Spousal Incompetency and the Charter

Osgoode Hall Law Journal, Vol. 34, p. 411, 1996

50 Pages Posted: 28 Jul 2008

See all articles by Hamish Stewart

Hamish Stewart

University of Toronto - Faculty of Law


This article considers the effect of the Canadian Charter of Rights and Freedoms on the rule of spousal incompetency in criminal proceedings. The rule is arguably under-inclusive, in that it is not available to protect opposite-sex couples who are not legally married or same-sex couples; on the other hand, the rule is arguably offensive to the modem conception of marriage. The Charter arguments for each of these positions are considered, and it is submitted that the Charter requires the rule of spousal incompetency, whatever it is, to apply equally to legally married couples, to cohabitants, and to same-sex couples. A rule of spousal incompetency that arguably reconciles the modem conception of marriage with the interest protected by the rule of spousal incompetency is then considered. This rule would make the spouse a competent but not compellable witness for the prosecution. Various considerations of law and policy militate against giving the spouse this decision; the real choice is between maintaining the existing rule of incompetency and making the spouse competent and compellable for the Crown. It is submitted that the arguments on either side of this choice are so evenly balanced that any change should be made by Parliament rather than by the courts.

Suggested Citation

Stewart, Hamish, Spousal Incompetency and the Charter. Osgoode Hall Law Journal, Vol. 34, p. 411, 1996, Available at SSRN: https://ssrn.com/abstract=1177182

Hamish Stewart (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5

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