R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 SCR 654

R. v. Salituro, [1991] 3 S.C.R. 654

Pasquale Salituro Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Salituro

File No.: 22049.

1991: June 26; 1991: November 28.

on appeal from the court of appeal for ontario

Present: Lamer C.J. and Gonthier, Cory, McLachlin and Iacobucci JJ.

Criminal law ‑‑ Evidence ‑‑ Witnesses ‑‑ Competency ‑‑ Spouses ‑‑ Husband charged with using forged document after forging wife's name on cheque and cashing it ‑‑ Spouses separated without any reasonable possibility of reconciliation ‑‑ Whether wife of accused competent witness for prosecution ‑‑ Whether appropriate case for court to change common law rule of spousal incompetence.

The accused was charged with using a forged document contrary to s. 368 of the Criminal Code. He had signed his wife's name on a cheque payable to them jointly and cashed it. At trial, the accused testified that he had his wife's authority to do this. The accused's wife, testifying for the Crown, denied giving him such authority. The trial judge accepted her evidence and convicted the accused. At the time of the offence, the accused and his wife were separated without any reasonable possibility of reconciliation. The majority of the Court of Appeal affirmed the conviction. This appeal raises only one question: is there a common law exception to the rule against spousal competence for spouses who are separated without any reasonable possibility of reconciliation?

Held: The appeal should be dismissed.

While complex changes to the law with uncertain ramifications should be left to the legislature, judges can and should make incremental changes to the common law to bring legal rules into step with a changing society when it is appropriate to do so. Since the enactment of the Canadian Charter of Rights and Freedoms, judges also have a duty to see that the common law develops in accordance with the values of the Charter. Where the principles underlying a common law rule are out of step with Charter values, the courts should scrutinize the rule closely. If it is possible to change the rule so as to make it consistent with such values, without upsetting the proper balance between judicial and legislative action, then the rule ought to be changed. This is an appropriate case for a court to change the common law rule in order to make spouses who are irreconcilably separated competent witnesses for the prosecution.

It is apparent from an examination of the history of the rule making a spouse an incompetent witness for the prosecution that any policy justification which may at one time have existed in support of the rule, including the preservation of marital harmony, has now disappeared in the case of divorced or irreconcilably separated spouses. The rule, which followed naturally from the legal position of the wife at the time, reflects a view of the role of women which is not compatible with the importance now given to sexual equality. In particular, the rule making an irreconcilably separated spouse an incompetent witness is inconsistent with the values enshrined in the Charter. The common law rule of spousal incompetence involves a conflict between the capacity of the individual to testify and the interests of society in preserving the marriage bond. Where spouses are irreconcilably separated, there is no marriage bond to protect. To give paramountcy to the marriage bond over the interests of individual choice in cases of irreconcilable separation is thus inappropriate in the age of the Charter. The Charter requires that individual choices not be restricted unnecessarily. Making a separated spouse a competent witness for the prosecution may ultimately mean that an irreconcilably separated spouse is also compellable at the instance of the prosecution; however, this question was not raised on this appeal.

The amendments to s. 4 of the Canada Evidence Act do not indicate a parliamentary intention to retain the common law rule of spousal incompetence as it presently stands. The amendments made to the Act since 1906 were peripheral and largely consequential to amendments to the Criminal Code. They were made without any recorded consideration of the scope of the common law rule and the issues raised in this case.

Cases Cited

Referred to: Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750; R. v. Bailey (1983), 1983 CanLII 3569 (ON CA), 4 C.C.C. (3d) 21; R. v. Marchand (1980), 1980 CanLII 2828 (NS CA), 55 C.C.C. (2d) 77; R. v. Czipps (1979), 1979 CanLII 2095 (ON CA), 48 C.C.C. (2d) 166; R. v. Sillars (1978), 1978 CanLII 2433 (BC CA), 45 C.C.C. (2d) 283; R. v. MacPherson (1980), 1980 CanLII 2831 (NS CA), 52 C.C.C. (2d) 547; R. v. McNamara (1979), 1979 CanLII 2853 (ON SC), 48 C.C.C. (2d) 201; R. v. Algar, [1954] 1 Q.B. 279; Stuart v. Bank of Montreal (1909), 1909 CanLII 3 (SCC), 41 S.C.R. 516; Reference Re Farm Products Marketing Act, 1957 CanLII 1 (SCC), [1957] S.C.R. 198; Bell v. The Queen, 1979 CanLII 36 (SCC), [1979] 2 S.C.R. 212; Minister of Indian Affairs and Northern Development v. Ranville, 1982 CanLII 202 (SCC), [1982] 2 S.C.R. 518; Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234; Viro v. The Queen (1978), 141 C.L.R. 88; Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; Myers v. Director of Public Prosecutions, [1965] A.C. 1001; Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229; Lord Audley's Case (1631), Hutt. 115, 123 E.R. 1140; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158; R. v. McGinty (1986), 1986 CanLII 116 (YK CA), 27 C.C.C. (3d) 36; R. v. Lonsdale (1973), 1973 ALTASCAD 125, 15 C.C.C. (2d) 201; Trammel v. United States, 445 U.S. 40 (1980).

