The Wigmore Test
The most popular forms of privilege which may arise in the course of an investigation of this nature will be “legal advice privilege” and “litigation privilege”.
The grounds of privilege are not firmly closed however.
The Supreme Court of Canada in R v Gruenke, a 1991 decision, considered the issue of whether privilege may attach to communications between a parishioner and both a pastor and a lay counsellor of a fundamentalist Christian church.
The case is important in setting out the distinctions between a privilege which is defined as a class or blanket privilege and the second category of privilege which is determined on a case-by-case basis by the application of the tried and true four components of the Wigmore test which are as follows:
- The communications must originate in a confidence that it will not be disclosed;
- The elements of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
- The relation must be one which in the opinion of the community ought to be sedulously fostered; and
- The injury which would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.
The appellant appealed her conviction of murder and questioned the admissibility of communications between her and her church pastor and counsellor based on common law and section 2a of the Charter as privileged communications.
The accused was at the time of the alleged murder a 22 year old woman, trained in reflexology. The victim was an 82 year old man, who had loaned Ms. Gruenke funds to start her own business and provided her with a car and an allowance. In his will, he had left her a life interest in his estate. Ms. Gruenke considered him a surrogate father.
She had, at one time, lived with him in a platonic relationship until he expressed jealousy over her relationships with men and until he began to make unwelcome sexual advances to her.
After she moved to her own residence, he called her repeatedly, asking her to have sex, which unwelcome requests became more insistent. She feared him and being alone with him.
The evidence of the two Church witnesses, the pastor and the counsellor, supported the Crown theory that the murder was planned and deliberate and not the result of a defensive response to a sexual attack as was the stratagem of the defence at trial. The Crown’s argument was supported by statements made by the accused to these persons.
A class privilege or blanket privilege or prima facie privilege or common law privilege, the court stated, allowed a prima facie presumption of inadmissibility, once the relationship has been shown to fit into the class. It is the onus of the party seeking that the evidence be admitted as an exception to the general rule.
Communications which are privileged, the court stated, are excluded for policy reasons. The evident example offered was that of solicitor-client communications.
The alternative of case-by-case privilege, where no class privilege was applicable, typically involved an examination of the Wigmore test, the court noted, which set out the criteria to determine whether communications should be privileged. In applying this test, the analysis requires that the policy reasons for excluding otherwise relevant evidence be weighed in each instance, this being the fourth and often the most difficult branch of the test to meet.
The court rejected the policy need for a class privilege of religious communications, as it decided that such discussions were not inextricably linked with the justice system as in the case of solicitor client communications.
While freedom of religion was indeed a Charter value and a protected right within section 2a, it was not required, the court noted, to provide a class privilege for its protection.
The Supreme Court noted that the Ontario Court of Appeal recognized a “priest and penitent” privilege in re Church of Scientology and The Queen on a case-by-case basis, which parenthetically, was not found in that instance.
The Court of Appeal in that instance refused to recognize a class privilege to be afforded to priest-penitant communications:
We agree with the Crown that as there is no recognized class privilege accorded to the priest-and-penitent relationship, there could be no prima facie entitlement to privilege on this basis. This is necessarily so because at the time of an application for a search warrant, the target of the proposed search is not represented and is thus precluded from trying to establish a claim for a privilege, based on Wigmore's four indices of confidentiality, that is not as yet recognized. Chief Judge Hayes was therefore jurisdictionally competent to authorize the seizure.
The Court of Appeal added, however, that it remained open to consider the application of this privilege by apply on a case-by-case analysis by applying the Wigmore test:
We cannot agree, however, that it is too late to expand the modern law of privilege. In the light of the constitutional protection given by the Charter and having regard to the expansion of the law of privilege under the general principles enunciated by Dean Wigmore and accepted by the Supreme Court of Canada in Slavutych v. Baker, supra, we are satisfied that our courts will be encouraged to recognize the propriety of a priest-and-penitent privilege, if not as a class, at least on a case-by-case basis.
On the facts in Gruenke, the Supreme Court determined that the communications did not meet the first requirement of the Wigmore test, namely, that they originated in confidence that they would not be disclosed. Accordingly as stated by the court, the “raison d’etre” was missing.
The point of this rather long review is that the assertion of privilege is that such a plea is not limited to the pure legal advice and litigation privilege categories.