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Spousal Privilege and Incompetency Rule

. R. v. Al-Enzi

In R. v. Al-Enzi (Ont CA, 2021) the Court of Appeal considered canvasses principles applicable to spousal privilege in a criminal trial:
[181] The parties’ arguments on spousal privilege focused on section 4(3) of the Canada Evidence Act, which states:
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.
[182] In R. v. Couture, 2007 SCC 28, [2007] 2. S.C.R. 517, the Supreme Court of Canada described the effect of this privilege at para. 41:
The privilege is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged. The privilege belongs to the spouse receiving the communication and can be waived by him or her.
[183] Two historic rationales for this privilege have survived to this day, including: i) the promotion of marital harmony, and; ii) the prevention of the indignity of having one spouse testify against another: Rendon, at para. 46; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 672; Couture, at para. 43; Nguyen, at para. 20.

[184] Of note is how this court has previously held, albeit in a different context, that spousal privilege does not extend to common-law spouses: R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 185, leave to appeal refused, [2016] S.C.C.A. No. 184; Nguyen.

[185] Competency, compellability, and privilege are distinct but related concepts.

[186] Competency refers to a person’s legal capacity to give evidence in a court of law.

[187] Compellability refers to the ability to force a witness by subpoena to give evidence in court under the threat of contempt proceedings.

[188] Under the spousal incompetency rule as it existed previously, married spouses of accused persons were neither competent nor compellable witnesses for the Crown, subject to limited exceptions.

[189] Privilege is the right of a person or class of persons to exclude certain communications from evidence or to refuse to testify about matters covered by the privilege. The relevant privilege here is the spousal privilege under s. 4(3). This court previously observed that the goals of protecting marital harmony and avoiding the natural repugnance resulting from one spouse testifying against the other animate the rules governing spousal incompetency compellability, and privilege: Nguyen, at paras. 10-20.

[190] The admissibility of lawfully intercepted spousal communications is governed by the combined effect of two statutory provisions: s. 4(3) of the Canada Evidence Act and s. 189(6) of the Criminal Code.

[191] Section 189(6) of the Criminal Code states that:
Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.
[192] In Rendon, Sharpe J. addressed the issue of the combined effect of s. 4(3) and s. 189(6). He explained that it is clear that “the effect of s. 189(6) is to prevent the [C]rown from adducing into evidence communications between husband and wife, although lawfully intercepted, if at the time of the trial the parties are still married”: at para. 38; see also Nero, at paras. 187-189.

[193] Sharpe J. went on to consider whether spousal privilege survived the dissolution of a marriage, concluding it did not. His reasoning on this issue was set out at para. 46:
As a matter of principle, it is difficult to see why the privilege should survive the marriage. The various decisions that have been cited indicate that the purposes of the privilege are the promotion of marital harmony and the prevention of the indignity of having one spouse testify against another. Plainly, neither purpose is served once the marriage has been dissolved. There is a clear trend in the case law, signalled in particular by the Salituro case, to limit the scope of evidential disability of spouses. [Emphasis added.]
(4) The Principles Applied

(a) Spousal Privilege Under the Canada Evidence Act Does Not Survive Divorce

[194] I conclude that spousal testimonial privilege under s. 4(3) of the Canada Evidence Act does not survive divorce. I reach this conclusion by considering the statutory language in its entire context, in its grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 30, citing Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 7. I place emphasis on both the plain language of the statute and the policy rationale underlying the privilege in reaching this conclusion.

[195] Accordingly, the intercepted communications between the appellant and Ms. Zeinab Abdul-Hussein were not privileged at the time of trial, as the two were no longer married. The trial judge did not err on this issue, nor in refusing to exercise her gatekeeper function to exclude this otherwise admissible evidence.

[196] The first source of my conclusion on the limitations of spousal privilege under s. 4(3) is the language of the statute itself. I reproduce it again for emphasis:
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. [Emphasis added.]
[197] The plain language of this section does not support the appellant’s interpretation that the privilege survives divorce. Section 4(3) makes clear that the class of people who are not compellable to disclose marital communications are husbands and wives. This is distinct from the language describing what constitutes a marital communication, namely communications made during a marriage.

