Privilege

• Author: David M. Paciocco/Lee Stuesser
• Profession: Justice of the Ontario Court of Justice/Professor of Law, Bond University
• Pages: 217-282

217

CHAPTER 7

PR I VI LEGE

1. gEnERAl PRinCiPlES

Privilege, as a rule of evidence, arises at trial and belongs to a “wit-

ness.” 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, provid-

ing protection for conf‌idential 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 ex-

ceptional. 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

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

THE LAW OF EVIDENCE218

against their extension is not observed in spirit. The trend of the day

is to expand them as if they were l arge and fundamenta l principles,

worthy of pursuit i nto the remotest analogies. Thi s attitude is an un-

wholesome one. The investigation of t ruth and the enforcement of

testimonial duty demand the restriction, not the ex pansion, 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.3 Such 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 religious com-

munications.4 However, 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 conf‌idencethat they will

not be disclosed.

(2) This element of conf‌identiality mu st be e ssential to the full and

satisfactory maintenance of t he 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 relat ion by the disclosure

of the communications must be greater than the bene f‌it thereby

gained for the correct di sposal of litigation.6

2 J.H. Wigmore, Eviden ce in Trials at Common Law, 3d ed. rev. by J.T. McNaughton,

vol. 8 (Boston: Little, Brow n, 1961) s. 2192 [emphasis in or iginal].

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

L’Heureux-Dubé J.

4 Ibid.

5 Ibid. at 403.

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

Privilege 219

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

ege, 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.8 Take the situation

where you share an intimate secret in conf‌idence with a friend, and that

conversation becomes relevant in a subsequent proceeding. The com-

munication 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.9 The “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 be-

tween “class” and “case-by-case” privileges.11 For a class pr ivilege there is

a prima facie pre sumption that the communications are privileged and in-

admissible. The party urging admission must show why the communica-

tions should not be pr ivil eged. Clas s pr ivil eges a re fe w in nu mber s. Two of

the most signif‌icant are: (1) at common law — solicitor-client communi-

cations, and (2) under statute — spousal communications. A third less-

def‌ined class privilege applies to settlement discussions between actual or

contemplated litigants. With a case-by-case privilege there is a prima facie

assumption that the communications are not privileged and are admis-

sib le. Th e par ty u rgin g exc lusi on mu st sho w why t he co mmun icat ions are

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

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

1.2) Waiver of Privilege

A unique feature of privilege is that the right to claim or to waive the

privilege belongs to its “holder” — for whose benef‌it the privilege was

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

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

218, Lord Diplock.

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

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

privilege wa s found in diary entrie s. Leave to appeal to the Supreme Cour t of

Canada wa s granted; however, the case sett led and was never heard.

11Above note 3.