Barrister and Solicitor
Legal Writing and Research
Evidence - Witnesses - Competency
Evidence - Witnesses - Compellability
Evidence - Privilege
Evidence - Spousal Incompetence Rule - Common Law Relationships
R v Nguyen (Ont CA, 2015)
In this criminal case the Court of Appeal commented on several basic principles of evidence law while considering whether the spousal incompetency rule (that spouses are not competent to testify against spouses) should be extended to common law spouses by virtue of the s.15 equality provisions of the Charter.
On competence the court stated:
 Competence refers to a person’s legal capacity to give evidence in a court of law. A person who is incompetent cannot testify, even if he or she wishes to do so. Competence is a threshold requirement for the admissibility of testimony, the purpose of which is to “exclude at the outset worthless testimony, on the ground that the witness lacks the basic capacity to communicate evidence to the court”: R. v. D.A.I., 2012 SCC 5, 2012 SCC 5 (CanLII),  1 S.C.R. 149, at para. 16.On compellability the court stated:
 Historically, at common law, numerous categories of potential witnesses were deemed incompetent to testify, including individuals with a criminal record, those who were unable to swear an oath, those with an interest in the proceeding (such as the accused), and the spouses of accused persons. However, legislation has materially changed this situation: see, generally, Sidney N. Lederman, Alan W. Bryant, & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ontario: LexisNexis, 2014) at pp. 869-91. A person is now generally presumed competent to testify: s. 16 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA“); D.A.I., at para. 16.
 A compellable witness, on the other hand, is “one who may be forced by means of a subpoena to give evidence in court under the threat of contempt proceedings”: R. v. Darrach, 2000 SCC 46 (CanLII),  2 S.C.R. 443, at para. 48 (citations omitted).On the spousal incompetency rule the court stated:
 Despite the trend towards testimonial competence, spouses of accused persons are competent and compellable witnesses for the prosecution only: 1) at common law, where the charge involves the person, liberty or health of the witness spouse; and 2) under ss. 4(2) and (4) of the CEA, in respect of certain enumerated offences: see R. v. Couture, 2007 SCC 28 (CanLII),  2 S.C.R. 517, at paras. 38-39. Spouses are, however, competent witnesses for the defence in criminal proceedings: s. 4(1) of the CEA. On privilege and spousal privilege the court stated:
 Apart from the limited exceptions mentioned in the preceding paragraph, married spouses of accused persons are neither competent nor compellable witnesses for the Crown. This is known as the spousal incompetency rule and that is how the term is used in these reasons. The general common law rule is that competence implies compellability: R. v. Hawkins, 1996 CanLII 154 (SCC),  3 S.C.R. 1043, at para. 41. However, whether a spouse who is a competent witness for the prosecution is also compellable at the instance of the prosecution has not been finally resolved. In R. v. Salituro, 1991 CanLII 17 (SCC),  3 S.C.R. 654, at p. 676, Iacobucci J. declined to decide this question, stating that “the possibility that a competent spouse would be found also to be compellable is a real one”.
 The implications of the spousal incompetency rule extend beyond the in-person testimony of the witness spouse. At paras. 64-66 of Couture, Charron J., writing for the majority, explains that the question to be answered when considering a spouse’s out-of-court statement is whether the statement may be accepted into evidence as admissible hearsay without undermining the spousal incompetency rule or its underlying rationales. She emphasizes that it is important to keep the spousal incompetency rule inquiry analytically distinct from the hearsay inquiry.
 Finally, it bears emphasizing that the spousal incompetency rule represents a significant departure from the rationale which animates the law of evidence. There is a strong societal interest in ensuring that all relevant and reliable evidence is brought forward at a criminal trial to ensure a just result. Thus, the rules of evidence generally serve to further that interest and uphold the truth-seeking function of the courts by ensuring the reliability of evidence, or protecting an accused’s right against self-incrimination. By contrast, the purpose of the rules governing spousal incompetence, compellability and privilege is external to the justice system, namely the protection of marital harmony and the avoidance of the natural repugnance resulting from one spouse testifying against the other: Couture, at para. 43.
 Thus, although excluding common-law spouses from the ambit of the spousal incompetency rule infringes their rights to equality under s. 15(1) of the Charter, in my view, the limit is reasonable and justifiable under s. 1. .....
 Privilege is the right of a person or class of persons to exclude certain communications from evidence or to refuse to testify about matters covered by the privilege. Privilege may relate to a class of relationships – for example, solicitor-client privilege – or may be established on a case-by-case basis. Once a privileged relationship is established, privilege “presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation”: R. v. National Post, 2010 SCC 16 (CanLII),  1 S.C.R. 477, at para. 42.
 Section 4(3) of the CEA creates a spousal privilege in respect of marital communications. Section 4(3) of the CEA reads as follows:
4.(3) 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. As noted in Couture, at para. 41, spousal privilege
is testimonial in nature, giving a right to withhold evidence but the communications themselves are not privileged. The privilege belongs to the spouse receiving the communication and can be waived by him or her.