R. v. Hawkins

R. v. Hawkins
Collection
Supreme Court Judgments
Date
1996-11-28
Report
[1996] 3 SCR 1043
Case number
24633, 24634
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 24634, 24633
Decision Content
R. v. Hawkins, [1996] 3 S.C.R. 1043
Kevin Roy Hawkins and Claude Morin Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Hawkins
File No.: 24633, 24634.
1996: March 18; 1996: November 28.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law -- Evidence -- Witnesses -- Competency and compellability -- Spouses -- Police officer charged with obstruction of justice after allegedly providing motorcycle club president with confidential information -- Officer’s girlfriend key witness against him at preliminary inquiry -- Officer and girlfriend legally married prior to trial -- Trial judge finding witness not competent to testify at trial -- Whether common law rule of spousal incompetence should be modified in circumstances of case.
Criminal law -- Evidence -- Witnesses -- Evidence previously taken -- Police officer charged with obstruction of justice after allegedly providing motor cycleclub president with confidential information -- Officer’s girlfriend key witness against him at preliminary inquiry -- Officer and girlfriend legally married prior to trial -- Trial judge finding witness not competent to testify at trial -- Whether Crown should have been able to read preliminary inquiry testimony into evidence at trial under s. 715 of Criminal Code -- Criminal Code, R.S.C., 1985, c. C-46, s. 715 .
Criminal law -- Evidence -- Hearsay -- Exceptions to hearsay rule -- Police officer charged with obstruction of justice after allegedly providing motorcycle club president with confidential information -- Officer’s girlfriend key witness against him at preliminary inquiry -- Officer and girlfriend legally married prior to trial -- Trial judge finding witness not competent to testify at trial -- Whether Crown should have been able to read preliminary inquiry testimony into evidence at trial as principled exception to hearsay rule -- Whether witness’s prior statements satisfy necessity and reliability requirements.
Pursuant to an internal investigation, the Crown believed that H, a police officer, had provided the co-accused M, a former president of a motorcycle club, with confidential information concerning police surveillance of the club in return for money. The key figure in the Crown's investigation was G, H’s girlfriend. At the preliminary inquiry, the Crown called G as a competent and compellable witness, and she made a number of statements under oath and cross-examination which incriminated H. However, shortly thereafter, G retained her own counsel and sought to testify again. This application was granted, and, in her subsequent testimony, G recanted key portions of her previous statements, offering explanations with respect to the events in question that were in direct contradiction to what she had previously told the court. Following the completion of the preliminary inquiry, and prior to trial, G and H were legally married. The trial judge found that G was not competent for the Crown, owing to the common law rule of spousal incompetence. Following the ruling on the motion, the Crown decided that it would not offer any evidence in support of a conviction. Accordingly, the jury rendered directed acquittals of the two accused. The majority of the Court of Appeal agreed that the witness was not competent for the Crown, but held that the evidence could have been admitted pursuant to s. 715 of the Criminal Code or alternatively under the principled exception to the hearsay rule developed in Khan, Smith and B. (K.G.). The court set aside the acquittals and ordered a new trial.
Held (Sopinka, McLachlin and Major JJ. dissenting): The appeals should be dismissed.
(1) The common law rule of spousal incompetence should not be modified in the circumstances of this case.
(2) G’s testimony at the preliminary inquiry cannot be read into evidence at trial pursuant to s. 715 of the Criminal Code .
(3) Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory and Iacobucci JJ. (Sopinka, McLachlin and Major JJ. dissenting): G’s testimony at the preliminary inquiry may be read into evidence at trial through a principled exception to the hearsay rule.
