It has long been the common law rule that married individuals may not be called to testify in a court of law against their spouse. Recently, the Alberta Court of Appeal held that this common law “spousal immunity” rule shall be extended to common law couples, where appropriate. The rationale is, in part, rights-based as well as consistent with a focus on substance over form.
In R. v. Legge (2014) a man was on trial for evading police, mischief, possession of stolen property, possession of a weapon and careless transport of a weapon, and the Crown’s main trial witness was the man’s common law partner. The trail judge determined spousal immunity applied, which resulted in the man’s acquittal. The Crown’s appeal to the ABCA was dismissed, the ABCA unanimously concluding that it is the substance (rather than form) of the relationship that matters and that the privilege will therefore apply to common law relationships analogous to marital relationships, with some degree of publicly acknowledged permanence and interdependence. Not all common law relationships will be found to have the requisite level of commitment or marital bond to attract spousal immunity. Trial judges will be tasked with assessing and evaluating the nature of the given common law relationship, upon the spouse who has been called to testify asserting the right to spousal immunity.
Madam Justice Paperny concluded this extension represents an appropriate incremental change to the law, which reflects “the changing social, moral and economic fabric of the country”, and that refusal to extend the same protection to common law relationships as to marital ones is akin to society indicating it has no interest in preserving common law relationships.
Although this particular case is perhaps more relevant to criminal law than it is to the family law context, it is illustrative of the narrowing of the gap between common law and married couples where justice requires that substance and content prevail over form.