R. v. Couture

R. v. Couture
Collection
Supreme Court Judgments
Date
2007-06-15
Neutral citation
2007 SCC 28
Report
[2007] 2 SCR 517
Case number
30975
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 30975
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Couture, [2007] 2 S.C.R. 517, 2007 SCC 28
Date: 20070615
Docket: 30975
Between:
Her Majesty The Queen
Appellant
and
David Raymond Couture
Respondent
‑ and ‑
Attorney General of Ontario
Intervener
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 102)
Dissenting Reasons:
(paras. 103 to 151)
Charron J. (McLachlin C.J. and Binnie, LeBel and Fish JJ. concurring)
Rothstein J. (Bastarache, Deschamps and Abella JJ. concurring)
______________________________
r. v. couture
Her Majesty The Queen Appellant
v.
David Raymond Couture Respondent
and
Attorney General of Ontario Intervener
Indexed as: R. v. Couture
Neutral citation: 2007 SCC 28.
File No.: 30975.
2006: May 15; 2007: June 15.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Criminal law — Evidence — Hearsay — Admissibility — Spousal incompetency rule — Trial judge admitting into evidence accused’s spouse out‑of‑court statements made to police during marriage — Whether statements admissible under principled exception to hearsay rule — Whether admission of statements would undermine spousal incompetency rule or its underlying rationales.
The accused was convicted of two counts of second degree murder. His convictions were based, in part, on two out‑of‑court statements made by his spouse C. She had disclosed to the police that some time before their marriage, she had been the accused’s Christian volunteer counsellor in prison where he was serving time on unrelated offences and that during the course of the counselling, he had confided in her that he had murdered two women. The first statement was audio taped and the second videotaped, but neither statement was made under oath. At the time C gave the two statements she was living estranged from the accused. The couple reconciled shortly after and, at the time of trial, their marriage was valid and subsisting. As C was not a competent or compellable witness for the Crown, the trial judge, based on the authority of this Court’s decision Hawkins, admitted C’s hearsay statements under the principled exception to the hearsay rule having found that both necessity and threshold reliability had been met. The Court of Appeal distinguished Hawkins, ruled the statements inadmissible, set aside the convictions, and ordered a new trial. The sole question before this Court concerns the admissibility of C’s out‑of‑court statements. The Crown contends that, as a matter of principle, this Court has ruled in Hawkins that the spousal incompetency rule does not extend to a spouse’s out‑of‑court statements and, because necessity is made out by reason of the spouse’s incompetency, any out‑of‑court statement from the spouse may be admitted under the principled exception to the hearsay rule, provided that it is sufficiently reliable.
Held (Bastarache, Deschamps, Abella, and Rothstein JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Binnie, LeBel, Fish and Charron JJ.: The spouse’s out‑of‑court statements are inadmissible because their admission under the principled exception to hearsay would, in the circumstances of this case, undermine the spousal incompetency rule and its underlying rationales. Unless 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. Here, the approach advocated by the Crown and adopted by the trial judge must be rejected. This approach represents a drastic change in the role played by the spouse in criminal law trials and such a substantial reform of the spousal incompetency rule is a matter better left for Parliament. Moreover, this approach is not consistent with Hawkins. 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. Reliability alone cannot overcome the rule because spousal incompetency is not based on any concern about the reliability of a spouse’s testimony. The evidence is excluded, not because it lacks probative value but, rather, on policy grounds based on broader social interests. In addition, Hawkins indicates that regard must also be had to the particular circumstances of the case to determine whether the admission of the evidence would undermine the spousal incompetency rule. [51] [54‑55] [62]