_____________
(1) Spousal incompetence
The circumstances of this case do not warrant modifying the common law rule of spousal incompetence. Both the trial judge and the Court of Appeal were correct in holding that G was not a competent witness for the Crown at the trial, as she had entered into a valid and genuine marriage with H. The common law rule is that a spouse is an incompetent witness in criminal proceedings in which the other spouse is an accused, except where the charge involves the person, liberty or health of the witness spouse. While the traditional rule has been modified by s. 4 of the Canada Evidence Act , these statutory exceptions aside, the general common law rule that the spouse of an accused, willing or not, is not competent to testify against the accused at the behest of the Crown still applies. At common law, it was well accepted that the rule of spousal incompetency renders a spouse incapable of testifying in relation to events which occurred both before and during the marriage. While it is true that this Court has signalled its willingness to adapt and develop common law rules to reflect changing circumstances in society at large, it is clear that the courts will only make incremental changes to the common law. By contrast, complex changes to the law with uncertain ramifications should be left to the legislature. Both of the changes proposed by the Crown, whereby a spouse would be rendered competent if the marriage was solemnized after the issuance of an information or indictment and, alternatively, where an accused marries a witness for the purpose of insulating that witness from being called by the prosecution, far from being incremental, would strike at the heart of the traditional rule of spousal incompetency. A marriage entered into following the swearing of an indictment may be perfectly valid and genuine, and there may indeed be a marital bond worthy of protection. Similarly, a marriage which is motivated by a desire to take advantage of the spousal incompetency rule may nonetheless be a true marriage, deserving of the law’s protection.
(2) Section 715 of the Criminal Code
The Court of Appeal erred in concluding that G’s testimony before the inquiry could be read into evidence pursuant to s. 715 of the Criminal Code . As it presently reads, s. 715 provides that where a person whose evidence was given at a previous trial on the same charge or was taken in the course of the investigation or on the preliminary inquiry refuses to be sworn or to give evidence, or is now dead, insane, so ill as to be unable to travel or testify, or is absent from Canada, then that person's testimony may be read as evidence in the proceedings without further proof. The evidence must also have been given in the presence of the accused. However, even if preliminary inquiry evidence satisfies these criteria, s. 715 preserves a residual discretion in the trial judge to exclude such evidence. G’s marriage clearly cannot be read into the section as grounds for admitting the transcripts of her preliminary inquiry evidence as it does not represent a refusal to give evidence: the common law rule of spousal incompetency disqualifies a spouse from giving evidence, regardless of the spouse's choice.
(3) Principled exception to the hearsay rule
Per Lamer C.J. and Gonthier, Cory and Iacobucci JJ.: The Court of Appeal was correct in concluding that G’s testimony at the preliminary inquiry could be admitted for the truth of its contents through a principled exception to the hearsay rule at common law. Evidence at trial of statements made by a witness in a prior adjudicative proceedings represents a form of hearsay. Under the modern principled framework for defining exceptions to the hearsay rule, a hearsay statement will be admissible for the truth of its contents if it meets the separate requirements of "necessity" and "reliability". These two requirements serve to minimize the evidentiary dangers normally associated with the evidence of an out-of-court declarant. Consistent with the spirit of this modern approach, the twin requirements of "necessity" and "reliability" must always be applied in a flexible manner. If a hearsay statement satisfies these two requirements, the trial judge may put the statement to the trier of fact, subject to appropriate safeguards and to cautions regarding weight. At the same time, this modern framework should also be applied in a manner which preserves and reinforces the integrity of the traditional rules of evidence. Accordingly, the new hearsay analysis should not permit the admission of statements which the declarant, if he or she had been available and competent at trial, would not have been able to offer into evidence through direct testimony because of the operation of an evidentiary rule of admissibility.
Under the modern principled framework, hearsay evidence will be necessary in circumstances where the declarant is unavailable to testify at trial and where the party is unable to obtain evidence of a similar quality from another source. Here G was unavailable to testify on behalf of the Crown for the purposes of the necessity criterion. The prosecution could not call upon G to testify as a result of her spousal incompetency, and there was no other means of presenting evidence of a similar value before the court. The requirement of reliability will be satisfied where the hearsay statement was made in circumstances which provide sufficient guarantees of its trustworthiness. In particular, the circumstances must counteract the traditional evidentiary dangers associated with hearsay. The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact. A witness's testimony before a preliminary inquiry will generally satisfy this threshold test of reliability since there are sufficient guarantees of trustworthiness. The surrounding circumstances of such testimony, particularly the presence of an oath or affirmation and the opportunity for contemporaneous cross-examination, more than adequately compensate for the trier of fact's inability to observe the demeanour of the witness in court. The absence of the witness at trial goes to the weight of such testimony, not to its admissibility. G’s statements before the inquiry satisfy the criterion of reliability. They were made under oath before a properly constituted preliminary inquiry, and they were subject to the opportunity of contemporaneous cross-examination by counsel for both accused. As well, G’s statements were transcribed under circumstances which support their authenticity.
