6. “Case-by-Case” Privilege

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 253-259

Contenidos

• 6. 1) Journalist-Source Case-by-Case Privilege.

Page 253

Certain communications will be privileged on a "case-by-case" basis using the "Wigmore Four" criteria:

1) The communications must originate in a confidence that they will not be disclosed.

2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

Page 254

3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

Claims for privilege are made by professionals of all kinds - journalists, accountants, clerics, physicians, psychiatrists, social workers, counsellors, mediators - and, at times, others in non-professional relationships seek to protect certain confidences, such as those between a parent and a son or daughter.¹⁴⁰For the most part, the courts have resisted these claims of privilege, fundamentally because expansion of privilege results in the loss of much valued evidence.

The Supreme Court of Canada has made it abundantly clear that creation of new "class" privileges by the courts will be rare indeed; if new class privileges are created it will be through legislative action. In R. v. Gruenke, the Court refused to recognize a new class privilege for religious communications.¹⁴¹Chief Justice Lamer, for the majority, wrote:

As I have mentioned, a prima facie privilege for religious communications would constitute an exception to the general principle that all relevant evidence is admissible. Unless it can be said that the policy reasons to support a class privilege for religious communications are as compelling as the policy reasons which underlay the class privilege for solicitor-client communications, there is no basis for departing from the fundamental "first principle" that all relevant evidence is admissible until proven otherwise.¹⁴²On the other hand, the Court was prepared to recognize privileges on a "case-by-case" basis, an approach to privilege first alluded to by the Supreme Court in Slavutych v. Baker.¹⁴³Determination of privilege in a given case was to be guided by Wigmore’s four criteria:

1) The communications must originate in a confidence that they will not be disclosed.

2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

Page 255

3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

In M.(A.) v. Ryan the Supreme Court went through all four of the Wigmore criteria, and the decision is instructive as it sheds light on how to apply those criteria.¹⁴⁴The defendant, Dr. Ryan, had been the plaintiff’s psychiatrist. The plaintiff was seventeen years old at the time. In the course of treatment, Dr. Ryan had sexual relations with her. Arising from these acts, he was convicted of indecent assault. The plaintiff brought a civil action. She alleged that his conduct caused her severe mental distress and anguish, and left her with lasting psychological and emotional trauma. Dr. Ryan did not deny the sexual activity but still contended that it was consensual and in any event did not cause the emotional or psychological trauma as alleged. The plaintiff went to see another psychiatrist, and she was very concerned about keeping her communications with her new psychiatrist confidential. During the examination for discovery of the plaintiff, the defendant requested production of the second psychiatrist’s records and notes. The claim of psychiatrist-patient privilege was raised.

At the initial lower court hearing, the Master found that the communications did not originate in confidence because both the plaintiff and her psychiatrist recognized that notwithstanding their desire for confidentiality, the record of their sessions might someday be ordered by a court to be disclosed. In other words, they recognized that their communications could not be absolutely protected. Justice McLachlin, writing for the majority, found that the mere possibility that the communications might have to be divulged did not change the fact that they were made in confidence. Absolute protection could not be given and was not required.

Turning to whether the element of confidentiality was essential to the relationship, the psychiatrist’s evidence established both that confidentiality was essential to the...