Spousal Immunity
General Principles
Spousal Competence
- Common law rule of spousal competence
At common law a spouse of an accused is incompetent to testify except where the charge involves the person, liberty, or health, of the spouse.[1]
- Evidence Act rule of spousal competence
Section 4(2) of the Canada Evidence Act modifies the common law by stating that:
4
[omitted (1)]
- Spouse of accused
(2) No person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused.
[omitted (3), (4), (5) and (6)]
R.S., 1985, c. C-5, s. 4; R.S., 1985, c. 19 (3rd Supp.), s. 17; 2002, c. 1, s. 166; 2014, c. 25, s. 34, c. 31, s. 27; 2015, c. 13, s. 52.
- Common law partners
There is some suggestion that the rule of spousal privilege does not apply to those in common law relationships.[2] However, it has also been said that where there exists a "marital bond ...in substance", then the immunity will apply.[3]
- Competence for Defence
- Accused and spouse
4 (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.
[omitted (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-5, s. 4; R.S., 1985, c. 19 (3rd Supp.), s. 17; 2002, c. 1, s. 166; 2014, c. 25, s. 34, c. 31, s. 27; 2015, c. 13, s. 52.
- No Negative Inferences
4
[omitted (1), (2), (3), (4) and (5)]
- Failure to testify
(6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.
R.S., 1985, c. C-5, s. 4; R.S., 1985, c. 19 (3rd Supp.), s. 17; 2002, c. 1, s. 166; 2014, c. 25, s. 34, c. 31, s. 27; 2015, c. 13, s. 52.
There must be something more than an "off-hand reference" to the fact that the accused chose not to testify to engage the prohibition under s. 4(6).[4]
- ↑ R v Hawkins, 1996 CanLII 154 (SCC), per Lamer CJ and Iacobucci J
- ↑ R v Nguyen, 2015 ONCA 278 (CanLII), per Gillese JA
- ↑ R v Legge, 2014 ABCA 213 (CanLII), per Paperny JA , at para 41
- ↑ R v Potvin, 1989 CanLII 130 (SCC), [1989] 1 SCR 525, per Wilson J
Spousal Privilege
Spousal privilege is a class protection of certain communications between husband and wife. It is a protection that is separate and apart from spousal competency.[1]
A spouse who is found to be competent and compellable may still invoke privilege to protect their communications.[2] The privilege belongs to the recipient spouse.[3]
This class of privilege does not exist at common law, but rather was created by way of s. 4(3) of the Evidence Act, which states:
4
[omitted (1) and (2)]
(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.[omitted (4), (5) and (6)]
R.S., 1985, c. C-5, s. 4; R.S., 1985, c. 19 (3rd Supp.), s. 17; 2002, c. 1, s. 166; 2014, c. 25, s. 34, c. 31, s. 27; 2015, c. 13, s. 52.
This protection in s. 4(3) is testimonial in nature and is designed to prevent compelled testimony. It does not protect the actual content of the communication.[4]
- Purpose
The purpose of the protection is a) to promote marital harmony and (b) to prevent the "indignity" of having a spouse testify against their partner.[5]
- Common Law Partners
Traditionally, spousal privilege had not applied to common law partners.[6]
- Third Parties Testimony
Third parties may "testify to communications between husband and wife that were overheard, intercepted, or otherwise discovered".[7]
- ↑ See McWilliams' Canadian Criminal Evidence, 4th ed., vol. 1, looseleaf (Aurora, ON: Canada Law Book, 2010) at para 13:40.10
- ↑ R v Zylstra, 1995 CanLII 893 (ON CA), per curiam
- ↑ R v Legge, 2014 ABCA 213 (CanLII), per Paperny JA, at para 44 ("The privilege is that of the witness, not the accused. It must be asserted by the witness who will then bear the burden of establishing that the relationship is one with a substantive marital bond.")
- ↑
R v Nguyen, 2015 ONCA 278 (CanLII), at para 135 ("As Couture makes clear, at para. 41, the spousal privilege established by s. 4(3) of the CEA is testimonial in nature and prevents compelled testimony. The communications themselves are not privileged.")
R v Couture, 2007 SCC 28 (CanLII), [2007] 2 SCR 517, at para 41 ("The privilege is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged. The privilege belongs to the spouse receiving the communication and can be waived by him or her.") - ↑
R v Al-Enzi, 2021 ONCA 81 (CanLII), per Tulloch J at para 183
R v Rendon, [1997] O.J. No. 5505 (Gen. Div.), at para. 46
R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 672(complete citation pending)
Couture, supra, at para. 43
Nguyen, at para. 20
- ↑
Al-Enzi, supra at para 184
R v R v Nero, 2016 ONCA 160 (CanLII), 334 CCC (3d) 148, at para. 185, leave to appeal refused, [2016] S.C.C.A. No. 184
{{CanLIIRP|Nguyen|ghblp|2015 ONCA 278 (CanLII)|125 OR (3d) 321}, per Gillese JA
- ↑ R v RRW (No. 2), 2010 NLTD 137 (CanLII), per Goodridge J citing McWilliams’ at para 13:40.50