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... n law an accused was neither competent nor compensable as a witness. By virtue of s. 4 (1) of the Canada Evidence Act the common law was altered to make an accused a competent witness for the defence. These amendments left intact the common law with respect to the non-compel lability of an accused person at the instance of the crown. " These arguments would seem to nullify any attempt by counsel to automatically assume that competence includes compel lability in regards to section 4. Other aspects of Section four privilege and its application entail cases with co-accused. A closer examination of section 4 in it's ability to assist the crown in cases involving co-accused and their use of spousal testimony against a person charged with their spouse.
Could a person's post is relied upon to give un-biased testimony against a person jointly accused? Would there not be an underlying element of prejudice on the part of the spouse to give false testimony in order to convey evidence or guilt? Based on the aforementioned the Amway decision could be interpreted as allowing the spouse of the accused to be competent in testifying but not to be compelled to do so. The decision to offer testimonial evidence would ultimately rest with the spouse. The accused or their counsel can in no way, compel exculpatory evidence from a witness spouse unless they volunteer to do so.
Another area of spousal testimony against an accused that was not touched on in Section four of the Canada Evidence Act was that of intercepted communications. A letter from one spouse to another that was intercepted for or by the police, opened and read prior to delivery to the spouse is deemed to be admissible. A letter, its contents used by the crown offers conscription evidence against the accused and in no way violates the privileges of section 4. Other methods of intercepting communication however, are not all admissible. In R. v.
Lloyd the Supreme Court attempted to determine whether the conversations of spouses intercepted through a wiretap were privileged under s. 4 (3). Is this considered compel lability by the court on the spouse to disclose communications? The British Columbia Court of Appeal ruled that Section 4 (3) does not apply since the privilege was attached to the witness (spouse) and no the information (evidence) itself. Subsequently the Supreme Court of Canada rejected the British Columbia Court of Appeals decision and upheld Section 4 (3) 's privilege rights.
The issue of hearsay also plays role in the issue of spousal testimony against an accused. In the case of R. v. K.
G. B. witnesses did an about face on the stand and claimed they had lied about previous statements that had incriminated the accused. The Supreme Court held that "inconsistent statements could be adduced for their truth in these circumstances if there were sufficient guarantees of trustworthiness to warrant a conclusion of reliability. " Supreme Court Justice Lamer pointed out that previous conflicts of law such as no one being present, no oath and no cross-examination could now be addressed in modern day society with the advent of videotaping. The recanting witnesses also remains in the stand and the crown or defence has the ability to cross-examine them. The reason that hearsay evidence has a role to play in spousal testimonies against an accused is that in cases such as domestic violence often the testifying spouse does recant on the stand after the cooling off stage.
In R. v. Hawkins the Supreme Court Ruled that "Spousal incompetence satisfied the necessary criterion. " In layman's terms this means that the mere prospect of spousal evidence, whether completable or not, and subject to marital privilege, does exist as long as the police have interviewed the spouse and properly recorded his or her statement. Basically the statements and video recordings of the interview become evidence like that of the letters. Privilege is attached to the witness and not the information. Through the initial enactment of the Canada Evidence Act first introduced in 1893 and amended by the Supreme Court in 1906 there have been numerous Common Law arguments raised, Supreme Court Rulings, and legal precedents set and re set.
To date there are a number of Common Law rules that remain. No spouse can be compelled as a witness by the prosecution against their spouse except for the offences where the spouse's safety or person has been attacked, other stipulated offences, and those offences where the victim was under the age of 14 years. This protection only applies to those people who are lawfully married and not to those in a common law marriage. Section 4. Does not protect the privileges of people who are divorced or irreconcilably separated. Spouses if they reach the right criterion are competent under section 4 to give evidence for the defence.
All spouses who fall under the criterion are deemed to be competent to provide evidence but cannot be compelled to disclose communications with their spouse, which took place during the marriage. Under section 4 (6) of the Canada Evidence act no Justice or Crown can make comments to the jury regarding spouses failure to testify at trial. The common law privilege not to provide exculpatory evidence against one's spouse has its roots in England. Under common law the common interpretation was incompetence, there was no consideration in regards to marital communication.
This dates as far back as the 16 th century and was amended by legislation in the 19 th century which allowed spouses to be competent witnesses, to some extent in some criminal cases. Initially the entire concept of a spouse being incompetent to testify had nothing to do with bias but rather preserving the harmony of the marriage. More value was placed on keeping a marriage together and not placing the sanctity of marriage into disrepute. BIBLIOGRAPHY 1. Cossman, Brenda, Ryder, Bruce. "The Legal Regulation of Adult Personal Relationships: Evaluating Policy Objections in Federal Legislation" Harper Press, Toronto, 1999. 2. Bailey, Martha. "Marriage and Marriage-like relationships. " Associated Press, London, 1997. 3.
Yogis, John A. "Canadian Law Dictionary" Library of Congress Publication. New York, 1998. 4. Greenspan, Rosenberg. "Martin's Annual Criminal Code. " Canada Law book Incorporated
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