As originally published by the National Post Holy Post on July 25, 2011

By Don Hutchinson

The July 13 release of the independent Commission of Investigation’s Report into the Catholic Diocese of Cloyne in Ireland has brought about calls for a change in Ireland’s laws that would require the Roman Catholic confessional to sacrifice its confidential nature on penalty of law. While confession is regarded as a sacrament (the Sacrament of Reconciliation) in the Roman Catholic Church, and I make no comment on the report or the proposals made for changes to the law in Ireland, I thought it might be interesting to take a quick look at the law of priest-penitent or clergy-parishioner privilege as it exists in Canada.

The seminal case on point is R v. Gruenke, a 1991 decision of the Supreme Court of Canada. Ms. Gruenke was involved with her boyfriend in the murder of an elderly man who had become her “surrogate father” before he started making sexual advances toward her. Ms. Gruenke confessed her crime to her spiritual counsellor and the pastor of the church she was attending. As one might expect, Ms. Gruenke’s lawyer made a request of the court that the testimony of the pastor and spiritual counsellor be excluded from consideration – which would have left the court with a collection of contradictory evidence as to whether Ms. Gruenke was involved in the murder, whether the act was actually self-defence and whether she could even be connected to the crime. Up to that point in time Canadian law did not recognize any general privilege for clergy/parishioner communications.

In determining that section 2(a) of the Canadian Charter of Rights and Freedoms established deference for but no blanket privilege covering religious communications, Chief Justice Antonio Lamer wrote:

As I have mentioned, a prima facie privilege for religious communications would constitute an exception to the general principle that all relevant evidence is admissible.  Unless it can be said that the policy reasons to support a class privilege for religious communications are as compelling as the policy reasons which underlay the class privilege for solicitor-client communications, there is no basis for departing from the fundamental “first principle” that all relevant evidence is admissible until proven otherwise.

The Chief Justice, writing for the majority, then proceeded to apply the Wigmore criteria for case-by-case assessment of confidential communications, “informed by the Charter guarantee of religion and by the general interpretative statement in s. 27 of the Charter” (s. 27 deals with Canada’s multicultural heritage) to the case before the court.

The Wigmore criteria are so named because they were set out by John Henry Wigmore in his book Evidence in Trials at Common Law:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be great than the benefit thereby gained for the correct disposal of litigation.

Noting that the term ‘religious communications’ was intended to confer a non-denominational approach to the subject, the Chief Justice also commented that religious communications that took place within a confidential context did not necessarily require that they be made to a priest or ordained minister.

In the case before him, the circumstances did not indicate that the communications from Ms. Gruenke to her spiritual advisor and pastor were intended to be made with an expectation of confidentiality – there was no church policy outlining when communications were to be kept confidential; there had been no communication that the conversation be kept in confidence; and, at one point Ms. Gruenke’s boyfriend joined the conversation at the spiritual advisor’s home – so he stopped at the first point of the Wigmore criteria.

Writing in dissent, Justice L’Heureux-Dubé conducted a good canvass of the literature and international cases dealing with the issue of a ‘religious communications’ privilege. While no such privilege does exist under the common law or statute law in Canada, Justice L’Heureux-Dubé’s analysis notes the practical difficulty that when religious communication is made with an expectation of confidentiality it has historically been rare for that confidence to be violated by priest or pastor (priests on potential penalty of excommunication should they violate the Sacrament of Reconciliation). One thing all nine judges hearing the case agreed on is that the matter of establishing a formal privilege for religious communications is a matter of policy, i.e. for decision by the legislatures of our land.

One point on which Canadian legislatures have agreed in regard to policy is that where there is a reasonable apprehension that a child is at risk all manner of privilege is suspended (solicitor-client, doctor-patient, etc) and reporting of the danger is required. And this, precisely, was the issue in Cloyne, Ireland.

Religious practice will be respected by Canadian courts, particularly when it is documented or the expectation of confidentiality is clearly expressed, but confidentiality of ‘religious communications’ has no comprehensive protection. The rule of law and the exclusive claims of religion overlap and will, at times, conflict. The Church – even the individual religious official – may be forced to decide the significance of confidentiality in communications with the threat of potential prosecution hanging in the atmosphere … on a case-by-case basis.

Don Hutchinson is Vice-President and General Legal Counsel with The Evangelical Fellowship of Canada.

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