Statutes and Regulations Cited

Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 4 [am. c. 19 (3rd Supp.), s. 17].

Canadian Charter of Rights and Freedoms.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 329, 368, 691(1)(a).

Divorce Act, R.S.C. 1970, c. D‑8 [formerly S.C. 1967‑68, c. 24].

Divorce Act, R.S.C., 1985 (2nd Supp.), c. 3, s. 10.

Family Law Act, 1986, S.O. 1986, c. 4, preamble.

Matrimonial Causes Act (U.K.), 20 & 21 Vict., c. 85.

Authors Cited

Bissett‑Johnson, Alastair and David C. Day, The New Divorce Law: A Commentary on the Divorce Act, 1985. Toronto: Carswell, 1986.

Blackstone, Sir William. Commentaries on the Laws of England, 4th ed., Book One. Oxford: Clarendon Press, 1770.

Canada. Law Reform Commission. Law of Evidence Project. Evidence. Study Paper No. 1 "Competence and Compellability". Ottawa: The Commission, 1972.

Coke, Sir Edward. The First Part of the Institutes of the Laws of England, 19th ed. London: Clarke, 1832.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.

APPEAL from a judgment of the Ontario Court of Appeal (1990), 1990 CanLII 10984 (ON CA), 56 C.C.C. (3d) 350, 78 C.R. (3d) 68, 38 O.A.C. 241, dismissing the accused's appeal from his conviction on a charge of uttering a forged document. Appeal dismissed.

Marc Rosenberg, for the appellant.

Jamie C. Klukach, for the respondent.

//Iacobucci J.//

The judgment of the Court was delivered by

Iacobucci J. -- This appeal raises the question of the competence of a spouse who is separated from his or her spouse without reasonable possibility of reconciliation to testify as a witness for the prosecution.

I. Facts

The appellant, Mr. Pasquale Salituro, signed the name of his wife, Mrs. Carrie Salituro, on a cheque payable jointly to her and to him. It was admitted that the appellant signed Mrs. Salituro's name and that he cashed the cheque, but the appellant's defence was that he had his wife's authority to do so. Mrs. Salituro denied this and the trial judge accepted her evidence over the appellant's and convicted him of forgery. The trial judge concluded on the basis of the appellant's testimony that the appellant and his wife were separated without any reasonable possibility of reconciliation at the time the appellant forged his wife's signature.

Without Mrs. Salituro's testimony the appellant would not have been convicted. The issue is therefore whether Mrs. Salituro's testimony falls under an exception to the common law rule that a spouse is an incompetent witness for the prosecution. Since this is an appeal as of right, the appeal is limited by s. 691(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, to questions of law on which a judge of the court of appeal dissents. As a result there is only one question on this appeal: is there a common law exception to the rule against spousal competence for spouses who are separated without any reasonable possibility of reconciliation?

II. Statutory Provisions

Canada Evidence Act, R.S.C., 1985, c. C‑5

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 so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.

(2) The wife or husband of a person charged with an offence against subsection 50(1) of the Young Offenders Act or with an offence against any of sections 151, 152, 153, 155 or 159, subsection 160(2) or (3), or 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 a competent and compellable witness for the prosecution without the consent of the person charged.

(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable 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 sections 220, 221, 235, 236, 237, 239, 240, 266, 267, 268, or 269 of the Criminal Code where the complainant or victim is under the age of fourteen years is a competent and compellable 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.

Criminal Code, R.S.C., 1985, c. C‑46

329. (1) Subject to subsection (2), no husband or wife, during cohabitation, commits theft of anything that is by law the property of the other.

(2) A husband or wife commits theft who, intending to desert or on deserting the other or while living apart from the other, fraudulently takes or converts anything that is by law the property of the other in a manner that, if it were done by another person, would be theft.

(3) Every one commits theft who, during cohabitation of a husband and wife, knowingly

(a) assists either of them in dealing with anything that is by law the property of the other in a manner that would be theft if they were not married; or

(b) receives from either of them anything that is by law the property of the other and has been obtained from the other by dealing with it in a manner that would be theft if they were not married.

368. (1) Every one who, knowing that a document is forged,

(a) uses, deals with or acts on it,

as if the document were genuine, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

III. The Courts Below

A. Provincial Court of Ontario

BeGora Prov. Ct. J. convicted the appellant of using a forged document contrary to s. 368 of the Criminal Code. Although Mrs. Salituro's testimony was essential to the appellant's conviction, no objection was taken to the admissibility of her evidence at trial.

