Dating back to the 16th century, spouses were not deemed to be competent to testify evidence against their spouse. The reasons were a lot simpler than they are today. Anyone with a perceived interest in litigation was deemed to be biased and therefore unfit to testify.
Under common law spouses are considered to be one and the same. Since the 16th century the issue of spouse’s and their ability to give evidence against their partners has become more and more complicated. Modern day courts rely more on preserving the sanctity of the marriage than preserving the incompetence standard.The ability to block spousal testimony does not however apply to all couples under the law. Those in common law relationships are not considered to be one and the same and these spouses’s are able to give testimony about events that occurred during the relationship. Ultimately, because the issue falls under common law the question of whether a husband or wife to can be compelled to give evidence against there spouse was at the justices discretion. Most justices are more likely to compel spousal testimony in cases of violence and domestic abuse.
The majority of these offences are committed on a one on one basis with either no one to witness the abuse, or a child incapable of being called as a witness. The testimony evidence of the spouse is often the only proof that an offence occurred. In R. v. McGinty, Justice McLachlin concluded that competence included compellability and added a new policy dimension to the analysis. She observed: “policy interests favoured compelling testimony in cases of domestic violence. Competence without compellability would more likely contribute to family discord than prevent it.
” In the matter of appearance, she noted that: “fair-minded persons generally find it abhorrent that persons who commit crimes go un-prosecuted. The state’s duty to protect the safety of its citizens, underlies the testimonial competence in cases of violence against a spouse, also dictates that the spouse be complellable.” Fundamentally the main factors facing a Justice in their decision is the matter of public safety and the harmony of the marriage.
Compelling a spouse to testify against their partner is in direct conflict with that ideology. Therefore divorced or legally separated couples do not fall under this category. In R. v. Bailey it was determined that spousal incompetence does not survive divorce. Justice Morden observed that: “The modern policy justification for the rule in question is that is supports marital harmony.
It is difficult to see how this policy has any sensible application to a situation where the marriage no longer exists. The incompetence should not survive the dissolution of the marriage. A divorced spouse should not be disqualified from testifying concerning events which occurred during the marriage.
” The Canadian society as a whole and our views and beliefs with regard to marriage and divorce are constantly evolving. The modern legal system has had to adapt and take un-foreseen factors into consideration such as legal separation in regards to the question of compellability. During R.
v. Salituro, the Supreme Court altered the common law rule with regards to spouses who were irreconcilably separated. During trial a woman gave testimony against her husband with regard to fraud that was committed against her. The man was convicted and appealed; the basis for this appeal was that his wife like any spouse was incompetent of giving evidence. Supreme Court Justice J. Iacobucci concluded that: “any policy justification based on marital harmony necessarily disappears upon divorce or the irreconcilable separation of spouses. A continuation of incompetence would be contrary to charter values since it denied choice to the woman in favour of a historical rule that was promulgated at a time when a women’s legal personality was incorporated into that of her husband’s.
” The Supreme Court upheld this common law decision in R.v. Hawkins, where again a wife gave evidence against her husband this time at a preliminary hearing. The Justices ruled that: ” While such alternative approaches to the rule of spousal incompetence may serve to promote the autonomy and dignity of an individual spouse, it is our opinion that any significant change to the rule should not be made by the courts, but should rather be left to parliament.
” Parliament’s legislative response was section 4 of the Canada Evidence Act:Section 4:4(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 charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with another person.(2) The wife or husband of a person charged with an offence against subsection 50(1) of the Young Offenders Act or with sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291 to 294 or 329 of the criminal code, or an attempt to commit any such offence, is competent and compellable witness for the prosecution with the consent of the person charged.(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.(4) The wife or husband of a person charged with an offence against any of section 220, 221, 235, 236, 237, 239, 240, 266 to 269 of the criminal code where the complainant or victim is under the age of fourteen years is competent and compellable witness for the prosecution without the consent of the person charged.(5) Nothing in this section affects a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person, (6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution.
The large scope of Section Four of the Canada Evidence Act still leaves a huge gap open for judicial interpretation. While addressing a number of key components the act left out crucial factors in regards to compellability and only addressed and answered questions relating to competency. Questions also arose surrounding corporations and their compllelablity to produce an officer for discovery in a Federal Court action for forfeiture.
. During R. v. Amway, the issue of competence was raised by J.
Sopinka for the court and encompassed the issue of spousal testimony against an accused. J. Sopinka said: “It is apparent from the words of the section section 4 of the Canada Evidence Act that it addresses only one of the two components of the rights and obligations of a witness: that is, competence. It does not purport to deal with compellability.
At common law an accused was neither competent nor compellable as a witness. By virtue of s. 4(1) of the Canada Evidence Act the common law was altered to make an accused a competent witness for the defence. These amendments left intact the common law with respect to the non-compellability of an accused person at the instance of the crown.
