Canadians could soon be forced to testify against their spouses if a recent bill proposed by the Conservative government is passed. Tabled in the House of Commons on April 3rd, the proposed changes to the Canada Evidence Act are tucked into Bill C-32, which is a larger “Victims Bill of Rights.”
While most of Bill C-32 is indeed focused on providing crime victims with additional rights such as providing them with more case information regarding perpetrators or making it easier for vulnerable witnesses to testify, it is perplexing to many criminal defence lawyers as to why the spousal testimony change is included in a victims rights bill. As the president of the Criminal Lawyers’ Association, Anthony Moustacalis, recently said, “It’s somewhat related because it’s a criminal law issue, I guess. But I think it’s a bit of a scatter-shot issue.”
Scatter-shot or not, the elimination of spousal immunity could dramatically increase the number of situations in which a spouse may be forced to testify. Currently, the Evidence Act allows a spouse to refuse to testify against their significant other except in certain specific cases such as sexual assaults or crimes against youngsters. But in situations where the spouse is not the victim, the pending bill could result in a spouses providing damning testimony that could leave their husband or wife behind bars even if they had no desire to see that happen.
Even though spousal testimony becomes an issue in relatively few cases, the proposals in Bill C-32 do change a common law tradition that goes back centuries.
Toronto criminal defence lawyer Dennis Reeve of Hobson & Reeve, Barristers, says the law has always preserved and respected the sanctity and unity of marriage. “It has valued and encouraged the privacy of honest and open marital communications above the prosecutor’s ability to compel a person to testify in criminal proceedings against his or her own spouse,” Reeve said. “Recognizing that a marriage in whatever form is a joining of two people into one, the protection from being compelled to testify against a spouse is a corollary of the section 11(c) fundamental Charter right to not be compelled to testify against yourself. The elimination of spousal immunity is a direct attack upon the institution of marriage and does nothing to aid or protect victims.”
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