The holy grail.

Posted By: Melody Izadi

The Ontario Court of Appeal this year in R. v Nguyen [2015]) 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 [1]. 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 commonlaw 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...