Court File and Parties

Ontario Court of Justice (Central East Region)

Between:

Her Majesty The Queen

Counsel for the Crown: T. D'eri

- and -

Robert Lomond

Counsel for the Defendant: D. McAdams

Heard: February 3, 2015

Oral Ruling Delivered: February 20, 2015

Written Ruling Delivered: February 26, 2015

Ruling on Spousal Immunity

JAVED J.

Introduction

[1] The defendant, Mr. Lomond stands charged on an information alleging the following criminal and provincial offences:

• Drive while under Suspension x2
• Impaired Driving
• Over 80 mg
• Fail to comply with Recognizance x2
• Drive Disqualified x3
• Take Motor Vehicle without Consent

[2] The Crown has proceeded summarily and Mr. Lomond entered a not guilty plea. Prior to the trial commencing, the parties jointly raised an issue with me, namely, whether a witness in the proceedings, Jocelyn Agua is a competent and/or compellable witness in these proceedings on the basis of her alleged common-law status to Mr. Lomond. I used the term "jointly" as it was initially unclear to the Court whether the defence was objecting to the competency/compellability of the witness to testify or whether the Crown was seeking a preemptive ruling that the witness was competent and therefore compellable at the request of the prosecution. It became clear to the Court that the defence position was premised more on compellability. The issue of Ms. Agua's competency was not directly raised. This is an important distinction in the unique circumstances of this case as the evidentiary record was, with respect to the parties, fragmented and incomplete. For reasons that will become clear later on, the Court refused to weigh in to supplement the record as perhaps decisions were made for tactical reasons. As a result, this ruling is based on the limited record before me. I make these observations without casting any aspersions on either party as the issue arose organically at the commencement of the trial and without any notice to Crown Counsel or the Court. Despite this, the parties should be commended for their high level of advocacy. As a result, given the novelty of the issue, I permitted the parties to make further submissions and deliver them to my judicial secretary, if they wished. At the time of delivering my oral judgment on February 20, 2015, I had not received any further material.

[3] I did not hear any viva voce evidence with respect to the underlying facts of the case. Instead, I was advised by the parties through submissions, that Ms. Agua would be the sole witness for the Crown and would be called to prove identity as she was the owner of the motor vehicle which was allegedly taken without her consent.

[4] The issues before me can be framed as follows:

i. Is the relationship between Mr. Lomond and Ms. Agua, in fact, a common-law relationship for the purposes of these proceedings?

ii. If so, should the common-law rule which renders spouses neither competent nor compellable at the request of the prosecution be extended to common-law couples?

iii. If the spousal immunity rule should be extended to common-law couples, what is the appropriate remedy when there is no constitutional challenge before the Court?

[5] For reasons that I will develop below, it is my view, on the record before me, the relationship between the defendant and Ms. Agua is a common-law relationship. 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 Canadian Charter of Rights and Freedoms (Charter) 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. I should add that this ruling purports to only grant a common-law remedy and does not disturb the provisions of the Canada Evidence Act R.S.C. 1985, c. C-5 (CEA) which address spousal immunity and some exceptions thereto. In addition, these reasons while implicitly address the competency issue, explicitly address the compellability issue, which on the record before me was a live issue. On the facts of this case, the exceptions contemplated in s.4 of the CEA do not arise and therefore need not be addressed.

[6] As indicated, the parties raised the issue of Ms. Agua's compellability as a witness prior to the commencement of the trial. Both counsel agreed that the issues raised should be considered in the context of a voir dire. This comports with the procedure suggested in R. v. Czipps, [1979] 48 C.C.C. (2d) 166, a decision from the Ontario Court of Appeal.

[7] The Crown called one witness during the voir dire – Ms. Agua. Apart from her being subpoenaed to testify in these proceedings, I have no evidence before me as to whether irrespective of the subpoena, she would like to voluntarily testify for the Crown, or the defence for that matter. The Court did not weigh in on this issue as the respective positions may have been taken for tactical or other reasons. As will be noted below, this becomes important for future proceedings as while the issues of competency and compellability overlap, different policy and legal considerations may arise where the evidence is clear that a Crown witness does wish to testify.

[8] The defence called no evidence on the voir dire.

