More on Wigmore in R. v. National Post (2010)

TheCourt.ca commented recently on the SCC decision in R. v. National Post, 2010 SCC 16 where it was affirmed that the use of the Wigmore criteria was a practical method to judicially approve a promise of journalist-source confidentiality on a case-by-case basis. The purpose of this post is to briefly comment on Wigmore and a selection of related common law principles as referenced by the SCC in the National Post decision.

According to Justice McLachlin, writing for the majority in M. (A.) v. Ryan, [1997] 1 S.C.R. 157, “[t]he common law principles underlying the recognition of privilege…proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained.” Exceptions to this duty are recognized as privileges at common law.

John Henry Wigmore, an expert in evidence law, advanced the Wigmore criteria in his influential “Treatise on the Anglo-American System of Evidence in Trials at Common Law” (2nd ed. Boston: Little Brown and Co., 1923), commonly known as “Wigmore on Evidence.” In this, Wigmore suggested that confidentiality will be upheld if the following four criteria are met:

1. The communication originates in a confidence that it will not be disclosed…;
2. The confidence must be essential to the relationship in which the communication arises…;
3. The relationship must be one which should be “sedulously fostered” in the public good…; and
4. The interests served by protecting the communications from disclosure outweigh the interest in getting at the truth.

The onus is on the party seeking to prevent disclosure to demonstrate on a balance of probabilities that each criterion has been met. In addition to satisfying the four criteria above, precedent indicates that a novel or existing confidentiality privilege must be based on substantive policy rationale. Furthermore, the Charter should inform a determination under Wigmore and a judicial affirmation of a privilege “may be total or partial.” The aforementioned principles are illustrated in the decisions of R. v. Gruenke, [1991] 3 S.C.R. 263, Ryan, and most recently in National Post.

The primary issue before the SCC in Gruenke was whether communications between a pastor and layperson were privileged and, as such, inadmissible as evidence in a murder trial. Ms. Gruenke and Mr. Fosty were convicted at trial of first-degree murder and eventually appealed to the SCC. The victim, Mr. Barnett, was an elderly man once involved in a platonic relationship with Ms. Gruenke. He provided for her while alive and made her a beneficiary in his will. In return, according to the testimony of Ms. Gruenke, Mr. Barnett constantly harassed her for sexual favours which caused her to fear for her safety. She testified that one night Mr. Barnett picked her up in his car and drove off with her against her will. He was killed in a resulting struggle with her and boyfriend Mr. Fosty.

Shortly after the death of Mr. Barnett, Ms. Gruenke confessed to her pastor that she planned and carried out the murder of Mr. Barnett with the help of Mr. Fosty. This evidence was ruled admissible at trial. On appeal, the accused argued that the communications with the pastor were privileged at common law and under s. 2(a) of the Charter–“freedom of conscience and religion”–and therefore inadmissible. Unfortunately for Ms. Gruenke and her co-accused the communications at issue did not even fulfill the first Wigmore criterion. The SCC reasoned that there was no expectation of confidentiality when Ms. Gruenke confessed to the pastor. The appeal was dismissed.

Wigmore, Charter Values and Policy Considerations

Merely satisfying the four Wigmore criteria will not automatically lead to an upholding of confidentiality or the recognition of a novel privileged relationship. For one, the application of the Wigmore criteria must “be informed…by the Charter.” For example, in Gruenke the communications between the pastor and layperson were designated by the SCC as “religious communications.” The SCC reasoned that employing a broad definition as opposed to “priest-penitent communications” acknowledged the multicultural heritage of Canada as mandated in s. 27 of the Charter. So, not only was s. 2(a) “kept in mind” but also s. 27 which states: “[t]his Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.”

Precedent also necessitates policy considerations. In her concurring opinion in Gruenke, Justice L’Heureux-Dubé explained:

“[t]he extension of the doctrine of privilege consequentially obstructs the truth finding process, and, accordingly, the law has been reluctant to proliferate the areas of privilege unless an external social policy is demonstrated to be of such unequivocal importance that it demands protection.”

Writing for the majority in Gruenke, Chief Justice Lamer stated that the Wigmore criteria:

are not carved in stone and only provide a general framework within which policy considerations and the requirements of fact finding can be weighed and balanced on the basis of their relative importance in the particular case before the court.

The Scope of the Wigmore Criteria and Application

Ryan illustrates a few principles both directly and indirectly related to the scope of the Wigmore criteria. The Wigmore criteria can be used to establish a new privilege as well as to determine the scope of an existing privilege. Writing for the majority in Ryan, Justice McLachlin stated that “the law of privilege may evolve to reflect the social and legal realities of our time.” Moreover:

[w]hile the circumstances giving rise to a privilege were once thought to be fixed by categories defined in previous centuries — categories that do not include communications between a psychiatrist and her patient — it is now accepted that the common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate…

A privilege can “be total or partial.” The Ryan case involved an unnamed 17-year-old psychiatric patient who became sexually involved with her psychiatrist, Dr. Ryan, and sued him for damages. Dr. Ryan requested access to the notes of his former patient’s new psychiatrist during discovery. His former patient claimed that they were privileged communications. The majority upheld the lower court’s ruling that access to the documents be made on a selective basis–in other words, partial privilege.

In the National Post decision the SCC stated that the case-by-case privilege “will not necessarily be restricted to testimony”, furthermore, “[i]ts scope is shaped by the public interest that calls the privilege into existence in the first place…”

Conclusion

The Wigmore criteria can be employed to affirm a novel common law confidentiality privilege or to uphold confidentiality under a recognized privilege. The four criteria represent a “general framework” supplemented by Charter values, policy considerations and the common law, resulting in a flexible test for confidentiality privilege analysis.