This week, on Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! we look at the issue of spousal privilege. The case at issue involved a husband and wife accused of murder.
While investigating, police obtained a production order to gain access to text messages sent by Mrs. Cuthill to her husband and to her brother-in-law.
Mrs. Cuthill argued at trial that those text messages were inadmissible because they were spousal communications. Because the documents were obtained by a production order as opposed to a warrant, Mrs. Cuthill argued that her spousal privilege was violated by police. The court disagreed and she and her husband were both convicted of murder.
The Supreme Court of Canada missed the opportunity here to clarify when spousal privilege applies in the digital age and the application of spousal privilege to a broad understanding of communication that now exists in our legal system.