Judge rules protection should apply to common law couples

If married couples cannot be compelled to testify against each other in criminal matters, the same privilege should apply to common law partners, an Ontario Court judge has ruled.

In R. v. Lomond, Justice Ferhan Javed found that to deny spousal immunity to people in common law relationships is “discriminatory and inconsistent with modern values under the Charter of Rights and Freedoms.”

To date, there was no binding authority that dealt squarely with the issue, according to Javed, who noted the province has conflicting jurisprudence on the matter.

“The Supreme Court has taken note of changing societal values regarding common-law partnerships and the importance of recognizing and protecting relationships that are functionally equivalent to marriage,” wrote Javed.

“I find that it is both just and appropriate to extend the immunity rule to make common-law spouses in committed relationships akin to [married] non-compellable witnesses for the Crown.”

In Lomond, Javed found the Crown couldn’t compel Jocelyn Agua to appear as a witness in the proceedings involving her common law partner, Robert Lomond. “Further, based on the weight of the judicial authorities on point, I find that the existing common-law rule is discriminatory and inconsistent with modern values under the Charter of Rights and Freedoms . . . and therefore, an appropriate remedy, which does not require a constitutional challenge would be to extend the non-compellability aspect of the rule to common-law couples.”

The ruling is an example of a judge wanting to apply the law fairly, says criminal lawyer Howard Rubel.

Provisions exempting spouses from testifying against each other actually have deeply discriminatory roots in the British common law. The law originally excluded women from testifying for or against their husbands as it considered them merely extensions of their male partners, says Rubel.

That, of course, isn’t the intent of the Canada Evidence Act that says spouses can’t be compelled to testify against each other given the need to foster trusting relationships. “Originally, [the law] was such a discriminatory thing and now the courts are trying to change it as much as possible so that there is no discrimination,” says Rubel.

“There is no valid, rational basis for treating common law spouses and formally married spouses differently when it comes to the reasoning behind a spousal privilege here, which is to foster a trusting, good relationship,” he adds.

But the question of whether it’s discriminatory to treat common law partners differently from married ones before the law is a tricky issue that depends on the context, says family lawyer Andrew Feldstein. “That’s really the hard question because people choose to live together because they’ve rejected the concept of marriage,” says Feldstein.

“And should we be in a society that respects those choices? Rights, at this time, at least from a family law perspective, we somewhat respect those choices,” he adds, noting the family law treats common law partners the same as married couples in some aspects whereas other areas recognize a distinction between the two arrangements.

But extending spousal immunity in cases like Lomond will have no bearing on family law, according to Feldstein.

“The Supreme Court of Canada has spoken on the issue of married and common law. I think that carries more weight from a family law perspective,” he says.

Javed decided the issue of discrimination even though there was no Charter application before him. “The Crown submits that the Court cannot grant relief to the defendant as there is no Charter application before the Court.
While the Crown is correct that there is no Charter application before the Court, the defendant is clear in his request, in that, he does not seek to have the provisions of s. 4 considered unconstitutional,” wrote Javed.

“Put differently, the remedy sought by the defendant is a common-law declaration that the current rule operates unfairly based on the Charter. In my view, having framed the issue this way, there need not be a formal Charter application as these reasons do not disturb the existing provisions of s. 4 of the [Canada Evidence Act].”

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