Case-by-Case Privilege

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General Principles

A communication that does not fit into one of the class privileges may nonetheless be protected under the "case-by-case privilege" on an ad-hoc basis where the requisite criteria are met.[1]

Case-by-case privilege can be invoked where:[2]

  1. the communication originates in a confidence that the identity of the informant will not be disclosed;
  2. the confidence is essential to the relationship in which the communication arises;
  3. the relationship is one which should be sedulously fostered in the public good; and
  4. the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.
  1. R v Gruenke, 1991 CanLII 40 (SCC), [1991] 3 SCR 263
  2. R v National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII)
    Gruenke, ibid.

Journalist Sources

Confidentiality of journalistic sources can be measured on a case-by-case basis based on the "Wigmore criteria".[1] Where appropriate, "the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor. However, where the public's interest in protecting sources is outweighed by other interests promises of secrecy cannot be maintained."[2]

The fourth criteria of the test has found not be made out where a journalist would not reveal a source who had potentially forged documents implicating a former prime minister in a illegal transaction.[3]

  1. R v National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII)
    see "case-by-case privilege" above
  2. R v National Post, ibid.
  3. National Post, ibid.