B. Court of Appeal for Ontario

The Court of Appeal dismissed the appellant's appeal from conviction, but allowed his appeal from sentence: (1990), 1990 CanLII 10984 (ON CA), 56 C.C.C. (3d) 350, 78 C.R. (3d) 68, 38 O.A.C. 241 (hereinafter cited to C.C.C.). Galligan and Blair JJ.A. wrote separate concurring reasons dismissing the appeal; Carthy J.A. dissented.

(1) Reasons of Galligan J.A.

Galligan J.A. concluded that, as there were no sound reasons for applying the rule of spousal incompetence to spouses who are separated without reasonable hope of reconciliation, the rule should not be applied in this case.

Galligan J.A. began by noting that while the rule of spousal incompetence has been subject to much criticism, its continuing existence has been recognized by at least two recent Ontario Court of Appeal judgments. The only remaining rationale for the rule is that it supports marital harmony. Given that there is no marital harmony to preserve if spouses are separated without reasonable hope of reconciliation, Galligan J.A. concluded that there is no sound policy reason to apply the rule in this case.

Galligan J.A. cited the judgment of McLachlin J. in Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, as support for the proposition that the courts may, in limited circumstances, change a rule of the common law. Acknowledging that such changes should be slow and incremental, Galligan J.A. concluded that the change proposed to the rule against spousal competence was a small step beyond the change to the common law already effected in R. v. Bailey (1983), 1983 CanLII 3569 (ON CA), 4 C.C.C. (3d) 21 (Ont. C.A.), and in R. v. Marchand (1980), 1980 CanLII 2828 (NS CA), 55 C.C.C. (2d) 77 (N.S.S.C., App. Div.), of dissolving spousal immunity on divorce.

On the appeal from sentence, considering the facts that the accused had no previous record and that the pre‑sentence report was a favourable one, Galligan J.A. varied the sentence from one year's imprisonment to a sentence of time already served.

(2) Reasons of Blair J.A.

In a comprehensive judgment, Blair J.A. examined in detail the rationale for the common law rule, the evolution of the rule, the effects of legislative intervention, and the principles governing judicial changes to the common law. In the end, he concurred with his colleague Galligan J.A., and dismissed the appeal.

Blair J.A. found that the only policy rationale for the rule that survives is that the rule preserves marital harmony and he characterized this rationalization as unrealistic where spouses have separated. He cited at p. 354 the following passage from McCormick on Evidence (3rd ed. 1984):

(F)amily harmony is nearly always past saving when the spouse is willing to aid the prosecution. The privilege is an archaic survival of mystical religious dogma and of a way of thinking about the marital relation that is today outmoded.

Blair J.A. noted that the traditional exceptions to the common law rule have been expanded, and the scope of the rule restricted, by both s. 4 of the Canada Evidence Act, and recent judicial decisions. In R. v. Czipps (1979), 1979 CanLII 2095 (ON CA), 48 C.C.C. (2d) 166 (Ont. C.A.), and in R. v. Sillars (1978), 1978 CanLII 2433 (BC CA), 45 C.C.C. (2d) 283 (B.C.C.A.), the courts held that a spouse is competent and compellable even if the charge does not allege that the accused spouse had threatened the person, liberty or health of the other spouse, provided the evidence discloses such a threat. This result was the opposite to that which had been arrived at in England. Similarly, in R. v. MacPherson (1980), 1980 CanLII 2831 (NS CA), 52 C.C.C. (2d) 547, the Nova Scotia Court of Appeal concluded that a wife was competent to testify against her husband accused of assault against a child of the marriage, adopting the earlier decision of Borins Co. Ct. J. in R. v. McNamara (1979), 1979 CanLII 2853 (ON SC), 48 C.C.C. (2d) 201 (Ont.).

In R. v. Bailey, supra, the Ontario Court of Appeal refused to follow the English Court of Criminal Appeal's decision in R. v. Algar, [1954] 1 Q.B. 279, following instead the Nova Scotia Court of Appeal in Marchand, supra, and held that a divorced spouse was competent to testify against the other divorced spouse. Both the Ontario and Nova Scotia decisions looked to the underlying policy justification for the rule ‑‑ the preservation of marital harmony ‑‑ in arriving at their results.

Blair J.A. also observed that the common law rule of spousal incompetence is in need of legislative reform (at p. 357):

The present common law rule governing spousal testimony in criminal cases is almost universally recognized as archaic, anomalous and inconsistent with the factual and legal position of spouses in modern society. It cries out for comprehensive legislative reform....

