Ontario Court of Justice Extends Spousal Privilege to Common Law Partnerships

Back in 2013, I wrote about a Kentucky case in which a woman sought to invoke Kentucky’s spousal privileges because she was in a same-sex civil union. As support for her claim, the woman cited a Vermont case reaching such a conclusion, but the court rejected her argument, concluding that, “at a minimum, the privilege granted by the Commonwealth of Kentucky would require that the parties be actually married.” 

Conversely, late last month, the Ontario Court of Justice, reached the opposite conclusion in R. v. Lomond.

In Lomond, Robert Lomond was charged on an information alleging several crimes, including impaired driving. Jocelyn Aguas was Lomond’s common law partner, and Lomond sought a court determination that Ontario’s spousal privilege applied in his case. According to that privilege, “the spouse of accused persons [i]s incompetent to testify except for cases that involved the spouse’s person, liberty or health.” 

In response, the court noted that there was no binding precedent on the issue but concluded that

Ms. Aguas and the defendant are in a committed, long term relationship akin to marriage. The Supreme Court has taken note of changing societal values regarding common-law partnerships and the importance of recognizing and protecting relationships that are functionally equivalent to marriage. I find that it is both just and appropriate to extend the immunity rule to make common-law spouses in committed relationships akin to marriage non-compellable witnesses for the Crown. Put differently, Ms. Aguas cannot be compelled to testify for the prosecution in this case, but I make no finding with respect to her compellability at the request of the Defence.

-CM