Accordingly, hearsay evidence may be admitted under the principled approach if it meets the twin criteria of necessity and reliability and if its admission would not undermine the spousal incompetency rule or its rationales. Consideration of the rule is not a matter of residual discretion. Since the rule is based on rationales that are unconnected to the reliability concerns arising from the hearsay nature of the evidence, the spousal incompetency inquiry must be kept analytically distinct from the hearsay inquiry. In the spousal competency inquiry, the circumstances surrounding the creation of the evidence are a relevant consideration and, in considering whether the admission of the evidence would undermine the spousal incompetency rule or its underlying rationales, the inquiry should not be focussed on the individual marriage. The rule is triggered by the very existence of a valid and subsisting marriage. Unless the accused and the spouse are irreconcilably separated, the extent to which there is marital harmony or marital discordance in the particular marriage is irrelevant. The question rather is whether, from an objective standpoint, the operation of the principled exception to the hearsay rule in the particular circumstances of the case would be disruptive of marital harmony or give rise to the natural repugnance resulting from one spouse testifying against the other. Here, the Court of Appeal was correct to distinguish 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. [63‑66] [70‑71]
There is a second basis for distinguishing Hawkins. While the Crown has established necessity because C is neither competent nor compellable to testify for the prosecution, her statements were not sufficiently reliable to warrant admission under the principled exception to the hearsay rule. First, the trial judge erred in finding that the three witnesses upon whom she relied provided any corroborative evidence. Independent evidence that supports the truth of an assertion is corroborative. The fact that C may have disclosed similar information to others is neither independent nor supportive of the truth of her assertions about the accused’s involvement in the murders. Second, the trial judge did not apply the correct test. A trial judge must start from the premise that the statements are presumptively inadmissible and then search for indicia of trustworthiness that can overcome the general exclusionary rule. Here, the trial judge reversed the onus. She also failed to consider whether the admission of the evidence under the principled approach would undermine the spousal incompetency rule or its rationales. In light of these errors, the trial judge’s ruling is not entitled to deference and it is open to this Court to come to its own conclusion on the question of admissibility. [5] [72] [79] [83] [85‑86]
The criterion of reliability is usually met either because of the way in which the statement came about, its contents are trustworthy, or where circumstances permit the ultimate trier of fact to sufficiently assess its worth. In the circumstances of this case, absent the opportunity to cross‑examine C, there is no basis upon which a court could find that there are adequate substitutes for testing the accuracy and truth of C’s statements. Neither statement was given under oath and the first statement — the pivotal one — was not videotaped. Although the police videotaped the second statement, C did not repeat the crucial evidence in that statement. Because of the exigencies of the spousal incompetency rule, it is not open to the Crown, which bears the onus of showing that there are adequate substitutes, to rely on the accused’s ability to cross‑examine his spouse as his own witness in order to meet its burden on the admissibility inquiry. The accused, in order to properly test the evidence put against him, would be forced to confront his spouse in cross‑examination and, ultimately, also risk being convicted on the basis of her evidence. This approach would clearly undermine the rationales underlying the spousal incompetency rule and therefore cannot be countenanced by this Court. Moreover, there is nothing about the statements themselves that compels one to trust their truth and accuracy in this untested form. [80] [89‑91] [94] [101]
Per Bastarache, Deschamps, Abella and Rothstein JJ. (dissenting): This appeal raises the question of the impact of the spousal incompetence rule on the principled approach to the admission of hearsay evidence. This Court resolved this issue in Hawkins by finding that the rule does not affect the necessity and reliability assessment but can be considered as a part of a trial judge’s residual discretion to exclude hearsay where to admit a spouse’s statements would result in “unfairness” to the accused. The majority’s reasons effectively endorse the dissent in Hawkins. The majority reasons are also a departure from this Court’s previous rulings regarding what gives hearsay evidence circumstantial indicia of reliability that would allow it to be admitted under the principled approach to hearsay. [104]