Blair J.A. then reviewed the history of legislative changes to the statutory scheme in s. 4 of the Canada Evidence Act. He concluded that the section has not been materially altered since 1906. The changes made to s. 4 have been peripheral (at p. 359):

Viewed in their proper context, it is clear that the amendments to s. 4 of the Act in this century do not have the sweeping effect attributed to them by Carthy J.A. The amendments were not made as parts of a comprehensive revision of the Act and the common law rule and its exceptions such as that recommended by the law reform reports referred to above. The amendments, on the contrary, were peripheral and largely consequential to amendments to the Code. They were made without any recorded consideration of the scope of the common law rule and the issues raised in this case. It is unrealistic to suggest that, when making these amendments, Parliament directed its mind to all the ramifications of the common law rule and its exceptions.

Blair J.A. also considered the role of the courts in effecting changes to the common law. In advancing the proposed change to the rule of spousal incompetence, Blair J.A. agreed with Borins Co. Ct. J. in R. v. McNamara, supra, that it was significant that the court was not being asked to abolish a rule of the common law, but to extend it. There are in fact no judicial decisions binding on the court holding that separated spouses are incompetent witnesses against one another. Furthermore, the difficulties for courts in appreciating economic and policy issues, recognized by McLachlin J. in Watkins, supra, are not relevant in this case, because the change is not a dramatic one (at p. 361):

None of these practical impediments exist in the present case. This court, on the basis of the material before it, is quite capable of deciding that the extension of the exception to the common law rule of spousal testimonial incompetency of permanently and irrevocably separated spouses will operate beneficially to protect their interests and will conform with the realities of the present age. The extension of the exception in this case to separated spouses, whose legal status has been recognized by statute, flows naturally from our extension of the rule to divorced persons in Bailey...

Blair J.A. therefore dismissed the appeal and concurred in the disposition on sentence proposed by Galligan J.A.

(3) Dissenting Reasons of Carthy J.A.

Carthy J.A. agreed with his two colleagues that the common law rule of spousal incompetence is anachronistic and inappropriate for application to the facts of this particular case. He dissented on the grounds that Parliament has legislated and so given implicit recognition to the common law rule.

Carthy J.A. noted that the fact that Parliament has created specific statutory exceptions to the common law rule, "leaves no doubt that Parliament scrutinized the issue with knowledge and recognition of the limitations of the common law rule and exception" (p. 364). Carthy J.A. noted in particular the combined effect of s. 329 of the Code and s. 4(2) of the Canada Evidence Act as evidence that Parliament turned its mind expressly to the separation of spouses.

Carthy J.A. also noted that, while the effect of the decisions in Bailey and Marchand, supra, which created an exception to the rule for divorced spouses, was to harmonize the rule with the scope of the privilege for marital communications, the proposed change would conflict with the legislative scheme by creating inconsistencies with s. 4(2) and (4) of the Canada Evidence Act, which make the "wife or husband" of a person charged with certain offences competent and compellable. These sections refer simply to "wife or husband" and not to a "separated" wife or husband. As a result, Carthy J.A. argued that, "[i]ncompetence under the common law rule would be for a more restricted period than the exceptions recited in s. 4(2) and (4) [of the Canada Evidence Act]" (p. 365).

Carthy J.A. also pointed to the fact that the Divorce Act, R.S.C. 1970, c. D‑8, encourages reconciliation until trial, in ss. 7 and 8. Carthy J.A. took this to mean that Parliament has emphasized that marriage lasts until divorce.

In the result, Carthy J.A. would have allowed the appeal and quashed the conviction.

IV. Issue

The only issue which arises in this appeal is the following:

Is the spouse of an accused a competent witness for the prosecution if he or she is separated from the accused without any reasonable possibility of reconciliation?

V. Analysis

I say at the outset that I would dismiss the appeal. In arriving at this result, I have considered three issues: the appropriate limits on the power of judges to change the common law, the policy rationale for the common law rule making a spouse (including an irreconcilably separated one) an incompetent witness, and whether it is appropriate to make the proposed change to the common law given the pattern of legislation that exists. I conclude that judges do have the power to make some changes to the common law, that there are sound policy reasons for making the proposed change in this case, and that the pattern of legislation does not indicate a contrary parliamentary intention to preserve the common law rule. I shall now discuss each of these conclusions in turn.

A. What Are the Limits on the Power of Judges to Change the Common Law?

(1) Introduction

At one time, it was accepted that it was the role of judges to discover the common law, not to change it. In Book One of his Commentaries on the Laws of England (4th ed. 1770), Sir William Blackstone propounded a view of the common law as fixed and unchanging, at p. 69:

For it is an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments, he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.

