Privileges, Protections, and Immunities

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 287-381

287

CHA PTER 6

PR I V ILEGES,

PROTECTIONS,

ANDIMMUNITIES

1. THE NATUR E OF PRIVILEGES,

PROTECTIONS, A ND I MMUNITIES

Where evidence is privileged, it is not admissible. Unlike most other

rules of exclusion, privilege rules are not designed to facilitate the

truth- finding process. They operate where there is a n overriding public

policy interest in excluding relevant, reliable evidence — for example,

the interest in facilit ating candid discu ssions between lawyers and

their clients.

Privileges are cre ated for the benefit of person s. Those persons m ay

be parties to t he litigation, or they may be ordinary witne sses. A person

who holds a privilege cannot rely on the privilege to refuse to take the

witness stand, but they may invoke their privilege to refuse to an swer

questions that would disclose pr ivileged information. A privi lege may

also entitle the priv ilege-holder to refuse to produce privileged docu-

ments or to share privileged information during discovery or di sclo-

sure proceedings.

The law recognizes only a limited number of privileges. The privil-

eges that most frequently ar ise are canvassed in thi s chapter and include,

for example: solicitor-clie nt information; some commu nication s made

in anticipation of litigation; statements made during attempts to set-

tle litigation; police informer privi lege; and spousal privilege relating

to marital communications. These privileges protect classes of infor-

mation, but the law also empowers judges to recognize privileges on a

THE LAW OF EVIDENCE288

“case-by-case” basis — for example, to enable journalists to protect con-

fidential sources. Pr ivileges are exceptional because privilege leads to

the loss of relevant and reliable evidence and is t herefore inimic al to the

search for tr uth.1 As a general rule, “[t]he public has the right to every

person’s evidence.”2 Therefore, for a privilege to be recognized, there

must be some overriding social concern or value that warrants t he loss

of probative evidence.3 In R v Gruenke, a majority of the Supreme Court

of Canada — declining to recognize a prima facie privilege for religious

communications — expressly acknowledged that, “[i]n the end, the

question of whether a prima facie privilege ex ists for religious communi-

cations is essent ially one of policy.”4

Ordinari ly, privileges function solely as rules of evidence offering

only “procedural protection” — that is, protection from procedures for

the collection or presentation of information in a proceeding. But, at

times, the law goes further. In R v National Post, the Supreme Court

of Canada noted that the case-by-case privilege for journal istic secret

sources “may go beyond a mere rule of evidence” — for example, by

being asserted to prevent the execution of a search warrant.5 And, in

Descôteaux v Mierzwinski, the Supreme Court of Canada recog nized

that solicitor-client privilege is a “substantive rule” conferring a “right

of confidentiality” th at gives the privilege-holder protection from dis-

closure of communications outside the trial setting.6 The substantive

protection provided to privileged solicitor-client communications

is widely accepted and has frequently been applied. There is mixed

authority as to whether other forms of privilege confer substantive

rights, but the trend is against extending substantive r ights beyond

those a fforded to solicitor-client com munication s.7

1 See JH Wigmore, Evid ence in Trials at Common Law, 3d ed, rev by JT McNaugh-

ton, vol 8 (Boston: Little, Brow n, 1961) s 2192 [Wigmore, Evidence in Trials]

(“The investigation of trut h and the enforcement of testimon ial duty demand

the restr iction, not the expansion, of . . . privileges”).

2 R v National Post, [2010] 1 SCR 477 at para 1 [Nation al Post].

3 R v Gruenke (sub nom R v Fosty) (1991), 8 CR (4th) 368 (SCC) at 392 [Grue nke],

L’Heureux-Dubé J.

4 Ibid.

5 Natio nal Post , above note 2 at para 52.

6 Descôteaux v Mierzwinski (1982), 70 CCC (2d) 385 (SCC) [Descôteaux].

7 See, e.g., R v Dennis James Ol and, 2015 NBQB 247 [Oland] (declini ng to charac-

terize sp ousal privilege as a “subst antive rule”); Canada (Minister of Citizenship

and Immigration) v Dueck (1998), 146 FTR 89 (FC) (charact erizing litigation

privilege as a “s ubstantive rule” and citi ng Descôteaux, above note 6; and C( JMN)

v Winnipeg Child & Family Services (Central Area), [1997] 9 WW R 167 (Man CA)

(declining to cha racterize litigation pr ivilege as a “substantive r ule”). In Alberta

(Information and P rivacy Commissioner) v University of Calgary, [2016] 2 SCR 555

Privileges, Protections, and Immunities 289

Just as there are times when the law goes further tha n granting a

procedural privilege, there are other t imes when it stops short of granting

a procedural privilege, offering instead case-by-case “protection” from

pre-trial disclosure or production of information to a party to the litiga-

tion. A “protection” is distinct from a privilege because a protection only

prohibits disclosure or production prior to litigation. It does not address

the admissibil ity of evidence as a pr ivilege does. And, where as most priv-

ileges attach to classes of information, protections are granted on a ca se-

by-case basis a fter a balancing of competing factors ha s been considered.

Protections play a major role in crimin al litigation, where the law

imposes extensive disclosure obligations on the prosecuting Crown

and provides for orders to third part ies (other than the parties to the

litigation) to produce information to the accused. Naturally, privi leged

information is generally excluded from di sclosure and third-part y pro-

duction obligations in criminal cases, but so too is some private infor-

mation that, while not privileged, warrants protection. There are rules

providing protection against the production and disclosure of private

information in all cr iminal prosecutions, but the protection that is given

to complainants and witnesses in sexual offence prosecutions is par-

ticularly significant. The statutory protection provided to such informa-

tion is more extensive than t hat which is provided for complainants and

witnesses in other kinds of prosecutions. In addition, legisl ation has

recently been enacted that supplements t he protection against produc-

tion and disclosure by ma king protected third-party records inadmis-

sible in sexual offence prosecutions, even if the accused happens to

obtain those third-party records without a disclosure application.8 As a

result of this new legisl ation, non-privileged information that qualifies

for protection in sexual offence cases i s treated as if it were privileged.

An “immunity” is a n enhanced form of privilege, confined to highly

sensitive government informat ion. Courts h ave an obligation to protect

the confidentiality of information protected by “public interest immun-

ity.” It is often said that, un like privilege, immunities cannot be waived

by the holder. This may be an overstatement, but it is certain ly true that

higher standards of protection are g ranted to information that is pro-

tected by immunity th an to information that is protected by priv ilege.

at para 38 [AIPC v University of Calgar y], the Supreme Court of C anada again

affirme d that “solicitor-client privi lege has evolved from a rule of evidenc e to a

rule of substa nce.” In its rea sons, the Court underscor ed solicitor-client privil-

ege’s unique status, w riting: “The importance of s olicitor-client privilege to our

justice system c annot be overstated” (ibid at para 26).

8 See Section 9.2 (b), “Legislation: Third-Part y Records in Sexual Of fences,”

below in thi s chapter.