[9] I was advised, on agreement of both parties, that the factual background to the allegations was simply that the motor vehicle in question is that of Ms. Agua's. It's alleged that the motor vehicle was taken by the defendant and resulted in a police investigation away from her home, ostensibly for drinking and driving related offences. Ms. Agua provided a handwritten statement to the police. There are some communications between her and the defendant and she would be the only witness for the Crown. No evidence was elicited about the nature of these communications and how they might bear on the issues at the trial.

Issue 1: Is Ms. Agua's and the Defendant's Relationship a "Common-Law" Relationship?

[10] In the recent decision of R. v. Hall, 2013 ONSC 834, Justice Lofchik of the Superior Court of Justice extended the protections of spousal privilege to common law couples as a result of the Supreme Court of Canada's decision in Quebec (Attorney General) v. A, 2013 SCC 5. He held that in that an appropriate remedy in that case, where there was a constitutional challenge to the provisions in the CEA was to read s.4 of the CEA to include common-law spouses where there is a reference to "husband" and "wife" and to apply the common-law provisions as including common-law partners in any definition of "husband" and "wife" or "spouse". Ultimately, he held that the witness in that proceeding who was the common-law partner of the accused charged with first degree murder, was neither a competent or compellable witness for the prosecution and all communications between her and the accused, including intercepted communications were subject to spousal privilege.

[11] Justice Lofchik noted that a common-law partner is consistently defined in federal legislation as a "person who is cohabiting with the individual in a conjugal relationship having so cohabited for a period of at least one year or having a child together, or entering into a cohabitation agreement". In Miron v. Trudel, [1992] 2 SCR 418, L'Heureux-Dube J. adopted this as a guiding principle in a case dealing with the exclusion of common-law couples from statutory benefits or protections. Similarly, in R. v. Legge, 2014 ABCA 213, the Alberta Court of Appeal in a thoughtful decision, undertook a review of the common-law and statutory authorities on this issue and remarked that the law demanded an extension of spousal immunity privilege to genuine common-law spouses – those in committed, long term relationships who have agreed to be socially and economically interdependent, to the exclusion of others (at paragraph 10). In Legge, supra, the Court in circumstances very similar to those before me, concluded that the trial judge did not err in finding that the existing common-law rule was discriminatory and inconsistent with modern Charter values. It was lawful for the trial judge to extend the non-compellability aspect of that rule to address the deficiency, despite there being no formal Charter application before him – as the remedy sought did not impugn the various provisions of the CEA.

[12] In my view, the remedy sought in this case, that is, a common-law declaration that the rule of compellability is inconsistent with modern Charter values is the appropriate remedy. I find as a fact, that Ms. Agua and the defendant are in fact, in a common-law relationship and therefore should benefit from the legal protections therein.

[13] In Legge, supra, the Court while guided by the Supreme Court of Canada in Miron, supra, drew upon the Alberta Interdependent Relationships Act, S.A. 2002, c. A-4.5 (AIRA) in noting that the law has acknowledged the changing societal values regarding common-law partnerships and the importance of recognizing and protecting relationships that are functionally equivalent to marriage. This change, enunciated by the Supreme Court of Canada in Miron, supra was also reflected in ss 1(2) of the AIRA which provided a non-exhaustive list of nine factors in assessing whether a relationship is in fact a common law one. These are:

i) Whether or not the persons have a conjugal relationship;

ii) The degree of exclusivity of the relationship;

iii) The conduct and habits of the persons in respect of household activities and living arrangements;

iv) The degree to which the persons hold themselves out to others as an economic and domestic unity;

v) The degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;

vi) The extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;

vii) The degree of financial dependence or interdependence and any arrangements for financial support between the persons;

viii) The care and support of children; and

ix) The ownership, use and acquisition of property.

In my view, these factors are helpful, although as the Court correctly noted, non-exhaustive as the animating feature of any factual inquiry should be, as Justice L'Heureux-Dube noted in Miron, supra, whether the relationship in question is analogous to marriage with some degree of publicly acknowledged permanence and interdependence. The above factors clearly assist in breathing life into this principle.