However, Blackstone's static model of the common law has gradually been supplanted by a more dynamic view. This Court is now willing, where there are compelling reasons for doing so, to overturn its own previous decisions. Prior to the abolition of appeals to the Privy Council in 1949, this Court considered itself bound by its own prior decisions: Stuart v. Bank of Montreal (1909), 1909 CanLII 3 (SCC), 41 S.C.R. 516. However, since 1949, this Court has been prepared to overturn its own decisions in appropriate cases: see for example, Reference Re Farm Products Marketing Act, 1957 CanLII 1 (SCC), [1957] S.C.R. 198, at p. 212, Bell v. The Queen, 1979 CanLII 36 (SCC), [1979] 2 S.C.R. 212, at pp. 219‑20, and Minister of Indian Affairs and Northern Development v. Ranville, 1982 CanLII 202 (SCC), [1982] 2 S.C.R. 518, at p. 527. I note that similar developments have occurred in England. In 1966, the House of Lords issued a practice statement which reversed its long‑standing practice of treating its own prior decisions as binding in every case. In Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234, the court recognised that rigidly adhering to precedent could interfere with the proper development of the law (at p. 1234):

Their Lordships ... recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

The High Court of Australia has adopted a similarly flexible approach to the common law in the wake of the abolition of appeals to the Privy Council in 1975: see Viro v. The Queen (1978), 141 C.L.R. 88.

(2) Limits on the Power of the Courts to Change the Common Law

In keeping with these developments, this Court has signalled its willingness to adapt and develop common law rules to reflect changing circumstances in society at large. In four recent cases, Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608, Watkins v. Olafson, supra, R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, this Court has laid down guidelines for the exercise of the power to develop the common law. The common theme of these cases is that, while complex changes to the law with uncertain ramifications should be left to the legislature, the courts can and should make incremental changes to the common law to bring legal rules into step with a changing society. However, a brief review of these cases is warranted.

The issue in Ares, supra, was whether it was appropriate to create a new exception to the hearsay rule for hospital records. Speaking for the Court, Hall J. adopted the reasons of Lord Donovan in Myers v. Director of Public Prosecutions, [1965] A.C. 1001, and accepted that the proposed new exception was required in consequence of changes in the business environment which could not have been foreseen at the time the hearsay rule was being developed. Hall J. rejected the argument that changes to the common law can only be made by Parliament. In support of his decision making hospital records admissible under a new exception to the hearsay rule, Hall J. quoted the following passage from the reasons of Lord Donovan in Myers at p. 1047:

The common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds. Particularly is this so in the field of procedural law.

Hall J. followed the minority in Myers, supra. However, the majority in Myers was not of the opinion that the courts should never change common law rules, but only of the view that a change was not appropriate under the circumstances of the case. In the words of Lord Reid, at p. 1021:

I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation.

The more recent decision of this Court in Watkins v. Olafson, supra, provides some indication of the proper limits on the power of the judiciary to change existing law. At issue was an award of damages in a tort action. The Manitoba Court of Appeal had set aside a lump sum payment for future care and substituted periodic payments. Also questioned in the appeal to this Court was the appropriateness of the gross‑up for taxation allowed by the trial judge.

McLachlin J. reinstated the lump sum payment awarded by the trial judge, on the grounds that the change made to the law by the Court of Appeal was the kind of major revision which should properly be left to the legislature. She held that the courts should not effect major changes to the law with complex ramifications (at pp. 760‑61):

This branch of the case, viewed thus, raises starkly the question of the limits on the power of the judiciary to change the law. Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far‑reaching changes in the rules hitherto accepted as governing the situation before them.

There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long‑established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.

Considerations such as these suggest that major revisions of the law are best left to the legislature. Where the matter is one of a small extension of existing rules to meet the exigencies of a new case and the consequences of the change are readily assessable, judges can and should vary existing principles. But where the revision is major and its ramifications complex, the courts must proceed with great caution.

McLachlin J. identified a number of major difficulties with periodic payments which courts would have difficulty responding to, including the fact that legal obligations between the parties would not be finally resolved and would require supervision, presumably through repeated court appearances.

McLachlin J. came to the opposite conclusion on the issue of "gross‑up" for taxation of the award. She noted that the jurisprudence on the issue was recent and unsettled, in spite of an earlier Supreme Court decision in which this Court had declined to consider the impact of taxation on the award for future care, namely Andrews v. Grand & Toy Alberta Ltd, 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229. She also noted that there were strong policy reasons for taking the impact of taxation into account, in that an award would not be fair to the plaintiff if taxation were not considered in calculating the amount of the award. As well, calculating the amount of the award that would be lost to tax would not present any great difficulty. For these reasons, McLachlin J. concluded that this was the kind of incremental change that the courts can and should make to the common law, and she therefore upheld the gross‑up for taxation allowed by the trial judge.

