Spousal Immunity: You May Or May Not Tell The Courts What Your Spouse Tells You

Should common law spouses be exempt from testifying against their spouse in criminal cases?

A recent article by the Law Time’s, Yamri Taddese provides some insight to this complex question.

Recently in R.v. Lomond, 2015 ONCJ 109 the Honourable Justice Javed of the Ontario Court of Justice found that to deny spousal immunity to individuals in common law relationships is “discriminatory and inconsistent with modern values under the Charter of Rights and Freedoms.” To date, while married spouses have been offered spousal immunity from testifying against their spouse but common law spouses have not been awarded the same benefit pursuant to the federal Canada Evidence Act (the "Act"). Pursuant to section 4(3) of the Act,

"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."

In addition, pursuant to section 11 of the provincial Evidence Act,"a person is not compellable to disclose any communication made to the person by his or her spouse during the marriage."

The Honourable Justice Javed further writes in his decision, “The Supreme Court has taken note of changing societal values regarding common-law partnerships and the importance of recognizing and protecting relationships that are functionally equivalent to marriage.” In addition, the Honourable Justice Javed adds, 

“There is no valid, rational basis for treating common law spouses and formally married spouses differently when it comes to the reasoning behind a spousal privilege here, which is to foster a trusting, good relationship.”

The Lomond case provides much needed direction towards the formal recognition of common law partnerships as an equal form of matrimonial union. In addition, this decision aligns with the Supreme Court of Canada’s overarching direction as to the recognizing and protection of common law partnerships. 

For example, in the Supreme Court of Canada ("SCC") case of Nova Scotia (Attorney General) v. Walsh, 2002 4 SCR 325, the SCC found that "a decision not to marry should be respected because it also stems from a conscious choice of the parties." 

The granting of spousal immunity to common law spouses is a step in the right direction. While each form of these relationships differ from a legal perspective, both common law partnerships and marriages exhibit many of the same characteristics.  A person’s trust that what is said to his or her partner will be confidential - both at home and in the courtroom - should be respected in the case of common law and married spouses alike.   

- Kenneth R. Bandeira, Associate Lawyer, Toronto

Visit our Toronto Law Office website: www.wiselaw.net