4. Spousal Privilege

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages245-247

Page 245

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.

At common law, spouses were not competent to testify because of their interest in the case. Therefore, the issue of a spousal privilege, which would allow a spouse to refuse to answer questions that would reveal communications made between spouses, really did not arise. This situation changed in the mid- and late 1800s, when spouses were made competent and compellable by legislation. Accompanying this legislation was the creation of a spousal privilege. The privilege is provided for in subsection 4(3) of the Canada Evidence Act, which reads:

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.

The various provincial Evidence Acts contain a similar provision.104

In Alberta the legislation includes communications between "adult interdependent partners"; presumably this covers common law relationships.105The Alberta move is a questionable expansion of the privilege (see below).

It is important to separate competency from privilege. The former may prevent the person from testifying at all; with the latter, the person must testify but may refuse to answer certain questions under the claim of privilege. At times, courts mix the two. The Quebec Court of Appeal did so in R. v. St-Jean.106The accused was charged with incest, and this charge made his wife a competent and compellable witness for the prosecution under subsection 4(2) of the Canada Evidence Act. The wife, while testifying, sought privilege from answering a question as to something said to her by her husband. The court held that "in cases where a spouse is competent and compellable, he or she may testify about all aspects of the case." With respect, this ruling fails to separate

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competency from privilege. The rendering of a spouse competent to testify should not sweep aside the privilege.

The decision of the Ontario Court of Appeal in R. v. Zylstra is to be preferred.107Prior to calling the spouse of the accused, the defence sought an advance ruling as to whether the spouse could assert privilege under subsection 4(3) of the Canada Evidence Act. The Ontario Court of Appeal held that the privilege could...

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