Supreme Court of Canada
Gosselin v. The King, (1903) 33 SCR 255
Date: 1903-04-20
JOSEPH GOSSELIN
Appellant;
And
HIS MAJESTY THE KING
Respondent.
1903: April 14; 1903: April 20
PRESENT : Sir Elzéar Taschereau C.J. and Sedgewick, Girouard, Davies and Mills JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH (APPEAL SIDE), PROVINCE OF QUEBEC.
Criminal law—Canada Evidence Act 1893—Husband and wife Competency of witnesss—" Communication"—Construction of statute—Privilege —Directions by legal adviser—Practice—Reference to Hansard debates—Method of interpretation,
Under the provisions of "The Canada Evidence Act, 1893," the husband or wife of a person charged with an indictable offence is not only a competent witness for or against the person accused but may also be compelled to testify. Mills J. dissenting.
Evidence by the wife of the person accused of acts performed by her under directions of counsel sent to her by the accused to give the directions, is not a communication from the husband to his wife in respect of which the Canada Evidence Act forbids her to testify. Mills J. dissenting,
Per Girouard J. (dissenting).—The communications between husband and wife contemplated by the Canada Evidence Act, 1893, may be de verbo, de facto or de corpore. Sexual intercourse is such a communication and in the case under anneal neither the evidence by the accused that blood-stains upon his clothing were caused by having such intercourse at a time when his wife was unwell, nor the testimony of his wife in contradiction of such statement as to her condition, ought to have been received.
Per Mills J. (dissenting).—Under the provisions of the Canada Evidence Act 1893 and its amendments the husband or wife of an accused person is competent as a witness only on behalf of the accused and may not give testimony on the part of the Crown.
Per Taschereau C.J.—The reports of debates in the House of Commons are not appropriate sources of information to assist in the interpretation of language used in a statute.
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APPEAL from the judgment of the Court of King's Bench, appeal side, on a criminal case reserved affirming the conviction of the appellant for murder in the Court of King's Bench, Crown Side, sitting in the District of Montmagny, Province of Quebec.
The trial court judge (H. C, Pelletier J.) stated the reserved case as follows :
"Le 9 décembre 1902, les grands jurés ont trouvé que l'accusation portée contre Joseph Gosselin d'avoir tue malicieusement et illégalement la femme Vitaline Marquis épouse d'Octave Trahan, était fondée, et le procès ayant eu lieu, les petits jurés ont, le 18 du même mois rapporté contre l'accusé un verdict de coupable de meurtre..
"J'ai présidé cette Cour Criminelle. Á la demande du procureur du prisonnier, j'ai suspendu le prononcé de la sentence en attendant la sentence de la cour du banc du roi, siégeant en appel, en la Cite de Québec, sur les cas réservés et sur l'exposé des faits suivants :
" Lors de l'enquête faite devant le coroner pour s'enquérir des circonstances de la mort de Vitaline Marquis, en mai dernier Célestine Labonté, épouse de Joseph Gosselin, l'inculpé, a comparu comme témoin et a rendu témoignage.
" A l'enquête préliminaire devant le magistrat du district, M. Panet Angers, qui a en lieu en juin 1902, à Montmagny, alors que l'inculpé était sous arrestation, accusé d'avoir tue Vitaline Marquis, Célestine Labonté a été appelée comme témoin, deux fois, pour rendre témoignage et elle a refuse de témoigner.
"Le 6 décembre 1902 M. L. J Cannon, assistant-procureur-général qui, avec M. Lachance, avocat, a conduit cette cause devant la cour du banc du roi, de la part de la Couronne, a envoyé le sergent McCarthy,
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chef de la police provinciale de Québec, à Saint-Da-mien, en le Comté de Bellechasse, quérir Célestine La-bonté avec son père Pierre Labonté chez qui elle demeure depuis que son mari est en prison, et thus deux ont été conduits à Québec.
" Le 7 décembre M. Cannon a eu, à Québec, une eutrevue avec Pierre Labonté et sa fille Célestine Labonté qui lui ont raconté ce qu'ils avaient à dire en cette affaire s'ils étaient appelés comme témoins. Au cours de cet entretien, Célestine Labonté a dit que son curé son confesseur, lui avait couseillé de parler Si elle était appelée à témoigner devant la cour.
"Célesiine Labonté est restée volontairement sous la protection et la surveillance du sergent McCarthy tout le temps et jusqu'à ce qu'elle ait rendu son témoignage devant cette cour à Montmagny.
"Il n'a pas été prouvé qu'aucune coutrainte ait été exercée soit de la part de M. Cannon, soit de la part du sergent McCarthy, sur la femme Célestine Labonté pour l'induire à rendre témoignage, et cette femme ne s'est pas plaint non plus de ce qu'on l'a coutrainte en aucune façon.
" M. Ernest Roy, le procureur du prisonnier, affirme que le 8 décembre il a voulu voir Célestine Labonté et lui parler, mais qu'il en a été empêché par le sergent McCarthy.
" Le 9 décembre 1902, l'avocat du prisonnier a demandé à la Cour que des ordres furent donnés afin qu'il pit communiquer verbalement, avec la femme Célestine Labonté, alors à Montmagny, et sous Ia surveillance du dit sergent McCarthy. Cette demande n'étant appuyée d'aucune raison valable, suivant moi, et ne faisant pas voir en quoi les fins de la justice seraient mieux atteintes si l'avocat de l'accusé communiquait à cette heure verbalement avec un des témoins que la couronne voulait faire entendre j'ai refuse de donner
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de tels ordres, car je considérais qu'à cet étage de la cause la couronne ne faisait que son devoir : servir les fins de la justice en mettant la dite Célestine La-bonté sous sa protection et à l'abri de toute atteinte pour l'empêcher de rendre témoignage, si elle était décidée à être entendue comme témoin suivant les conseils de son aviseur spirituel, et que la dite Célestine Labonté n'avait pas perdu, sa liberté à la connaissance de la cour. Ensuite cette femme a été appelée par la couronne devant la cour comme témoin, et elle a déclaré devant la cour, avant de rendre témoignage, qu'elle consentait à être entendue comme témoin de la part dé la couronne et elle a témoigné.
" Cette femme n'a jamais été assignée de la part de la couronne sous l'autorité d'un bref de subpoena.
" Premier cas réservé.—Sous les circonstances ci-dessus relatées la femme Célestine Labonté était-elle en état de rendre librement et volontairement son témoignage ? Sinon, son témoignage doit-il être mis de côté ? "
II.
" La dite Célestine Labonté a été appelée comme témoin par la couronne. Elle a d'abord été examinée sur le voir dire et j'ai déclaré qu'elle était un témoin compétent, excepté quant aux communications privilégiées entre époux, entr'elle et son mari, qu'elle ne pouvait pas révéler, et je l'ai instruite de ce fait aussitôt que l'occasion s'en est présentée.
