A common misconception in criminal proceedings is that any communications between an accused and their spouse cannot be used against them. This concept is referred to as “spousal privilege”. This rule is grounded in section 4(3) of the Canada Evidence Act, RSC 1985, c C-5 [the CEA], which states that:
No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.
While this provision, on its face, could be interpreted as applying to any private communications between spouses, the jurisprudence interpreting this section has found that it does not reach that far. This is particularly important in the current age of technology, where many people communicate through text messages and other online messaging platforms, creating records of many peoples’ private conversations.
According to the case law in this area, all that “spousal privilege” actually means is that spouses are not compellable to testify against the other in court as to what was said in the course of their private communications (R v Couture, 2007 SCC 28). However, this does not mean that recorded communications, such as text messages, phone calls, emails, etc., that are either lawfully intercepted or seized by law enforcement cannot be used as evidence against an accused (R v Walsh, 2019 ONSC 5565).
For example, in R v Cuthill, 2018 ABCA 321 [Cuthill], three individuals were charged with murder. Two of the accused individuals were spouses. During the murder investigation, police seized data on the cell phones of the three accused individuals through a production order. Through the production order, the police found text messages between the husband and co-accused wife that contained evidence suggesting they committed murder. At the trial of the matter, the wife argued that the text messages were privileged spousal communication and therefore inadmissible. This argument was rejected. This argument was also rejected by the Court of Appeal which stated “[t]he limited wording and subsequent interpretation of s. 4(3) of the Canada Evidence Act are a complete answer to Sheena’s argument that this provision extends spousal communication privilege to the text messages in question” (at para 25). Similar lines of argument have failed in cases such as R v Docherty, 2010 ONSC 467 at paras 10, 12-17; R v Siniscalshi, 2010 BCCA 354 at paras 30-59; and R v Oland, 2016 NBCA 58 at para 39.
In a recent Alberta Provincial Court decision R v Fayaz, 2021 ABPC 75 [Fayaz], the accused was charged with serious firearms and drug related offences. One of the issues at trial, and following a voir-dire on much of the evidence obtained against the accused, was whether a search of the accused’s vehicle was illegal. The defense argument was that the warrant was invalid because the Information to Obtain (“ITO”), which supported the search warrant, included intercepted spousal communications. To provide context to this argument, in order for evidence obtained through a search of someone’s property to be admissible in court, law enforcement must have conducted a lawful search. A lawful search often requires a search warrant, which may be judicially authorized, based upon a sworn ITO prepared by a police officer explaining why they have reasonable ground to execute a search.
In Fayaz, the defense argued that s. 4(3) of the CEA, read together with s. 189(6) of the Criminal Code, supported that spousal privilege should extend to the use of spousal communication put before a justice in the form of an ITO to obtain a search warrant. Section 189(6) of the Criminal Code states that:
Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.
In assessing the issue, the Court analyzed cases dealing with the spousal privilege issue. It summarized the principles emanating therefrom, such as the goal of maintaining harmony in marriages even if probative evidence might be lost in trials, as well as the admissibility of intercepted spousal communications (at para 71).
In assessing those principles against the factual backdrop of the case, the court found that the search warrant was validly obtained, and that the intercepted spousal communications were permissible evidence to put before the judge granting the warrant. In finding as much, the Court said:
 Part of the grounds to get judicial permission to search the Jaguar included what in Cst. LaForge’s opinion was Yousef’s “panicked” reaction to his inquiry about the whereabouts of the Jaguar and its significance to the investigation. The information from the intercepted communication between Fayaz and Yousef confirmed his opinion. Therefore, that information was properly included in the ITO to demonstrate that there were reasonable and probable grounds to search the Jaguar.
The issue was not whether the intercepted communications could be admitted into evidence at trial, but rather, whether the search warrant was valid, due to the spousal communications being put before the judge who authorized the warrant. The court ultimately found that the warrant was valid, and that the spousal communications were properly included in support of the warrant. These cases suggest that in the age of technology and social media, the protection that spousal privilege affords can be relatively narrow in scope. While its intended purpose was to protect “marital harmony” and avoid the risk of spouses being compelled to provide the Crown with potentially incriminating evidence against their own spouse, such evidence, if recorded, and obtained through other means, is almost always admissible against an accused, even if it was within the context of a private conversation had between spouses.
Ellen Fitzgerald is a member of the McDougall Gauley Defence Group. The McDougall Gauley Defence Group regularly reviews judicial authorizations, including issues regarding the legality of searches involving their clients’ cases.
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