[14] In this case, based on the evidence elicited on the voir dire, I conclude as follows:

1. The parties dated for one year and then lived together for another two years before the defendant was arrested. In my view, this reflects a gradual and incremental increase in the seriousness of the relationship and brings it closer to one akin to marriage. It is often the case that married couples will live together for some period of time before they get married, although not always. I am comforted in my observations by the evidence of Ms. Agua who testified that their intention was to marry once the legal issues had been resolved;

2. The only break in their period of living together came as a result of the defendant being charged with a criminal offence (as the trial judge on this matter, I did not inquire about the details therein, nor was it relevant in the circumstances). As a result of this "new" charge, a Court ordered him to reside at his parent's home. However, he continued to visit Ms. Agua from time to time and on the weekends. In my view, I can't treat this evidence as defeating the permanence of the relationship because the defendant was obligated to stay elsewhere by a Court order;

3. Ms. Agua testified that when they lived together, the defendant stayed in her bedroom. In my view, a reasonable inference arises that this relationship was a conjugal one as opposed to a platonic one akin to friendship which might militate against a finding of marriage;

4. The parties did not have any children together but Ms. Agua was raising children from another relationship. These children resided in the home along with the defendant;

5. Ms. Agua, who is a registered nurse, was named on the lease while the defendant and her children were named as occupants. In my view, this does not detract from the level of interdependence contemplated in Miron, supra but rather reflects that the relationship was serious enough that Ms. Agua noted the defendant as an occupant as opposed to a squatter who rested in her home from time to time;

6. Ms. Agua was primarily responsible for the bills in the residence but testified that the defendant was required to assist with them when it became necessary to do so. I find that this also reflects some level of financial interdependence.

[15] On balance, I find that the relationship of the parties was in fact a common-law relationship as envisioned by Justice L'Heureux Dube in Miron, supra. The evidentiary record before me did not address all the factors as set out in Legge, supra, but in my view, that does not detract from the general principle of whether the relationship was analogous to marriage. Clearly, this was analogous to marriage without having the formality of the marriage title.

Issue 2: Should the Common-Law Rule Which Renders Spouses Neither Competent Nor Compellable at the Request of the Prosecution Be Extended to Common-Law Couples?

[16] Until recently, the law on spousal privilege in Ontario was relatively clear. At common-law, the spouse of accused persons was incompetent to testify except for cases that involved the spouse's person, liberty or health. Section 4 of the CEA, while preserving the common-law rule, also creates exceptions to it. For example, section 4(3) of the CEA creates a rule of spousal privilege in relation to marital communications. The privilege is testimonial in nature, the communications themselves, however are not privileged. The privilege is furthermore afforded to the spouse receiving the communications and can be waived by him or her. See R. v. Coutere, 2007 SCC 28.

[17] I also inquired from the parties whether any exceptions to the traditional spousal incompetency rule would apply in light of the "surrounding circumstances" that perhaps, Ms. Agua's liberty may have been impacted with the taking of the motor vehicle if there was evidence that the defendant did so. In both R. v. Schell, 2004 ABCA 143, 188 C.C.C. (3d) 254 and R. v. Sillars, 45 CCC (2nd) 283 the court held that a spouse is a compellable witness even when they are not the alleged victim of the charge before the court, where the evidence of surrounding circumstances discloses a threat to the person, liberty or health of the witness spouse. I was advised by the parties that the exception in s.4(5) of the CEA did not apply as the surrounding circumstances of the allegations did not engage a threat to the liberty or health of Ms. Agua.

[18] In R. v. Masterson, Justice Hennessy of the Superior Court of Justice ruled that s.4 of the CEA should be read to include common-law spouses where there is a reference to husband or wife.

[19] In paragraphs 55, 56, 57, 58 and 59 of Masterson, supra Justice Hennessy made it clear that his ruling was intended as a Charter declaration intended to be applied in future cases to "cure an injustice that otherwise would continue to apply to a historically disadvantaged group of common law spouses."

[20] Courts of inherent jurisdiction, such as the Superior Court of Justice, have the power to grant Charter declarations flowing from the operation of s. 52(1) of the Constitution Act. A Charter declaration of a Superior Court, absent a stay of the ruling or a successful appeal, takes effect from the moment of the ruling. (See Nova Scotia v. Martin, 2003 SCC 54 and R. v. Ferguson, 2008 SCC 6, paragraph 65.)