" Etant assermentée comme témoin et avant que Célestine Labonté ne commença à rendre son témoignage l'avocat du prisonnier a demandé an président de la cour de l'instruire sur le droit qu'elle avait de ne pas rendre témoignage si elle le voulait, et que si elle refusait de rendre témoignage elle n'encourrait aucune peine. Sun cette application de la part de
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l'avocat du prisonnier j'ai refuse de donner aucune instruction an témoin quant à présent, c'est-à-dire avant que le témoin ne réclamât elle-même son privilège, si elle en avait un. Alors la couronne a demandé an témoin si elle consentait à rendre témoignage et elle a répondu que oui et elle a témoigné. Pans le cours des transquestions la femme Célestine Labonté a déclaré qu'elle avait peur de son mari et a ajouté que si la cour lui avait dit qu'elle avait le droit de refuser de rendre témoignage et qu'en refusant ii ne lui serait arrivé aucun mal elle n'aurait pas rendu témoignage. Cependant elle a continue encore à rendre témoignage sans invoquer son privilège. Pans le ré-examen elle a dit que lorsqu'elle avait refuse de rendre témoignage à l'enquête préliminaire devant le magistrat M.P. Angers, elle avait reçu de son confesseur des conseils lui disant de rendre témoignage si on l'appelait commetémoin, et que le même jour qu'elle descendait de StCharles à Montmagny, sun les chars, que l'avocat du prisonnier, M. Roy, lui avait parlé et qu'elle a refuse de rendre témoignage devant le dit magistrat.
" L'avocat du prisonnier a fait motion pour que ce témoignage de Célestine Labonté fût mis de côté J'ai décidé que ce témoignage devait rester devant la cour et les jurés s que c'était an témoin à invoquer son privilège et que ne l'ayant pas invoqué le prisonnier ne pouvait pas s'en plaindre. Pour plus amples informations je réfère les honorables juges de la cour d'appel an jugement que j'ai rendu an cours du procès sur ce point, et qui est annexé an présent exposé de faits et marqué pièce "A".
Second point réservé.—Célestine Labonté, épouse du prisonnier, Joseph Grosselin, était-elle un témoin compétent contre son mari ?
" La cour devait-elle la renseigner et lui dire qu'elle n'était pas obligée de rendre témoignage, sun la demande de l'avocat du prisonnier ?
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"La cour en disant au jury de considérer ce témoignage l'a-t-elle mal guide ? "
III.
" Au cours de son témoignage, Célestine Labonté a dit qu'elle avait lavé les hardes et le linge du prison nier pour faire disparaître les tâches de sang qui étaient dessus et cela à la demande de l'avocat du prisonnier qui lui a dit de les layer au plus vite. La defense a objecté à cette preuve comme tendant à révéler des communications privilégiées, vu que la femme parlait à l'avocat de son mari.
"J'ai décidé que vu la nature des faits et des circonstances qu'il ne pouvait pas s'agir de communications privilégiées et j'ai permis cette preuve.
" Troisième cas réservé.—Y a-t-il là, lieu d'invoquer le privilège des communications privilégiées et la preuve faite en pareil cas est-elle illégale ?
IV.
" Les taches de sang sur les habits du prisonnier constituent en cette cause une preuve de circonstances très convainquantes. Ici. il s'agissait pour l'in culpé d'expliquer les taches de sang que l'on avait vues sur ses caleçons. Le prisonnier en rendant son témoignage a déclaré qu'il avait mis les caleçons sur lesquels on avait trouvé des taches de sang le lundi matin, 26 mai, alors qu'ils venaient d'être lavés et qu'ils étaient parfaitement nets. Son avocat lui a pose la question suivante :
" Comment pouvez-vous expliquer qu'il y avait du sang sur la fourche de vos caleçons,—comment pouvez-vous expliquer cela ?
" R. Je l'expliquerai bien si on m'en donne la permission
" (Objecté à cette preuve par la Couronne).
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" Q. (Par le juge). Expliquez ça ?
" R. Dans lavant-midi du lundi, j'ai eu des rapports avec ma femme et elle n'était pas bien.
" Q. (Par le juge). C'est la seule explication que vous avez à donner ?
"R. — — — — — — .
Pour contredire cette preuve faite parle prisonnier la couronne a fait entendre Célestine Labontè, la femme du prisonnier et on lui a pose la question suivante:
Q. Maintenant, votre mari a aussi déclaré, hier, dans la boite aux témoins que le 26 mai durant la matinée c'est-à"dire le lendemain du jour on ii est allé chez la femme Vitaline Marquis, il a eu des relations charnelles avec vous ? "
"(Il a été objecté à cette question de la part du prisonnier comme tendant à contredire une preuve qui ne peut être faite et comme permettant l'admission d'une preuve illégale concernant les communications privilégières entre mari et femme.)
" Sur cette objection, la cour a dit, que le prisonnier ayant déjà déclaré qu'il expliquait la présence du sang sur ses caleçons par le fait qu'il avait eu des relations charnelles avec sa femme le lundi dans l'avant-midi', et cc fait étant important, vu qu'il a été mis en la possession des jurés, qu'il devait être "permis à la couronne de contredire ce fait dans sa contre-preuve sans declarer toutefois s'il s'agissait d'une communication privilégiée entre mari et femme visée par la loi sur la preuve de 1893. Sun cc, le procureur de 1Ia défense a excipé de ce jugement et a déclaré en faire une demande pour un cas réservé. Cette preuve étant permise la femme a dit qu'elle ne se rappelait pas, que cependant elle le croyait, qu'elle avait eu des rapports sexuels avec son mari, le lundi matin
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dans l'avant-midi, mais que, ce jour-là, elle n'avait pas de sang sur elle.
"J'ai dit aux jurés qu'ils devaient considérer cette preuve faite par la femme aussi bien que celle faite par le mari, relativement à ces taches de sang.
"Quatrième cas réservé.—Cette preuve est-elle illégale, et le juge en disant aux jurés de la considérer aussi bien que celle faite par le prisonnier les a-t-il mal guidés s "
" Je dois ajouter que lorsque la femme Célestine Labonté a été appelée par la couronne comme témoin dans la contre-pre1uve et quand elle a rendu son témoignage, que le procureur du prisonnier sait objecté à ce qu'elle fût entendue avant que la cour l'eût mise au courant de ses droits quelle a en vertu de la loi de refuser de rendre témoignage centre son mari en cette cause sans s'exposer à aucune punition on peine quelconque.
" Sur cette objection la cour a dit qu'elle avait déjà décidé que c'était an témoin à invoquer son privilège et que si le témoin l'invoquait elle l'instruirait. Alors le procureur de l'accusé a excipé de ce jugement ci a déclaré en faire le sujet d'une demande pour un cas réservé.
"La femme Célestine Labonté étant alors assermentée, son interrogatoire a commencé comme suit :
" Q. (Par la cour) Consentez-vous à rendre témoignage?