Even where a particular hearsay statement satisfies the criteria of necessity and reliability under the reformed framework, the statement remains subject to the judge's residual discretion to exclude the statement where its probative value is slight and undue prejudice might result to the accused. Here the trial judge should not have exercised his discretion to exclude the evidence of G's testimony before the preliminary inquiry. The risk of undue prejudice arising from her testimony did not substantially exceed the potential probative value of such evidence at trial. G’s prior testimony was not devoid of probative value as a result of the internal contradictions of her testimony. The simple fact of recantation does not provide a basis for the exclusion of a witness's testimony. Nor did G’s exposure to numerous outside influences deprive her testimony of its potential probative value. Notwithstanding the contradictions in and outside influences upon G's testimony, the trier of fact may indeed derive significant probative value from her statements at the preliminary inquiry. Finally, the reception of G's prior testimony through a principled exception to the hearsay rule would not result in undue prejudice or unfairness to H. There is no evidence indicating how the admission of G’s preliminary inquiry testimony would actually prejudice the accused and the trial process. Nor would admitting the statements undermine H’s relationship with G. If G was compelled to testify at trial for the prosecution following her marriage with H, his marital harmony would indeed be jeopardized. However, his marital bond would not be similarly threatened if the prosecution simply read into evidence the testimony which G willingly gave before an adjudicative proceeding prior to the marriage.
In the balance of considerations, and notwithstanding considerations of “unfairness” to the accused in his marital relationship, the risk of prejudice arising from the admission of G's preliminary inquiry testimony did not significantly exceed the potential probative value of such evidence at trial. The trial judge should not have exercised his residual discretion to exclude her testimony, and the transcripts ought to have been put to the trier of fact, subject to appropriate safeguards and instructions. The Crown would of course be obliged to present G’s preliminary inquiry testimony before the trier of fact in its entirety.
Per La Forest and L’Heureux-Dubé JJ.: In determining whether statements made by a spouse prior to trial can be admitted for their substantive content as exceptions to the hearsay rule, the threshold question which must be asked is whether the evidence is precluded from being admitted because it is barred by the spousal incompetence rule. If the answer to this question is in the negative, there is no need to consider “fairness” on a case-by-case basis. The evidence obtained from the witness in this case, in the form of testimony at a preliminary inquiry, fits rather easily into the principled exception to the hearsay rule. Since it was not created in a manner which offends the spousal incompetence rule, there is no need to prevent its admission.
The spousal incompetence rule does not prevent the admission of the out-of-court statements of a spouse. The rule is grounded in the common law, and its scope is thus subject to the interpretation of the courts. The incompetence of a witness does not necessarily preclude the admission of his or her evidence by another route. Evidentiary principles which constrain the truth-seeking process should be carefully tailored so that they do not exceed what is strictly necessary to accomplish the goal for which they are designed. Two surviving policy grounds support the spousal incompetence rule: preventing the threat to marital harmony, and avoiding the natural repugnance of compelling a spouse to testify and having to witness this “spectacle” in court. Since the second rationale is not of concern where the evidence of a spouse is adduced through a hearsay exception, the question to be considered is whether a complete exclusionary rule to statements made prior to trial is warranted on the basis of marital harmony.
