With privilege (i.e. information that must be kept secret so inadmissible), protection against self-incrimination, and exclusion of illegally obtained evidence rules, can exclude reliable evidence (that may be important for fairness in this particular trial) but there are other social concerns that are more important than this one trial. But of course should apply such rules cautiously.
Privilege v. confidentiality:
If something is confidential, it is not significant in eyes of Evidence law – so moment a court wants the confidential info can subpoena for it, unless it is privileged – ex. medical records are confidential but not privileged (in most cases)
Waiver of privilege – every privilege is owned by someone – and only person that holds the privilege can waive it and are also the only ones who can invoke it.
Historically there are a number of class privileges, but apparently no new class privileges will be created (unless by legislation):
Gruenke (1991) (S.C.C.) there is no general priest-penitent / spiritual advisor-advisee class privilege, so such evidence can be admissible.
Similarly in Ryan (1989) (Nfld. C.A.) there is no class privilege for psychiatrist-patient.
However, even without privilege, a duty of confidence may still exist without privilege e.g. priest-penitent, doctor-patient, so may have a cause of action for damages for a breach of duty of confidence (but this is totally different to admissibility)
Existing class privileges (i.e. recognized prior to Gruenke):
Gruenke: even if something fits within one of these, if other party can convince judge the particular piece of evidence shouldn’t be privileged on a principled basis (i.e. see “Wigmore four” criteria below on case-by-case privilege) then judge can admit it (thus another example of evidence law becoming more flexible& fair but less predictable).
Important to distinguish between solicitor-client privilege and litigation privilege:
Solicitor-client privilege commences as soon as there is contact between the lawyer and client and even survives the death of the claim.
Only way the privilege can be lost if the client waives the privilege – must be done sedulously.
Includes communications conducted through agents of either the client or solicitor. Doesn’t depend on whether there is any litigation going on.
Communications with third parties are generally not covered by this privilege.
Litigation privilege – rationale is purely the nature of the adversarial system – can’t show your cards to the other side.
Only applies once litigation has been launched or being contemplated. Ends once the litigation is over.
Covers third party reports, so long as the dominant purpose of these reports was for litigation.
Solicitor-client class privilege (considered most important privilege – justice depends on it)
A communication between a solicitor and a client, made in confidence and related to the seeking, forming or giving of legal advice, is privileged information.
Exceptions (and note since these override what is considered the most important type of privilege, it will also override other types of privilege): there is no privilege for:
Communications that are themselves criminal or that are made with a view to obtaining legal advice to facilitate the commission of a crime.
Innocence at stake exception: Would result in the withholding of evidence that “would likely” enable an accused to establish his/her innocence (McClure (2001) (S.C.C.)) Procedure:
Is there evidence in the communication that could raise a reasonable doubt?
If yes, then the judge will look at the file where the alleged communication is and must determine if there is in fact a communication that would likely raise a reasonable doubt. In order to be admitted, must:
Be no other source of the information in that communication
Be unable establish a reasonable doubt without that communication
Use and derivative use immunity – information can only be used in this particular case and not in subsequent cases
Very difficult for an accused to meet this test – only two cases so far and neither Supreme Court decision has been successful
Courts very reluctant to recognize this type of exception
Public safety exception: Where public safety is at risk (the “public safety” exception). E.g. Smith v. Jones (1999) (S.C.C.)
Facts: concerned attempt to declare accused a dangerous offender and so get indefinite prison sentence, accused had told psychiatrist retained by defence counsel that he wanted to kill victims, and psychiatrist report said he was dangerous. Thus report no use to defence, and they told psychiatrist he mustn’t tell anyone about it due to privilege. Psychiatrist sought court order to be able to release report to prosecution.
Decision: defence retained psychiatrist can release report to prosecution since public interest at risk from dangerous offender.
Test:privilege will be set aside if there is an imminent risk of serious bodily harm or death to an identifiable person
Imminent can include “when I get out of jail”
Dissent – not a duty on the psychiatrist, but a permission to reveal the warning, not the specific information
Spousal communication class privilege (e.g. for criminal proceedings):
Codified in CEA s.4(3): No husband / wife is compellable to disclose any communication made to him / her by his / her wife / husband during their marriage
Purely statutory – created when spouses became competent witnesses – construed very narrowly
Spouse can be asked, but they have the general right to refuse to answer
The purpose of this is to protect matrimonial harmony.
Communication between spouses:
Note it is the recipient spousethat enjoys the privilege (i.e. if husband says something to wife, it is the wife who chooses whether or not to waive the privilege – this is opposite to other rules where it is the speaker who enjoys privilege)
Note also it is “any communication” i.e. communication did not have to be made in confidence, as with solicitor-client privilege
Doesn’t survive the marriage – if he marriage end, the privilege ends
Must be formally married; doesn’t apply to common law spouses
Likely also applies to unmarried and same-sex couples (Miron v. Trudel, Egan v. Canada, and M v. H.).
