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March 16, 2015

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Page 2 March 16, 2015 • Law Times NEWS Spousal immunity Judge rules protection should apply to common law couples By yamri Taddese Law Times f married couples cannot be compelled to testify against each other in criminal mat- ters, the same privilege should apply to common law partners, an Ontario Court judge has ruled. In R. v. Lomond, Justice Ferhan Javed found that to deny spousal immunity to people in common law relationships is "discrimina- tory and inconsistent with mod- ern values under the Charter of Rights and Freedoms." To date, there was no binding authority that dealt squarely with the issue, according to Javed, who noted the province has conf lict- ing jurisprudence on the matter. "The Supreme Court has taken note of changing societal values regarding common-law partner- ships and the importance of rec- ognizing and protecting relation- ships that are functionally equiva- lent to marriage," wrote Javed. "I find that it is both just and appropriate to extend the immu- nity rule to make common-law spouses in committed relation- ships akin to [married] non-com- pellable witnesses for the Crown." In Lomond, Javed found the Crown couldn't compel Jocelyn Agua to appear as a witness in the proceedings involving her com- mon law partner, Robert Lomond. "Further, based on the weight of the judicial authorities on point, I find that the existing common- law rule is discriminatory and inconsistent with modern values under the Charter of Rights and Freedoms . . . and therefore, an appropriate remedy, which does not require a constitutional chal- lenge would be to extend the non- compellability aspect of the rule to common-law couples." The ruling is an example of a judge wanting to apply the law fairly, says criminal lawyer Howard Rubel. Provisions exempting spouses from testifying against each other actually have deeply discrimina- tory roots in the British common law. The law originally excluded women from testifying for or against their husbands as it con- sidered them merely extensions of their male partners, says Rubel. That, of course, isn't the in- tent of the Canada Evidence Act that says spouses can't be com- pelled to testify against each other given the need to foster trusting relationships. "Origi- nally, [the law] was such a dis- criminatory thing and now the courts are trying to change it as much as possible so that there is no discrimination," says Rubel. "There is no valid, rational basis for treating common law spouses and formally mar- ried spouses differently when it comes to the reasoning behind a spousal privilege here, which is to foster a trusting, good rela- tionship," he adds. But the question of whether it's discriminatory to treat com- mon law partners differently from married ones before the law is a tricky issue that depends on the context, says family lawyer Andrew Feldstein. "That's really the hard question because people choose to live together because they've rejected the concept of marriage," says Feldstein. "And should we be in a society that respects those choices? Rights, at this time, at least from a family law perspective, we somewhat respect those choic- es," he adds, noting the family law treats common law partners the same as married couples in some aspects whereas other ar- eas recognize a distinction be- tween the two arrangements. But extending spousal immunity in cases like Lomond will have no bearing on family law, according to Feldstein. "The Supreme Court of Cana- da has spoken on the issue of mar- ried and common law. I think that carries more weight from a family law perspective," he says. Javed decided the issue of dis- crimination even though there was no Charter application before him. "The Crown submits that the Court cannot grant relief to the defendant as there is no Char- ter application before the Court. While the Crown is correct that there is no Charter application before the Court, the defendant is clear in his request, in that, he does not seek to have the provi- sions of s. 4 considered unconsti- tutional," wrote Javed. "Put differently, the rem- edy sought by the defendant is a common-law declaration that the current rule operates un- fairly based on the Charter. In my view, having framed the is- sue this way, there need not be a formal Charter application as these reasons do not disturb the existing provisions of s. 4 of the [Canada Evidence Act]." LT X 2015 BENCHER ELECTION TANYA WALKER Experience will contribute to change. • Access to the Profession Efficiencies in the Judicial System • Fiscal Prudence • Diversity My focus is on raising new solutions to existing and emerging issues: Untitled-3 1 2015-03-10 2:08 PM SCC issues ruling on indefinite suspensions By yamri Taddese Law Times he New Brunswick Legal Aid Services Commission breached the term of its employment contract and constructively dis- missed an executive director when it suspended him indefi- nitely without giving reasons, the Supreme Court of Canada has found. In Potter v. New Brunswick Legal Aid Services Commission, the top court differed with two lower courts in a ruling this month that found the commission had acted in bad faith when it told David Potter, who was going to return from a sick leave in January 2010, to stay away from the office without providing an explanation. "In my view, legitimate business reasons constitute a requirement for a finding that an administrative suspension based on an implied author- ity to suspend is not wrongful. Other than in the context of a disciplin- ary suspension, an employer does not, as a matter of law, have an implied authority to suspend an employee without such reasons," wrote Justice Richard Wagner on behalf of the 5-2 majority. Labour and employment lawyer Danny Kastner says the decision brings clarity to the existing constructive dismissal principles. "What it shows is the Supreme Court's willingness to apply the contractual inter- pretation principles in Bhasin v. Hrynew, which says all contracts have to be performed with good faith, honesty, and openly," says Kastner. According to the court, Potter satisfied the second part of the legal test for constructive dismissal, which is whether a reasonable person in his position would have felt the essential terms of the employment contract had changed substantially. "It was reasonable for Mr. Potter to perceive the unauthorized unilat- eral suspension as a substantial change to the contract. As far as he knew, he was being indefinitely suspended and had been given no reason for the suspension. The letter to Mr. Potter stated that the suspension was to continue 'until further direction from the Commission,'" wrote Wagner. Potter became executive director of the legal aid commission in 2006. Within a few years, his relationship with the board of directors there had deteriorated and talks were underway about a buyout of his contract. After his suspension, Potter brought an action against the commission for constructive dismissal, at which point the board decided the action amounted to a resignation and terminated his employment. In this case, the commission had argued it didn't have a duty to provide Potter with work and that an administrative suspension with pay rarely constitutes constructive dismissal. The court disagreed. "It is clear that the benefits derived from performing work are not limited to monetary and reputational ben- efits," wrote Wagner. LT I There's no rational basis for treating com- mon law couples differently when it comes to the spousal immunity issue, says Howard Rubel. T

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