The marital harmony rationale becomes considerably less convincing where the evidence is tendered via a third party and not by the spouse on the witness stand. First, the spouse who makes the statement is not put through the stress of having to decide whether or not to testify, as this choice is already made by the time the trial occurs and the Crown seeks to admit the statement. Second, the husband and wife will not be put through the strain of actually sitting through the difficult testimony at trial, and having to face each other directly as accuser and accused. Finally, most of the damaging effect to the marriage will already have occurred by the trial. Balanced against this reduced threat to marital harmony are two pressing rationales which weigh heavily in favour of allowing the admission of this evidence: the recognition that the spousal incompetence rule severely hinders the freedom of individual choice, and the fact that the trial is primarily a truth-seeking inquiry.
The totality of these concerns tilts the balance decidedly in favour of admitting the evidence. The need to allow individuals to freely choose whether to speak, and the importance of the trial as a truth-seeking inquiry designed to redress harms to society, outweigh any need to prevent the reduced threat to marital harmony where the statement is made prior to trial. It is not strictly necessary to decide the competence question here as the witness is clearly not willing to testify.
Per La Forest J.: The issue of competency, which it is not strictly necessary to address here since the wife in this case is unwilling to testify, would raise issues on a quite different plane from those raised by the question of compellability. A rule prohibiting a spouse from testifying if he or she so wishes raises serious questions about whether it unreasonably infringes on a person’s liberty and equality interests protected by the Canadian Charter of Rights and Freedoms . Such an infringement would require justification at a level akin to that followed in the case of an alleged breach of Charter rights by legislative means. With respect to the wife’s evidence given voluntarily at the preliminary hearing, if it is hearsay, it is admissible under the principled exception to the hearsay rule. If it is not hearsay, it is highly relevant evidence and there is no reason to reject it: it was not covered by the rule of spousal immunity, and the considerations that favour its admission under the principled exception to the hearsay rule militate against exclusion under the broad discretionary rule described in Corbett and Potvin.
Per Sopinka, McLachlin and Major JJ. (dissenting): The principled exception to the hearsay rule created by the majority to allow hearsay statements of incompetent spouses into evidence violates the policy underlying s. 4 of the Canada Evidence Act by forcing spouses to provide evidence against each other. The common law recognized in s. 4 of the Canada Evidence Act has the main policy goals of the maintenance of marital harmony and the prevention of the natural repugnance that results in having one testify against his or her accused spouse. While the policy supporting s. 4 may be seen to militate against the search for truth, for the overriding reason of marital harmony, it is grounded in statute and is recognized in the provisions of the Canada Evidence Act so that if it is to be changed it clearly falls to Parliament to do so. Should the previous testimony of G be used to convict H, it would violate the policy foundation of s. 4 and have the potential to destroy an otherwise successful marriage. This is so whether the evidence is given at the trial or given at the preliminary hearing before the marriage and read in at the trial. The admission of the evidence offends both the letter and the spirit of the spousal incompetence rule. The Crown would not be permitted to obtain through direct testimony the evidence it is attempting to introduce through a principled exception to the hearsay rule. G could not take the stand at trial. Reading in her testimony from the preliminary inquiry equates with forcing her to give testimony against her husband. This is using the so-called back door to overcome the prohibition acknowledged in s. 4 of the Canada Evidence Act . A principled exception to hearsay should not be used to allow the Crown to introduce lower quality evidence when they are barred by the spousal incompetence rule from introducing direct testimony from her to the same effect. This violates the law and is contrary to express legislative policy.
Cases Cited
By Lamer C.J. and Iacobucci J.
