Spousal Compellability and Privilege: Can you be forced to testify against your spouse?

Posted by on Aug 14, 2015 in Criminal Law, Legal Information

On July 23, 2015, the Harper government’s Victims Bill of Rights Act (Bill C-32) became law. Among the changes that have attracted attention and caused some confusion are the amendments to the Canada Evidence Act, eliminating the age-old rule of spousal incompetency. That’s the rule that made the spouse of an accused person uncompellable as a witness for the prosecution.

Justice Minister Peter MacKay’s explanation at the time of introducing the bill was that the rule created “an obstacle to bringing important evidence before a court of competent jurisdiction”. (“Competency” and “compellability” are legal terms with precise meanings, but the overall concept is sometimes referred to as “spousal immunity”.) A friend recently told me, “I heard you can be forced to testify against your spouse now” and asked, “is that true?” The answer, as usual with this kind of question, is sort of.

Can spouses be forced to testify for the prosecution?

Legally married spouses of criminally accused persons are now competent and compellable by the Crown, which means that they can be subpoenaed (legally required) to come to court and testify for the prosecution. It used to be that the husband or wife of a criminally accused person was “neither competent nor compellable” to testify for the prosecution. A spouse could ONLY be compelled to testify for the prosecution, as an exception to the general rule, if the accused person was charged with certain offences: involving danger or the threat of danger to the spouse; involving violence, cruelty or threats against the spouse’s child; or violent or sexual offences against any child under 14 years of age. (The OLD sections 4(2) or 4(4) of the Canada Evidence Act listed exactly which offences were exempt from spousal immunity; these are the provisions that have now been changed.)

Section 4(2) of the Canada Evidence Act now reads: “No person is incompetent, or uncompellable, to testify for the prosecution by only the reason that they are married to the accused”. The listed exceptions (which are no longer exceptions) have been removed from the Act.

So, it is true that you can now be subpoenaed to come to court and testify as a witness in the prosecution’s case against your spouse, even when it’s not a case of domestic violence or violence against a child. What hasn’t changed though, is spousal privilege.

Spousal privilege and communications during the marriage

Section 4(3) of the Canada Evidence Act still reads: “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.”

While a legally married spouse can be compelled to testify, she or he retains the right to assert privilege, and to refuse to answer questions about communications during the marriage. This privilege belongs to the spouse who received the communications and NOT to the spouse who made the statements. If the testifying spouse wishes to waive his or her privilege and tell the court about a confession made by the accused in confidence during their marriage, the accused cannot assert privilege to prevent it. Another way to understand this is that it’s not the actual communication that is privileged or “off limits”. Rather, the spouse holding the privilege has a right not to share, but can decide to waive that right.

Who counts as a “spouse”?

Importantly, spousal privilege only protects communications between legally and legitimately married spouses “during their marriage”. It does not protect communications that occurred before or after the marriage (see R v Couture), and it can’t be asserted unless the spouses are still married and “together” when the witness spouse testifies.

The decisions referenced below deal with the application of the spousal incompetency rule (which the Victims Bill of Rights Act eliminated), but they are likely to be applied to spousal privilege claims as well – at least until the appeal courts have had an opportunity to consider spousal privilege in its new context as “the only protection” for spouses called upon to testify for the prosecution.

“Irreconcilably separated” spouses cannot assert spousal privilege

In R v Salituro, the Supreme Court of Canada decided that even if there was a valid, legal marriage still in place, the spousal incompetency rules did not apply where the spouses were “irreconcilably separated”. Since the spousal incompetency rules were intended to preserve marital harmony, this decision was justified on the basis that irreconcilably separated spouses have no more marital harmony to preserve.

Common law spouses cannot assert spousal privilege (in Ontario)

Courts have not been entirely consistent on whether the rules regarding spousal incompetency should apply to common law couples. The Ontario Court of Appeal did decide in April 2015 however, that common law spouses did not enjoy the protections of the spousal incompetency rules (see R v Nguyen). The discrimination resulting from excluding common law spouses from spousal incompetency rules was found to be justified under section 1 of the Charter. This decision overruled the 2013 decision of the Ontario Superior Court in R v Hall, where not only the spousal incompetency rule, but also spousal privilege, were found to apply to common law spouses.

So what?

Many scholars and practitioners have suggested that the spousal incompetency rules were outdated (Paciocco and Steusser in their text and Ottawa defence attorney Howard Krongold here). It is no longer acceptable to treat spouses “as one” legally, or to assume that spouses necessarily have identical interests (in Salituro, the Supreme Court of Canada rejected these rationales for the rule, favouring the “marital harmony” explanation).

It is questionable though whether eliminating spousal incompetency while preserving spousal privilege actually does much good to address the pressing priorities of the criminal justice system. It effectively gives the testifying spouse a “choice” whether or not to disclose incriminating communications, and as pointed out by Justice McLachlin at the Yukon Court of Appeal, cited by Justice Charron in R v Couture:

… giving the spouse a choice  “is more likely to be productive of family discord than to prevent it.  It leaves the victim-spouse open to further threats and violence aimed at preventing him or her from testifying, and leaves him or her open to recriminations if he or she chooses to testify” (at para 45, citing R v McGinty)

It’s hard to see how this preserves marital harmony, never mind protecting complainants and victims or enhancing the truth-seeking function of the criminal justice system.

In practice, the amendments to the Canada Evidence Act mean that spouses can and will be compelled to testify against their marriage partners, and that they will need to actively assert a right to spousal privilege if they wish to protect conversations occurring during their marriage. Defence attorneys should be ready on the ground to explain the difference between spousal incompetency, which is no more, and spousal privilege, which absolutely still exists. The courts might not be up to speed.


Featured image by Mike Wilson, falling under Creative Commons CC0 license.

This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.