The trial judge proceeded on the correct assumption that the judgment of this Court in Hawkins determined the principles to be applied when the issue is an out‑of‑court statement of a spouse. The Crown has established necessity because C is neither competent nor compellable to testify for the prosecution. With respect to the second requirement, reliability is satisfied where the hearsay statement is made in circumstances which provide sufficient guarantees of its trustworthiness. While the importance of an oath and cross‑examination cannot be disputed, their availability is not the sine qua non of admissibility under the principled approach to hearsay. To place too much focus on their absence as a reason for excluding hearsay statements may have the effect of leaving a witness’s otherwise reliable and relevant evidence altogether unutilized. In this case, the trial judge made a reasonable factual finding that C’s statements met threshold reliability. She noted the importance of both an oath and a cross‑examination, and their absence in relation to C’s hearsay evidence. However, after listening to the audiotape of the first statement, watching the videotape of the second interview, reading the transcripts of both interviews and hearing from the police officers who conducted the interviews, she concluded that the hearsay dangers of coercion, leading questions, or other investigatory misconduct on the part of the police were not present during either statement and that the statements were made voluntarily and without suggestion. The trial judge also concluded on the basis of the evidence at the voir dire that C had no motive to mislead. The trial judge applied the correct test for determining threshold reliability and placed the onus on the Crown to establish that C’s statements met that threshold. In the end, her reasons demonstrate that she accepted facts which constitute sufficient indicia to conclude that C’s statements met threshold reliability. Lastly, it is not open to the Crown to rely on the accused’s exclusive right to call the spouse as a witness in order to meet its burden of proving threshold reliability on the admissibility inquiry. However, the trial judge’s finding of reliability in no way hung upon the accused’s opportunity to call C at trial. [106] [112‑113] [116‑117] [119‑120] [129] [132‑133]
Under the principled approach to the admission of out‑of‑court statements, even where a particular hearsay statement satisfies the criteria for necessity and reliability, the hearsay statement remains subject to the trial judge’s residual discretion to exclude a statement where its probative value is slight and undue prejudice might result to the accused. It is at this stage that a policy consideration justifying the spousal incompetency rule may have an impact on the admissibility of an accused’s spouse’s out‑of‑court statements. The reasons of the trial judge in this case do not indicate that she considered any potential harm to the couple’s marital harmony in finding the statements admissible. However, it also appears from the record that the accused never raised the issue or tendered any evidence on this point. A trial judge is not obliged to address a potential issue that the parties have not raised. Where evidence is led on the issue, the “unfairness” inquiry requires an assessment of whether the admission of the hearsay statement will jeopardize the accused’s marital harmony. When the marriage took place is irrelevant. Here, the admission of the hearsay statements would not result in such “unfairness”. The evidence indicates that the parties reconciled despite the accused knowing that his wife gave voluntary statements to the police. Their marital bond remained intact up to and including the time of trial. Any threat to the couple’s marital harmony would have occurred at the time when the accused discovered that his wife voluntarily approached the police. If this did not jeopardize the couple’s relationship, it is difficult to see how admitting C’s hearsay statements into evidence at trial would do so. [134] [139] [141‑142] [144]
The extent to which the spousal testimonial incompetence rule may preclude the admission of otherwise admissible hearsay statements must be considered in the context of the rationale that weighs heavily in support of admitting the evidence: the fact that a trial is primarily a truth‑seeking inquiry. This consideration supports limiting the impact of the rule on the assessment of hearsay admissibility to the analytical framework set out by the majority in Hawkins. [150]
Cases Cited
By Charron J.
Distinguished: R. v. Hawkins, [1996] 3 S.C.R. 1043; referred to: R. v. B. (K.G.), [1993] 1 S.C.R. 740; Gosselin v. The King (1903), 33 S.C.R. 255; R. v. Amway Corp., [1989] 1 S.C.R. 21; R. v. McGinty (1986), 1 Y.R. 27; Lloyd v. The Queen, [1981] 2 S.C.R. 645; R. v. Salituro, [1991] 3 S.C.R. 654; Hawkins v. United States, 358 U.S. 74 (1958); Trammel v. United States, 445 U.S. 40 (1980); R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57; R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23; R. v. Khan, [1990] 2 S.C.R. 531; R. v. U. (F.J.), [1995] 3 S.C.R. 764.
By Rothstein J. (dissenting)
R. v. Hawkins, [1996] 3 S.C.R. 1043; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57; R. v. Czibulka (2004), 189 C.C.C. (3d) 199; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. F. (W.J.), [1999] 3 S.C.R. 569; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Jean (1979), 7 C.R. (3d) 338, aff’d [1980] 1 S.C.R. 400; R. v. Henry, [2005] 3 S.C.R. 609, 2005 SCC 76.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 4 .