[21] In Ontario, there is a conflict in the jurisprudence on this issue. As noted above, Lofchik J in Hall, supra, reasoned that the common-law rule respecting spousal privilege and the concordant provisions in s.4 of the CEA made discriminatory distinctions that limit the equality rights of common-law partners under s.15 of the Charter. He found that marital status was an analogous ground of discrimination and that the distinctions created a disadvantage that was discriminatory from the point of view of a reasonable person placed in the circumstances similar to Mr. Hall. He further held that there was no proportionality between the effects of the common-law rule and s.4 of the CEA and thus the provisions could not be saved under s.1 of the Charter. The remedy was to "read in" the extension of spousal privilege to common-law spouses into s.4 of the CEA and the common-law rule.

[22] The issue was also considered in Ontario in the cases of R. v. Nguyen, 2010 ONSC 5843 by Justice Tulloch (as he then was) and R. v. Nero, [2014] O.J. No. 1384 by Justice Ramsay. Both are decisions of the Superior Court but divide, in part, on various issues. In other Canadian decisions apart from Legge, supra noted above, the law is also divided as to whether or not the rule of spousal privilege should attach to common-law couples. For example, in R. v. Martin, 2009 SKCA 37, the Saskatchewan Court of Appeal ruled against extending the privilege to common-law couples arguing that such a major change in the law is best left to Parliament. A similar result was reached in R. v. Campeau, 1996 Carswell Que 326 (Q.C.A.). I should add that at the time of releasing this decision, there is currently a bill before Parliament, Bill C-32 which if enacted, would abolish the common-law rule but preserve the spousal privilege rule in s.4(3) of the CEA.

[23] In Nguyen, supra which preceded Nero, supra, Justice Tulloch was faced with a constitutional challenge to the provisions of s.4 of the CEA on the basis that it offended s.15 of the Charter. He remarked that there was nothing in the CEA that stated that either married spouses or common-law spouses are incompetent to testify. The prohibition is found in common-law and not in the statute. He concluded "as a result, the CEA cannot be found to be unconstitutional on this issue" (at paragraph 38).

[24] The issue before Justice Ramsay in Nero, supra was somewhat different in that he was asked to address the constitutionality of s.4(3) of the CEA which addresses the spousal privilege rule. He noted that the Supreme Court of Canada has three times declined to modify the privilege beyond the limited extent of ruling that the privilege does not survive irreconcilable separation. He noted that expanding the privilege would not be an incremental change in the law and should be best left to Parliament. It is noteworthy that the circumstances of this case do not engage s.4(3) of the CEA as no submissions were made on the communications between the parties and therefore the decision in Nero, supra is not particularly helpful to the disposition of this case. In my view, the decisions of Hall, supra and Nguyen, supra are more persuasive given the narrow issue that I am required to resolve. Further, as will be noted below, my reasons do not depart from the reasoning of Justice Tulloch in Nguyen, supra because I am not being asked to consider the constitutionality of s.4 of the CEA, but rather, simply consider the effect of the common-law rule.

[25] In my view, having considered the combined effect of the jurisprudence in Hall, Masterson and Legge, which are most persuasive to the issues before me, I find that the common-law rule is inconsistent with modern Charter values and an appropriate remedy would be to extend the non-compellability aspect of this to common-law couples. In doing so, I am persuaded by the analysis of the Alberta Court of Appeal in Legge, supra, on the issue of interpreting the common-law in a manner consistent with the Charter. Paperny J.A. on behalf of the unanimous court wrote:

35 Canadian courts have long applied and developed common law principles in a manner consistent with the values enshrined in the Charter: see, for example, Dolphin Delivery Ltd. v. RWDSU, Local 580, [1986] 2 SCR 573; Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42 at para 55.

36 In Salituro, Iacobucci J commented on the development of the common-law to comply with Charter values in the context of an exception to the spousal immunity rule (at para 37):

These cases reflect the flexible approach that this court has taken to the development of the common law. Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

[Emphasis added]

37 At paras 48-49 he went on to say:

The Charter has played and will continue to pay a central role in defining the legal and social fabric of this country. As the Charter is the supreme law of Canada, any legislation or government action or law inconsistent with it is, to the extent of the inconsistency, of no force or effect. But the Charter will also be influential even in the absence of legislation or government action...

Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed...

[Emphasis added]

[26] I find the analysis of Paperny J.A. apt in the particular circumstances of this case. Ms. Agua and the defendant are in a committed, long term relationship akin to marriage. 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. I find that it is both just and appropriate to extend the immunity rule to make common-law spouses in committed relationships akin to marriage non-compellable witnesses for the Crown. Put differently, Ms. Agua cannot be compelled to testify for the prosecution in this case, but I make no finding with respect to her compellability at the request of the Defence.