Referred to: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Hawkins (1991), 52 O.A.C. 114, aff’d [1992] 3 S.C.R. 463; R. v. Salituro, [1991] 3 S.C.R. 654; Lord Audley's Case (1631), Hutt. 115, 123 E.R. 1140; Bentley v. Cooke (1784), 3 Doug. K.B. 422, 99 E.R. 729; R. v. Bissell (1882), 1 O.R. 514; Pedley v. Wellesley (1829), 3 C. & P. 558, 172 E.R. 545; R. v. Lonsdale (1973), 15 C.C.C. (2d) 201; Trammel v. United States, 445 U.S. 40 (1980); Hoskyn v. Metropolitan Police Commissioner, [1979] A.C. 474; Gosselin v. The King (1903), 33 S.C.R. 255; Re Spencer and The Queen (1983), 145 D.L.R. (3d) 344, aff’d [1985] 2 S.C.R. 278; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. McGinty (1986), 27 C.C.C. (3d) 36; Ares v. Venner, [1970] S.C.R. 608; Watkins v. Olafson, [1989] 2 S.C.R. 750; Lutwak v. United States, 344 U.S. 604 (1953); R. v. Potvin, [1989] 1 S.C.R. 525; R. v. Snelgrove (1906), 12 C.C.C. 189; Cuff v. Frazee Storage & Cartage Co. (1907), 14 O.L.R. 263; Caufield v. The King (1926), 48 C.C.C. 109; R. v. Thompson, [1982] 1 All E.R. 907; Wright v. Doe d. Tatham (1834), 1 Ad. & E. 3, 110 E.R. 1108; R. v. Beeston (1854), Dears. 405, 169 E.R. 782; R. v. Lee (1864) 4 F. & F. 63, 176 E.R. 468; R. v. Hall (P.B.), [1973] 1 Q.B. 496; Walkertown (Town) v. Erdman (1894), 23 S.C.R. 352; R. v. Scaife (1851), 2 Den. 281, 169 E.R. 505; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Rockey, [1996] 3 S.C.R. 829; Ohio v. Roberts, 448 U.S. 56 (1980); R. v. Finta, [1994] 1 S.C.R. 701; R. v. Clarke (1993), 82 C.C.C. (3d) 377, aff'd (1994), 95 C.C.C. (3d) 275, leave to appeal refused, [1995] 3 S.C.R. vi; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Seaboyer, [1991] 2 S.C.R. 577.
By L’Heureux-Dubé J.
Not followed: Ivey v. United States, 344 F.2d 770 (1965); referred to: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1 S.C.R. 740; United States v. Archer, 733 F.2d 354 (1984); R. v. Kobussen (1995), 130 Sask. R. 147; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Burlingham, [1995] 2 S.C.R. 206; Trammel v. United States, 445 U.S. 40 (1980); United States v. Tsinnijinnie, 601 F.2d 1035 (1979); United States v. Brown, 605 F.2d 389 (1979); United States v. Doughty, 460 F.2d 1360 (1972); United States v. Cleveland, 477 F.2d 310 (1973); United States v. Chapman, 866 F.2d 1326 (1989); United States v. Donlon, 909 F.2d 650 (1990); Ballard v. State, 311 S.E.2d 453 (1984); R. v. McKinnon (1989), 70 C.R. (3d) 10; R. v. Jean, [1980] 1 S.C.R. 400, aff’g (1979), 7 C.R. (3d) 338; Lloyd v. The Queen, [1981] 2 S.C.R. 645; R. v. Andrew (1986), 26 C.C.C. (3d) 111; Rumping v. Director of Public Prosecutions, [1962] 3 All E.R. 256; R. v. Smithies (1832), 5 C. & P. 332, 172 E.R. 999; R. v. Bartlett (1837), 7 C. & P. 832, 173 E.R. 362; R. v. Czipps (1979), 48 C.C.C. (2d) 166.
By La Forest J.
Referred to: R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Potvin, [1989] 1 S.C.R. 525.
By Major J. (dissenting)
R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Rockey, [1996] 3 S.C.R. 829; Ivey v. United States, 344 F.2d 770 (1965); R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Kobussen (1995), 130 Sask. R. 147; Trammel v. United States, 445 U.S. 40 (1980).
Statutes and Regulations Cited
Act respecting the duties of Justices of the Peace, out of Sessions, in relation to persons charged with Indictable Offences, S.C. 1869, c. 30, s. 30.
Act further to amend The Canada Evidence Act, 1893, S.C. 1906, c. 10, s. 1.
Administration of Justice Act (No. 1) (U.K.), 11 & 12 Vict., c. 42, s. 17.
Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 4 [am. c. 19 (3rd Supp.)], 16, 17.
Canadian Charter of Rights and Freedoms, s. 11 (d).
