The Lawyers Weekly - October 22, 2010

My favourite episode of The Simpsons features Homer’s action against an all-you-can-eat seafood restaurant, launched on the basis that he was ejected at closing time despite having not yet had “all he could eat,” as advertised. His humiliated wife Marge is forced to testify about the impossibility of satisfying her husband’s boundless gluttony, tearfully admitting under cross-examination that he once ate a 5-lb. bag of flour when there were no snacks in the house.

Mercifully, Canada’s criminal courts are protected from such scenes. Section 4 of the Canada Evidence Act codifies, by specifying its limits, the long-estab-lished common law rule that an accused’s spouse is (usually) not a competent witness for the prosecution. Even if you wanted to, you couldn’t testify against your husband or wife in a criminal case. Section 4 also enshrines the privilege attached to private communication between spouses. (The exceptions to both the rule and the privilege, both at common law and in the Act, are aimed at cases where the spouse is herself the victim of the alleged crime, or where the couple’s child — or any other child — is abused or exploited.)

The idea is to preserve the peace and confidence of marital relationships, traditionally considered the sacred building-block of society. Until recently, only formal marriages were eli-

NEIL MCCARTNEY

“To those living in
relationships with all
the characteristics of
marriage save for the
formal bond, the
statute perpetuates
the historic view that
these persons are
considered less
worthy, and less
morally upright.

STEPHEN COBURN / DREAMSTIME.COM
Until recently, only formal marriages were eligible for the special protection from testifying against a spouse for the
prosecution, and the authorities had clearly excluded common-law marriages from the rule.
gible for this special protection,
and the authorities had clearly
excluded common-law mar-
riages from the rule.

That may have all changed with an Ontario Superior Court decision. In R. v. Masterson, [2009] O.J. No. 2941, the accused was charged with first-degree murder. The Crown sought to call his common-law wife of 20 years, with whom he had two children, to testify against him. The defence sought the protection of s. 4 of the Act, arguing that the provision as presently interpreted infringed the equality guarantee in s. 15 of the Charter.

Justice Hennessy agreed: “To
those living in relationships
with all the characteristics of
marriage save for the formal
bond, the statute perpetuates
the historic view that these per-
sons are considered less worthy,
and less morally upright. These
views no longer accord with
current social values or real-
ities.”
Specifically under considera-
tion was s. 4( 3) of the Act, the
codification of the privilege
attached to spousal communi-
cations. It refers only to “hus-
band” and “wife,” and was con-
sistently interpreted as
excluding common-law spouses.
Applying the test in Law v. Can-
ada, Justice Hennessy found
that: (1) the impugned provi-
sion did draw a distinction
between the accused and others
based on a personal characteris-
tic; ( 2) differential treatment
resulted from the distinction;
and ( 3) this treatment dis-
criminated against the accused
by withholding a benefit in a
way that suggested the accused
was a lesser person than those
in formal marriages. (Common-
law marriage has been recog-
nized as a ground of discrimina-
tion “analogous” to those
actually listed in s. 15, at least
since the Supreme Court’s deci-
sion in Miron v. Trudel, [1995]
2 S.C.R. 418).