquire into its state of marital harmony. Instead, you have to ask “as a general rule, would the admission of evidence in these circumstances tend to undermine marital harmony”.

In this case, martial harmony was (according to the court) in jeopardy. The statements Mrs. Couture made were made during the marriage. If they were admitted, said the Court, police would routinely call spouses into the station and take statements, knowing that they’d be admitted under the hearsay rule. This would tend to undermine marital harmony and perform a general “end run” around the spousal incompetence rule.

Held: The wife’s statements were held inadmissible as hearsay.