Spousal Immunity

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This page was last substantively updated or reviewed August 2021. (Rev. # 77396)

General Principles

See also: Privilege

Spousal competency, compellability and privilege are "distinct but related concepts".[1] The purpose of all of these rules is to "protect marital harmony" and avoid having a spouse testify against another.[2]

  1. ↑ R v Al-Enzi, 2021 ONCA 81 (CanLII), per Tulloch JA, at para 185
    R v Nguyen, 2015 ONCA 278 (CanLII), 125 OR (3d) 321, per Gillese JA, at para 10
  2. ↑ Nguyen, ibid. at para 20
    R v Couture, 2007 SCC 28 (CanLII), [2007] 2 SCR 517, per Charron J, at para 43

Spousal Competence

See also: Competence and Compellability

There are two exceptions to the common law rule against spousal competence. There is a common law exception and a statutory exception.[1] In addition, spouses are permitted to testify for the defence.[2]

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.[3]

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.

– CEA

Note up: 4(2)

It remains unsettled whether a witness who is competent under s. 4(2) is compellable.[4]

Common law partners

There is some suggestion that the rule of spousal privilege does not apply to those in common law relationships.[5] However, it has also been said that where there exists a "marital bond ...in substance", then the immunity will apply.[6]

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.

– CEA

Note up: 4(1)

'

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.

– CEA

Note up: 4(6)

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).[7]

  1. ↑ R v Nguyen, 2015 ONCA 278 (CanLII), 125 OR (3d) 321, per Gillese JA, at para 14
  2. ↑ Nguyen, ibid. at para 14
    see also s. 4(1)
  3. ↑ R v Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043, per Lamer CJ and Iacobucci J
  4. ↑ Nguyen, supra at para 15 ("whether a spouse who is a competent witness for the prosecution is also compellable at the instance of the prosecution has not been finally resolved")
    R v Salituro, 1991 CanLII 17 (SCC), per Iacobucci J at p. 676 (“the possibility that a competent spouse would be found also to be compellable is a real one”.)
  5. ↑ R v Nguyen, 2015 ONCA 278 (CanLII), 125 OR (3d) 321, per Gillese JA
  6. ↑ R v Legge, 2014 ABCA 213 (CanLII), 310 CCC (3d) 404, per Paperny JA , at para 41
  7. ↑ 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.

– CEA

Note up: 4(3)

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]

Dissolution of Marriage

Where the relationship has dissolved, the privilege will dissolve with it.[7]

Ownership and Waiver

The privilege is owned by the potentially testify spouse and can be waived by them.[8]

Third Parties Testimony

Third parties may "testify to communications between husband and wife that were overheard, intercepted, or otherwise discovered".[9]

Wiretap

Pursuant to s. 189(6), any information collected by wiretap are subject to the same protections.

  1. ↑ See McWilliams' Canadian Criminal Evidence, 4th ed., vol. 1, looseleaf (Aurora, ON: Canada Law Book, 2010) at para 13:40.10
  2. ↑ R v Zylstra, 1995 CanLII 893 (ON CA), 99 CCC (3d) 477, per curiam
  3. ↑ R v Legge, 2014 ABCA 213 (CanLII), 310 CCC (3d) 404, 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.")
  4. ↑ R v Nguyen, 2015 ONCA 278 (CanLII), 125 OR (3d) 321, per Gillese JA, 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.")
  5. ↑ R v Al-Enzi, 2021 ONCA 81 (CanLII), per Tulloch J at para 183
    R v Rendon, [1997] O.J. No. 5505 (Gen. Div.)(*no CanLII links) , at para. 46
    R v Salituro, 1991 CanLII 17 (SCC), per Iacobucci J at p. 672 (SCR)
    Couture, supra, at para 43
    Nguyen, supra, at para 20
  6. ↑ Al-Enzi, supra at para 184
    R v Nero, 2016 ONCA 160 (CanLII), 334 CCC (3d) 148, per Watt JA, at para 185, leave to appeal refused, [2016] S.C.C.A. No. 184
    Nguyen, supra
  7. ↑ Rendon, supra, at para 46
  8. ↑ R v Couture, 2007 SCC 28 (CanLII), [2007] 2 SCR 517, per Charron J, at para 41 ("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.")
  9. ↑ R v RRW (No. 2), 2010 NLTD 137 (CanLII), per Goodridge J citing McWilliams’ at para 13:40.50

See Also

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