Crimes Act 1958 (Vic.), s. 400.
Authors Cited
Canada. Law Commission. Beyond Conjugality: Recognizing and supporting close personal adult relationships. Ottawa: The Commission, 2001.
Manson, Allan. Spousal Testimony in Criminal Cases in Canada. A Report for the Law Commission, September 2001.
Sankoff, Peter. “Spousal Incompetence and the Principled Approach to Hearsay Admissibility: When Ancient and Modern Doctrines Collide” (2006), 35 C.R. (6th) 43.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Markham, Ontario: Butterworths, 1999.
Stewart, Hamish. “Spousal Incompetency and the Charter” (1996), 34 Osgoode Hall L.J. 411.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 5. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1974.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the British Columbia Court of Appeal (Esson, Southin and Oppal JJ.A.) (2005), 196 C.C.C. (3d) 564, 211 B.C.A.C. 213, 349 W.A.C. 213, [2005] B.C.J. No. 748 (QL), 2005 BCCA 205, reversing a decision of Morrison J., [2003] B.C.J. No. 3209 (QL), 2003 BCSC 2026, and ordering a new trial. Appeal dismissed, Bastarache, Deschamps, Abella and Rothstein JJ. dissenting.
Bruce Johnstone, for the appellant.
Susan M. Coristine and M. Kevin Woodall, for the respondent.
Jamie C. Klukach, for the intervener.
The judgment of McLachlin C.J. and Binnie, LeBel, Fish and Charron JJ. was delivered by
Charron J. —
1. Overview
1 David Couture was convicted of two counts of second degree murder in respect of the 1986 killings of his ex-girlfriend Darlinda Lee Ritchey and her friend Karen Ann Baker. His convictions were based, in part, on two out-of-court statements made by his spouse Darlene Couture to the police in 1997. In her statements, Darlene Couture disclosed that in 1989, some time before their marriage, she had been Mr. Couture’s Christian volunteer counsellor in prison where he was serving time on unrelated offences and that during the course of the counselling, he had confided in her that he had murdered the two women. This appeal turns on the admissibility of the spouse’s out-of-court statements under the principled exception to the hearsay rule.
2 At the time Mrs. Couture gave the two statements to the police she was living estranged from Mr. Couture. The couple reconciled shortly after and, at the time of trial, their marriage was valid and subsisting. Under the common law rule, 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. Further exceptions to the incompetency rule are created by statute under s. 4 of the Canada Evidence Act, R.S.C. 1985, c. C-5 . None of the common law or statutory exceptions applies in this case and, therefore, Mrs. Couture was neither competent nor compellable to testify for the prosecution.
3 Based on the authority of this Court’s decision in R. v. Hawkins, [1996] 3 S.C.R. 1043, the trial judge admitted Mrs. Couture’s hearsay statements under the principled exception to the hearsay rule. Following his trial before a judge sitting without a jury, Mr. Couture was convicted on both counts of second degree murder. On appeal, the British Columbia Court of Appeal distinguished Hawkins, ruled the statements inadmissible, set aside the convictions, and ordered a new trial. The Crown appeals from this order.
4 The sole question before this Court concerns the admissibility of Mrs. Couture’s out-of-court statements. At issue is the scope of this Court’s majority ruling in Hawkins holding that a spouse’s preliminary hearing testimony, given before her marriage to the accused, was admissible under the principled exception to the hearsay rule. The Crown contends that, as a matter of principle, this Court has ruled in Hawkins that the spousal incompetency rule does not extend to a spouse’s out-of-court statements. Hence, it is argued, because necessity is made out by reason of the spouse’s incompetency, any out-of-court statement from the spouse may be admitted under the principled exception to the hearsay rule, provided that it is sufficiently reliable. The trial judge adopted this approach in ruling Mrs. Couture’s statements admissible.