In R. v. Khan, supra, the Court was called upon to respond to issues similar to those that arose in Ares v. Venner, supra. At issue was the admissibility of statements made by a child to an adult concerning sexual abuse. The evidence was inadmissible hearsay according to the law as it then stood. In deciding to create a new exception to the hearsay rule, McLachlin J. adopted a flexible approach to the articulation and development of the hearsay rule (and by implication to the development of the common law in general), grounded in principle and policy as well as in precedent (at p. 540):

The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions.... While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.

Finally, in R. v. Seaboyer, supra, McLachlin J. again recognized the power of the courts to change the common law. She recognized that judges may broaden rules of evidence to conform to their sense of justice, at p. 622:

The judges perceived that the rules of evidence were unfairly restricting the right to bring relevant and helpful evidence before the court, thereby undermining the ability of the court to find the truth and do justice. So the courts broadened the rule to conform to their sense of justice by permitting judges convinced of the reliability and trustworthiness of the evidence to admit it despite its failure to conform to the traditional exceptions to the hearsay rule.

(3) Conclusion

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.

B. The Policy of the Rule that a Spouse Is an Incompetent Witness for the Prosecution

From an examination of the history of the rule making a spouse an incompetent witness for the prosecution, it is apparent that any policy justification which may at one time have existed in support of the rule has now disappeared in the context of divorced or irreconcilably separated spouses. The rule reflects a view of the role of women which is no longer compatible with the importance now given to sexual equality. In particular, the rule making an irreconcilably separated spouse an incompetent witness is inconsistent with the values enshrined in the Canadian Charter of Rights and Freedoms, and preserving the rule would be contrary to this Court's duty to see that the common law develops in accordance with the values of the Charter.

(1) The Origins of the Rule in General

The first clear authority for the rule that a spouse is not a competent witness is Lord Coke's Institutes of the Laws of England, originally published in 1628. The rule was initially concerned only with the testimonial incompetence of wives: a wife was an incompetent witness for or against her husband. Lord Coke described the rule as follows (1 Inst. 6b.):

Note, it hath been resolved by the justices, that a wife cannot be produced either against or for her husband, quia sunt duae animae in carne unâ; and it might be a cause of implacable discord and dissention between the husband and the wife, and a meane of great inconvenience...

The rule that a wife was an incompetent witness for or against her husband followed naturally from the legal position of a wife at the time. On marriage, a woman lost her independent legal identity. Blackstone, supra, described the legal status of a married woman as follows, at p. 442 of Book 1:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, f{oe}mina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.

The general testimonial incompetence of a wife for or against her husband was accepted in Lord Audley's Case (1631), Hutt. 115, 123 E.R. 1140, at p. 1141.

(2) Justifications for the Rule

Since that time, at least four distinct justifications have been advanced for the rule but only two of these survive today. The most important justification is that the rule protects marital harmony. The danger to marital harmony of making a spouse a competent witness was first mentioned by Lord Coke, and was most recently emphasized in the decision of the Court of Appeal in the case at bar, in R. v. Bailey, supra, and in R v. Sillars, supra. A second reason sometimes mentioned is what Wigmore called the "natural repugnance to every fair‑minded person to compelling a wife or husband to be the means of the other's condemnation" (Wigmore on Evidence (McNaughton rev. 1961), vol. 8, p. 217, {SS} 2228 (emphasis in original)).

The two justifications which have not survived are that a spouse is an incompetent witness because husband and wife are in law a single person (although this justification survived into the eighteenth century), and that husband and wife are disqualified from being witnesses for or against each other because their interests are identical.

The policy grounds supporting the rule have come in for sustained attack. Wigmore scathingly criticizes the variety of inconsistent arguments used to support the rule (at p. 213):

The record of judicial ratiocination defining the grounds and policy of this privilege forms one of the most curious and entertaining chapters of the law of evidence. It is curious because the variety of ingenuity displayed, in the invention of reasons "ex post facto" for a rule so simple and so long accepted, could hardly have been believed but for the recorded utterances.... We behold the fantastic spectacle of a fundamental rule of evidence, which had only questionable reasons for existence, surviving nonetheless through two centuries upon the strength of certain artificial dogmas ‑‑ pronouncements wholly irreconcilable with each other, with the facts of life and with the rule itself, and yet repeatedly invoked, with smug judicial positiveness, like magic formulas to still the specter of forensic doubt.

In the study paper "Competence and Compellability" by the Evidence Project of the Law Reform Commission of Canada, the rule was characterized as more a product of history than the reflection of any clear policy decision:

. . . the rule, rather than the reflection of a clear-cut fundamental policy decision, appears to be simply a product of history. This is confirmed when we note that a fundamental policy decision surely would be based on concern not only for the married couple but for the family unit as a whole, and yet no one has suggested legislation making fathers and sons or mothers and daughters incompetent witnesses for the prosecution against their parents or children.

