‘Honey let’s just keep the doors open’: A Critical study on the abrogation of spousal privileged communication in Canada and its implications in criminology

Abstract

The doctrine of spousal privileged communication existed in the common law and the Canadian law for centuries until it was abruptly abrogated in the year 2015 by the previous conservative government in light of the victims’ rights movement, without much debate or discussion in the parliament. Communications between spouses (and now partners) were privileged on the ground that they were so closely identified with each other than an aura of bias would surround any testimonial evidence they may present before a court against their partner, due to an inherent or vested interest in the trial. Until 2015, the reason this privileged communication was protected, with some limitations, was due to the preservation of marital harmony. Why was the preservation of marital harmony no more a social value in Canada? I argue that this unfounded and abrupt abrogation was unwarranted and since the same was done without any research, it will have long term implications in criminology. Therefore, this paper has three key aims, firstly, to explore the concept, meaning and the origin of spousal privileged communication in Canada and the commonwealth including the reasons behind safeguarding and fostering spousal relationships over other relationships. Secondly, the applicability and scope of spousal privileged communication in Canada pre and post 2015, i.e. Bill C-32 that abrogated spousal privileged communication in Canada. Chapter 2 will also address some key points that contradicts the intention of the legislature behind abrogating spousal privileged communication. Thirdly, the paper argues that the spousal privileged communication should have been retained, and draws upon evidence from criminological, sociological and legal realms to define four key reasons why this is so. This paper essentially calls for further understanding of the causal mechanisms that flow from the abrogation of this spousal privilege and for monitoring future outcomes through longitudinal studies.