5 Mr. Couture disagrees with the Crown’s interpretation of this Court’s decision in Hawkins. He submits that, unlike Hawkins, which was based on unusual circumstances, the ruling sought in this case would be of broad application and would dramatically alter the role of the spouse in the criminal justice system. This approach, he argues, would be inconsistent with the unanimous holding in Hawkins that any substantial reform of the rule was a matter better left for Parliament. He therefore submits that the British Columbia Court of Appeal was correct to distinguish Hawkins and to rule Mrs. Couture’s statements inadmissible, not only on the basis that their admission would violate the spirit of the spousal incompetency rule, but also because they were not sufficiently reliable to warrant admission under the principled exception to the hearsay rule.
6 In my view, the approach advocated by the Crown and adopted by the trial judge is inconsistent with this Court’s decision in Hawkins. The Court was unanimous in upholding the common law rule of spousal incompetency. The Court was divided, however, on the question of whether the admission of the spouse’s preliminary hearing testimony, given before the marriage in relation to the same charges, would violate the spirit of the spousal incompetency rule. The majority, for different reasons expressed in three concurring judgments, was of the view that it did not. The minority, on the other hand, concluded that the facts did not permit the use of a principled exception to the hearsay rule. In applying the principled exception to the hearsay rule, however, the majority did not ignore the spousal incompetency rule and its underlying policy. Rather, it took great pain to explain how the admission of the evidence in the circumstances of that case would not undermine the rationale for the rule.
7 For reasons that follow, I conclude that the admission of the spouse’s out‑of‑court statements would violate the spousal incompetency rule in this case. Consequently, the British Court of Appeal was correct in holding that this case is distinguishable from Hawkins and in ruling the spouse’s out-of-court statement inadmissible. I would therefore dismiss the appeal.
2. The Proceedings Below
2.1 The Evidence at Trial
8 David Couture was charged with two counts of second degree murder. His trial was held before Morrison J. of the Supreme Court of British Columbia, sitting without a jury: [2003] B.C.J. No. 3209 (QL), 2003 BCSC 2026. On July 3, 2003, he was convicted on both counts and sentenced to life imprisonment without eligibility for parole for 16 years.
9 The crimes were committed years earlier. The victims, Darlinda Lee Ritchey and Karen Ann Baker, were last seen alive on September 12, 1986. Their badly decomposed bodies were found in December 1986. No cause of death could be determined. There were no eyewitnesses to the murders nor was there any forensic evidence linking Mr. Couture to the crimes. The case for the prosecution was based in large part on circumstantial evidence. Of particular relevance was the fact that Darlinda and Mr. Couture had been dating and living together before the murders occurred. There was considerable evidence that their relationship had been a stormy one, that Mr. Couture had been abusive to Darlinda, and that shortly before her disappearance she had been attempting to leave the relationship. Karen had been a friend of Darlinda.
10 The case for the Crown was also based on incriminating admissions made by Mr. Couture to several persons, including to his prison Christian counsellor Darlene Schwab (later to become his spouse Darlene Couture) in 1989. The alleged confession to Darlene is the only evidence of relevance to this appeal. It was adduced at trial in the form of two out‑of-courts statements made by Darlene Couture to the police in 1997. There is no question that there must be a new trial if this Court finds that this evidence was admitted in error. Since I have concluded that the out-of-court statements are inadmissible, I will not review the evidence at trial or the reasons for conviction. I will only summarize the evidence and ruling on the voir dire relating to the admissibility of these hearsay statements.
2.2 The Evidence on the Voir Dire
11 Most of the evidence about the relationship between Darlene Couture and David Couture comes from the contents of the statements themselves. Darlene Couture met Mr. Couture in 1989 at a prison where she was acting as a Christian volunteer counsellor for the inmates. Mr. Couture was serving a sentence for unrelated charges. At the time, Darlene was married to Dennis Schwab, with whom she had two daughters and one stepdaughter. During the course of the first counselling session, Mr. Couture allegedly confessed to her that he had killed Darlinda and Karen in 1986. He revealed that he had killed Darlinda because he was jealous, and Karen, who was in the same apartment at the time, because he wanted to silence her. He also allegedly confessed to committing sexual acts on both bodies after he killed them. Darlene continued to counsel Mr. Couture and to visit him regularly over the course of his imprisonment.
