Keywords: Testimony; witness; spousal privileged; compellability of common-law spouse.
Synopsis: The Respondent was on trial for evading police, mischief, possession of stolen property, possession of a weapon, and careless transport of a weapon. The main witness at trial was Ms. Farrar, the Respondent’s common law spouse. The trail judge ruled spousal immunity applied and Farrar could not be compelled to testify against her partner. In light of the decision, the Crown chose to call no evidence and the charges were subsequently dismissed. The Crown appealed the acquittal to the Alberta Court of Appeal arguing the trial judge erred in his ruling concerning spousal privilege meriting a new trial. Appeal dismissed.
Importance: Madam Justice Paperny writing for a unanimous court concluded the decision of the trial judge to extend the common law rule against spousal compellability to common law spouses represents an appropriate incremental change to the law. The adaptation made by the trial judge was one that reflects “the changing social, moral and economic fabric of the country” as referred to by the Supreme Court of Canada in R v Salituro,  3 SCR 654. The substance (not the form) of the relationship is what matters. Refusal to extend the same protection to parties in common law relationship is akin to society indicating it no interest in preserving common law relationships. Not all non-married relationships will be found to have the requisite level of commitment or marital bond to attract spousal immunity. The privilege is enjoyed by the common-law spouse (not the accused) and must be asserted by the witness who then bears the burden of establishing threshold marital bond. Trial judges faced with such a decision must hear evidence and inquire to the facts of the relationship. The relationship must be analogous to marriage, with some degree of publicly acknowledged permanence and interdependence as identified by L’Heureux-Dubé J., in Miron v Trudel,  2 SCR 418 at para. 88*. As a guide, trial judges should consider the list of factors identified at section 1(2) of the Adult Interdependent Relationships Act, SA 2002, c A-4.5 as a non-exhaustive guide.
“For all of these reasons, I conclude that the extension of the common law rule against spousal compellability to common law spouses, in circumstances where none of the modifications or exceptions to that rule set out in the CEA apply, is an appropriate and incremental change in the common law. As long as legally married spouses continue to enjoy the benefit of the rule against spousal compellability, the same benefit must be extended to common law spouses who live in an interdependent relationship that is akin to marriage. Failure to apply the common law equally to these two groups would result in blatant discrimination that simply cannot be countenanced in the age of the Charter.” (at para. 47)
Counsel for Appellant: Brain Graff (Appeals & Prosecution Policy Branch, Calgary)
Counsel for Respondent: Jennifer Ruttan (Ruttan Bates, Calgary)
*As an aside, (winning) counsel in this S.C.C. case Giovanna Roccamo, “as she then was”, I guess.