Consistency in Case-by-Case Privilege for Religious Communications

Solicitor-client privilege has been described by the Court in Lavallee, Rackel & Heintz v. Canada as a principle of fundamental justice and civil right of supreme importance in Canadian law. The Court went further in R. v. McClure and stated at para 35, “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.” Not all forms of privilege though are so strongly protected. For forms of privilege that is not historically protected on the basis of class or category, the courts have employed the test originally set out in the 1961 tet by John Henry Wigmore, as described by the Court in R. v. Gruenke: (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…

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