Marital Privileged Communication in Canada and the Proposed Victims Bill of Rights Act (Bill C-32): An Amendment to Canada Evidence Act S.4

Abstract

The common law doctrine of Marital Privileged Communication has existed in Canada and many other common law jurisdictions mostly in the form of positive law, which disqualified spouses from testifying on behalf of, or against each other on the ground that they were so closely identified with each other that an aura of bias would surround any evidence they might give. As of today, the doctrine of unity, which is closely associated with the doctrine of self-incrimination has mostly been discarded by the Judicial community as archaic and the sole social value upholding this philanthropic doctrine is preservation of marital harmony. However, the Anglo-Canadian law has, for the most part, given priority to the administration of justice over external social values and has thus narrowed down the scope of this doctrine considerably. Recently B-C32 was introduced in the House of Commons and has received its second reading. Apart from enacting the Canadian Victim Bill of Rights and amending a few other acts, this bill abolishes the doctrine of Marital Privileged Communication in Canada. In light of social morality preserving this doctrine, which has mostly been codified in terms of positive law (Section 4 of the Canada Evidence Act), is this a prudent move by the Canadian legislature especially when society and the Judiciary are extending this privilege to other adult – interdependent relationships? This paper highlights the importance of continuing this privilege in light of its historical evolution in common law and Canada. The concerns raised by the Canadian Apex Court are also addressed, following with the Bill-C32, and the counter productivity of abolishing the privilege.