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
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.
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
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
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
Judge Charron noted that the statements were not given under
oath and that the first, pivotal statement was not even
”Although the police videotaped the second statement, Ms.
Couture did not repeat the crucial evidence in that statement,”
”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
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
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
”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