Until fairly recently, the common law only protected those relationships that contained a rigid classification of confidence i.e. between a solicitor and client, a husband and wife and interests involving national security or of the state. To be excluded from providing evidence, confidential communications usually have to fall within these established classes. There is no general privilege protecting communications given in confidence.
In reaching this decision, the courts considered Wigmore's four conditions, as necessary for the establishment of privilege. These are;
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, and
4. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.
Different approaches have been adopted by the courts. The broadest of which is that 'it is left open to the courts, in the exercise of their judicial discretion, to recognise and give effect to new categories on privilege of a case-by-case basis.
Other countries such as Canada have been more reluctant to adopt this approach as demonstrated in the case of Moysa v. Alberta (Labour Relations Board). In this case, a journalist, relying on Slavutych, claimed that she had a right to protect her sources of information on the basis of qualified privilege. The Supreme Court of Canada stated that: "Even if such a qualified testimonial privilege exists in Canada this appeal must be dismissed as the appellant here does not fall within any of the possible tests which have been proposed as establishing the conditions necessary to justify a refusal to testify".
Sinclair J.A. characterised the issue before the Alberta Court of Appeal as: "In what circumstances does the law preclude the admission of evidence simply because its source is confidential?"
"It is clear, nevertheless, that the types of evidence to which privilege will be ascribed have not been settled once and for all." He then quoted from Lord Parker C.J. in Attorney-General v. Clough and stated that
'To adopt the words of Lord Parker C.J. in the circumstances of the present case, is it clear that public policy demands a recognition of the appellant’s claim to privilege because the tenure form sheet was secured from him on a confidential basis?'
The courts have found that claims to privilege with respect to the following confidential communications did not satisfy Wigmore’s four conditions: documents gathered by a hospital in the course of inquiring into an allegation of medical malpractice, (Finley v. University Hospital Board, supra) a report prepared by a committee of the College of Dental Surgeons investigating a complaint against a dentist, (Bergwitz v. Fast, supra) a special nursing audit committee report, (British Columbia (Attorney General) v. Messier) documents evidencing complaints made against a psychiatrist in the possession of the College of Physicians and Surgeons, (F. v. a psychiatrist ) statements given to investigators of the Toronto Stock Exchange, (Merrill Lynch v. Granove) internal police reports (Bass v Toronto Star Newspapers Ltd) a videotape of a family counselling session (R. v. S. (R.J.), supra) and a confession made to a church pastor ( R v Fosty, supra).
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