Spousal Immunity
General Principles
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]
Section 4(2) of the Canada Evidence Act overturns the common law by stating that:
4
...
- 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.
- Communications during marriage
(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.
(4) and (5) [Repealed, 2015, c. 13, s. 52]
...
[(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
There remains, however, an immunity in relation to "any communication" between the two "during their marriage".
- 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.
...
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
- ↑ R v Hawkins, 1996 CanLII 154 (SCC), [1996] 3 SCR 1043, per Lamer CJ and Iacobucci 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]
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 (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.
– CEA
Third parties may "testify to communications between husband and wife that were overheard, intercepted, or otherwise discovered".[3]
- ↑ 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 RRW (No. 2), 2010 NLTD 137 (CanLII), per Goodridge J citing McWilliams’ at para 13:40.50