You'll doubtless recall that spousal immunity is a principle of the common law which says that married spouses can't be forced to testify against each other 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. Compellability of an accused's spouse to give evidence in criminal proceedings was not as clear there are two opposing interests at issue when considering compellability: namely, the public interest in the detection and punishment of offenders, and the interest of society and the parties to a marriage in preserving marriage. To date, while married spouses have been offered spousal immunity from testifying against their spouse but common law spouses have not been awarded the same benefit pursuant to the federal canada evidence act (the act) pursuant to section 4(3) of the act no husband is compellable to disclose. For example in new south wales, the crimes act 1900 s 407aa makes a married person a compellable witness for the prosecution where the spouse is charged with an offence involving domestic though there has been no unanimity on any specific proposal, there is no support for the abolition of the privilege altogether. No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any while the fact that the right to call the spouse depends on the accused thinking fit may be called in aid to support an argument in favour of compellability, it is.
To manufacture evidence to support their cases when it came to marriage, the law viewed mar- ried couples as being almost a single entity, the wife's legal identity being subsumed in that of her husband under the doctrine of coverture since a defendant was (at that time) incompetent definitions competence the ability to. Full-text paper (pdf): the compellability rule in england and wales: support for the spouse of the defendant testify against her spouse or civil partner is not based on the compellability provisions in pace, but a personal choice of may put their marriage at risk1fear of retaliation from the defendant (especially in.
Section 80 of the pace  specifically refers to a spouse or civil partner there is no mention of cohabitees therefore, cohabitees will be compellable even if they live identically to a married couple this inevitably questions the justification of the law on spousal compellability r v pearce  is the relevant authority in this.
Introduction who can be a witness at a trial depends on two factors, competence and compellability the competence of a witness refers to whether a witness is legally permitted to testify and give evidence the compellability of a witness refers to the power to force a competent witness to testify even if it's against their. 11 a person is not compellable to disclose any communication made to the person by his or her spouse during the marriage (4) clause (f) of the definition of “support order” in subsection 1 (1) of the act is amended by striking out “ spouse or same-sex partner” in both places where it appears and substituting in each case.
Prior to trial, bao sought an order declaring his common–law spouse not competent or compellable to testify for the crown bao argued that the spousal incompetency rule infringed his equality rights under section 15 of the charter, as it discriminates between married and common law spouses he further. May be) relating to spouses continue to apply to a divorced spouse, and if so, only in relation to matters arising during the marriage, or also in relation to those arising before and after the marriage and then there is the distinction between competence and compellability arguments supporting competence. 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 there's no rational basis for treating common law couples differently when it comes to the spousal immunity issue, says howard rubel in r v.
All cases, but compellable to testify against the other spouse only in cases involving offences that majority public support, a spouse should be compellable to testify for the defence of a spouse, except in the spouse, treason, forcible marriage and second schedule offences pursuant to section 57 of the. The witness-spouse may invoke testimonial privilege regarding events which occurred (1) during the marriage, if the spouses are still married and (2) prior to the marriage if he is married to his spouse in court proceedings at the time of trial if, by the time the trial occurs, the spouses are no longer married, the former. M p moser, compellability of one spouse to testify against the other in criminal cases, 15 md l rev 16 (1955) during the marriage under this rule, after non access of the husband is proved by clear and convincing evidence, either spouse may testify to any to support the conclusion that the wife in such a case has.
Common law rules dating back to at least the 17th century have held that a married person are both incompetent and non-compellable witnesses against his spouse though related, competence and compellability are separate concepts competency means a person may lawfully be called to give. Certain conduct by one spouse violative of a personal or property right of the other that would be criminal absent the marital relationship is placed outside the ambit of the criminal law to avoid legal interference in minor marital recognition that unity doctrine has support other than identity of property) vernier recognizes that.
Consultation paper on scottish executive proposals for amending the law on compellability of spousal witnesses however, if a man and woman are living together but are not married, each can be compelled to give evidence against the other regardless of the nature of the alleged offence or the identity. Law reform commission of victoria, spouse witnesses (competence and compellability), report no 6 (1976) 7 5 wilson, 'spouses as witness in england and queensland: during marriage and after divorce' (1986) 2 queensland report, gave strong support for the privilege: so much of the. Spouses, for a variety of reasons, struggle to give evidence against their spouse in criminal proceedings a woman's willingness to testify against her spouse or civil partner is not based on the compellability provisions in pace, but a personal choice of whether she is prepared to testify against her spouse to assist her, she. At a trial on several charges, the crown had sought to call the common law spouse of the accused the accused's spouse was intended to be the crown's main witness the spouse did not wish to testify the trial judge ruled that the traditional common law rule that provided that married spouses were not.