" R. J'aimerais mieux ne pas rendre témoignage.
" Q. (Par la cour). Consentez-vous à rendre témoignage?
" R. S'il le faut.
" Q. Qu'est-ce que vous voulez dire par " s'il le faut ?" Vous avez déjà été entendue comme témoin, madame, et vous avez déclaré que vous consentiez à rendre
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témoignage, et tous avez rendu témoignage en cette cause ?
" R. Oui.
" Q. A présent consentez-vous à rendre témoignage?
" R. S'il le faut.
" La cour vous informe, madame, que vous n'êtes pas obligée de rendre témoignage Si vous ne voulez pas le rendre, mais que si vous voulez le rendre la loi vous permet de rendre témoignage. ( Maintenant, madame, voulez-vous, oui ou non, continuer à rendre témoignage ?)
" R. Oui monsieur
" Et ensuite la femme a rendu témoignage.
" En résumé les cas réservés ci-dessus se résument à savoir :
" 1º Si la femme Célestine Labonté était en état de rendre librement et volontairement son témoignage.
" 2° Si elle était un témoin compétent appelé par la Couronne pour rendre témoignage contre son mari.
"3º Si les deux témoignages rendus par elle ont été légalement rendus sous les circonstances sus relatées.''
"Montmagny, 9 jan. 1908."
(Signé)
" H. C. PELLETIER "
J. C. S.
The questions raised on the present appeal are stated in the judgments now reported.
Gibsone and E. Roy for the appellant.
Cannon K. C., Assistant-Attorney-Greneral for Quebec, for the respondent.
The Chief Justice. I entirely concur in my brother Davies' reasoning and conclusions upon the merit of the question involved on this appeal, and I have nothing further to add to his opinion which I have had an opportunity to peruse. I deem it expe-
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dient, however, to say a few words upon the question raised during the argument of the reference by counsel to the debates in Parliament for the purpose of construing any statute. Such a reference has always been refused by my predecessors in this court and, when counsel in this case began to read from the Canadian Hansard the remarks made in Parliament when the Canada Evidence Act in question was under discussion, I did not feel justified in departing from the rule so laid down, though, personally, I would not be unwilling, in cases of ambiguity in statutes to concede that such a reference might sometimes be useful. The same rule is observed in England Alderson B. says, In re Gorham ():
We do not construe Acts of Parliament by reference to history.
And, in Barbat v. Allen (), Pollock C. B. says :
I must at the same time state that the history of a clause in a statute is certainly no ground for its interpretation in a court of law and I would guard myself against being considered as resorting to any such means.
See also Philips v. Rees () ; Reg v. Bishop of London (), per Lord Esher, at page 224; and Robinson v. The canadian Pacific Railway Company ().
In the case of The Queen v. The Bishop of Oxford (), it is true a reference to a speech of the Lord Chancellor in the House of Lords, relating to a certain statute, was allowed by the Court of Appeal but the remarks of the learned judges upon that point, if I read them correctly, are far from justifying the contention raised in some quarters that they intended to alter the general rule on that point.
Bramwell L.J. said:
Both my learned brothers have discussed our admission of the opinion given by the Lord Chancellor to the House of Lords, on the
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occasion of the Public Worship Regulation Act, 1874. I really do not know that there is any definite rule as to what may or may not he cited and acted on as authority. No doubt, we must act on general principles, and I suppose they would exclude what is said in debate in either House of Parliament. But to reject the opinion of the head of the law as to what is the law, given to advise the highest court of judicature in the country, sitting indeed in its legislative capacity, and at the same time admit the obiter dictum of a judge at nisi prius either in our own or an American court, seems somewhat strange, more especially as it is certain that, if it ought to be excluded, any judge knowing of it and excluding it, would as soon as he left the court consult the Hansard he had before rejected. I cannot think it was wrong to admit it.
Baggallay L.J. said:
Before leaving the subject of judicial authority as bearing upon the question of the construction of that section I desire to refer to the circumstances of our having allowed the counsel for the appellants to quote to us a passage from the speech of the- Lord Chancellor in the House of Lords, when moving the third reading of the Public Worship Regulation Act in 1874 ; the counsel for the appellants whilst admitting that he could not refer to the passage in question or any other passage in that or any other speech for the purpose of construing the Public Worship Regulation Act, insisted that it was perfectly open to him to refer to it as representing the opinion of the Lord Chancellor as to the then state of the law relating to proceedings in respect of offences against the laws ecclesiastical, which laws it was proposed to some extent to affect by the bill before the House. After hearing the objections of the counsel for the respondent we allowed the passage to be read and though I have since entertained some doubts whether we were right in our decision, which doubts have not been wholly removed, I am, upon the whole, of opinion that there was no objection to the course that we allowed the appellants' counsel to take. The question with reference to which we allowed it to be cited was whether at the time of the passing of the Public Worship Regulation Act, there was a general concurrence of judicial opinion as to the true effect of a provision in an Act of Parliament passed thirty-four years previously. The courts have been in the habit of allowing reference to be made to text books the authors of which are living Judges, and I am unable to distinguish, in principle, an expression of opinion by the Lord Chancellor as to the state of the law upon a particular subject, with which he is inviting the House of Lords to deal, from an expression of opinion upon the same subject by another judge in a treatise published
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by him. The weight to be attached to the opinion, whether expressed in the one form or the other, must, of course, depend upon the surrounding circumstances.
The doubts I have entertained a3 to the propriety of our allowing reference to be made to the speech of the Lord Chancellor, have arisen from a consideration of the difficulties which in some cases, may arise, though they do not exist in the present, in the way of strictly limiting the purposes for which reference may be made to such expressions of judicial opinion.
Thesiger L J. said :
I would only say, that among the authorities upon which I rely I do not count the speech of the Lord Chancellor in the House of Lords. I was a party to the decision under which it was allowed to be quoted to us, and the ground upon which I thought it admissible was that it had in the occasion upon which it was spoken and the position of the speaker at least as great a sanction as the text-books of living Judges which have upon many occasions been admitted as authorities»
But upon further consideration of the matter, I have been led to doubt very much whether the principle upon which such text-books have been treated as authorities is a sound one ; and, even if it were a sound one I cannot but think the extension of it to speeches in a House of Parliament, sitting in its legislative capacity, however eminent may be the speakers, however solemn the occasion on which they speak, inexpedient in a very high degree. it is true that m many instances, and perhaps this particular one is a conspicuous example, the speech, looking to the circumstances under which it was made the previous consideration which the speaker has given to the subject and the character in which he speaks, may be entitled to far more weight than the hasty utterances of a judge at nisi prius or even the obiter dicta of a judge in banco ; but the judge, in the latter cases has the safeguard of a judicial proceeding cast around him ; his mind is not likely to be influenced by any considerations beyond those which the law enforces upon him ; while, when the scene is removed to the area of Parliament, political considerations may enter as they have before now entered, into the opinions of lawyers upon legal subjects, and may insensibly affect the judgments of even the greatest and wisest of our judges. The sanction and safeguard of judicial procedure are removed, and even the conditions which give the text-book its weight the exclusive devotion to the legal subject of which it treats, and the calmness with which it is necessarily prepared may, in many instances, not exist.