12 Later that year, Mr. Couture was placed on parole, one of the conditions being that he live at the Schwab home with Darlene and her family. He lived with them for 11 or 12 months. At one point he physically attacked Darlene, as a result of which Dennis Schwab asked Mr. Couture to leave. After Mr. Couture moved out of the Schwab family home, Darlene maintained a relationship with him. Darlene subsequently divorced her husband and on February 14, 1996, she married Mr. Couture.
13 On June 19, 1996, two RCMP officers visited Darlene and Mr. Couture’s home regarding the ongoing double murder investigation. Mr. Couture was not home at the time and the officers spoke to Darlene. Darlene told the officers that all she knew of the homicides was that one of the victims was Mr. Couture’s ex-girlfriends. She later explained in her statement to the police that she did not divulge anything to the officers because she had felt obliged, as a Christian counsellor, to keep Couture’s confession confidential.
14 Both Jennifer Nickel (Darlene’s daughter) and Jan van Cittert (a friend of Darlene and David Couture’s) testified that Darlene informed them of the statements that Mr. Couture had made to her regarding the two murders. Jennifer testified that on several occasions she “encouraged her [mother] to do what was right” and go to the police. Jan van Cittert urged her to do the same. Darlene also sought advice from other church counsellors and was told that the information she had received from Mr. Couture was not privileged.
15 On August 21, 1997, Darlene called Jan van Cittert and met with him. He testified that she was upset and frightened and also testified that there were problems in her marriage and that there had been some incidents of spousal abuse. Darlene had left Mr. Couture a few days earlier and wanted to leave the marital home. Mr. van Cittert was aware that Darlene had received information from Mr. Couture about the murders and urged her to go to the police. Mr. van Cittert phoned the RCMP and arranged an appointment for the same day.
16 Mr. van Cittert drove Darlene to the RCMP station. Mr. van Cittert testified that before entering the police station he emphasized to Darlene that, for moral reasons, it was necessary for her to give a statement to the police. He testified that Darlene talked about being frightened but that she had agreed with him that it was important for her to make a statement.
17 Before the interview began, Sgt. Mogridge, the RCMP officer who interviewed Darlene on this occasion, explained to Darlene that as Mr. Couture’s wife the Crown could not compel her to testify. There was evidence that Darlene was already aware of this. Darlene also expressed concern that her husband would find out she had spoken to the police. Sgt. Mogridge assured her he would only be sharing the information with the police from the North Vancouver department who were in charge of the murder investigation but that nothing further would be done without consulting her first.
18 Sgt. Mogridge audio-recorded the statement but did not videotape it. The statement was not made under oath and when asked on cross-examination why he did not take a “K.G.B.” videotaped statement under oath, Sgt. Mogridge answered that he was taking a statement from a person who was married to a suspect, he was doing it for another department and it was not something that he had considered at the time. He also did not know what information Darlene had when he embarked on the interview.
19 A large part of the statement consists of Darlene relating the abuse she suffered at the hands of Mr. Couture. The fact that Darlene was a victim of spousal abuse was corroborated by the testimony of her daughter Jennifer. During the course of her statement, Darlene conveyed that she cared for Mr. Couture and also expressed much concern about the implications that her statement could have for Mr. Couture, their marriage, and her safety.
20 During this first interview with the police, Darlene recounted the information she received from Mr. Couture regarding the murders. Although she stated that Mr. Couture made some references to the murders at different times during the counselling sessions, it was her recollection that the admissions were essentially all made during the course of the first full counselling session.
21 Darlene Couture’s first statement was regarded as pivotal by the Crown at trial. The trial judge agreed, and relied on the following excerpts, among others, in convicting Mr. Couture:
FM: Okay, now let's, let's talk specifically about what he said on this instance then. That day he said that he was, if I understand what you’re telling me.
DC: Yeah, he ad, he admitted to
FM: What did he say?
DC: That he had murdered those two girls.
FM: Did he say how he had murdered them?
DC: Yes.
