Winnipeg Free Press - PRINT EDITION

Harper tweaks the law

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A 500-year-old legal anachronism -- the inability of the Crown to compel a spouse to testify in some instances -- deserves to be relegated to the history books. It was unfair, unnecessary and contrary to the interests of justice.

The elimination of the marital privilege should have been introduced as a separate legislative amendment, but it was included in the Harper government's new Victims Bill of Rights, which codifies and expands the rights of victims in the justice system.

The rule against spousal testimony was originally based on the common-law principle that married couples were not competent to testify against one another because of perceived bias. Eventually, the protection of spouses from the criminal trial process was codified in the Canada Evidence Act, which lists several exceptions, including cases where a spouse is charged with a crime against another spouse.

The goal of the legislation evolved from the original common-law principle to one of protecting marital harmony. The view was that spouses should be able to hold conversations in private without worrying about being forced to testify in court. The sanctity of marriage was considered too important to risk in criminal proceedings.

The privilege only applied to couples while they were married, which was inherently unfair because similar protections are not extended to common-law couples or other intimate relationships.

Nor is there a similar privilege between priests and parishioners, although the courts may recognize a spiritual conversation as confidential in some circumstances.

The marital exclusion also thwarted the search for truth and justice by excluding potentially relevant evidence in serious matters. There may be some cases where the interests of the couple and the community outweigh the value of forcing a spouse to testify, but judges can deal with those rare circumstances when necessary.

In terms of victims rights, the Harper government did not go so far as to interfere with the independence of Crown attorneys. Nor does the bill compel police to share information with victims that could jeopardize a case, as had been speculated.

That disappointed some victims-rights advocates who wanted a stronger and more direct role in the prosecution of defendants, including a say in plea bargaining.

The new bill does recognize victims should have certain rights, including the right to be kept informed and to be told when a criminal is paroled. Most provincial justice departments already include victims in the judicial process, including the use of victim impact statements.

The legislation also mandates the imposition of restitution orders against convicted persons, which some critics say could be meaningless if the offender is destitute.

Restitution orders, however, would at least make it easier for victims to recover losses if the perpetrator is capable of paying.

The government claimed the bill will tilt the justice system away from the rights of the accused, but it doesn't do that. And nor should it. Principles such as due process, fair trials and the right to be presumed innocent must remain paramount.

Victims are treated far better today than in the past, but the legislation will ensure the justice system responds meaningfully on their behalf.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition April 7, 2014 A8

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