Does the spousal incompetency rule apply to common-law spouses?

The trial judge applied the three-part test from Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, to decide whether the spousal incompetency rule offends s. 15(1) of the Charter because it does not extend to common-law spouses. He found that the first two branches of the test were met, in that: (a) the spousal incompetency rule draws a clear and formal distinction between married spouses and common-law spouses that deprives common-law spouses of the benefit of claiming testimonial protection and spousal privilege, and (b) that distinction is based on the analogous ground of marital status.