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Example research essay topic: Supreme Court Common Law - 1,061 words

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The ability to block spousal testimony does not however apply to all couples under the law. Those in common law relationships are not considered to be one and the same and these spouses's are able to give testimony about events that occurred during the relationship. Ultimately, because the issue falls under common law the question of whether a husband or wife to can be compelled to give evidence against there spouse was at the justices discretion. Most justices are more likely to compel spousal testimony in cases of violence and domestic abuse. The majority of these offences are committed on a one on one basis with either no one to witness the abuse, or a child incapable of being called as a witness. The testimony evidence of the spouse is often the only proof that an offence occurred.

In R. v. McGinty, Justice McLachlin concluded that competence included compel lability and added a new policy dimension to the analysis. She observed: "policy interests favoured compelling testimony in cases of domestic violence.

Competence without compel lability would more likely [contribute to] family discord than prevent it. " In the matter of appearance, she noted that: "fair-minded persons generally find it abhorrent that persons who commit crimes go un-prosecuted. The state's duty to protect the safety of its citizens, underlies the testimonial competence in cases of violence against a spouse, also dictates that the spouse be completable. " Fundamentally the main factors facing a Justice in their decision is the matter of public safety and the harmony of the marriage. Compelling a spouse to testify against their partner is in direct conflict with that ideology. Therefore divorced or legally separated couples do not fall under this category.

In R. v. Bailey it was determined that spousal incompetence does not survive divorce. Justice Morden observed that: "The modern policy justification for the rule in question is that is supports marital harmony. It is difficult to see how this policy has any sensible application to a situation where the marriage no longer exists. The incompetence should not survive the dissolution of the marriage.

A divorced spouse should not be disqualified from testifying concerning events which occurred during the marriage. " The Canadian society as a whole and our views and beliefs with regard to marriage and divorce are constantly evolving. The modern legal system has had to adapt and take un-foreseen factors into consideration such as legal separation in regards to the question of compel lability. During R. v. Salituro, the Supreme Court altered the common law rule with regards to spouses who were irreconcilably separated. During trial a woman gave testimony against her husband with regard to fraud that was committed against her.

The man was convicted and appealed; the basis for this appeal was that his wife like any spouse was incompetent of giving evidence. Supreme Court Justice J. Iacobucci concluded that: "any policy justification based on marital harmony necessarily disappears upon divorce or the irreconcilable separation of spouses. A continuation of incompetence would be contrary to charter values since it denied choice to the woman in favour of a historical rule that was promulgated at a time when a women's legal personality was incorporated into that of her husband's. " The Supreme Court upheld this common law decision in R. v. Hawkins, where again a wife gave evidence against her husband this time at a preliminary hearing.

The Justices ruled that: " While such alternative approaches to the rule of spousal incompetence may serve to promote the autonomy and dignity of an individual spouse, it is our opinion that any significant change to the rule should not be made by the courts, but should rather be left to parliament. " Parliament's legislative response was section 4 of the Canada Evidence Act: Section 4: 4 (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with another person. (2) The wife or husband of a person charged with an offence against subsection 50 (1) of the Young Offenders Act or with sections 170 to 173, 179, 212, 215, 218, 271 to 273, 280 to 283, 291 to 294 or 329 of the criminal code, or an attempt to commit any such offence, is competent and compel lable witness for the prosecution with the consent of the person charged. (3) No husband is compel lable to disclose any communication made to him by his wife during their marriage, and no wife is compel lable to disclose any communication made to her by her husband during their marriage. (4) The wife or husband of a person charged with an offence against any of section 220, 221, 235, 236, 237, 239, 240, 266 to 269 of the criminal code where the complainant or victim is under the age of fourteen years is competent and compel lable witness for the prosecution without the consent of the person charged. (5) Nothing in this section affects a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person, (6) The failure of the person charged, or of the wife or husband of that person, to testify shall not be made the subject of comment by the judge or by counsel for the prosecution. The large scope of Section Four of the Canada Evidence Act still leaves a huge gap open for judicial interpretation. While addressing a number of key components the act left out crucial factors in regards to compel lability and only addressed and answered questions relating to competency. Questions also arose surrounding corporations and their compllelablity to produce an officer for discovery in a Federal Court action for forfeiture... During R. v.

Amway, the issue of competence was raised by J. Sopinka for the court and encompassed the issue of spousal testimony against an accused. J. Sopinka said: "It is apparent from the words of the section [section 4 of the Canada Evidence Act] that it addresses only one of the two components of the rights and obligations of a witness: that is, competence. It does not purport to deal with compel lability. At common...


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Research essay sample on Supreme Court Common Law

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