[198] I do not agree with the appellant’s argument that the language of “any communication made…during their marriage” exclusively governs the scope of the provision, such that the privilege attaches to any communication made during the marriage regardless of the marital status of the one claiming the privilege. This interpretation would deprive the references to “No husband” and “no wife” of meaning. Such an interpretation violates the presumption against tautology, according to which it is presumed that the legislature avoids superfluous or meaningless words. Instead, every word has a specific role to play in advancing the legislative purpose: Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, at para. 32; Gallone, at para. 31.

[199] In my view, there are two relevant requirements in subsection 4(3): i) that the communication is one that is made during the marriage; and ii) that the person claiming the privilege is, at the time of the claim, a husband or wife.

[200] I am also of the view that the appellant’s interpretation of this privilege does not meaningfully promote the relevant policy goals underlying the privilege. The appellant argues that extending spousal testimonial privilege to divorcees will promote and protect marital harmony. In Salituro, Iacobucci J. observed that “[s]ociety can have no interest in preserving marital harmony where spouses are irreconcilably separated because there is no marital harmony to be preserved”: at pp. 675-76. While it is arguable that Iacobucci J.’s comments apply to divorcees as well, I will nevertheless consider the parties’ arguments on this point.

[201] First, I agree with the respondent that extending this privilege to divorcees is inconsistent with the scope of communications protected by the privilege – namely, those made during the marriage.

[202] Second, prior judicial treatment of the scope of the spousal incompetency rule demonstrates how the policy justification for the rule, as it then existed, disappeared in the context of divorced spouses and spouses with no reasonable prospect of reconciliation. As noted earlier, the protection of martial harmony and the avoidance of the natural repugnance resulting from one spouse testifying against another are purposes governing both spousal incompetency and privilege: Nguyen, at para. 20. In Sallituro, Iacobucci J. observed, during his analysis of spousal incompetency, that the “conclusion that a divorced spouse should not be a competent witness because of his or her former marital status is contrary to common sense”: Salituro, at p. 677. In his view, the policy justification for the spousal incompetency rule disappeared in the context of divorced or irreconcilably separated spouses, and he concluded that irreconcilably separated spouses were competent witnesses for the prosecution: Salituro, at pp. 671 and 677; see also R. v. Nguyen, 2010 ONSC 5843, 278 C.C.C. (3d) 490, at para. 18, aff’d 2015 ONCA 278, 125 O.R. (3d) 321, leave to appeal refused, 2015 S.C.C.A No. 365.

[203] As the policy goals underlying the spousal incompetency rule were said to disappear in the context of divorcees, I consider this relevant in determining whether these same policy goals warrant extending spousal privilege to that same group.

[204] Third, I note that even if the privilege was extended to divorced spouses, it could still be waived by the recipient of the communication at any time. Extending the privilege to divorcees would not meaningfully address the risk raised by the appellant, namely that marital harmony will be undermined if the privilege did not apply to divorcees, as spouses cannot be certain, should they divorce, that their communication will remain confidential. This risk will still exist regardless of whether the privilege can be claimed by divorcees, as the recipient can always simply waive the privilege.

[205] While I agree with the appellant that society’s interest in promoting harmony between spouses may not necessarily end with the dissolution of their marriage, I am of the view that extending the privilege to divorcees is a legal reform best left to the legislature. I am persuaded by Iacobucci J’s comments in Salituro on this point. I do not consider an interpretation of a statute that effectively amounts to a rewriting of it to be the kind of incremental change to the law that Iacobucci J. spoke of as permissible for courts to undertake: Salituro, at p. 670. Nor do I think reading into s. 4(3) the phrase ‘divorced spouse’ is necessary to keep the law in step with the dynamic and evolving fabric of our society: Salituro, at p. 670. This is particularly so, given the arguable legal trend away from recognizing spousal privilege at all, or at least not significantly expanding its scope: R. v. Oland, 2015 NBQB 247, 446 N.B.R. (2d) 317, at para. 18, aff’d 2016 NBCA 58, leave to appeal refused, [2016] S.C.C.A. No. 188.

[206] My conclusion that the policy underlying the privilege does not justify the appellant’s interpretation is strengthened when I consider that this privilege does not apply to common-law spouses. The goals governing the privilege were insufficient to warrant this court extending the privilege to such spouses, who in my view have a greater interest in protecting marital harmony and avoiding the repugnance of testifying against one another than divorcees: Nero, at para. 185. While I acknowledge that these determinations were made in different analytical contexts from that in the present case, I find these cases helpful in resolving this issue.