Criminal Code, R.S.C., 1985, c. C-46, ss. 8(3) , 120 (a), 139(2) , 465(1) (c), 691(2) (a), 715 [am. 1994, c. 44, s. 77].
Federal Rules of Evidence, Rule 804(b)(1).
Immigration Regulations, 1978, SOR/78-172, s. 4(3) [ad. SOR/84-140, Schedule, s. 1(1)].
Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, s. 80.
Authors Cited
Canada. Law Reform Commission. Law of Evidence Project. Study Paper No. 1. Evidence: Competence and Compellability. Ottawa: Law Reform Commission of Canada, 1972.
Canada. Law Reform Commission. Report on Evidence. Ottawa: The Commission, 1975.
Cross and Tapper on Evidence, 8th ed. By Colin Tapper. London: Butterworths, 1995.
Federal/Provincial Task Force on Uniform Rules of Evidence. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswell, 1982.
Louisell, David W., and Christopher B. Mueller. Federal Evidence. Rochester, New York: Lawyers Co-operative Publishing Co., 1985.
McCormick on Evidence, vol. 2, 4th ed. By John William Strong, general editor. St. Paul, Minn.: West Publishing, 1992.
Medine, David. “The Adverse Testimony Privilege: Time to Dispose of a ‘Sentimental Relic’” (1988), 67 Oreg. L. Rev. 519.
Phipson on Evidence, 14th ed. By M. N. Howard, Peter Crane and Daniel A. Hochberg. London: Sweet & Maxwell, 1990.
Regan, Milton C. Jr. “Spousal Privilege and the Meanings of Marriage” (1995), 81 Va. L. Rev. 2045.
Schiff, Stanley A. Evidence in the Litigation Process, 4th ed. Scarborough, Ont.: Carswell, 1993.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown, 1961.
APPEALS from a judgment of the Ontario Court of Appeal (1995), 37 C.R. (4th) 229, 22 O.R. (3d) 193, 96 C.C.C. (3d) 503, 79 O.A.C. 241, allowing the Crown’s appeal from the directed acquittals of the appellants on charges of conspiracy to obstruct justice and of the appellant Hawkins on charges of corruptly accepting money and obstruction of justice. Appeals dismissed, Sopinka, McLachlin and Major JJ. dissenting.
Peter B. Hambly, for the appellant Hawkins.
Harald A. Mattson, for the appellant Morin.
Catherine Cooper and Jamie Klukach, for the respondent.
\\The Chief Justice and Iacobucci J.\\
The judgment of Lamer C.J. and Gonthier, Cory and Iacobucci JJ. was delivered by
1 The Chief Justice and Iacobucci J. -- The co-appellant Kevin Roy Hawkins was a police officer with the Waterloo Regional Police Force. Pursuant to an internal investigation of Hawkins conducted in 1987-88, the Crown believed that Hawkins had provided the co-appellant Claude Morin, a former president of the Satan's Choice Motor Cycle Club, with confidential information concerning police surveillance of the Club in return for money. The key figure in the Crown's investigation was Cherie Graham, the girlfriend of Hawkins. At the time of the preliminary inquiry, the Crown called Graham as a competent and compellable witness, and Graham made a number of statements under oath and cross-examination which incriminated Hawkins. However, shortly after this appearance, Graham retained her own counsel and sought to testify again. This application was granted, and, in her subsequent testimony, Graham recanted key portions of her previous statements, offering explanations with respect to the events in question that were in direct contradiction to what she had previously told the court. Following the completion of the preliminary inquiry, and prior to trial, Graham and Hawkins were legally married.
2 The question in these appeals is whether the Crown should have been able to compel Graham to testify at trial, and if not, whether the Crown should have been able to read her preliminary inquiry testimony into evidence at trial. The trial judge found that Graham was not competent for the Crown, owing to the common law rule of spousal incompetence. The majority of the Court of Appeal agreed that the witness was not competent for the Crown, but held that the evidence could have been admitted pursuant to s. 715 of the Criminal Code, R.S.C., 1985, c. C-46 , or under the principled exception to the hearsay rule as developed in R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, and R. v. B. (K.G.), [1993] 1 S.C.R. 740. The minority would have admitted the evidence through a modification of the common law rule of spousal incompetence, such that a spouse would only be incompetent if married to the accused person at the time of the charge.
