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- Title
What's Left of Marital Harmony in the Criminal Courts? The Marital Communications Privilege After the Demise of the Spousal Incompetence Rule.
- Authors
CAVE, HEATHER; SANKOFF, PETER
- Abstract
Amendments to the Canada Evidence Act in 2015, abolishing the spousal incompetence rule, have recently thrust the surviving marital communications privilege into the spotlight. Now that the spousal incompetence rule no longer prevents the Crown from calling a spouse as a witness, the privilege is being more frequently asserted in courtrooms across the country. Unfortunately, the approach courts have taken to interpreting the privilege remains fraught with confusion and inconsistency. In focusing solely on a strict interpretation of the literal wording of the statutory provision, which has remained virtually unchanged since the provision was first enacted, the courts have crafted a peculiar form of privilege that simultaneously fails to keep pace with modern developments in privilege law in general, and is ineffective at upholding the underlying rationales on which it supposedly exists. We argue that in the wake of the recent repeal of the spousal incompetence rule, it is time to reconsider the current approach to marital communications privilege. Courts should re-evaluate whether a literal interpretation of the provision remains appropriate given the objectives underlying the privilege, and in light of broader developments in the law that afford greater protection to privileged communications in general. While complex policy questions may remain as to whether the protection of spousal communications is important enough to justify impeding the truth-seeking function of trials, the privilege must be given a sensible, contemporary interpretation that allows it to achieve a meaningful purpose if it is to be retained.
- Subjects
CRIMINAL courts; MARITAL communication
- Publication
Manitoba Law Journal, 2019, Vol 42, Issue 4, p1
- ISSN
0076-3861
- Publication type
Article