The Ontario Court of Appeal this year in R. v Nguyen  )NCA 278 has decided that the spousal incompetency rule, which forbids spouses to be compelled to testify against each other, and spousal privilege, does not extend to common-law couples . A very clear line has been drawn between those who are legally wed and those who are not, irrespective of how long a couple has been in a common-law relationship or why they have not yet married. In effect, a couple who marries but met for the first time on their wedding day is deemed to have “…the protection of marital harmony and the avoidance of the natural repugnance resulting from one spouse testifying against the other,” while a couple who has been living together for several years creating a life, a home, and children, does not.
The challenge to include common-law spouses was made by defence counsel, acting for their clients whose common-law spouses were compelled to testify as Crown witnesses in a first-degree murder trial. Defence counsel sought to exclude this testimony on appeal, and through a Charter of Rights and Freedoms section 15(1) challenge, in which it was argued that the spousal incompetency rule discriminated against common- law couples. The Court of Appeal agreed with defence counsel that the spousal incompetency rule did, in fact, discriminate against common-law couples under the Charter. However, the Court found that this violation was saved under Section 1 of the Charter. The law remains unchanged.
The Court seems to hinge its decision on the “choice to marry,” and a common-law couple’s decision not to make that choice. The Court of Appeal posits that if a couple does not “choose” to be legally wed, then they choose not to “accept the state-imposed responsibilities and protections associated with that status.”
The very purpose of spousal privilege is to preclude ‘secrets of the marriage bed,’ that were disclosed in confidence to one’s spouse, to be used against a spouse in court, by legal force. This connotes a state interest in staying away from any big-brother parallels that could be drawn and private conversations in the home. Yet, it is not clear why this protection is any less deserved by those without a marriage licence, except for the fact that they do not have the paperwork.
The Court of Appeal admits that the negative impact on common-law spouses “…denies common-law spouses the benefit of the rule, namely, protection of their matrimonial harmony and prevention of the indignity of one spouse participating in the prosecution of the other.” The Court justifies its ruling by stating that extending the rule to common-law partners would infringe respect for their autonomy,The Court seems to hinge its decision on the “choice to marry,” and a common law couple’s decision not to make that choice. The Court of Appeal posits that if a couple does not “choose” to be legally wed, then they choose not to “accept the state-imposed responsibilities and protections associated with that status.” freedom of choice, and human dignity under the Charter because neither partner would be free to choose to testify if they wanted to. However, this conclusion does not seem to marry with (pun intended) the very core purpose of the spousal privilege and spousal incompetency rule.
It’s not news that marriage is a legal union between two consenting parties, and upon marrying, certain rights and privileges flow from its legality. However, the spousal incompetency rule is a rule that exists to prevent the state from compelling one’s partner to assist in the other partner’s prosecution. Not because they are married per se, but because the fact that they are married is seen as a declaration of their partnership and union, and frankly, their love. It is the relationship between the two individuals that is what gives the spousal incompetency rule its validity, not the marriage licence. In 2015, it’s remarkable that the concept of marriage is still perfumed with Victorian-era legitimacy and necessity.
The validity of marriage transcends jurisdiction and culture, and is treated as the ultimate status of a relationship. The Court of Appeal certainly perpetuates this problematic social construction of marriage. The Court reasons that any harm caused by the denial ofIt is the relationship between the two individuals that is what gives the spousal incompetency rule its validity, not the marriage license. In 2015, it’s remarkable that the concept of marriage is still perfumed with Victorian-era legitimacy and necessity. extending the rule to common-law couples can be saved “by the availability of the choice to marry.” So if your common-law partner is criminally charged and you want to protect him or her, don’t fret! The Court of Appeal wants to let you know that common-law partners “may choose to marry at any time before a trial,” and any time after an indictment is laid in order to benefit from the law. How romantic!
So it seems that the Court of Appeal views a marriage licence like a golden Wanka ticket, neatly placed between a bar of chocolate and shiny foil that anyone who wants it can have. This may have been a more sound view several years ago, but in today’s gluten-free, Stevia-laden, low-carb world, not everyone is going to buy that bar of chocolate. Nor should they have to.
1. The spousal incompetency rule has exceptions and limitations; see R. v Nguyen Para 10-20; The Canada Evidence Canada Act s. 4 (2). See also The Canadian Victims Bill of Rights Act, in force as of July 23, 2015