(Evidence (1972), Study Paper No. 1, at p. 5.)

There is in my opinion a more fundamental difficulty with the reasons for the rule. The grounds which have been used in support of the rule are inconsistent with respect for the freedom of all individuals, which has become a central tenet of the legal and moral fabric of this country particularly since the adoption of the Charter. In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, Dickson J. (as he then was) defined freedom in this way (at p. 336): "Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person." The common law rule making a spouse an incompetent witness involves a conflict between the right of the individual to choose freely whether or not to testify and the interests of society in preserving the marriage bond. It is unnecessary for me to consider the difficult question of how this conflict ought to be resolved, because in this appeal we are concerned only with spouses who are irreconcilably separated. Where spouses are irreconcilably separated, there is no marriage bond to protect and we are faced only with a rule which limits the capacity of the individual to testify.

To give paramountcy to the marriage bond over the right of individual choice in cases of irreconcilable separation may have been appropriate in Lord Coke's time, when a woman's legal personality was incorporated in that of her husband on marriage, but it is inappropriate in the age of the Charter. As Wilson J. put it in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, at p. 166, the Charter requires that individual choices not be restricted unnecessarily.

The idea of human dignity finds expression in almost every right and freedom guaranteed in the Charter. Individuals are afforded the right to choose their own religion and their own philosophy of life, the right to choose with whom they will associate and how they will express themselves, the right to choose where they will live and what occupation they will pursue. These are all examples of the basic theory underlying the Charter, namely that the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life.

Through its family and divorce laws, our society has recognized that spouses have the right to seek dissolution of the marriage where relations between them have irrevocably broken down. The recognition that a marriage may be dissolved is reflected in the long history of divorce legislation. Divorce without a special Act of Parliament has been possible in England since the 1857 Matrimonial Causes Act (U.K.), 20 & 21 Vict., c. 85. In Canada, there was a divorce Act as early as 1758 in Nova Scotia and later in other provinces; the first federal divorce Act was the Divorce Act, S.C. 1967‑68, c. 24, later R.S.C. 1970, c. D‑8. See "Competence and Compellability", supra, at p. 6, and more generally Alastair Bissett‑Johnson and David C. Day, The New Divorce Law (1986).

Modern divorce Acts explicitly recognize that marriage is a partnership between equally free individuals, as this excerpt from the preamble to the Family Law Act, 1986, S.O. 1986, c. 4, illustrates:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership ....

(3) Conclusion

The Charter has played and will continue to play 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. In RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, McIntyre J. noted at p. 603 that the question of the application of the Charter to private litigation,

... is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative. In this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law.

This passage was cited with approval by L'Heureux-Dubé J., speaking for the Court in Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at p. 184.

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. The common law rule making an irreconcilably separated spouse an incompetent witness for the prosecution against the other spouse is inconsistent with the values in the Charter. Subject to consideration of the limits on the judicial role, the rule ought therefore to be changed. Society can have no interest in preserving marital harmony where spouses are irreconcilably separated because there is no marital harmony to be preserved.

The facts of this case do not raise the issue of whether a spouse who is a competent witness for the prosecution will also be compellable. That question is for another day. However, were it necessary to decide this question, the possibility that a competent spouse would be found also to be compellable is a real one, in light of the reasons in R. v. McGinty (1986), 1986 CanLII 116 (YK CA), 27 C.C.C. (3d) 36 (Y.T.C.A.), R. v. Marchand, supra, R. v. Czipps, supra, and R. v. Lonsdale (1973), 1973 ALTASCAD 125, 15 C.C.C. (2d) 201 (Alta. S.C., App. Div.), although I would note that in the U.S., a spouse is a competent but not a compellable witness for the prosecution: Trammel v. United States, 445 U.S. 40 (1980).

Making a separated spouse a competent witness for the prosecution may ultimately mean that an irreconcilably separated spouse is also compellable at the instance of the prosecution. However, I do not think that should affect the result in this case. I return to the idea of human dignity. The dignity of the person arises not only from the exercise of rights such as the freedom to choose, but also, and just as importantly, from the assumption of the responsibilities that naturally flow from participation in the life of the community. At the level of principle, it is just as much a denial of the dignity of an irreconcilably separated spouse to exempt the spouse from the responsibility to testify because of his or her status as it is a denial of the spouse's dignity to deny his or her capacity to testify. This is all the more true where historically it has been women who have been unable to testify.

