The Privileged Text: R v Walsh and Spousal Privilege

Author names: Allison Byram and Esther Adegbesan

Introduction

Spousal privilege has existed for hundreds of years, serving as a legal safeguard for marital communications.[1] During this period, there have been limited advancements or changes in how this law operates in Canada. The law of spousal privilege is outlined within s. 4(3) of the Canada Evidence Act, which reads as follows: “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.”[2]

The Supreme Court, in R v Couture, described the current legal framework surrounding spousal privilege, holding that it applies only to testimony by the spouse and not communications between the spouses.[3] As such, spousal privilege is a testimonial privilege that protects a wife or husband from testifying against their spouse but is not a protection to the communications itself.[4] Specifically, the privilege applies to the person who received the communication.[5] Following this, the spouse who made the communication cannot claim the privilege and effectively force the receiving spouse to not disclose the information contained.[6] Notably, the privilege only applies to communications that took place during the marriage. Therefore, you cannot marry someone to invoke the privilege after communications have already occurred, and the privilege does not survive divorce.[7]

With the rate of technological advancement, and as communication methods between spouses evolve, the question arises: should spousal privilege extend to digital communications between spouses? This issue was at the centre of R v Walsh, a 2019 decision of the Ontario Superior Court of Justice.

R v Walsh, 2019 ONSC 5565

In the case of R v Walsh, the defendants included Andrew McKay, Karl Walsh, James Christie, Martin Bain, and Francis Chantiam.[8] The defendants were jointly charged with one count of orchestrating a scheme to defraud the Ontario Provincial Police Association and its members of over $5,000.[9] The Crown alleged that the defendants executed their scheme by concealing that three of them—"Karl Walsh, James Christie and Martin Bain—[held] a beneficial interest in PIN Consulting Group Inc., Leximco Ltd., and/or First Response Travel Group.”[10] This fraudulent activity was said to have occurred between January 1, 2014, and June 30, 2015.[11]

During the investigation, the police executed a warrant and discovered several texts exchanged between Karl Walsh and his wife on April 22, 2014. These messages discussed the breakdown of shareholder equity in PIN Consulting Group and the associated monetary value of the shares.[12] The texts also outlined their plans to transform PIN Consulting Group into an umbrella organization to launch other businesses, such as a travel agency.[13]

Due to their relevance and probative value, the Crown sought to admit the text messages into evidence.[14] The key issue in the pre-trial hearing was whether spousal privilege rendered records of electronic communications between a married couple inadmissible, despite being obtained through a validly executed warrant.[15] Mr. Walsh's defence counsel argued that the court should deem the text messages inadmissible. They contended that admitting these messages would violate section 4(3) of the Canada Evidence Act and section 189(6) of the Criminal Code.[16] The defence argued that if the couple had engaged in this conversation in person or verbally over the phone, their communication would have been protected by spousal privilege, and therefore so should their text messages.[17]

In contrast, the Crown argued that text messages are admissible because section 4(3) of the Canada Evidence Act does not grant spousal communication privileged status. Instead, the act only offers statutory protection against compelling spouses to testify against one another.[18] Additionally, the Crown argued that section 189(6) of the Criminal Code—which outlines that the lawful interception of privileged communications through wiretap renders any information obtained privileged[19]—does not apply to the text message communications in this case. Resultantly, the Crown found no legal foundation to justify excluding the lawfully obtained text messages.

After reviewing the submissions from both parties, the judge concluded that there is no basis under section 4(3) of the Canada Evidence Act to exclude the impugned text messages. Section 4 states that neither a husband nor a wife can be compelled to disclose any communication shared between them during their marriage.[20] The court interpreted this section as granting testimonial privilege to spouses, meaning that neither spouse can be forced to testify about their shared communications.[21] However, if the information is obtained legally, spousal privilege does not make the communication itself privileged or confidential.[22]                 

The court reviewed several cases to illustrate that past rulings have consistently held that communications between spouses, whether through physical letters or electronics, are admissible in court.[23] The court also highlighted that admitting such communications aligns with the rationales behind spousal privilege. The two identified rationales for spousal privilege include: (1) maintaining "matrimonial harmony" and (2) preventing spouses from being compelled to testify against each other. [24] The court asserted that admitting spousal communications does not undermine either of these rationales, as it does not require either spouse to testify or force one spouse to participate in the prosecution of the other.[25]

Lastly, the court determined that section 189(6) of Part VI of the Criminal Code did not apply in this case because the police did not intercept the historical text message via a wiretap authorization but obtained them through a lawfully executed warrant.[26] The court states that although there is a reasonable expectation of privacy with text messages, it does not prevent the police from lawfully seizing them.[27]

In conclusion, the court ruled the text messages exchanged between Mr. Walsh and his wife were admissible as evidence. The court found no grounds related to spousal privilege that would render these messages inadmissible.