3 In our view, the circumstances of this case do not warrant modifying the common law rule of spousal incompetence. Both the trial judge and the Court of Appeal were correct in holding that Graham was not a competent witness for the Crown at the trial, as she had entered into a valid and genuine marriage with the co-appellant Hawkins. The Court of Appeal was incorrect in concluding that the testimony of Graham before the inquiry could be read into evidence pursuant to s. 715 of the Criminal Code . However, in our opinion, the Court of Appeal was correct in concluding that the testimony could be admitted for the truth of its contents through a principled exception to the hearsay rule at common law. The statements of Graham before the preliminary inquiry satisfy the requirements of necessity and reliability under the Khan, Smith and B. (K.G.) framework. While the trial judge enjoyed a residual discretion to exclude her prior statements, we are not persuaded that the risk of prejudice to Hawkins and Morin outweighs the probative value of the statements. The Crown was entitled to put these statements to the trier of fact, subject to appropriate considerations and instructions relating to weight. Accordingly, we would dismiss the appeals and affirm the order of a new trial.
I. Factual and Procedural Background
4 During the early 1980s, the co-appellant Constable Kevin Roy Hawkins was assigned responsibility for gathering intelligence on the activities of motorcycle clubs, in particular the Satan's Choice Motor Cycle Club, operating within the Kitchener-Waterloo area. At the time, the co-appellant Claude Morin was the president of the Satan's Choice Club in Kitchener. Pursuant to an internal police investigation of Hawkins, the Crown believed that Hawkins had provided Morin with confidential information relating to on-going police surveillance of the Club's alleged trafficking activities, and that Hawkins had received a $5,000 bribe from Morin in exchange for his assistance. The cornerstone of the investigation was the information provided by Cherie Graham.
5 Cherie Graham was a dancer at the Breslau Hotel in Kitchener. Hawkins met Graham at the hotel in March 1984. Hawkins was married at the time, but he soon left his wife and moved in with Graham. In the ensuing years, the two embarked on several joint financial ventures, including the management of a donut shop and the purchase and sale of a number of houses.
6 The relationship, however, was stormy and volatile and was marked by a series of separations and reconciliations. In March 1987, Graham confided in two friends (who were police officers) that Hawkins was physically abusive towards her. She also told them that Hawkins had engaged in questionable dealings with Morin. On the basis of this information, the police opened an investigation into Hawkins.
7 On June 22, 1987, in response to further threats from Hawkins, Graham formally contacted the police and was interviewed by Sgt. Doug Lawrence. During this taped conversation, Graham disclosed more details of her boyfriend's involvement with Morin. More specifically, she stated that Hawkins had received $5,000 from Morin in exchange for information relating to on-going police investigations, and that Hawkins was expecting to receive a further $7,000 to $10,000 from a planned drug transaction. On November 28, 1987, Graham met with Sergeant Lawrence again. During that brief conversation (also taped), Graham generally confirmed her previous statements. She also said that Hawkins had become increasingly suspicious of her, and that she feared for her safety.
8 On November 29 and 30, Hawkins spoke with Inspector J. MacDonald on the telephone. He asked the inspector whether marriage to Graham would render her non-compellable. A week later, Hawkins made similar inquiries to Staff Sergeant Koniuch and the two men concluded that spouses were competent but not compellable to testify against one another. Hawkins then said to Koniuch: "I guess I'm going to have to marry her."
9 On January 29, 1988, Hawkins and Morin were jointly charged with conspiracy to obstruct justice under ss. 465(1) (c) and 139(2) of the Criminal Code . Hawkins was also charged with having corruptly accepted money and obstruction of justice under ss. 120(a) and 139(2) of the Code. Over the following months, Graham and Hawkins stayed in contact and met to discuss the possibility of marriage as a means of preventing Graham’s testifying at trial.