FM: How, how did he murder them?
DC: Well, I'm not sure if it was suffocation or strangulation.
FM: Okay. And did he say why he murdered them?
DC: Well, if I understood him correctly, I believe the motivation was jealousy on behalf of the young lady that was his girlfriend.
FM: Right. And did he say wa, what he did with the bodies afterwards?
DC: Yes.
FM: What did he say?
DC: That he had removed them and had a truck and took them somewhere and buried them.
FM: And did he involve anyone else, helping him with this?
DC: I don't think so. Not that I recall. I don't think so.
FM: You said ah, did he say where this took place?
DC: I believe it was North Van. I don't remember whether since then he’s told me it was North Van it was under investigation but I believe it took place in North Van.
FM: Did he, did he say where the murder took place?
DC: It was in an apartment in Vancouver. I don't know whether it was North Van or Vancouver. [A.R., at p. 399]
. . .
FM: What else had David told you about the murder?
DC: There were sexual acts committed after, on his behalf.
FM: Okay. Can you relate those please?
DC: Well my understanding is that the crime was already committed in both situations.
FM: What do you mean ‘both situations’?
DC: Well in both females.
FC: Mm hm.
DC: And that where the sexual act committed after at both of them.
FM: And that sexual act was?
DC: I believe it was from the rear.
FM: Okay.
DC: That’s all I know.
FM: Is that what he said?
DC: Yes.
FM: [I]s that, he had anal intercourse with both of them?
DC: I believe so, yes. [A.R., at pp. 407-08]
. . .
FM: So you, you tell me that he says he killed both these girls.
DC: Yes.
FC: Ah how did he do that without one of them running away or how did that happen?
DC: Well, because it was um, they were both sleeping in different rooms and one, one was, one, when David murdered Darlinda then he realized that the other girl would be there and know so he did the same thing. And that’s when he told me. I, I’ve never read anything on it, right? I,
FM: No, that’s okay.
DC: so I
FM: So he says then he, so he says that happened at their place?
DC: Yes.
FM: And the girls’ place?
DC: Yeah.
FM: And so he, did he say why he murdered Darlinda? Like how that came about?
DC: I know the, I don’t know the, the circumstances, no, I just know that it was over jealousy. I mean that’s what he’s told me but I don’t know.
FM: And did he say that he was, had gone there to kill her or had gone there for another reason?
DC: I don’t think, my understanding wouldn’t, isn’t that he went there to kill her. [A.R., at p. 410]
22 After the interview had finished, Mr. Van Cittert drove Darlene home. He testified that during the drive home Darlene expressed that she felt she had betrayed Mr. Couture and that she was “distraught about the whole situation”. Further she explained that she felt that “they [the RCMP] weren’t all that concerned about her or her safety, and that she was planning to leave the area as quickly as possible”.
23 On September 23 of the same year, the RCMP called Darlene and asked her to come into the station to make a second statement. At this time, although Darlene and Mr. Couture were still experiencing problems in their marriage, Darlene was focussed on “re-uniting” with Mr. Couture. Jennifer drove her mother to the RCMP station for the second interview and testified that her mother seemed angry and nervous during the trip to the police station. She also testified that during the trip Darlene said “I will only do the bare minimum”, “I shouldn’t have to go back”, ” [T]hey can’t make me put David in prison” (A.R.,_ at pp. 123 and 141).
24 This interview was video-recorded although not made under oath. On cross‑examination Sgt. Brad Marks, the officer who interviewed Darlene on this occasion, was asked whether he had given any consideration to taking the statement under oath. He replied that he had, but that the practice that he and most of his colleagues employed with respect to K.G.B. statements was to “take a statement first to ensure ourselves that the — that the witness or the potential witness is being, in our view, truthful and is being exhaustive in their memory, and then once we’re satisfied that that is the case, then to — to take — to essentially take the statement, then take it again, except proceed on the second occasion with the K.G.B. warning ...”. Sgt. Marks agreed that what he was planning to do was see how Darlene did on the second statement and then contemplate taking a third statement under oath, but that as a result of her “reticence” in particular areas of her second statement, that he had decided not to take a third statement. He acknowledged that the reason he decided not to take a third statement under oath was that it was possible that it would have been completely different from the two statements that Darlene had already given.
