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.