” These arguments would seem to nullify any attempt by counsel to automatically assume that competence includes compellability in regards to section 4.Other aspects of Section four privilege and its application entail cases with co-accused. A closer examination of section 4 in it’s ability to assist the crown in cases involving co-accused and their use of spousal testimony against a person charged with their spouse. Could a person’ spouse is relied upon to give un-biased testimony against a person jointly accused? Would there not be an underlying element of prejudice on the part of the spouse to give false testimony in order to convey evidence or guilt? Based on the aforementioned the Amway decision could be interpreted as allowing the spouse of the accused to be competent in testifying but not to be compelled to do so. The decision to offer testimonial evidence would ultimately rest with the spouse.
The accused or their counsel can in no way, compel exculpatory evidence from a witness spouse unless they volunteer to do so.Another area of spousal testimony against an accused that was not touched on in Section four of the Canada Evidence Act was that of intercepted communications. A letter from one spouse to another that was intercepted for or by the police, opened and read prior to delivery to the spouse is deemed to be admissible.
A letter, its contents used by the crown offers conscriptive evidence against the accused and in no way violates the privileges of section 4. Other methods of intercepting communication however, are not all admissible. In R. v. Lloyd the Supreme Court attempted to determine whether the conversations of spouses intercepted through a wiretap were privileged under s. 4(3).
Is this considered compellability by the court on the spouse to disclose communications?The British Columbia Court of Appeal ruled that Section 4(3) does not apply since the privilege was attached to the witness (spouse) and no the information (evidence) itself.Subsequently the Supreme Court of Canada rejected the British Columbia Court of Appeals decision and upheld Section 4(3)’s privilege rights. The issue of hearsay also plays role in the issue of spousal testimony against an accused. In the case of R.
v. K.G.B. witnesses did an about face on the stand and claimed they had lied about previous statements that had incriminated the accused.
The Supreme Court held that “inconsistent statements could be adduced for their truth in these circumstances if there were sufficient guarantees of trustworthiness to warrant a conclusion of reliability.” Supreme Court Justice Lamer pointed out that previous conflicts of law such as no one being present, no oath and no cross-examination could now be addressed in modern day society with the advent of videotaping. The recanting witnesses also remains in the stand and the crown or defence has the ability to cross-examine them. The reason that hearsay evidence has a role to play in spousal testimonies against an accused is that in cases such as domestic violence often the testifying spouse does recant on the stand after the cooling off stage. In R.
v. Hawkins the Supreme Court Ruled that “Spousal incompetence satisfied the necessary criterion.” In layman’s terms this means that the mere prospect of spousal evidence, whether compllelable or not, and subject to marital privilege, does exist as long as the police have interviewed the spouse and properly recorded his or her statement. Basically the statements and video recordings of the interview become evidence like that of the letters.
Privilege is attached to the witness and not the information. Through the initial enactment of the Canada Evidence Act first introduced in 1893 and amended by the Supreme Court in 1906 there have been numerous Common Law arguments raised, Supreme Court Rulings, and legal precedents set and re set. To date there are a number of Common Law rules that remain.No spouse can be compelled as a witness by the prosecution against their spouse except for the offences where the spouse’s safety or person has been attacked, other stipulated offences, and those offences where the victim was under the age of 14 years.
This protection only applies to those people who are lawfully married and not to those in a common law marriage. Section 4. Does not protect the privileges of people who are divorced or irreconcilably separated. Spouses if they reach the right criterion are competent under section 4 to give evidence for the defence. All spouses who fall under the criterion are deemed to be competent to provide evidence but cannot be compelled to disclose communications with their spouse, which took place during the marriage. Under section 4(6) of the Canada Evidence act no Justice or Crown can make comments to the jury regarding spouses failure to testify at trial. The common law privilege not to provide exculpatory evidence against one’s spouse has its roots in England.
Under common law the common interpretation was incompetence, there was no consideration in regards to marital communication. This dates as far back as the 16th century and was amended by legislation in the 19th century which allowed spouses to be competent witnesses, to some extent in some criminal cases. Initially the entire concept of a spouse being incompetent to testify had nothing to do with bias but rather preserving the harmony of the marriage. More value was placed on keeping a marriage together and not placing the sanctity of marriage into disrepute.
BIBLIOGRAPHY1. Cossman, Brenda, Ryder, Bruce. “The Legal Regulation of Adult Personal Relationships: Evaluating Policy Objections in Federal Legislation” Harper Press, Toronto, 1999.2. Bailey, Martha. “Marriage and Marriage-like relationships.
” Associated Press, London, 1997.3. Yogis, John A. “Canadian Law Dictionary” Library of Congress Publication. New York, 1998.4.
Greenspan, Rosenberg. “Martin’s Annual Criminal Code.” Canada Lawbook Incorporated