For the purposes of giving evidence in court, there are two issues:

• being competent (i.e., able to give evidence)
• being compellable (i.e., forced to give evidence when called by a subpoena)

NOTE: Failure to comply with a subpoena can lead to prosecution for contempt of court.

Special rules apply with regard to a husband or wife giving evidence for or against the other. A husband or wife is able, but cannot be forced, to give evidence for the accused spouse, that is, in his or her defence. They are competent, but not compellable.

With regard to giving evidence against a spouse, a spouse is competent (i.e., able to do that), but not compellable except in two instances. The two exceptions when a spouse can be forced to give evidence, even when they do not want to, is where the charge involves a threat to the person, liberty, or health of the spouse; or with regard to specific sections of the Criminal Code. If there is any dispute whether a situation falls into one of these categories, a judge will decide that issue at the hearing.

Charges involving a threat to the person, liberty, or health of the spouse would include most cases where physical abuse is taking place.

The sections of the Criminal Code where a spouse can be forced to give evidence against the other spouse include sexual offences, sexual offences in relation to children, abduction of children, various marriage offences such as bigamy, and the offence of failure to provide the necessities of life.

If a spouse refused to give evidence against the other where those charges were concerned, they would be at risk of being prosecuted for contempt of court.

The law with regard to the circumstances when a spouse can give evidence against the other spouse continues to evolve. For example, the Supreme Court of Canada allowed a wife to give evidence against her husband in a case involving forgery of a signature because the marriage had broken down completely. In another case, where a couple married between the date of the offence and the trial, an appeal court found that the marriage was genuine and that the wife was not able to give evidence against her husband. Note again, however, that in cases involving a threat to the person, liberty, or health of the spouse, the spouse is able and can be forced to give evidence against the abusing spouse.

Return to More on Giving Evidence

Updated: October 1, 2003
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