Each state has its own developed spousal privilege doctrine, but the common theme is most of that doctrine was developed when people actually got married. Our society is different now. People quite regularly have children and live in a relationship which is every bit as committed as one where there is a marriage license. Thanks to Judge Wayne Gorman, we can share a Canadian perspective on the issue:

In R. v. Legge, 2014 ABCA 213, June 23, 2014, the accused was acquitted of a number of offences.  At his trial, the main Crown witness was to be the accused’s common law spouse, but she did not wish to testify. The trial judge held that the doctrine of spousal immunity applied and thus the witness could not be compelled to testify against the accused. The Crown appealed, requesting the ordering of a new trial.   The appeal was dismissed.

 

 THE APPEAL

The Court of Appeal described the issue raised by the appeal as follows:

The primary issue raised by this appeal is whether common law spousal immunity, which protects legally married spouses from being compelled to testify against one another, should be extended to common law, or non-married, partners.

 THE COURT OF APPEAL’S DECISION

The Court of Appeal, at paragraph 10, indicated that “the law demands an extension of spousal immunity privilege to genuine common law spouses – those in committed, long-term relationships who have agreed to be socially and economically interdependent, to the exclusion of others.”   However, the Court of Appeal also sought to limit the scope of its decision (at paragraph 11):

Accordingly, and for the reasons set out below, I conclude that it is just and appropriate, and in keeping with the values set out in the Canadian Charter of Rights and Freedoms, to extend the immunity rule to make common law spouses in committed relationships, akin to marriage, non-compellable witnesses for the Crown. I would, however, place clear limits on that extension. This decision deals only with the ability of the Crown to compel a spouse to testify in these circumstances; it makes no comment as to the spouse’s competence to testify. Further, this extension of the common law rule will only apply where, as here, the various modifications and exceptions to the immunity rule contained in s 4 of the CEA have no application. The extension of the common law rule is based on principles of equality; the common law spouse can have no greater immunity from testifying than the legally married spouse.

The Court of Appeal noted, at paragraph 15, that it was “dealing in this case with common-law rules dating back to at least the 1630s, which render a married person both an incompetent and non-compellable witness against his or her husband or wife. Competence and compellability are separate, though related, concepts. Competency means a person may lawfully be called to give evidence; an incompetent witness cannot testify even if he or she wishes to do so. A compellable witness is one who may lawfully be forced to attend and testify, generally by subpoena, against his or her wishes. Subject to certain exceptions, at common law neither the Crown nor the accused can compel a husband or wife to testify for or against his or her spouse, nor is a spouse competent to testify for or against his or her husband or wife, even if he or she would like to do so. See generally R v Salituro, [1991] 3 SCR 654, 68 CCC (3d) 289; R v Hawkins, [1996] 3 SCR 1043 at paras 36-38, 111 CCC (3d) 129 (per Lamer CJC and Iacobucci J); R v Couture, 2007 SCC 28, [2007] 2 SCR 517, and related case comment, Stuesser, Abolish Spousal Incompetency (2007), 47 CR (6th) 49.”

The Court of Appeal indicated, at paragraph 45, that the “guiding principles would be those set out by L’Heureux-Dubé J in Miron: a relationship analogous to marriage, with some degree of publicly acknowledged permanence and interdependence.  The list of factors set out in ss 1(2) of the AIRA [the Adult Interdependent Relationship Act, SA 2002, c A-4.5] can provide a useful, although non-exhaustive, guide. They are”:

i) Whether or not the persons have a conjugal relationship;

ii) The degree of exclusivity of the relationship;

iii) The conduct and habits of the persons in respect of household activities and living arrangements;

iv) The degree to which the persons hold themselves out to others as an economic and domestic unity;

v) The degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;

vi) The extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;

vii) The degree of financial dependence or interdependence and any arrangements for financial support between the persons;

viii) The care and support of children; 

ix) The ownership, use and acquisition of property.

The Court of Appeal acknowledged that in “pointing to the AIRA” it was “suggesting reference to provincial legislation in a criminal context…however, those factors appropriately reflect the required inquiry: whether the couple is in the kind of committed relationship that the state seeks to support by protecting one spouse from having to give compelled evidence against the other.”