25 During this second interview Darlene again reiterated her concern about the implications that her statement could have for Mr. Couture, their marriage, and her safety. Some of the relevant excerpts are the following:
Q: Now, did you maintain a counselling relationship or did it develop into a friendship/romance?
A: I have been, I have been his counsellor. I have been his Bible teacher. I have been his Pastor. I have been his best friend, which he would say that, so I can say that.
Q: Okay.
A: I have been his wife.
Q: Okay.
A: Enemy? I am not.
Q: Okay. Fair enough. Now since?
A: You have to remember the cost involved here to me.
Q: In what sense?
A: My husband, you know? From a human standpoint, I lose a husband, you know? So, and I do love the man. No matter what he's done. It doesn't, hasn't changed the love part, you know? [A.R., at pp. 471- 472]
. . .
Q: Mm hm. Now, when you say that there’s issues between you and David that you have to resolve. Do you think one of them is this, is this 1986 incident?
A: No.
Q: That’s not one of them?
A: No, ‘cause I don’t consider it personal. I mean, personal to me.
Q: Okay.
A: No. Very difficult for me to let it settle in me completely because the personal cost to me is gonna be devastating.
Q. Mm hm.
A: You know? That’s just the way it is. And I’m trying my darndest to be clean and right about it, and honest about it, you know? Forthright. But it’s still very difficult, you know? Very painful, and I don’t think the pain’s gonna get less. I think the pain’s gonna escalate because sooner or later David will find out I’ve been here and he will feel ...
A. ... extremely violated by the person he trusts most on this earth. That’s the way it is.
Q: What do you think is? Other, other than this feeling?
A: You know, that’s when he’s. I mean, this is gonna feel violated, right?
Q: Right. And what’s, what’s his likely response to that?
A: Oh, I don’t know. I dare not go there. I mean, I can only go there in my own shoes, you know, if it was myself. You know? What would I do when the person I have on this earth, who happens to be my spouse, has violated trust that. You have to appreciate that as a counsellor, I gave my word to David, believing that. [A.R., at pp. 487-88]
26 The Crown concedes, and it is obvious from reading the transcript, that throughout the second interview Darlene attempted to downplay the statements she had made in her first statement to the police. She consistently repeated that she had a bad memory. Sgt. Marks also testified that, during the interview, he sensed a general reticence from Darlene to discuss the murders. For example, regarding whether Mr. Couture had told her how he moved the victims’ bodies, Darlene said: “And I don’t know whether David told me or not, or whether it was my mind, envisioned how he would have removed them. So I’m not certain. So I can’t say that as a fact. Right? Can’t say that as truth, that I know it to be truth ...” (A.R., at p. 453). It is apparent that Darlene was also reluctant to talk about the incidents of physical abuse which she had revealed in her first statement. When asked about her relationship with Mr. Couture and the physical abuse, Darlene talked about his “coping skills” and the fact that he was a “great guy”.
27 After this second interview, Darlene and Jennifer drove back to Jennifer’s house. Jennifer testified that during the car ride her mother seemed angry and she expressed regret about having given the first statement because she had then been required to make the second statement.
28 Subsequent to her giving the second statement, Darlene reconciled with Mr. Couture and remained married to him at the date of the trial.
2.3 The Trial Judge’s Ruling, [2003] B.C.J. No. 1697 (QL), 2003 BCSC 988
29 There was no issue at trial that Darlene Couture, as a spouse of the accused, was not a competent or compellable witness for the Crown, either at common law or under any of the exceptions created by s. 4 of the Canada Evidence Act . However, on the authority of this Court’s decision in Hawkins, the trial judge considered whether the statements could be admitted under the principled exception to the hearsay rule which allows for the admission of hearsay evidence when the twin criteria of necessity and reliability have been met.
30 Morisson J. found that because Darlene Couture was neither competent nor compellable that the necessity criterion had been met. Regarding threshold