Dec 1, 2014

Case-by-Case Privilege

R. v. Gruenke, [1991] 3 SCR 263

Accused tells counselor/pastor about her involvement in a murder before turning herself in.

The issue is whether her communication with the pastor is protected under privilege. The court held that prima facie privilege for religious communications would constitute an exception to the general principle that all relevant evidence is admissible. Policy reasons would be needed to overcome this exception. Policy reasons giving solicitor-client privilege are different because religious communications not essential to justice. Freedom of religion in s. 2(a) will be significant in some cases but it doesn’t need to be recognized as class privilege. In applying the Wigmore criteria, both s. 2(a) and 27 must be kept in mind.

Here, the communications were made for emotional stress relief, not for religious or spiritual purposes. It doesn’t necessarily matter if the communication was not to an ordained priest or minister or wasn’t a formal confession. A sormal confession may indicate expectation of confidentiality but it isn’t necessary or determinative. Courts must be careful in applying Wigmore so as to recognize importance of spirituality and not cause a chilling effect

The court held that there was no expectation of confidentiality here and that the confession wasn’t for a spiritual purpose. Thus, no privilege is attached.