Privilege

• Author: David M. Paciocco/Lee Stuesser
• Pages: 203-256

1. GENERAL PRINCIPLES

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 docu-

ments. In Descôteaux v. Mierzwinski, the Supreme Court of Canada recog-

nized 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 confi-

dential communications inside and outside the courtroom.

Privilege, unlike other rules of exclusion, is not designed to facili-

tate 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 pre-

sumption against their extension is not observed in spirit. The trend

203

1 (1982), 70 C.C.C. (2d) 385 (S.C.C.).

PRIVILEGE

chapter 7

of the day is to expand them as if they were large and fundamental

principles, worthy of pursuit into the remotest analogies. This atti-

tude is an unwholesome one. The investigation of truth and the

enforcement of testimonial duty demand the restriction, not the

expansion, of these privileges.2

Compelling 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 assump-

tion 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 reli-

gious 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-search-

ing policy.”5How 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 sat-

isfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the communi-

ty 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

204 The law of Evidence

2 J.H. Wigmore, Evidence in Trials at Common Law, vol. 8, 3d ed., rev. by J.T.

McNaughton (Boston: Little, Brown, 1961) s. 2192 [emphasis in original].

3R. v. Gruenke (sub nom. R. v. Fosty) (1991), 8 C.R. (4th) 368 at 392 (S.C.C.),

L’Heureux-Dubé J.

4Ibid.

5Ibid. at 403.

6 Wigmore, above note 2 at s. 2285 [footnotes omitted].

The “Wigmore test” represents a “utilitarian” approach to privi-

lege, 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 “priva-

cy” model has the potential to greatly broaden the scope for finding

privileges — far more so than Wigmore would accept under his “utili-

tarian” 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.11 For a “class” privilege

there is a prima facie presumption that the communications are privi-

leged and inadmissible. The party urging admission must show why the

communications should not be privileged. “Class” privileges are few in

numbers. Two of the most significant are: (1) at common law — solici-

tor-client communications, and (2) under statute — spousal communi-

cations. With a “case-by-case” privilege there is a prima facie assumption

that the communications are not privileged and are admissible.12 The

party urging exclusion must show why the communications are privi-

leged. In order to determine whether privilege applies in a particular

case, the Court accepted the “Wigmore test” as a “general framework.”

Privilege 205

7 E.W. Cleary, ed., McCormick on Evidence, 3d ed. (St. Paul, Minn.: West, 1985) s. 171.

8D.v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171 at

218, Lord Diplock.

9 See R. v. Gruenke, above note 3, L’Heureux-Dubé J. (dissenting).

10 See, for example, V.(K.L.) v. R.(D.G.), [1994] 10 W.W.R. 105 (B.C.C.A.), where a

privilege was found in diary entries. Leave to appeal to the Supreme Court of

Canada was granted; however, the case settled and was never heard.

11 Above note 3.

12 There are other kinds of class privileges, such as communications in furtherance

of settlement of an actual or contemplated litigious dispute, and police inform-

ant privilege.