Concerns were raised before us that making an irreconcilably separated spouse a competent witness would increase the risk of violence to women. Violence against women is a very grave problem in our society, and any possibility of an increase in the risk of violence must be taken most seriously. But I find it difficult to accept that the proper response to the threat of violence is to limit the capacity of women in the hope that preventing women from testifying will decrease the risk of violence against them. If our expectations for a society founded on respect for the dignity of the human person are to have meaning, we must encourage and protect everyone in the exercise of their rights and responsibilities as equal members of our society. Furthermore, if a competent spouse is also compellable, I would note that McLachlin J.A. (as she then was) suggested in McGinty, supra, at p. 60, that making a spouse compellable may in fact reduce the risk of violence by giving the spouse no choice but to testify. The same argument was made by the Evidence Project of the Law Reform Commission of Canada in their study paper "Competence and Compellability", supra, at pp. 6-7.

Moreover, if I were to accept the argument that a separated spouse ought not to be competent to testify because of the possibility of violence, I cannot see how I could resist the argument that the same principle should be applied to divorced spouses. The difference between irreconcilable separation and divorce may have significance de jure, but it has no significance de facto: irreconcilable separation is tantamount to divorce. The conclusion that a divorced spouse should not be a competent witness because of his or her former marital status is contrary to common sense, and has been rejected in a number of cases, including R. v. Bailey, R. v. Marchand and R. v. Algar, supra. However, I would repeat that the question of compellability is not raised on this appeal.

C. Should the Common Law Rule Be Changed?

Absent parliamentary intervention, I would conclude that changing the common law rule to make spouses who are irreconcilably separated competent witnesses for the prosecution would be appropriate. Although the principles upon which this change is based would appear to favour abolishing the rule entirely and making all spouses competent witnesses under all circumstances, policy considerations and uncertainty as to the consequences of such a change suggest that a more cautious approach is appropriate. The parties before us did not argue for such a change, and in my opinion a far-reaching change of this kind is best left to the legislature. However, expanding the exceptions to the common law rule to include irreconcilably separated spouses is precisely the kind of incremental change which the courts can and should make. The courts are the custodians of the common law, and it is their duty to see that the common law reflects the emerging needs and values of our society.

In argument before us, the appellant contended, following the dissenting reasons of Carthy J.A. in the Court of Appeal below, that the pattern of legislation in the Canada Evidence Act shows a parliamentary intention to retain the common law rule as it presently stands. The appellant also argued that there would be difficulties in implementing the proposed new exception to the common law rule. I propose to deal with these arguments briefly.

(1) Pattern of Legislation

As I understand it, the argument is that the various amendments which have been made to s. 4 of the Canada Evidence Act since 1906 indicate that Parliament has turned its mind to the common law rule making a spouse an incompetent witness, and that the rule has therefore been effectively ratified. With respect, I must disagree. I do not propose to recount the history of the amendments to the Canada Evidence Act in detail but prefer to adopt the following excerpt from the reasons of Blair J.A. in the Court of Appeal (at pp. 358-59):

With respect, I cannot agree with my brother Carthy that the amendments made to the Act since 1906 were enacted after careful scrutiny by Parliament acting with full knowledge of the common law rule and its exceptions....

... The amendments were not made as parts of a comprehensive revision of the Act and the common law rule and its exceptions such as that recommended by the law reform reports referred to above. The amendments, on the contrary, were peripheral and largely consequential to amendments to the Code. They were made without any recorded consideration of the scope of the common law rule and the issues raised in this case. It is unrealistic to suggest that, when making these amendments, Parliament directed its mind to all the ramifications of the common law rule and its exceptions. The most that can be deduced from any of the amendments made to the Act is that Parliament was not presented with any other proposals for change at the time they were passed.

(2) Difficulties of Implementation

The appellant argued before us that determining if there is a reasonable possibility of reconciliation between spouses will be a difficult task for the courts. Since the determination is necessarily entirely subjective, it will be the spouse offered as a witness by the prosecution who will effectively determine if there is in fact a reasonable possibility of reconciliation.

I must reject this argument out of hand. Courts are daily called upon to make subjective determinations such as the existence of a reasonable possibility of reconciliation. To take one example, under s. 10 of the Divorce Act, R.S.C., 1985, (2nd Supp.), c. 3, a court is required to "satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so". Our legal system turns on the ability of judges to make such subjective determinations, and I have every confidence in the ability of trial judges to make them.

D. Conclusion

I would conclude that in appropriate cases, judges can and should change the common law. This is such a case. The common law should be the servant of society. While there are changes to the common law that are best left to the legislature, the change made by the Court of Appeal in the present case to the rule that a spouse is an incompetent witness for the prosecution is not an example of such a change.

E. Disposition

For the foregoing reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Greenspan, Rosenberg and Buhr, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.