Patrick Smith
Ottawa Citizen
Pillow talk could become court testimony soon, and that prospect has perplexed some experts who are examining the government’s new Victims Bill of Rights. A section in the bill would remove spouses’ legal immunity from testifying against one another.
Unveiled Thursday by Prime Minister Stephen Harper, the bill is supposed to emphasize victims’ rights in the justice system, including their right to stay informed about criminal cases that involve them. So some advocates have no idea why the issue of spouses giving evidence against each other appears in the legislation.
“It is somewhat related because it’s a criminal law issue, I guess,” said the president of the Criminal Lawyers’ Association, Anthony Moustacalis. “But I think it’s a bit of a scatter-shot issue. It’s adding something else that isn’t directly related to a bill of rights.”
Justice Minister Peter MacKay, however, said that the bill’s proposal to lift spousal immunity is part of the government’s plan to “improve the truth-seeking exercise of getting all the evidence before the court. By virtue of having spousal immunity to testify in some very important cases – and we’re talking cases of murder, terrorism, fraud – spouses may, in fact, possess key evidence that the trial judge should hear,” he said in an interview with the Citizen. “We believe it’s an antiquated section in the Canada Evidence Act that prevents, or could prevent, that witness from coming forward by virtue only of the fact they were married to the accused.”
“They’ve already removed this spousal exemption in some 40 different criminal charges, including involving sexual assaults on children,” MacKay said. “It is, in our view, a step forward in improving the overall administration of justice but also specifically helping with victims’ rights and getting to the bottom of what really happened.”
University of Windsor law professor David Tanovic sees the proposal as a positive.
“It would ensure that, in serious cases, that the state would have the ability to gather all evidence,” he said. “That indirectly benefits victims. ”
Under current rules, if the spouse is the victim, she or he can be compelled to testify, he said. But currently, in cases where the spouse is not the victim, “the Crown can’t compel them to testify about conversations during the course of the marriage. There’s still some protection to the idea that it’s repugnant to testify against your spouse.”
Moustacalis suggested existing legislation creates enough exemptions to the spousal immunity rule.
Steve Sullivan, former federal ombudsman for the victims of crime, and current president of Ottawa Victim Services, said he was surprised to see the proposal in the victims’ rights bill.
“It’s not something I’ve heard raised by victims, by victim service workers, by victim advocates. It’s not really something that’s come up, and I’ve worked in the field for 20 years.”
Of the victims’ bill itself, he said, “It falls very short of the expectations the minister created.
“And I think that’s a shame, because that’s actually more dangerous that doing nothing, if you create expectations for people who are looking for hope, and then they find out when they get into the courtroom that still, the trial’s not about them. It’s about the accused.”
MacKay however, said the bill was about “the empowerment of victims and putting in place, essentially, obligations that all the participants in the criminal justice system will be expected to live up to.” He said the bill would improve “the confidence Canadians feel about the justice system.”