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That case is, however, no authority upon the question, for when in the House of Lords sub nomine Julius v. (oxford (),
In the course of the arguments strong disapprobation was expressed by the Lord. Chancellor (Earl Cairns) and Lord Selborne of the course taken by the Court of Appeal in allowing to be cited a speech made by the Lord Chancellor in the House of Lords
In South-Eastern Railway Company v. The Railway Commissioners and the Mayor, etc., of Hastings (), Cock-burn C J had also referred to a speech in the House of Lords, but in that same case (), upon counsel saying "The Act cannot be construed by reference to a debate in Parliament, " Selborne, Lord Chancellor, said :
That is so. It has been regretted in. the House of Lords that the Court of Anneal had allowed such a reference to be made in The Queen v. The Bishop of Oxford. (Ubi supra.)
In the United States the rule seems to be the same.
But in truth, little reliance can or ought to be placed upon such sources of interpretation of a statute,
says Story J. in 2 Story's Reports, 654 ?
Peckam. J., in the United States Supreme Court, said :
There is a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body. The reason is that it is impossible to determine with certainty what construction was put upon an Act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other ; the result being that the only proper way to construe a legislative Act is from the language used in the Act and, upon occasion, by a resort to the history of the times when it was passed. United States v. Freight Association (4);
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see also United States v. Oregon &c. Railroad Co. () ° though the public history of the times in which a statute was passed may be referred to, according to what Taney C. J. says in Aidridge v. Williams () or what Davis J. .says in United States v. The Union Pacific Railroad Co., () and Peckam J., Ubi supra.
In Lefroy's valuable book, (The Law of Legislative Power in Canada,) pages I and 21, are collected the judicial opinions wherein the general rule has been more or less disregarded in the construction of the British North America Act. The reports of the codifiers of the Civil Code of Lower Canada are also often referred to in Quebec and in this court, as also in the Privy Council (see for instance, Symes v. Cuviller, () but these cannot be put upon the same footing in regard to this rule as are the debates in Parliament upon a bill.
SEDGEWICK J. concurred with His Lordship Mr. Justice Davies.
GIROUARD J. (dissenting.) — I dissent from the majority of the court only as to the meaning of the word c communication" in section four of " The Canada Evidence Act 1893 "
At the trial of the appellant for murder, the wife of the accused was examined and the following incident transpired, as stated by the trial.judge in the reserved case.
His counsel then asked him (the accused) the following question :
Q. How can you explain the blood that was found on the fork of these drawers. How can you explain this 1
A. I will explain it if I am allowed to do so.
Q. (By the court.) Explain this?
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A. Monday I had intercourse with my wife and she was unwell.
Q. (By the court.) Is that the only explanation you wish to give ?
A. * * * *
To contradict this evidence by the prisoner, the Crown brought up Celestine Labonté, his wife, in rebuttal, and asked her the following question :
Q. Now your husband also declared, yesterday, in the witness-box, that on the twenty-sixth of May in the course of the morning, i.e., the day after he had gone to Vitaline Marquis's house, he had sexual intercourse with you ?
This question was objected to on behalf of the accused as tending to contradict evidence which was illegal and allowing evidence of privileged communications between husband and wife. Upon this objection the court decided that, the prisoner having declared that he explained the presence of blood upon his drawers by the fact that he had sexual intercourse with his wife in the course of the Monday morning, and this fact being an important one which had gone to the jury the Crown should be allowed to contradict it in rebuttal but the court did not decide that such a fact was a privileged communication between husband and wife mentioned in the Canada Evidence Act of 1893. The counsel for the accused then took exception to this judgment and asked for a reserved case upon this point
This evidence being allowed the wife answered that she did not remember exactly but, nevertheless, believed that she had had sexual intercourse with her husband upon this Monday morning, but that she had no blood upon her at that time
I told the jury that they should weigh the evidence given by the wife as well as the evidence given by the husband as to the blood stains.
The Chief Justice Lacoste and Mr. Justice Ouimet formed the dissenting minority of the Court of Appeal and held that the witness was not competent to be examined in any manner or form on behalf and at the request of the Crown.
I am not prepared to go to that extent, but I have no hesitation in saying that she was not competent to give the above evidence As I read the fourth section of the " Canada Evidence Act 1893 " a wife or husband is a competent witness in any criminal case and may possibly be compelled to give evidence, but
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no husband shall be competent to disclose any communication made to him by his wife during their marriage and no wife shall be competent to disclose any communication made to her by her husband during their marriage.
What is the meaning of the word "communication " ?
Webster defines it
the act or fact of communicating intercourse by words, letters or messages. connection, intercourse.
Why depart from this definition in the interpretation of clause four of the Evidence Act ? For what reason limit it to words of mouth, messages, conversations, letters or gestures ? Thus limited, the statute would not protect the whole situation contemplated. I do not believe that the legislature ever intended such a result. It does not say so and I am not inclined to add to or take from the ordinary meaning of the expression used. I think the word "communication" is large enough to comprehend all kinds of relations between husband and wife whether de verbo, de facto or de corpore Are the sexual relations between husband and wife to be less sacred than a mere conversation or message ? It was more than a matter of privllege, which may be waived, it was illegal to admit the evidence of the wife. The prisoner objected to it, but even the formal consent of all parties could not cover such an illegality, which is of public order. The wife was not competent to contradict the evidence of her husband as to his explanation of the blood stains upon his clothes. For the same reason, the learned judge should have ruled out the answer given by the prisoner, whether offered by him or not. He was not, therefore, legally tried and should have a new trial, not in consequence of his own evidence, which caused him no possible injury but by reason of the evidence of the wife which was the occasion of a substantial wrong to him. See section 746 of the Criminal Code.
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Not only was the trial illegal, it was not even fair. The wife whose assistance the prisoner was entitled to was kept under close surveillance in the private house of the Chief of Provincial Police, at the request of the Crown and when his counsel endeavoured to see her on his behalf he was refused. The trial judge sanctioned this course.
The Crown Attorney can take all necessary measures to secure the attendance of witnesses, but his refusal to allow the accused or his counsel to see her and obtain her lawful assistance, if any was available, was unwarrantable. He was not an outlaw and might even be acquitted, and, if he had been, what would be the life of the unfortunate couple ?
It is in a case like this that the language of Taylor, quoted by my brother Davies, should receive its application. Indeed the peace of families is at stake It is no doubt of great moment to the community that criminals should be convicted and punished but it is more important that criminal justice should be properly and legally administered.
I would, therefore, allow the appeal and grant a new trial.
DAVIES J.—The questions raised on this appeal depend for their solution upon the construction to be given to the fourth and fifth sections of the Canada Evidence Act, 1893.
