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Judge rules immunity extends to common-law spouse

The Crown’s contention that it can compel a common-law spouse to testify against their significant other has been dismissed by the Alberta Court of Appeal.

The appeal was filed on Feb. 4, 2014, after the Crown’s key witness against a Red Deer man was not compelled to testify and did not want to, citing spousal immunity. When his spouse was not compelled to testify, the Crown called no evidence and the case was dismissed.

Trevor Norman Legge, 31, was on trial for evading police, mischief, possession of stolen property, possession of a weapon and careless transport of a weapon.

The Crown argued that spousal immunity to testify was limited to married couples and because they were common-law partners, spousal immunity did not apply.

Defence argued that Kristen Farrar, Legge’s common-law spouse, was a competent witness and free to testify if she wished, but maintained that a common-law spouse is not a compellable witness.

The trial judge, Ken Rostad, sided with defence and said Farrar was not a compellable witness for the Crown. This led to no evidence being called by the Crown and a dismissal of the case.

An appeal was filed by the Crown, saying the trial judge erred when he said a common-law spouse was covered by the principle of spousal immunity.

In their appeal, the Crown said Farrar could not be compelled to testify without also saying that she was incompetent to testify.

The appeal justices, Marina Paperny, Clifton O’Brien and Barbara Romaine, said in their ruling that Farrar’s competency to testify was never in dispute and it was unnecessary for the trial judge to address the matter.

As a result, the appeal was dismissed by the three appeal justices.

Legge pleaded guilty to charges from an unrelated matter earlier this year and is serving 11 months in a federal penitentiary, half of his two-year sentence when taking into account his 13 months of pre-trial custody.

mcrawford@reddeeradvocate.com

 
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