Spouses are, generally, incompetent to testify against each other in a criminal proceeding while legally married and not separated.
Section 4 of the Canada Evidence Act reads as follows:
(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 persons so charged is charged solely or jointly with any other person.
...
(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.
Cases have, to date, made clear the protection does not extend to common-law couples. See:
R v. Duvivier, (1990), 75 O.R. (2d) 203 (Gen. Div.) at 210-211, affirmed, (1991), 3 O.R. (3d) 49 (C.A.)
R. v. Hawkins, 1996 CanLII 154 (S.C.C.), [1996] 3 S.C.R. 1043 at 1071-1072
R. v. Edelenbos 2004 CanLII 875 (ON C.A.), (2004), 71 O.R. (3d) 698 (C.A.) at paras. 32-38
R. v. Martin, [2009] S.J. No. 149 (C.A.) at para. 21
R. c. Campeau 1996 CarswellQue 326 (C.Q.)
That said, a case released last week, R v Masterson, 2009 CanLii 36305 (Ontario Superior Court)holds otherwise based on the Charter. This author is doubtful of the validity of the decision but it is important.
The Court holds:
[57] Having considered all of the Supreme Court's comments on both the question of the cautionary approach to be used in considering this rule, and the requirement to ensure the constitutionality of our law, I am persuaded that this is one of those cases in which reading up the statute is justified. Section 4 of the Canada Evidence Act shall be read up to include common law spouses where there is a reference to husband or wife. This reading in will cure an injustice that otherwise would continue to apply to a historically disadvantaged group of common law spouses.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
6 comments:
I thought that the law is that spouses are not compellable to testify against their spouse, not that they aren't competent. I didn't have a very good evidence prof though lol.
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