I have a question about a similar situation. Suppose the wife doesn’t testify that her husband beat her up, only that he *threatened * to beat her up. Is that a situation where the privilege is overridden, or is the threat seen as an action?
Doreen
In a Perry Mason book, the defendant’s brother is given immunity, in order to get him to testify. He promptly confesses to the murder, thereby getting his sister acquitted.
You’d think fining an answer to this would be easy, but I just spent some time trying to sift through weighty legalese, including The Canada Evidence Act, which spells out the various Federal rules for evidentiary procedure.
Part 1, Section 4, Paragraphs (1)-(4):
Clear as mud? I thought so. I found an RCMP lesson plan on the rules of evidence that boiled it down somewhat: (paraphrased)
Definitions
Competent - Legally able to give evidence
Compellable - Must give evidence
General Rule: Everyone is competent unless mentally defective.
Sub-section 4(1) - Married Spouses - Not competent for prosecution. Does not include common law partners.
Exceptions
Sub-section
4(2)- Spouse charged with any of listed offences.
4(4)- Where victim under age 14.
4(5)- Where the common law permits.
The upshot, I guess, is… well, I dunno exactly. “Uttering threats” is Section 264 of the Criminal Code, and is not mentioned anywhere in the above extract of the Evidence Act. In the example you’ve given, I see the wife as the victim of a crime, rather than a recipient of privileged communication and as such, she can testify as a prosecution witness. In any event, if she calls the cops and tell them what her husband said, privilege evaporates as soon as a thirdy party is made aware.
Lawyers. Pfft.
Incidentally, in Canada you must answer questions put to you as a witness, even if they incriminate you, though such answers cannot be used agasint you at a later proceding, except for perjury charges if it can be shown that you lied. In the Perry Mason example, one scrap of exculpatory evidence showing the brother didn’t commit the murder would land him in serious trouble. Perry Mason is bullshit, anyway, though I’m judging the various TV episodes and not the books. I spit at TV judges that say things like “I’m going to allow it”, or “Please get to the point, Mr. Matlock”.
Yes - as I suggested, use immunity is contemporaneous with Fifth Amendment protections. But there are many situations in which the witness has at least some bargaining power - not the least of which is the convenient loss of memory, or the outright refusal to testify. While a contempt charge could certainly lie, obviously the better answer is to have a cooperative witness.
- Rick
Maybe part of the reason for the incorporation of the 5th was that the founders, and others, had a lot of experience with trials where the only witness against the accused was himself or herself. And the testimony was often forced out by harassment or torture.
After all, if you can get the accused to confess by whatever means you have, you save the state a lot of time and money.