Problems of Process in Litigating Privilege Claims Under the Flexible Wigmore Model
| Author | Michael Code |
| Pages | 251-275 |
Problems
of
Process
in
Litigating Privilege Claims
Under
the
Flexible
Wigmore
Model
Michael
Code*
The
most important development
in the law of
privilege,
in the
twenty
years
since
the Law
Society
of
Upper Canada Special Lectures last
addressed
the
subject
of
evidence
law,
is the
clear trend away
from
"class privilege"
and
towards "case-by-case privilege." This paper will
address
the
problems
of
process that have resulted
from
this
trend.
In
particular,
it has led to
costs, delays,
and
uncertainties
in
resolving
claims
of
privilege. There
are
valid policy
justifications
supporting
the
trend towards case-by-case privilege,
but we
need
to
develop better pro-
cedural
models
for
determining these disputes between
the
competing
interests
of
confidentiality
and
disclosure.
A. THE
ORIGINS
OF THE
TREND:
THE
DECISION
IN
SLAVUTYCH
v.
BAKER
The
Supreme Court
of
Canada initiated
the
trend away
from
class privi-
lege
in
1976
in its
seminal
decision,
Slavutych
v.
Baker.}
That case held that
new
privileges could
be
recognized
in
circumstances where
the
particular
communication
satisfied
Wigmore's four-point test:
the
communication
originates
in
confidence; confidentiality
is
essential
to the
relationship
in
*
Of
Sack Goldblatt
Mitchell,
Toronto.
1
(1976),
55
D.L.R.
(3d)
224
(S.C.C.)
[Slavutych].
251
252
MICHAEL
CODE
question;
the
relationship
is one
that
the
public
wishes
to
encourage;
and
the
importance
of the
evidence
to the
litigation
is
outweighed
by the
harm
to the
relationship that would result
from
disclosure.2
Many
confidential communications
and
relationships will satisfy
the
first
three Wigmore criteria.
It is the
fourth
criterion that
is
usually
determinative
of any new
claim
of
privilege.
The
test embodied
in
this
fourth
criterion
is,
by its own
terms,
specific
to the
particular communi-
cation
and the
particular case.
It
involves
a
flexible
balancing
of the
need
for
disclosure against
the
need
for
confidentiality
in the
circumstances
of
an
individual
case
and an
individual
relationship.
This
approach
abandons
the
rigidity
of
protecting
all
communications within
the
rela-
tionship, the
so-called class privilege. Wigmore's test seeks
to
achieve
individualized justice,
on a
case-by-case basis, while sacrificing
the
long-term certainty
of
class privilege.
In the
case
of
Slavutych
itself this
flexible
approach resulted
in the
recognition
of a new
privilege,
as the
Court held that
a
confidential
communication between
a
university professor
and a
tenure committee
was
privileged. There
is
obviously
no
class privilege protecting such
a
communication
but,
on the
particular
facts
of the
case,
it was
found
to
be
privileged.
The
Court's pronouncements
on the law of
privilege
in
Slavutych
were clearly
obiter
dicta.
Furthermore,
the
Court
did not
expressly
announce
in its
judgment that
it was
signalling
a new
approach
to the
law of
evidence
and
abandoning class privilege.
As
Chief Justice
McLachlan
put it,
while
a
professor
at
U.B.C.
Law
School,
[W]hile
Spence
J.
approved
Wigmore's
approach,
his
reasons
do not
evince
an
awareness
that
the
Court
was
changing
the law of
evidence
on
privilege.
While
this
omission
is not
crucial
in
itself,
it
gives
rise
to
doubts
of how
thoroughly
the
issue
was
canvassed
and how
carefully
it
was
considered.3
The
uncertainties that remained
for a
number
of
years following
Slavutych,
as to the
correct approach
to the law of
privilege,
are
well
documented
in
Sopinka
on
Evidence
and
will
not be
repeated
here.4
2
8
Wigmore,
Evidence
(McNaughton
Rev,
1961)
S.
2285.
3 B.
McLachlan,
"Confidential
Communications
and the Law of
Privilege"
(1977)
11
U.B.C.L.R.
266 at
273.
4 J.
Sopinka, S.N. Lederman,
and
A.W.
Bryant,
The Law
of
Evidence
in
Canada,
2d
ed.
(Markham,
ON:
Butterworths,
1999)
at
718-23.
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