The appellant was tried on an indictment for murder and the questions arose out of his wife being tendered and giving her evidence as a witness for the Crown. The trial judge, while being of the opinion that she was under the statute a competent witness, also thought that it was a matter of privilege or volition on her part whether she should testify or not, and during the progress of her examination he so instructed her.
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It was contended for the prisoner that the statute did not permit the wife to give evidence for the Crown at all; and that, at any rate, before she gave any evidence she should be instructed by the court as to her rights and given to understand that if she declined to-give evidence she would not incur any penalty. The-learned judge, however, left the question of giving or declining to give evidence to the determination of the wife herself but reserved the point raised.
Questions were also raised by the prisoner's counsel as to the admissibility of certain evidence given by the-wife in contradiction of a statement made in his evidence by the prisoner when, in explanation of certain blood spots found upon his drawers after the murder, he stated that on the Monday he had had carnal connection with his wife who at the time was unwell ; and also another statement made by the wife as to instructions or advice given to her by the prisoner's counsel as to the washing out of these blood stains. The learned judge in both cases admitted the evidence and reserved the point.
On the reserved case being argued before the Court of King's Bench for the Province of Quebec the learned Chief Justice and Mr. Justice Ouimet delivered dissenting judgments to the effect that, under a true construction of the statute the wife of the accused was not a competent witness for the prosecution, but for the defence only,
They based their conclusion partly upon the proposition that to admit the wife of the accused as a witness for the prosecution was opposed to public policy and order and was inconsistent with the subsection of section four, which, while preventing comments being made by the judge or counsel for the prosecution for the failure of the accused or of the wife or the husband of the accused to give evidence, was silent as to-
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such, comments being made by the counsel for the prisoner.
I am quite unable to concur either in these conclusions or to follow the reasoning which led the learned judges to adopt them. Our duty is simply to construe the language of the statute as we find it. Where that language is plain and unambiguous we are not to speculate as to what was or might, have been the intention of Parliament or as to the consequences which we may think impolitic or undesirable which follow from adherence to the plain language of the statute.
The section under consideration does not say that the wife or the husband of the accused shall be a competent witness for the defence. Such a limitation is found in the Imperial statute passed subsequently to that of Canada, but it is conspicuously absent from the latter. The section under review makes these parties the accused and the husband or wife of the accused competent witnesses, but with a definite and specified exception relating to communications made to each other during marriage. With regard to these latter the incompetency of the witnesses remains. In all other respects it has been removed, and they stand on the same plane as other competent witnesses and liable to answer, when called, all legal questions asked them. To interpolate the words "for the defence" is in my judgment, to do violence to the language of the section. "With reference to the argument derived from the omission of any reference to the counsel for the accused in this section, forbidding comment in case of failure of the accused or of the husband or wife of the accused to give evidence, I am unable to appreciate the supposed inconsistency of the omission. It certainly would be an extreme case which would call for comment on the part of counsel for the accused that the
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Crown had failed to call him or her, or his or her wife or husband, as the case might be, to give evidence» What Parliament was evidently providing for was the protection of the prisoner from damaging comments either by the court or prosecuting counsel if, not having been called by the Crown, the prisoner or his wife or her husband, as the case might be, did not tender himself nor call his consort for the defence. But in any event, such an omission should not avail to alter the plain construction of a statute or justify us in imputing to Parliament an intention which its language in the main section does not bear.
The judgment of the majority of the Court of King's Bench which was delivered by Mr. Justice Hall follows that of the trial judge, and limits the competency of the accused or of the wife or husband of the accused, as the case may be, to give evidence, to those cases in which they may voluntarily elect to do so. As appears from what I have already said, I take a wider view of the sections under consideration than is taken in the judgment appealed from. Apart altogether from communications made by husband and wife to each other during their marriage, I hold that their competency as witnesses is by the statute made unrestricted. If Parliament intended to vest in the accused or in the husband or wife of the accused, the privilege simply of giving evidence and not the duty, surely it would have said so and provided as was done in the Imperial statute of 1898, that the accused
should not be called as a witnesses except upon his own application, (and that) the wife or husband of the person charged (should not be so called) except upon the application of the person so charged.
Before the passing of the Canada Evidence Act 1893 some few special exceptions had been made to the common law prohibiting an accused party and the wife or husband, as the case might be, of the accused
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party from giving evidence, either for or against each other. Secs. 216 and 217 of ch. 174 of the Revised Statutes of Canada, permitted the accused and his or her wife or husband to give evidence for the prosecution or in his or her own behalf in actions for common assault or assault and battery. These sections were repealed by the Criminal Code on the same day as the Canada Evidence Act came into force. Being made by the latter Act c competent witnesses s on the trial of one or the other for any offence, their incompetency, which existed under the common law, was removed. No distinction was attempted to be drawn between their competency for the prosecution or for the defence No limitation upon this competency was inserted beyond that of prohibiting the disclosure of marital communications. These were not left to the whim, election or caprice of the parties. Their incompetency on these matters was retained. On all others it was removed. Henceforth, except with respect to martial communications, they stood in the same position as other witnesses and could not refuse to answer any legal question put to them. Questions of privilege at no time existed. It was and is solely a question of competency. By the fifth section of the statute it is declared that :
No person shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him etc
and this applies equally to the accused and to his or her wife or husband when giving evidence, as to any other witnesses.
I fully agree with the Court of King's Bench in failing to appreciate any grave distinction between calling the accused or his wife or husband to give evidence for the prosecution or for the defence. In either case the witness is bound to tell the truth. The whole
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object of the trial is or should be to reach the truth, and it doubtless was because Parliament believed this object could best be achieved by removing the incompetency to give evidence under which the parties had theretofore laboured that the section was passed. The proviso retaining the sacredness of all marital communications was properly inserted as a matter of public policy and to preserve, as Mr. Taylor in his book on Evidence says :
that unlimited confidence between husband and wife upon which the happiness of the married state and the peace of families depends.
Some argument was advanced at bar on the inference to be derived from the absence in the statute of the word compellable ; and it was said that being made a competent witness only and not expressly a compellable one left in the witness a complete election to testify or not as he or she pleased and as to such matters as he or she should elect. I cannot yield to such an argument.
It is true that the word compellable was coupled with the word competent in Lord Denman's Civil Evidence Act, when introduced in England. But, as was pointed out by Lord Chancellor Herschell, in giving the judgment of the Judicial Committee of the Privy Council in the case of Kops v. The Queen, () compellable " there means c compellable by process of law. "
In several of the later statutes amending the law of criminal evidence in England, the wife and husband of the accused are admitted under prescribed conditions to give evidence. It had been held, under one of these statutes by Mr. Justice Wills, (see Phipson on Evidence, 3 ed. p. 415) that a wife where declared competent is also compellable not only against her husband but also against her own wish. The authority cited ()
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is, of course, not an authorised report, and, on referring to it I find the learned judge while so holding would, if the prisoner had been convicted, have reserved a case upon that point,
These conclusions which I have stated determine most of the questions raised on this appeal. With regard to the others I agree with the majority judgment of the Court of King's Bench, that the rulings of the learned trial judgé were correct. The wife being a competent witness it was not open to her, in my opinion, to refuse to give evidence or to select the points upon which she should testify ; only as to the disclosure of marital communications was she incompetent to testify.
