1. General Principles

• Author: David M. Paciocco - Lee Stuesser
• Profession: Justice of the Ontario Court of Justice - Professor of Law, Bond University
• Pages: 217-222

Contenidos

• 1. 1) "Class" Privileges and "Case-by-Case" Privileges.
• 1. 2) Waiver of Privilege.
• 1. 3) Inadvertent Disclosure of Privileged Information.

Page 217

Privilege, as a rule of evidence, arises at trial and belongs to a "witness." The witness, although required to take the stand, by virtue of privilege can refuse to answer certain questions or refuse to produce certain documents. In Descôteaux v. Mierzwinski, the Supreme Court of Canada recognized that a "privilege" or a "right to confidentiality" was a "substantive rule" giving a person protection from disclosure of communications outside the trial setting.¹Descôteaux v. Mierzwinski concerned solicitor-client communications, but there is little reason why this substantive rule should not apply to all privileges, providing protection for confidential communications inside and outside the courtroom.

Privilege, unlike other rules of exclusion, is not designed to facilitate the truth-finding process. In fact, privilege is inimical to the search for truth in that it leads to the loss of otherwise relevant and reliable evidence. It is for this reason that the finding of a privilege is to be exceptional. Dean Wigmore provided these words of caution:

It follows, on the one hand, that all privileges of exemption from this duty are exceptional, and are therefore to be discountenanced . . . judges and lawyers are apt to forget this exceptional nature. The presumption

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against their extension is not observed in spirit. The trend of the day is to expand them as if they were large and fundamental principles, worthy of pursuit into the remotest analogies. This attitude is an unwholesome one. The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges.²Compelling reasons must exist before a privilege is recognized. There must be some overriding social concern or value that warrants the loss of probative evidence.³Such a determination is more a matter of policy than of proof. The assumption underlying a privilege is that it does indeed go to protect some societal interest, which is an assumption not open to ready proof. For example, with respect to a privilege for religious communications, how does one assess the importance or need to preserve such confidences? In R. v. Gruenke, the Supreme Court of Canada rejected the creation of a blanket privilege for religious communications.⁴However, L’Heureux-Dubé J., in dissent, was of the view "that there is a human need for a spiritual counsellor, a need which, in a system of religious freedom and freedom of thought and belief, must be recognized" and "must supercede [sic] the truth-searching policy."⁵

How does one prove or challenge this view?

What is involved is a balancing of the broader "social interest" against the principle that courts should be provided and have available all relevant evidence. To this end, Wigmore fashioned four conditions to serve as the foundation for determining all such privileges whether claimed or established:

(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.

(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.⁶

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The "Wigmore test" represents a "utilitarian" approach to privilege, in that the privileges are created to serve the greater public good.⁷

For example, the fact that a communication is made in confidence is not, standing alone, enough to create a privilege.⁸Take the situation where you share an intimate secret in confidence with a friend, and that conversation becomes relevant in a subsequent proceeding. The communication was made in confidence, but the broader social value in preserving and maintaining friendships is not sufficient to override the need to present the relevant evidence at trial. Nevertheless, in recent years confidentiality or "protection of privacy" has been advanced as a sufficient justification to found a privilege.⁹The "privacy" model has the potential to greatly broaden the scope for finding privileges - far more so than Wigmore would accept under his "utilitarian" model.¹⁰

1. 1) "Class" Privileges and "Case-by-Case" Privileges

The Supreme Court of Canada in R. v. Gruenke made a distinction between "class" and "case-by-case" privileges.¹¹For a class privilege there is a prima facie presumption that the communications are privileged and inadmissible. The party urging admission must show why the communications should not be privileged. Class...