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At common law, party’s litigant (e.g. accused) and spouse were incompetent in both civil and criminal cases
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Now, in civil proceedings, party’s litigants are competent and compellable (e.g. see BCEA s.7)
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Now, in criminal proceedings, common law partially changed by CEA s.4 by removing the incompetency of spouses:
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s.4(1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, of the person charged is a competent witness for the defence (not for the Crown!) whether the person so charged is charged solely or jointly with another.
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The accused is in control of their defense so no compellability issue for accused by defense.
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Note accused remains incompetent for the Crown (and s.11(c) of the Charter says accused cannot be compelled by Crown)
Exceptions: When is a spouse competent/compellable for Crown?
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By common law spouse is generally not competent - Salituro
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Wife or husband of accused is both competent and compellable for the Crown:
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s.4(2) specified sexual/morals offences or
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s.4(4) specified serious offence where complainant/victim under 14 – spouse
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s.4(5) Nothing in this section affects a situation where a wife or husband of accused may at common law be called as a witness without the consent of that person. I.e. preserves common law exceptions.
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Where the threat involves a threat the life, liberty or health of the spouse, they are competent to testify at common law, though unclear if this means that they are also compellable.
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Has been interpreted fairly liberally in terms of what constitutes a threat to life, liberty or health.
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Salituro: if there is evidence that the marriage is irretrievably broken down and they are irreconcilably separated, then spousal incompetency doesn’t apply
Who is a spouse?
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“Common law spouse” is used quite loosely, although it has a very specific meaning. Must be legally married before you can invoke spousal privilege or spousal immunity – has to be more than just living together.
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Since the legalization of same-sex marriage, these relationships have been incorporated into law
Test for Spousal Incompetency: -
Is the witness the spouse of the accused? (includes same-sex marriage, if common law then not included but open to Charter challenge)
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Spouse of accused is competent and therefore compellable for the accused (4(1) CEA)
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Spouse of accused is neither competent nor compellable for the prosecution (4(1) CEA does not speak about the prosecution and so the common law rule from Salituro still applies)
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Unless one of the following exceptions applies:
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The crime is of a sexual nature (4(2) CEA)
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Against children under age of 14 (4(2) CEA)
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The accused has threatened the well being of the spouse or children (4(5) CEA)
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The spouses are irreparably separated (Salituro preserved by 4(5) CEA) – irreconcilability is determined by judge test = “no reasonable prospect of reconciliation” (Salituro) – this makes the spouse competent (but does not address compellability)
4(3) Spousal privilege
When placed on the stand, the spouse has the right to refuse to answer certain questions when they are on the witness stand.
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This is different from spousal privilege (4(3) CEA) Privilege still intact even where are a competent and compellable witness (how does this effect irreconcilably separated spouses?)
Self-Incrimination -
Designed to prevent state from being able to conscript the accused – based on PFJ that should not be compelled to testify against oneself
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Up to crown to prove case against you
Non-Testimonial Aspects
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Since the Charter, courts have recognized that the broad principle against self-incrimination can be extended to non-testimonial evidence. However, for our purposes we will only be discussing self-incrimination in the context of testimonial evidence.
Before Trial Common Law: Right to Silence (Turcotte)
Need to distinguish between:
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Common law right to silence: applies prior to arrest or detention
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Section 7 right to silence (Hebert): is only triggered upon detention
R. v. Turcotte (2005) (SCC) -
Facts: Three victims murdered. Accused admitted to finding the victims, but denied killing them. Had called the police and asked for a car to come, but refused to answer police questions about why they should send a car. Judge instructed the jury that they could not use the accused’s refusal to answer questions to draw an inference of guilt. He later instructed the jury that it could be considered “post offence conduct” and that it was the only substantial evidence proving guilt.
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Issue: Did the trial judge err in designating the accused’s refusal to answer questions as “post-offence conduct”?
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Held:
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It would be an illusory right if the decision not to speak to the police could be used by the Crown as evidence of guilt.
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There are circumstances where the right to silence must bend:
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E.g. Accused fails to provide an alibi in a timely and adequate manner
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Since the accused was under no duty to speak to the police, his failure to do so was irrelevant
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The accused’s refusal to answer questions, although not admissible as “post offence conduct”, was admissible as an inextricable part of the narrative between the accused and the police.
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However, having admitted his silence into evidence, the trial judge was obliged to tell the jury in the clearest of terms that it could not be used to support an inference of guilt.
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To avoid prejudicial effect, the jury must be instructed on:
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Proper purposes for which the evidence may be used
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Impermissible inference which must not be drawn from silence
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Limited probative value of silence
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Dangers of relying on such evidence
Common Law Confession Rule -
Confession admitted if Crown shows (burden of proof) it was obtained voluntarily
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Confession = out-of-court statement, oral or in writing, either exculpatory or inculpatory
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The governing principle: confession is “voluntary” if it has not been obtained:
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Either by fear of prejudice (e.g. beaten up) or hope of advantage (e.g. tell us and we won’t charge you or your family)
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Exercised or held out by a person in authority (e.g. police)
Charter Right to s. 7 (Hebert) -
Limits on s. 7 right to silence – triggered by detention (doesn’t apply to undercover operations)
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State may not indirectly undermine your right to silence through coercive means
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Right to silence doesn’t affect confessions made to cell mate
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Not violated where undercover agent doesn’t actively elicit information from the detainee (may sit passively)
Essence of the rule is choice – if you’ve clearly asserted your right to silence, this right may not be undermined by police trickery
R. v. Hebert (1990) (SCC)
Facts: suspect phoned lawyer, then told police did not want to make statements to them, and put in cell. Undercover cop engaged accused in conversation, led to incriminating statements.
Rule: although ruling from pre-Charter case Rothman v. The Queen (1981) (S.C.C.) might have allowed this kind of deception because not subjectively person in authority. However, the Charter presents additional considerations:
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Pre-trial right to remain silent is a fundamental principle of justice under s. 7 of the Charter
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Police must not engage in tricks to effectively deprive a person in custody of the right to choose whether to speak to the police or not
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Police can question the accused in the absence of counsel after the accused has retained counsel provided the police do not do anything to effectively deprive the accused of his choice to speak or not to speak
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Right to silence only applies after the accused is in police detention
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Right to silence does not prohibit admissibility of voluntary statements made to fellow cellmates (providing the cellmate is not a state agent)
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Right to silence not violated if an undercover police agent simply observes and listens to any conversations which the accused may have, as long as the agent does not “actively elicit information”
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