Out of the mouths of spouses

Globe and Mail Update

A B.C. woman's admission that she heard her husband confess to a double-murder cannot be used to prosecute him, the Supreme Court of Canada ruled Friday.

Until Parliament decides otherwise, the court said, marital harmony remains a principle worth preserving even at the cost of prosecuting potential criminals.

”The evidence is excluded, not because it lacks probative value but, rather, on policy grounds based on broader social interests,” a 5-4 majority ruled in the case of Regina v David Couture.

The majority said that in cases where a spouse's evidence could be vital to a prosecution, a trial judge must first determine whether admitting the testimony ”would be disruptive of marital harmony or give rise to the natural repugnance resulting from one spouse testifying against the other.”

The majority said that, in general, hearsay evidence from a spouse can be used only if it is necessary, reliable and if its admission would not undermine the rationale behind keeping spouses from being compelled to testify against one another.

”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,” Madam Justice Louise Charron wrote, on behalf of Chief Justice Beverley McLachlin, Mr. Justice Ian Binnie, Mr. Justice Louis LeBel and Mr. Justice Morris Fish.

Mr. Couture was convicted of two counts of second-degree murder in the 1986 killings of his ex-girlfriend, Darlinda Lee Ritchey, and her friend, Karen Ann Baker.

The victims had been last seen alive on Sept. 12, 1986. Their badly decomposed bodies were found three months later, and no cause of death could be determined. There were no witnesses to the killings, nor was there any forensic evidence linking Mr. Couture to the crimes.

The Crown's case was based on circumstantial evidence. It pointed to the fact that Ms. Ritchey and Mr. Couture had been dating and living together before the killings occurred, that Mr. Couture had frequently abused her and that Ms. Ritchey had been attempting to leave the relationship.

The prosecution depended partly on two statements that Mr. Couture's spouse – Darlene Couture – made to the police in 1997. In her statements, Ms. Couture said that two years after the murders – and shortly before she married Mr. Couture – she had been a Christian volunteer counsellor in prison where he was serving time on unrelated offences.

Ms. Couture said that during the course of counselling, Mr. Couture confided to her that he had, indeed, murdered the two women.

At the time the police statements were made, Mrs. Couture was estranged from Mr. Couture. The couple later reconciled and their marriage was deemed to be valid at the time of Mr. Couture's trial.

According to common law, an individual cannot testify against his or her spouse in a criminal proceeding except where the charge involves the ”person, liberty or health” of the witness spouse.

The trial judge at Mr. Couture's trial admitted his wife's testimony as an exception to rules involving hearsay. Mr. Couture was ultimately convicted of two counts of second-degree murder and sentenced to life in prison.

On appeal, however, the B.C. Court of Appeal said the statements ought to have been inadmissible and ordered a new trial. It turned back Crown arguments that the so-called ”spousal incompetency rule” did not extend to a spouse's out-of-court statements.

The Supreme Court majority also expressed doubts Friday about whether Ms. Couture's statements were sufficiently reliable to warrant being admitted, notwithstanding the rule that prevents spouses' testimony.

Judge Charron noted that the statements were not given under oath and that the first, pivotal statement was not even videotaped.

”Although the police videotaped the second statement, Ms. Couture did not repeat the crucial evidence in that statement,” she said.

”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.”

In dissenting reasons, Mr. Justice Marshall Rothstein said that Mr. and Ms. Couture failed to raise the issue at his trial of whether her compelled testimony might damage their marriage. In addition, Judge Rothstein said, the statements were sufficiently reliable to warrant being admitted.

Writing on behalf of Mr. Justice Michel Bastarache, Madam Justice Marie Deschamps, and Madam Justice Rosalie Abella, Judge Rothstein said: ”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."

The dissenting judges said that, according to evidence at the trial, the couple ended up reconciling ”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,” Judge Rothstein said. ”If this did not jeopardize the couple's relationship, it is difficult to see how admitting Mrs. Couture's hearsay statements into evidence at trial would do so."

The minority judges said that the trial judge carefully assessed the circumstances in which the police statements were made by Ms. Couture.

”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,” they said.

”The trial judge also concluded on the basis of the evidence at the voir dire that Ms. Couture had no motive to mislead.”