10 At the end of March, Hawkins, his lawyer and Graham met to discuss the effects of marriage upon Graham's competence and compellability for the Crown. On June 16, 1988, Hawkins spoke to Constable Stuebing about marrying Graham so that she would be incompetent for the Crown.
11 In July 1988, Graham left Hawkins to enter the witness protection program.
12 A preliminary inquiry was convened on September 7 and 8, 1988. The Crown called Graham as a competent and compellable witness. Under oath, Graham described her abusive relationship with Hawkins, and repeated the contents of her two conversations with Sergeant Lawrence. In particular, she testified that Hawkins and Morin were friends. Morin would frequently call Hawkins at home during the evenings, and Hawkins would then go and meet Morin. Graham stated that one night Hawkins came home with an envelope containing $5,000 which he told her Morin had given him in exchange for information in relation to police surveillance. She stated that Hawkins told her that he was expecting to receive another $7,000 to $10,000 from Morin in relation to a narcotic transaction, but the transaction ultimately fell through. Graham further testified that Hawkins had brought photographs of bikers and copies of police files on individual bikers to their home which he later gave to Morin. Finally, she acknowledged that she and Hawkins had previously discussed marriage as a means of avoiding her appearance before the court. Graham's testimony was subject to cross-examination by four defence counsel (counsel for the two appellants, as well as counsel for two other accused), but she stood by the substance of her statements. Her testimony was transcribed, but it was not completely recorded on audiotapes.
13 On October 3, 1988, Graham retained independent counsel and asked the court to be recalled as a witness. The judge granted her request over the Crown's objection, and a continuation of the inquiry was scheduled for January 19, 1989, and February 20, 1989. In the intervening period, Graham removed herself from the witness protection program and reconciled with Hawkins. The couple purchased a house together, but Hawkins continued to live in a separate apartment. A judicial order was issued in December prohibiting Hawkins from communicating with Graham, but it appears that she nonetheless continued to communicate with Hawkins.
14 In her second appearance before the inquiry, Graham recanted most of her earlier testimony with respect to Hawkins' alleged corrupt dealings with Morin. She explained that most of her previous testimony, as well as her earlier recorded conversations with Sergeant Lawrence, had been coached by the police. She did not retract her previous statements in relation to her fear of Hawkins, his threats of abuse and violence, his threats to her life, his friendly connections with Morin, or her discussions with Hawkins on marriage as a means for preventing her from testifying at trial.
15 Hawkins and Morin were committed to stand trial on March 21, 1989. One week later, Hawkins and Graham obtained a marriage licence, and, on March 31, 1989, they were married. At the date of this Court's hearing, the couple remained married.
II. Relevant Statutory Provisions
16 A. Criminal Code, R.S.C., 1985, c. C-46
715. (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person
(a) is dead,
(b) has since become and is insane,
(c) is so ill that he is unable to travel or testify, or
(d) is absent from Canada,
and where it is proved that the evidence was taken in the presence of the accused, it may be read as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.
B. Canada Evidence Act, R.S.C., 1985, c. C-5
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 against subsection 50(1) of the Young Offenders Act or with an offence against 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.
III. Judgments Below
A. Ontario District Court -- Motion
17 In a pre-trial motion before LeSage Dist. Ct. J. (as he then was), the Crown sought a declaration that Graham was a competent and compellable witness for the Crown. The Crown argued that the marriage was a "sham" entered into for the sole purpose of preventing Graham from being called as a prosecution witness at trial. Alternatively, the Crown argued that Graham's prior testimony before the preliminary inquiry was admissible under s. 715 of the Code.
18 On July 27, 1990, LeSage Dist. Ct. J. denied the motion. He concluded that the marriage was "valid and legitimate", and did not represent a "sham". As well, he held that s. 715 could not be used to circumvent the common law rule of spousal incompetence. Upon a further motion by the appellants, on December 24, 1990, LeSage J. stayed the prosecution on grounds of unreasonable delay. However, the Ontario Court of Appeal subsequently set aside the stay and remitted the matter to the General Division for trial: (1991),