[207] In conclusion, an examination of the language of s. 4(3) and the policy goals underlying spousal privilege demonstrate that spousal privilege cannot be claimed by an individual where his or her marriage ended by divorce.
. R v Nguyen

In R v Nguyen (Ont CA, 2015) the Court of Appeal explained the 'spousal incompetency rule' and the law of spousal evidence generally:
[10] Spousal competence, compellability and privilege are distinct but related concepts. As they lie at the heart of these appeals, it is useful to consider their meanings now.

[11] Competence refers to a person’s legal capacity to give evidence in a court of law. A person who is incompetent cannot testify, even if he or she wishes to do so. Competence is a threshold requirement for the admissibility of testimony, the purpose of which is to “exclude at the outset worthless testimony, on the ground that the witness lacks the basic capacity to communicate evidence to the court”: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 16.

[12] Historically, at common law, numerous categories of potential witnesses were deemed incompetent to testify, including individuals with a criminal record, those who were unable to swear an oath, those with an interest in the proceeding (such as the accused), and the spouses of accused persons. However, legislation has materially changed this situation: see, generally, Sidney N. Lederman, Alan W. Bryant, & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ontario: LexisNexis, 2014) at pp. 869-91. A person is now generally presumed competent to testify: s. 16 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA“); D.A.I., at para. 16.

[13] A compellable witness, on the other hand, is “one who may be forced by means of a subpoena to give evidence in court under the threat of contempt proceedings”: R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 48 (citations omitted).

[14] Despite the trend towards testimonial competence, spouses of accused persons are competent and compellable witnesses for the prosecution only: 1) at common law, where the charge involves the person, liberty or health of the witness spouse; and 2) under ss. 4(2) and (4) of the CEA, in respect of certain enumerated offences: see R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 38-39. Spouses are, however, competent witnesses for the defence in criminal proceedings: s. 4(1) of the CEA.

[15] Apart from the limited exceptions mentioned in the preceding paragraph, married spouses of accused persons are neither competent nor compellable witnesses for the Crown. This is known as the spousal incompetency rule and that is how the term is used in these reasons. The general common law rule is that competence implies compellability: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 41. However, whether a spouse who is a competent witness for the prosecution is also compellable at the instance of the prosecution has not been finally resolved. In R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 676, Iacobucci J. declined to decide this question, stating that “the possibility that a competent spouse would be found also to be compellable is a real one”.

[16] Privilege is the right of a person or class of persons to exclude certain communications from evidence or to refuse to testify about matters covered by the privilege. Privilege may relate to a class of relationships – for example, solicitor-client privilege – or may be established on a case-by-case basis. Once a privileged relationship is established, privilege “presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation”: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42.

[17] Section 4(3) of the CEA creates a spousal privilege in respect of marital communications. Section 4(3) of the CEA reads as follows:
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.
[18] As noted in Couture, at para. 41, spousal privilege
is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged. The privilege belongs to the spouse receiving the communication and can be waived by him or her.
[19] The implications of the spousal incompetency rule extend beyond the in-person testimony of the witness spouse. At paras. 64-66 of Couture, Charron J., writing for the majority, explains that the question to be answered when considering a spouse’s out-of-court statement is whether the statement may be accepted into evidence as admissible hearsay without undermining the spousal incompetency rule or its underlying rationales. She emphasizes that it is important to keep the spousal incompetency rule inquiry analytically distinct from the hearsay inquiry.

[20] Finally, it bears emphasizing that the spousal incompetency rule represents a significant departure from the rationale which animates the law of evidence. There is a strong societal interest in ensuring that all relevant and reliable evidence is brought forward at a criminal trial to ensure a just result. Thus, the rules of evidence generally serve to further that interest and uphold the truth-seeking function of the courts by ensuring the reliability of evidence, or protecting an accused’s right against self-incrimination. By contrast, the purpose of the rules governing spousal incompetence, compellability and privilege is external to the justice system, namely the protection of marital harmony and the avoidance of the natural repugnance resulting from one spouse testifying against the other: Couture, at para. 43.


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