Issue 3: If the Spousal Immunity Rule Should Be Extended to Common-Law Couples, What Is the Appropriate Remedy When There Is No Constitutional Challenge Before the Court?

[27] 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. 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 CEA.

[28] Section 4 of the CEA, while preserving the common-law rule, also creates exceptions to it. For example, under subsections 4(2) and 4(4), the rule does not apply for certain enumerated offences in specific contexts. However, as long as the marriage in question was "valid and subsisting" at the time of the trial, generally speaking, a spouse of an accused person is neither a competent nor compellable witness for the Crown. See R. v. Coutere, 2007 SCC 28.

[29] As Justice Tulloch noted in Nguyen, supra, the common-law rule has been abolished in civil cases and modified by statute in criminal cases. Importantly, he went on to note that "there is nothing in the CEA that states either married spouses or common-law spouses are incompetent to testify. The prohibition is found at common-law and not in statute." (at paragraph 38). I agree with these comments.

[30] The issue of the appropriate remedy was also addressed by the Court of Appeal in Legge, supra. In that case, the Crown argued that competence and compellability could not be separated and the trial judge erred in failing to rule that the common-law spouse was an incompetent witness as well as non-compellable. It should be noted that in Legge, supra, the competency of the Crown witness was not in dispute as the witness herself objected to testifying. The respondent in that case conceded that she was a competent witness and instead challenged her compellability.

[31] On the record before me, only the issue of Ms. Agua's compellability was in issue. In other words, the Crown did not assert that she was a competent witness, nor was any evidence adduced on the voir dire that would permit the Court to rule on that issue. As noted above, there may have been tactical reasons for proceeding this way. In any event, this gap in the evidentiary record was left unfilled and as a result, the Court was only asked to rule on compellability. The only evidence on this issue was that Ms. Agua was present pursuant to a subpoena and did not in her evidence make it clear that she wanted to testify. In other words, her competency was not challenged by either party and need not be addressed in these reasons.

[32] Having considered the narrow issue before me and the corresponding authorities on point from Hall, supra and Legge, supra, I find that an appropriate remedy would be a common-law remedy which addresses the current nature of the common-law rule as it pertains to common-law couples. These reasons do not purport to read in language to the CEA or expand the definition of husband and wife to include common-law spouses as envisioned by s.4 of the CEA. As remarked by the Court in Legge, supra, "narrowing the scope of legislation to show respect for constitutional values is a legitimate interpretive exercise, while reading in language to expand legislative scope continues to be viewed as a greater intrusion into sphere: Sullivan and Dreidger on the Construction of Statutes, 4th ed at pp 222 and 370. The latter would arguably be impermissible in the absence of a Charter challenge to the legislation brought on proper notice." (at paragraph 57)

[33] To this, I would add the comments of the Supreme Court of Canada in R. v. McIntosh, [1995] No. 16, which remarked that it is a principle of statutory interpretation that where there are two interpretations of a provision which affect the liberty of a subject, one of which is more favourable to an accused, then the court should adopt this favourable interpretation. It may be that having decided that Ms. Agua and the defendant are in fact a common-law couple, there is no ambiguity in the rule, but I repeat this principle in any event, as there does not appear to be a binding authority in Ontario on this issue.

[34] In the final analysis, I conclude that the common-law rule is inconsistent with modern Charter values and similar to Lofchik J. in Hall, supra, I extend the non-compellability aspect of this rule to address this deficiency. Accordingly, Ms. Agua is a non-compellable witness in these proceedings at the request of the Crown.

[35] I would like to thank both Counsel for their helpful submissions on this vexing issue and in postscript, repeat the comments of Justice Morden in the decision of Czipps, supra:

"It is pertinent, however, to observe that the general law relating to spousal competency and compellability is marked with significant inconsistencies and is in serious need of rationalisation at the legislative level. For recent recommendations reference may be made to the Law Reform Commission of Canada, Report on Evidence (1975), pp.37 and 88-9 and the Criminal Law Revision Committee's Eleventh Report – Evidence, 4991 (1972) pp.92-98".

Released February 26, 2015

JAVED J.