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."
“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.”
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."