The communication between the prisoner's wife and the prisoner's counsel was not a privileged communication in the sense of being a communication from her husband. No evidence was offered that he knew of or authorised. The only point reserved, as I understand the case is with respect to what the solicitor told her. This statement was certainly not within his duty and being calculated to further or conceal a criminal act does not come within the solicitor's privilege. That privilege cannot be invoked to protect communications which are in themselves parts of a criminal or unlawful proceeding ; Bullivant v. The Attorney-General for Victoria (); The Queen v. Cox ().
Nor do I think that the evidence given by the prisoner's wife came in any way within the statute which retains her incompetency to disclose any communication made to her by her husband during marriage. The facts to which she testified were independent facts gained by her own observation and knowledge and not from any communication from her husband. She saw the blood on the clothes after her
[Page 278]
husband had. left the house to deliver himself up. She washed them after that in order to obliterate the blood stains as the solicitor told her to do and she contradicted her husband as to her being unwell at the time he swore he had carnal connection with her.
I fully agree with the trial judge and with the Court of King's Bench that none of this evidence comes within the rule invoked.
As a majority of my colleagues concur in this judgment, the appeal is dismissed.
MILLS J. (dissenting.) — In this case Gosselin is charged with having murdered a woman, and when he was put upon his trial his wife was called by the Crown as a witness to testify against him. She had been induced by those who were obtaining evidence on behalf of the Crown to leave her home, to go to the city of Quebec, and to take up her residence there with the Chief of Police. All this may have been a most legitimate proceeding, for the purpose of being able to produce her so far as she. might be legally called upon to give testimony when her husband was put upon his trial. The counsel who was retained on behalf of her husband was not permitted to see her, and so was not able to discuss the charges which were made against her husband with her, and to ascertain from her the facts which he desired to know in respect to the crime for which her husband was about to be tried.
It was contended by the counsel for the prisoner before us that under the Canada Evidence Act, when the husband or wife is accused of crime, unless in the case of a crime committed by one against the other, neither is permitted to testify against the other in respect to any matter which springs out of the marital relations. The law in respect to the husband and wife giving evidence in a criminal trial other than
[Page 279]
the case of an offence committed by one against the other depends upon the provisions of the Canada Evidence Act 1893, secs. 3, 4 and 5. He maintained that the wife of accused was not a competent witness for the prosecution, that she was not a compellable though a competent witness for the prisoner, and that the extent to which she might testify, was limited by the Act because of her marital relations to the accused» He maintained that she was not before the court as a voluntary witness and that, being very ignorant as to her rights in this regard and being generally ill-informed, she was under the impression that she was liable to be committed to prison unless she appeared as a witness in the case. The Chief of the Provincial Police at Quebec came to her father's house where she was residing after her husband had been committed to prison, and while there she was kept under constant surveillance, and was especially warned not to speak to her husband's counsel.
The prisoner's counsel endeavoured to see her but was not allowed to do so. He then applied to the court for an order but this was refused him. Before the witness was heard Mr. Roy, her husbands counsel, asked the court to instruct her as to her privileges, but she was ordered out of court before the application was heard, and so kept in ignorance of her right. I think it is much to be regretted that such á course was adopted, for I cannot think that it was not a most proper proceeding on the part of the counsel for the prisoner that he should endeavour to consult with the prisoner's wife, and I think what she said, notwithstanding the instructions given by the judge in the witness box, did not make her a voluntary witness against her husband on the trial, and that while the law made her competent to a limited extent, it also made her a voluntary witness if a witness at all. I
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infer from what she said that she did not rightly apprehend her privilege, and that she was in ignorance of it notwithstanding what the trial judge said to her.
Under the common law the husband and wife are incompetent to give evidence for or against each other By ch. 174, secs. 216, 217 of the Revised Statutes of Canada on a summary trial for common assault, or assault and battery, the defendant is made a competent witness for the prosecution, or for himself, and on such a trial the wife or husband of the defendant shall be a competent witness for the defendant. if another crime is charged, and in the opinion of the court, it does not amount to more than common assault or assault and battery, the defendant shall be a competent witness for the prosecution or on his own behalf, or if the defendant is a woman she shall be a competent witness in respect to the charge of common assault or assault and battery. By the following section, no person charged with an indictable offence shall be a competent or compellable .witness to give evidence for himself, or tending to criminate himself nor, except as stated above did the Act render a husband competent or compellable to give evidence for or against his wife, or a wife competent or compellable to give evidence for or against her husband. These sections were repealed at the same time that the Canada Evidence Act came into force. This Act extended the competency of the husband and wife as witnesses with regard to each other and, in so far as this was done the common law rule was restricted but was not wholly superseded. It is well from this point of view to consider sections 3 4 and 5 of the Evidence Act 1898 as amended by 61 Vict. ch. 53 and 1 Edw. VII ch. 36. Section 3 provides that a person shall not be incompetent to give evidence by reason of interest or crime.
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4. Every person charged with an offence and the wife or husband as the case may be, of the person so charged shall be a competent witness, whether the person so charged is charged solely or jointly with any other person. Provided, however, that no husband shall be competent ' to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any com munication made to her by her husband during their marriage
2. The failure of the person charged or of the wife or husband of such person, to testify shall not be made the subject of comment by the judge, or by counsel for the prosecution in addressing the jury.
5. No witness shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person ; provided, however that if with respect to any question the witness objects to answer upon the ground that his answer may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person and if but for this section the witness would there fore have been excused from answering such question, then, although the witness shall be compelled to answer, yet the answer so given shall not be used nor received in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in giving such evidence.
2. The proviso to s.-s. 1 of this section shall in like manner apply to the answer of a witness to any question which, pursuant to any action of the legislature of the province, such witness is compelled to answer, after having objected so to do upon any ground mentioned in the said subsection, and which but for that enactment, he would upon such ground have been excused from answering.