Rumping v. Director of Public Prosecutions (1962) (H.L.)
Facts: A husband wrote a letter to his wife in which he confessed to murdering a man. Argued that the letter was inadmissible because of spousal privilege.
Held: Letter was admissible:
Privilege only operates where the witness is on the stand
If there is other evidence of the communication (e.g. letter, recorded statement) this may still be admissible
Wiretap and other electronic interception:
CEA s. 178.16(5):Any information obtained by an interception, that, but for the interception would have been privileged, remains privileged and inadmissible withtout the consent of the person employing the privilege.
Lloyd v. R. (1982) (SCC)
Facts: Conversation between a wife and a husband were intercepted via a wire tap.
Held: Even through the wiretap was lawful, under the spousal privilege the spouse has the right not to have this information revealed – therefore, inadmissible.
Therefore, electronic interception – still privileged
Other interception – Rumping still stands
Zylstra (Ont. CA) – if a spouse can be compelled to take the stand and can be asked about confidential communications with her spouse, she still has the right to refuse to answer because of spousal privilege. Sort of defeats the purpose of compelling the witness to take the stand.
“Without prejudice” communication – ethically, we want to resolve a conflict without litigation. Want to encourage parties to settle and don’t want communications to put them at a disadvantage to settling. By putting “without prejudice” in the communication, ensures that this communication can not be used against you as a previous indication to settle on a particular point, or for a particular amount, etc.
If not recognized under one of the established class privileges such as solicitor-client etc., then must argue that it fits in under the Wigmore criteria, which can be very difficult.
Case-by-case privilege claims (Gruenke):
Judges have discretion on a case-by-case basis to rule a particular piece of evidence privileged based on the “Wigmore four” criteria:
Communication must have originated in a confidence that it would not be disclosed.
This confidence must be essential to the full and satisfactory maintenance of the relation between the parties.
This relation must be one which the community thinks ought to be diligently fostered.
The injury to the relation that would result by disclosure must outweigh the benefit gained in the litigation by disclosure.
MA v. Ryan– demonstrates unlikelihood that courts will recognize new class privileges
Facts: Defendant was plaintiff’s psychiatrist and some kind of sexual interaction occurred P files civil suit and he does not deny but argues that it was consensual and so could not have caused the trauma P alleges it caused. During this, P goes to another psychiatrist and is very upfront about need for confidentiality. Dr. R requests the other psychiatrist’s notes –
Held: SCC begins by rejecting class privilege and so if not going to grant class privilege here then unlikely that would grant ever
Did not recognize a new class privilege but rather applied the Wigmore case-by-case test
However, ordered partial disclosure of the second psychiatrists records
Therapists notes not admissible
But admitted the occurrence of the therapy
Prefer flexibility over certainty
Informer Privilege
Protects police informants from having their identity disclosed.
Held by both the Crown (reporting and public interest) and the informant (individual safety). To waive it, you have to have consent from both.
Used to be a fixed rule of law with no discretion by the judge to waive public policy
Exception: innocence at stake exception
Will probably only arise in a few instances
Where the informer was a material witness to the crime
Where the informer is an agent-provocateur
Where there is an allegation of an unconstitutional search or wiretap
Informers identity is only revealed in rare exceptions
R. v. Liepert (1997)
Facts: Anonymous tip about grow-op and then search and arrest accused – accused wanted the crime-stopper’s tip-sheet and refused
Issue: raised a novel issue and expresses concern for the anonymous tipster since no way to be sure that they would edit the tip so that the tipster could not be identified, especially by the accused
Held:
Informer privacy is of such importance that once found not balanced with other considerations and does not erode right to full answer and defence
The privilege belongs to the Crown and the informer – can only be waived by the informer
There is only one exception: innocence at stake. If the accused can convince the judge that the disclosure is necessary to preserve innocence, it can be allowed (similar to McClure application)
Only arises in situations in which this tipster has a pivotal role in showing the innocence of the accused.
Scope covers any information that could implicitly reveal the identity of the informant; not just the identity of the informant.
The anonymous person is the most at risk, you should just exclude everything because you don’t know what information could show their identity.
Procedure:
Accused must show a basis for disclosure (must be innocence at stake)
if a basis is shown, the judge reviews the information to see whether the information is necessary to prove the accused’s innocence
if it is, the judge reveals only as much info as is necessary
Skipping Protection of Third Party Witnesses
But important distinctions:
Disclosure (Stinchcombe) – Crown must make full disclosure of all the evidence in its defence, unless it is irrelevant or privilege. But if it asserts that it will not disclose, then the court will interpret any issues around disclosure with more favour to the accused
Production – where evidence is in the hands of a third party. Issue: under what circumstances can a litigant get production of evidence from third parties?
SCC has analyszed it in terms of balancing Charter values: 3rd party right to privacy against the accused’s right to full answer and defence
Admissibility (Shearing) – may have something produced to you, but nonetheless may not be admissible
