In “Law Like Love,” W.H. Auden wrote that “we can’t compel” love. He was right of course, and not only in the sense he meant. So holds―without reference to Auden―a decision of the Ontario Superior Court of Justice, R. v. Hall, 2013 ONSC 834. At issue the constitutionality of the exclusion of common law spouses from the rule that one spouse cannot testify against the other (except in prosecutions for a number of offences where the other spouse is the victim), a common law rule codified (and modified) by s. 4 of the Canada Evidence Act.
The decision is actually the second on Mr. Hall’s application to prevent his spouse (or perhaps former spouse, judging by the description in R. v. Hall, 2013 ONSC 429, par. 4) from testifying at his trial. Although the first decision is not available, it seems that Justice Lofchik initially rejected the application, but re-opened the matter after the Supreme Court delivered its decision on the constitutionality of the treatment of common law spouses in Québec’s family law, Quebec (Attorney General) v. A, 2013 SCC 5 (about which I blogged here). In that case, a 5-4 majority of the Supreme Court held that the Québec legislature’s failure to grant separating common law spouses the same entitlements as divorcing couples constituted discrimination contrary to the equality guarantee of s. 15 of the Charter. (One of the five, Chief Justice McLachlin, went on to find that this discrimination was nevertheless justified under s. 1 of the Charter.)
Following that holding, Justice Lofchik finds that the exclusion of common law spouses from the benefit of s. 4 of the Canada Evidence Act is also a breach of s. 15 of the Charter, as it denies the accused a benefit on the basis of a prohibited ground of discrimination (namely his status as a cohabiting but unmarried spouse):
as a result of the lack of a formal martial bond, the accused is not afforded the protection of the act, vis-à-vis the competence of his spouse/partner to testify before the court. This is differential treatment of the accused as a person living in common-law relationship as compared to those who are married. While we recognize the nobility of a public commitment of two people to each to the exclusion of all others, we cannot ignore that certain couples chose for a variety reasons to make this commitment through their actions rather than by scripted words. Common-law couples must also be accorded respect, dignity and the benefit of the law. (Par. 17)
Justice Lofchik further holds that the discrimination cannot be justified under s. 1 of the Charter. The objective of the impugned rule “is to promote conjugal confidences, protect marital harmony, and prevent the indignity of conscripting an accused’s spouse to participate in the accused’s own prosecution” (par. 22, summarizing R. v. Hawkins,  3 S.C.R. 1043, par. 38). That is well and good, but, Justice Lofchik observes, “[t]here is no evidentiary or logical reason to believe the proponents of this rule and the statutory scheme which followed had any intention of considering the autonomy and freedom of choice of unmarried persons and excluding them from” its scope (par. 22). Indeed, there is no rational connection between the exclusion and the provision’s objective. Excluding common law spouses does nothing to protect married ones.
The final question is that of the remedy. Mr. Hall wanted the protection for common law spouses to be “read in” s. 4 of the Canada Evidence Act. The Crown argued that this would be too radical a change in the law and hence not an appropriate judicial intervention. Justice Lofchik sides with Mr. Hall: “[t]o include common-law spouses in the evidentiary protection provided by this area of the law does no more than to keep the law in step with the changed and changing social and moral fabric of Canada” (par. 28).
Substantively, I think this is the right decision. There seems to be no particularly good reason for making married but not common law spouses non-competent and non-compellable witnesses for the prosecution. Nor does the Crown seem to have adduced any such reason.
But I wonder whether Justice Lofchik is right about the remedy. The rationale for the spousal incompetence rule has been challenged (as the Supreme Court explains in Hawkins), and alternative versions of the rule have been proposed (for example, making spouses competent but not compellable witnesses). It might have been a good idea to suspend the declaration of invalidity and to leave it for Parliament to choose whether simply to extend the rule to common law spouses or to modify it for all.