Privilege

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

217

CHA PTER 7

PR I VI LEGE

1. gEnER Al PRinCiPlES

Privilege, as a rule of evidence, a rises at tr ial and belongs to a “wit-

ness.” The witness, although required to take the stand, by virtue of

privilege can refuse to answer cert ain questions or refuse to produce

certain documents. In Descôteaux v. Mierzwinski, t he Supreme Court

of Can ada recognized that a “privilege” or a “right to conf‌identi ality”

was a “substa ntive rule” giv ing a per son protection from di sclosure of

communications outside the trial setting.1 Descôteaux v. Mierzwin ski

concerned solicitor-client communications, but there is little reason

why this substantive rule should not apply to all privileges, provid-

ing protection for conf‌idential commun ications inside a nd outside the

courtro om.

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 th is reason that the f‌inding of a privilege is to b e ex-

ceptional. Dean Wigmore provided the se 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 ex tension is not observed in spi rit. 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 a nalogies. Thi s attitude is an un-

wholesome one. The invest igation of t ruth and the enforcement of

testimonia l duty demand the re striction, 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 war rants

the loss of probative evidence.3 Such a determination is more a matter

of policy t han of proof. The as sumption underlying a privilege is t hat

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 asses s the importance or

need to preserve such conf‌idences? In R. v. Gruenke, the Supreme Court

of Canada rejected the creation of a blanket priv ilege 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 ev idence. 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 mu st be e ssential to the full and

satisfactor y maintenance of t he relation between the p arties.

(3) The relati on must be one which in the opinion of the community

ought to be sedulously foste red.

(4) The injury that would inure to the relat ion by the disclosu re

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].

Privi lege 219

The “Wigmore test” represents a “utilitar ian” approach to privil-

ege, in that the priv ileges are created to serve the greater public good.7

For example, the fact that a communication i s made in conf‌idence is

not, sta nding alone, enough to create a privilege.8 Take the sit uation

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 conf‌identialit y or “protection of privacy” has been advanced as a

suff‌icient just if‌ication to found a privilege.9 The “privacy” model has

the potenti al to greatly broaden the scope for f‌inding privileges — far

more so than Wigmore would accept under his “utilita rian” 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 par ty 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 privi leged and a re 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 “Wig more test” as a “general framework.”

1.2) Waiver of Privilege

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

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

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. Gruen ke, above note 3, L’Heureux-Dubé J. (dissenti ng).

10 See, 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.

11 Above note 3.