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Milligan's Criminal Law Advisor | Common law spouses

Common law spouses are not covered by spousal incompetency rule



Milligan’s Criminal Law Advisor



By Jeffrey Milligan



2. — The Ontario Court of Appeal declined to extend the spousal incompetency rule to common-law spouses

The Ontario Court of Appeal heard an appeal for convictions of first-degree murder that arose from a shooting in a karaoke bar.

The prosecution evidence included testimony from the common-law spouses of two of the appellants.

Married spouses are neither competent nor compellable witnesses for the Crown, subject to two exceptions - when they are the alleged victims of offences committed by their husbands or wives and for certain specific offences enumerated under s. 4(2) and 4(4) of the Canada Evidence Act.

The defence sought to extend the spousal incompetency rule to common-law spouses at the trial but the trial judge dismissed their application and permitted the Crown to call the spouses of two of the appellants.

The Ontario Court of Appeal held that the spousal incompetency rule creates a distinction between married and common-law spouses based solely on the analogous grounds of marital status and it discriminates in a substantive sense but the limitation was reasonable and justifiable under s. 1 of the Charter.

R. v. Nguyen (2015), 2015 ONCA 278, 2015 CarswellOnt 5855 (Ont. C.A.)

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