These are the provisions of the law which are thought doubtful in their meaning, the Crown holding that when the husband or wife is made competent he or she is also made compellable. The court below proceeded upon the assumption that though the husband or wife is competent, they are not compellable, to testify, while the counsel for the prisoner contended before us that they are only competent to testify for but not against each other. Mr. Justice Hall in his judgment upon this case in the Court of King's Bench of Quebec, says :
The text of the statute makes no distinction between the accused and the husband or wife of the accused! if offered as a witness for the
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prosecution, and the strongest argument against the evidence of the wife as a witness for the prosecution in such a case is that whatever rule be adopted as to her must be applied to the husband, and that it cannot be contended that Parliament intended by its Act of 1893 to violate all precedent statutory law, and universal practice, and authorise the procedure by which the accused could appear as a witness against himself. Our prejudice such an interprétation arises from the designation which we improperly make of a witness, as being for the prosecution or for the defence. A witness, by whichever side produced, is not sworn to render evidence for the prosecution or for the defence but only to tell the truth and he is called or tendered as a witness by one side or the other in expectation that his evidence will support the contentions of that side
But whatever may be the duty of the witness when he is called he is called for the purpose of supporting the one side or the other and in this case the statute itself assumes that he is not called by the prosecution or for the purpose of supporting the prosecution, and so the failure to testify shall not be made the subject of comment by the judge or by the counsel for the prosecution. The statute puts the husband and the wife upon exactly the same footing. If either appears in the witness box it can only be as a witness not for the Crown, but for the one which maybe accused, and the failure of either to avail himself or herself of the privilege which the law gives by making them competent witnesses shall not be made subject of comment either by the judge or by the counsel for the prosecution. It makes it very clear that the law of evidence in this regard was being extended in favour of the prisoner only. Both husband and wife are by section 4 put upon the same footing ; both are made competent witnesses for the defence. The law was intended to make either an available witness for the other ; it is a provision in the interest of the accused party and was not intended to break down that public policy which has long protected the marital relations. When we look at the proviso of section 4 we find that the pri-
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vacy of that relation is protected ; the barrier which has preserved the confidence which exists by reason of it is still allowed to stand ; the confidence which is still essential to the peace of the family and to the unrestrained confidence which the well-being of society calls for, is protected ; it is declared that no husband shall be competent to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any communication made to her by her husband during their marriage. In England, 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. This does not simply mean that she may not tell anything which he has told her but she is not at liberty to disclose anything which she has learned from him as the result of their marital relations. It is not simply what she has learned by words spoken to her. This is the view in Doker v. Hasler (). In this case a widow was not permitted to disclose conversations between herself and her late husband in a case in which it was said that an execution was fraudulently taken out to protect the goods of the debtor against his assignees, but the Chief Justice, Best, who was presiding would not permit her to testify as to conversations between herself and her late husband and he said :
I remember that in that case (Munroe v. Twisleton () in which I was counsel, Lord Alvanley refused to allow a woman after her divorce to» speak to conversations which had passed between herself and her husband during the existence of the marriage. I am satisfied with the propriety of that decision, and I think that the happiness of the marriage state requires that the confidence between man and wife should be kept forever inviolate
In Aveson v. Kinaird () in an action by the husband upon a policy of insurance on the life of his wife made
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by her when lying in bed, apparently ill, stating the bad state of* her health at a period of her going to Manchester (whither she went a few days before in order to be examined by a surgeon, and to get a certificate from him of good health, preparatory to making an insurance) down to that time, and her apprehension that she could not live ten days longer, by which time the policy was to be returned, are admitted in evidence to show her opinión who best knew the fact of the ill state of her health, at the time of making the policy, which was on a day intervening between the time of her going to Manchester and the day on which such declarations were made ; and particularly after the plaintiff had called the surgeon as a witness, to prove that she was in good state of health when examined by him at Manchester ; his judgment being formed in part from the satisfactory answers being given by her to his inquiries. d Lord Ellenborough, in referring to the evidence, said :
The admission of the evidence is free from any imputations of breaking in upon the confidence existing between man and wife. The declaration was upon the subject of her own health at the time which is a fact of which her own declaration is evidence ° and that too made unawares before she could provide any answer for her own advantage and that of her husband ; and therefore falling within the principle of the case in Skinner, which I have alluded to.
Grose J. said:
The first question put to the witness was : In what situation she found Mrs. Aveson when she called ? The answer was in bed. To that there could be no objection. The next question was : Why was she in bed 1 Now who could possiblv give so good an account of that as the party herself ? It is not only good evidence but the best evidence which the nature of the case afforded.
And similar views were expressed by Lawrence J. In this case testimony was given, not of what passed between the husband and wife, but of what passed between the wife and several other parties who dis
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Cussed With her the state of her health at the time that she went to Manchester to obtain the doctor's Certificate.
In The Queen v. Pamenter (), Kelly C.B. rejected a letter from the prisoner to his wife entrusted to a constable, but which had been opened by him. And in Scott v. The Commonwealth (), a similar letter voluntarily surrendered by a wife from a husband was excluded on the ground that its disclosure was a violation of those confidential relations between husband and wife which the law protected.
In The king v. Smithies (). it was held that observations made by a wife to her husband on a subject which afterwards was a matter of criminal charge against him, may be opened to the jury by the counsel for the prosecution. Here, the prisoner was indicted for the murder of Ellen Twamley by setting fire to his own house. Mr. Adolphus, in opening for the prosecution was about to state some observations made to the prisoner by his wife, on the subject of the fire, to whom he made an evasive reply. Clarkson, who appeared for the prisoner, stated that he was informed that if the wife, who was in court, could be examined she would contradict the proposed statement, and he submitted under these circumstances, it was doubtful whether the evidence would be received, and the statement ought not therefore to be made. But Mr. Justice Gaselee and Mr. Justice Parke were both of opinion that the statement might be made to a jury ; and that the circumstance of the observations being stated to be made by the wife who could not be called as a witness, did not vary the general rule, that whatever was said to a prisoner on the subject matter of the charge, to which he made no direct answer, was
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receivable as evidence of an implied admission on his part. But this was not any disclosure by the testimony of the wife but only of what she had. said to her husband in the hearing of another party.
In the case of The King v. Simions () A. was a witness for the prosecution of B. on a charge of arson, but was first examined by a magistate before any specific charge was made against any person, and his deposition had been reduced to writing. A. was next accused of the offence and his statement as a prisoner was also taken down by the magistrate. After this, B. was charged with the offence, and A. was examined as a witness when A's statement at that time was taken down. B. being then in custody, the court held that all these statements of A. ought to have been returned to the judge and not merely the statement made when A. was committed. What a prisoner is overheard to say to his wife, or what a prisoner is overheard to say to himself, is receivable in evidence against him on a charge of felony. In this case, two witnesses who overheard the prisoner did not understand him alike, and Alderson B. who was presiding said one of these expressions was widely different from the other. It shows how little reliance ought to placed on such evidence.
