Class Privilege, Case by Case Privilege, Public Interest Immunity Flashcards
General rule re:privilege
● Is the exclusion necessary to preserve the relationship?
● Other exclusionary rules are concerned with reliability. Privilege is concerned with protection of communications within a relationship. Thus, reliable evidence can be excluded
Wigmore Criteria re: privilege (case by case)
1) Communications must originate in a confidence that they will not be disclosed.
2) Confidentiality must be essential to the full and satisfactory maintenance of the relation between the two parties.
3) The relationship must be one which in the opinion of the community ought to be sedulously fostered.
4) Injury to the relationship stemming from disclosure of the confidential communications must be greater than the benefit gained to the litigation by the disclosure.
Distinction Between Class Privilege and Case by Case Privilege
● Only some relationships are presumptively classified as 'class privileges' so that their communications cannot be disclosed as evidence. (Solicitor-client, spousal) ● Other relationships, despite their own legitimate concerns about privilege and confidentiality, do not have protection as a 'class privilege'. More important to arrive at truth, and avoid the loss of relevant evidence. (dr patient, priest, journalist-informant) ● Privilege can however be extended on a case by case basis ● Courts can also take other measures such as a publication ban
Types of class privilege (list)
- Solicitor Client Privilege
- Spousal Privilege
- Public Interest Immunity
- Informant’s Identity
Requirements for solicitor client privilege
● Communication must: (1) be btwn solicitor (including agents of solicitor) and client (2) entail the seeking or giving of legal advice (3) be intended to be confidential.
○ Doesnt extend to situations where legal advice isnt sought or offered, where it is not intended to be confidential, or where there is a purpose of furthering unlawful conduct
■ if in-house counsel, only get priv over legal advice - Pritchard v Ont.
○ Constitutional protection under s7 and 8 of charter
● Why privileged? Essential to administration of justice.
Solicitor-client privilege vs litigation privilege:
○ Litigation priv comes into existence only with anticipation of litigation and encompasses communication from persons other than client. Dies with end of litigation.
Confidentiality vs privilege:
○ Lawyer is ethically bound to keep all info about a client confidential (no matter where obtained from)
○ Only communication btwn the client and lawyer regarding legal advice is privileged
Exceptions to solicitor client privilege (list)
○ In furtherance of crime or fraud ○ Innocence at Stake / the McClure Test ○ Public safety ○ Waiver/ authorized by client ○ Waiver through inadvertent disclosure (no longer waiver)
Example for “in furtherance of crime or fraud” exception to solicitor client priv
■ Descoteaux - Lied about her financial state to get legal aid; SCC held was committing a crime; therefore privilege didn’t attach to statements that constituted the actus reus of the offence.
Describe the innocence at stake exception to solicitor client privilege
Innocence at Stake / the McClure Test
Policy: avoid wrongful convictions.
■ The Innocence at Stake Test (R v Brown):
● Threshold test: the information is not available from another source and the accused is otherwise unable to raise a reasonable doubt.
● Stage 1: Accused demonstrates an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt (difficult because this evidence often becomes an alt way to raise reasonable doubt)
● Stage 2: If evidentiary basis exists, trial judge should examine communications to determine whether it is likely to raise a reasonable doubt → if yes, disclose.
Describe the public safety exception to solicitor client privilege
○ Public safety (3 conditions to be met - Smith v Jones):
■ (1) Clear risk to identifiable person or group of person
● ascertainable group (ex. women). Larger can be protected where more serious.
■ (2) Risk of serious bodily harm or death
■ (3) Danger is imminent
● urgency, no need for time limit
■ Note that there are some concerns that this might prevent cooperative dialogue, ppl wont admit to things
■ Policy: allows people to be warned
Describe the waiver exception to solicitor client privilege (both advertent and not)
○ Waiver/ authorized by client
■ Express or implied
■ Might be able to waive partially - but court will carefully review to see if the balance of related communications should be disclosed for fairness
■ Sometimes there is a “common interest” privilege between two parties with separate lawyers - can make an agreement
○ Waiver through inadvertent disclosure (no longer waiver)
■ Judge still has discretion to prevent inadvertently disclosed from being called into evidence
■ Consider:
● Conduct of parties (ie Party took reasonable steps to preserve confidentiality? Underhanded conduct to further the inadvertent disclosure?)
● Charter considerations (necessary for full answer/defence?)
○ SCC has yet to decide if S/C privilege can be expressly limited by statute.
Describe Anton piller order and mareva injunctions
○ Allows one party to a litigation “the moving party” to search opposing party’s business/home withoyt notice where a court is satisfied that it is required to prevent the destruction of material evidence. Jeapordizes S/C privilege.
○ If a moving party fails to ensure privileged communications are protected from improper disclosure, the law firm can be removed from representing the party
● Similarly, Mareva injunctions (preventing removal / transfer of assets) and Norwich orders (requiring a non party to participate in aid of a moving party when necessary to the interests of justice) → usually contain protections to S/C priv
Describe spousal privilege
● Created by statute (wasnt an issue at CL since werent competent)
● Only applies if legally married. Court said no to recognizing analogous grounds. Same sex probably not included either.
● CEA 4(3) - No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.
○ This covers only communications during the marriage.
○ Belongs and can be waived by receiving party to communications
○ Privilege will not arise if communications were made before the marriage
● The other rules in CEA 4 concern whether the Crown can compel the spouse to testify and give evidence as to certain criminal offences.
● Even when a spouse is compelled to testify for an offence listed in CEA 4, the spouse may assert privilege over the communications.
● If privilege is asserted it should be done in presence of jury (so they dont just think the lawyer missed going down that route). Consistent with open court principles. Require special jury instruction.
Describe privilege to informants and the exception to this privilege
● Informants identity is protected by privilege because can be in danger, want to encourage informers to come fwd.
● Applies in civil and crim
● The exception: the innocence at stake exception
○ the informant was a material witness to the event
○ informant acted as an agent provocateur vis-a-vis entrapment
○ where the defence alleges that a search and seizure did not meet constitutional requirements under s. 8 of the Charter
● Procedure for assessing the innocence at stake exception
○ Accused must show that there is a basis to conclude that without disclosing the informant’s identity, his or her innocence will be at stake
○ If this basis is shown, the court may review the information to decide whether the information is necessary to prove the accused’s evidence
○ If disclosure becomes necessary, only as much information as is necessary to prove innocence should be revealed.
■ Restricted to info that is necessary. Judge will decide what to disclose.
○ The Crown is then allowed an option as to whether or not to stay proceedings (to protect identity of informant).
○ If the Crown goes ahead, the information is disclosed to the accused.
● Note: Individuals who secretly provided info to CSIS were not covered by class privilege until fed gov enacted the Protection of Canada from Terrorists Act to ensure the identity of sources was kept confidential in order to protect their life and security and to encourage informants to come forward
