Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Al-Enzi, 2021 ONCA 81, February 5, 2021, at paragraphs 194 to 199:

I conclude that spousal testimonial privilege under s. 4(3) of the Canada Evidence Act does not survive divorce. I reach this conclusion by considering the statutory language in its entire context, in its grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 30, citing Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 7. I place emphasis on both the plain language of the statute and the policy rationale underlying the privilege in reaching this conclusion.

Accordingly, the intercepted communications between the appellant and Ms. Zeinab Abdul-Hussein were not privileged at the time of trial, as the two were no longer married. The trial judge did not err on this issue, nor in refusing to exercise her gatekeeper function to exclude this otherwise admissible evidence.

The first source of my conclusion on the limitations of spousal privilege under s. 4(3) is the language of the statute itself. I reproduce it again for emphasis:

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. [Emphasis added.]

The plain language of this section does not support the appellant’s interpretation that the privilege survives divorce. Section 4(3) makes clear that the class of people who are not compellable to disclose marital communications are husbands and wives. This is distinct from the language describing what constitutes a marital communication, namely communications made during a marriage.

I do not agree with the appellant’s argument that the language of “any communication made…during their marriage” exclusively governs the scope of the provision, such that the privilege attaches to any communication made during the marriage regardless of the marital status of the one claiming the privilege. This interpretation would deprive the references to “No husband” and “no wife” of meaning. Such an interpretation violates the presumption against tautology, according to which it is presumed that the legislature avoids superfluous or meaningless words. Instead, every word has a specific role to play in advancing the legislative purpose: Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, at para. 32; Gallone, at para. 31.

In my view, there are two relevant requirements in subsection 4(3): i) that the communication is one that is made during the marriage; and ii) that the person claiming the privilege is, at the time of the claim, a husband or wife.  [Court of Appeal’s Emphasis]