Discussion

Spousal privilege is a legal protection that ensures confidentiality in communications between spouses. In the modern world, the way that people communicate with each other has changed. Many personal and sensitive discussions occur on text messaging applications. Moreover, the nature of marriage, along with societal views on marriage, has changed in recent decades. For example, long-distance relationships are much more common now; individuals may be married who do not live within the same country, and many relationships are formed over dating apps. Even for those in more conventional relationships, texting is often the primary mode of communication. Resultantly, texting is often used for intimate, private conversations. In fact, many individuals claim that they feel closer to their spouses by texting them throughout the day.[28]

The Supreme Court has stated that the protection of marital harmony is the ultimate goal of the privilege, which was reiterated in R v Walsh.[29] Including text messaging in this form of privilege will contribute to the ultimate goal, while not including them may detract from it and cause spouses to feel further apart in the modern world of relationships.

Further, society already views text messages as private in some legal contexts. Therefore, a second argument for including text messages as a part of spousal privilege is privacy concerns, which have grown in the digital era and could undermine the intimate nature of marital relationships. For example, in the landmark decision of R v Marakah, the Supreme Court held that in some cases, text messages can attract a reasonable expectation of privacy under s 8 of the Charter.[30] The court in Walsh contemplated the Supreme Court’s judgement in Marakah, ultimately finding that it did not warrant protection under the spousal privilege protection.[31] However, limiting the privilege to traditional forms of communication overlooks the fact that spouses now rely on digital conversations for personal and emotional support. Including text messages under spousal privilege would reinforce and reconcile the Supreme Court's decisions in Couture and Marakah in that spouses would feel free to communicate openly without concern that these private exchanges could later be disclosed in court by their spouse.

On the other hand, courts are understandably hesitant to expand the spousal privilege. The Supreme Court and lower courts have consistently held that this privilege does not protect communication itself but operates as a testimonial privilege protecting a spouse from testifying against their spouse for communications between them.[32] Notably, there has been no break in the judicial history.[33] Additionally, there is a trend within evidence jurisprudence toward narrowing privileges rather than expanding them.[34]

However, it may be useful for the courts to re-engage with this issue as different fact scenarios arise. For example, in situations where there is communication between two spouses who are in a long-distance relationship and whose primary communication is virtual or where there is a spouse who works long hours and connects with their spouse through text. It may be useful for courts to consider these issues on a fact-dependent basis, considering what the relationship between the spouses is like. These issues collectively call into question whether the current application of spousal privilege aligns with its original intended purpose as established in the 19th century within the context of contemporary legal and societal frameworks.

Conclusion

Although the court’s decision in R v Walsh concluded that spousal privilege does not extend to text messages, expanding spousal privilege to include text communications is an important issue that courts may need to develop further in the future.  Evolving societal norms around the protection and privity of text communications may result in re-evaluations of spousal privilege laws and should continue to be at the forefront of the judiciary's minds. As these situations inevitably become more common and present themselves more frequently, the court may need to reassess how it approaches this issue.

[1] R v Couture, 2007 SCC 28 at paras 37-38 [Couture].

[2] Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 4(3) [CEA].

[3] Supra, note 1 at para 41.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] R v Walsh, 2019 ONSC 5565 at para 2 [Walsh].

[9] Ibid at para 2.

[10] Ibid.

[11] Ibid.

[12] Ibid at para 4.

[13] Ibid.

[14] Ibid.

[15] Ibid at para 1.

[16] Ibid at para 5.

[17] Ibid.

[18] Ibid at para 6.

[19] Ibid at para 23.

[20] Ibid at para 8.

[21] Ibid at para 9.

[22] Ibid.

[23] Ibid at para 12.

[24] Ibid at para 20.

[25] Ibid at para 22.

[26] Ibid at para 24.

[27] Ibid at para 27.

[28] Amanda Lenhart & Maeve Duggan, Couples, the Internet, and Social Media, (Washington: Pew Research Center, 2014).

[29] Couture, supra note 1 at para 43.

[30] R v Marakah, 2017 SCC 59 [Marakah].

[31] Walsh at para 26.

[32] Couture, supra note 1 at para 41.

[33] Walsh, supra note 8 at para 18.

[34] See: R v National Post, 2010 SCC 16.