legal concept of privelege Flashcards
privelege
legal right to refuse to disclose confidential information in giving testimony when served with a served with a subpoena order the submission of documents or when subject to manditory reporting obligation
privelege is recognized
- categories of cases (solicitor/client privelege)
- principles applied by case by case basis
- privelege may also be created under federal and prov legislation
Solicitor/client privelege
- only professional relationship that is automatically priveleged
- limited to statements made within the scope of specific legal advice that is sought
- privelege does not itself extend to physical evidence just documents and statements
- does not apply if communcation itself is illegal or is made in furtherance of crim offence
solictor client privelege is not absolute
- breached if accused can prove it is the only way to establish her innocence
- people who are bound by privelege (like psych hired by defence lawyer) can breach in attempt to avert a clear and imminent risk of death or serious physical harm to identified person or group
- lawyers are permitted to breach solicitor/client privilege if they reasonably belive there is an imminent risk of death or serious bodily harm and disclosure is necessary to prevent harm or injur
- solicitor client is broad scope in that it applies tregardless of whether lit is being considreed and continues even if all lit has ended
litigation privilege
- common law privileges statements and documents prepared in contemplation or course of litigation
- only applies when the dominant purpose of the communication as furtherance of lit and ceases when lit ends
negotiations, settlement offers and mediation (privilege)
- encourage settling w/out lit or prior to trial
- courts privilege oral or written communications that are made without prejudice for the purpose of resolving ongoing contemplation of lit
- courts will privilege statements made to a mediator employed to assist adversial parties in resolving their dispute
Spousal priv
- common law originally indv were not allowed to testiy for or against their spouse both out of concern for bias and to preserve marital harmoney
- the prohibition on being a witness no longer applies in civil cases and has been modfoed on criminal
- privilige still applies in regard to communivstion between spouse during their marriage
- spouse cannot be forced to reveal statements his or her partner made during their marriage, the spouse can do so if they please
- priv ceases when marriage ends
informant privilege
- prevents disclosure of informants name or any other info that might reveal their identity
- priv belongs to crown and informant and cannot be waived unless informant consents
- however priv is not absolute, and can be breached if an accused can prove the informants identity is essential in establishing their innocence
- similar but narrower protection for media when they rely on confidential sources
establishing common law priv case by case basus
- confidential comminications could be priv on case by case basis if applicant can satisfy 4 crit:
1. comm made in confidence
2. preserving confidentiality must b essential to maintenance of relationship b/w parties
3. relationship must be one that society values and wishes to foster
4. harm to relationship by breaching confidentiality must outweigh the benefit of having relevant evidence available to court to ensure correct resolution of lit
R. V Gruenke
- 1st degree murder admitted role in crime to lay counsellor and pastor of church
- accused convicted but said her statements should have been priv
- SCC said it was of social importance however, priv could not be justified
- case- case
- statements were not made to priest or minister and it did not constitute as a formal religious confession
- did not meet the first requirement of expectation of confidentiality
- lack of formal practice indicated that stsatements were more for stress then religious and spiritual purposes
- upheld conviction
Straka v humber river regional hospital
Straka wanted to work at Humber i.e. get medical privileges there so they asked the other hospital for reference letters, whatever the letters said must not have been good because they denied Straka privileges so then Straka wanted to see the letters I’m assuming to see what they said? what they wouldn’t let him so they went to court over it and the court said they were privileged so Straka couldn’t see them
- the court recognized the public interest in appropriate resolution of strakas potential claims against humber, that was outweighed by the public interest om maintaning the integrity of peer review process in hospital appts
Steep (lit guardian of) v. scott
- plaintiffs request for quality assurance reports and peer review evaluations was denied
- court held the documents satisfied the 4 criteria emphasizing the strong public interest in assuring hospital care was effectively assesed and improved
- the court also considered the fact granting privilege would not prejudice the plaintiffs vcase as almost all relevent information they sought as available by other means
waiver of privelege
- if a person discloses privelegeed communication to outside org. or third party the priv is waived
- but a partys failure t formally request priv does NOT constitute a waiver