In the case of The King v. Bartlett (), which was tried before Baron Bolland, the prisoner was indicted for the murder of Mary Lewis. While he was in custody his wife came into the room. Greaves, who was acting for the prosecution, was about to ask what she said in his presence, when Alexander, acting for the prisoner, submitted that it was not receivable, as the wife could not be examined on oath against the prisoner and so what she said cannot be used in evidence against him. Mr. Greaves however, main-
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tained that what the wife said to the prisoner was receivable in evidence although the prisoner might not reply to it, but here the prisoner did. Bolland B. said the evidence was admissible, and it was proved that the wife said to her husband " Oh, Bartlett, how could you do it?" He looked steadfastly at her and said, " Ah, what, you accuse me of the murder, too ?" She replied " I do, Bartlett you are the man who shot my mother." The prisoner did not make any reply. She then turned to the witness and said "This was done for money." The judge said, " The examination must be read." It was then put in and read. The witness here heard what his wife said to the prisoner and so was permitted to testify. The confidential relation existing between the husband and wife does not prevent a stranger from testifying to what he heard one of them say to the other.
A witness cannot be compelled to answer a question or produce a document, the tendency of which is to expose him or his wife, or if the witness should be the wife, to expose her or her husband, to any criminal charge or prosecution. The privilege is based upon the confidential relations which exist between husband and wife, and which the well-being of society requires should be carefully guarded. In the case of The Queen v. Thompson, Danzey and Hide (), Who were indicted and tried together it was held that the wife of one of them was not a competent witness for either of the others. In this case Thompson and Danzey were defended by the same counsel, Hyde was defended by another. They were indicted and tried for stealing 56 pounds of onions. The counsel for the two tendered as a witness for his clients the wife of the third. This was objected to by the counsel for the prosecution on the ground that her evidence
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in their case must affect the case of her husband. It was said that the general policy of the law which rejected the evidence of the wife, for or against her husband in criminal cases made it necessary for the court to refuse the evidence of the wife on behalf of the other accused. Boville O.J. said :
We are all of opinion that the wife of any one of the three prisoners stands in the same "position with respect to the admissibility of her evidence as her husband. The prisoners were charged together, they were tried together, and one of them could not be called as a witness for the others and the wife stands in the same position as her husband..
In the case of The Queen v. Payne and others (), it was held that when two prisoners are indicted and tried together, the one of them is not competent to be a witness for the other. It was pointed out that 6 and 7 Vict., ch. 85, s. 1, abolished in general terms-incapacity from crime or interest, and that would have admitted the testimony of the parties to any proceeding civil or criminal, including a prisoner under* such circumstances as the present had it not been for the proviso which reads
that this Act shall not render competent any party to any suit, action or proceeding individually named in the record.
That then 14 & 15 Vict., c. 99, s. i which repealed. this proviso in the earlier Act and sec. 2 makes the party to any proceeding competent witnesses, except those that are hereinafter excepted. Sec. 3 provides that a person charged in any criminal proceeding* shall not be a witness for or against himself, and that the husband or wife of a party charged shall not be admissible for or against the wife or husband. The old incapacity on the ground of interest having been swept away by the earlier Act, and the excluding proviso in that Act repealed by sec. 1 of the later Act, and parties expressly made competent by sec. 2, the-
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only witnesses whose testimony is excluded are those excepted in sec. 3, the prisoner called on his own behalf and the husband or wife of a prisoner called for or against the wife or husband. Cockburn C.J. said :
We are all of opinion that the evidence rejected was properly rejected. We are all agreed that the exception in 14 & 15 Vict. c. 99, s. 3, was introduced to prevent any possibility of its being thought that the law as it had existed from the earliest times had been altered by this Act. By that law it was a distinguishing characteristic of our criminal system that a prisoner on his trial could neither be examined nor cross-examined. We think it is impossible to suppose that it could have been intended to change this rule by a mere side wind by means of this exception.
All the witnesses competent to give evidence are generally compellable, but this does not under our statute apply to the accused, or to the wife in case the husband is accused, or to the husband in case the wife is the accused party. It was held that where a prisoner is competent but not compellable to give evidence on his own behalf, and did not do so it was not necessarily wrong for the court to comment upon the fact, as was done in the case of Kops v. The Queen. () But under our statute both the judge and the counsel for the prosecution are expressly inhibited from doing so. and I take it to be clear from the words of the statute that neither husband nor wife where one of them is charged with a crime and put upon trial, can be called as a witness by the Crown. The words are :
That their failure to testify shall not be made a subject of comment by the judge or by the counsel for the prosecution in addressing the jury.
Our legislation has gone a long way in many things, but it has not yet gone so far as to compel the prisoner to testify against himself, nor to compel his wife to be a witness for the prosecution, although in this trial the manner in which the wife was brought into court,
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approaches very closely to such a proceeding. She was kept for some time in the custody of the Crown, and the counsel for her husband was denied an opportunity of discussing her husband's case with her, and she appeared in the court as a witness, not giving her testimony from a sense of duty, but reluctantly as one in duress, giving her testimony because she believed that she was under legal compulsion to do so. This is abundantly shown.by the answers she gave to the questions put by the Court, before her examination in the case began.
After she was sworn she was asked by the Court : "Do you consent to give evidence ? " Her answer was : " I would prefer not to give evidence."
Q. Do you consent to give evidence ?
A. If I must.
Q. What do you mean by "if I must" ; you have already been heard as a witness, Madam, and you have declared that you consented to give evidence, and you have given evidence in this cause?
A Yes.
Q. Now, do you consent to give evidence ?
A. If I must
Is it possible to doubt that this woman was a witness against her will, and that she believed herself under legal compulsion ? In my opinion when she replied to his Lordship's question, and said she would prefer not to give evidence, she ought to have been discharged From that time she was a witness under compulsion who had not been sufficiently informed as to her privileges. She was also a witness testifying to matters which she was not competent to disclose, and which was in violation of the marital relations which it is the policy of the law to guard against invasion.
In the Queen v. Gibson () decided by the Court for Crown Oases Reserved, it was held that if in a criminal trial evidence not legally admissible against the prisoner
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is left to the jury, and they find him guilty, the conviction is bad. Lord Coleridge C.J. said that when such evidence goes to a jury a new trial must be granted as a matter of right ; and in this opinion all the judges concurred. It is said here, that the judge not only ordered the wife out of the court, that she might not hear what her husband's counsel was about to say against her being called as a witness, but until after she was sworn no information was given to her as to her right in the matter. And the information given her by the court, and which I have quoted, shows that she still was under the impression that she was obliged to testify in the case. In my opinion her husband's counsel was entitled to see her and to discuss her husband's case with her if he so desired and she were willing to see him, and no one had any right to intervene and prevent this being done.
When her husband's counsel saw her before she was taken to Quebec he did so as her husband's agent, and in his name, and on his behalf, and under the protection of the law as to those confidential relations which exist between husband and wife for the protection of what he said to her, as much so as if the husband had spoken in person. It is no doubt most desirable that crime should be punished and that the zeal of public officers in bringing criminals to justice should not be unduly restricted, but it is of no less consequence, in the pursuit of this object, to see that every accused party who is arrested and put upon his trial has a fair trial that justice is so administered that the public confidence in the fairness of its administration may be maintained unimpaired. There should be a new trial.
Appeal dismissed.
Solicitor for the appellant: E. Roy.
Solicitor for the respondent: L, J. Cannon.
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