Case-by-Case Privilege

This page was last substantively updated or reviewed January 2023. (Rev. # 98055)

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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.

Case-by-case privilege can be invoked where:

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.

Religious Communications

Religious communications can be protected by privilege, but it will depend on the circumstances of the communication and the balance against the public interest.

Considerations can include the function of the communication. That includes purposes such as:

• facilitating an exchange of information for absolution
• purposes of treatment or counselling

If the communication is not made for a "spiritual or religious purpose" it cannot be protected.

The court should also consider the seriousness of the crime.

Journalist Sources

Confidentiality of journalistic sources can be measured on a case-by-case basis based on the "Wigmore criteria." 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."

The fourth criterion of the test has not been made out where a journalist would not reveal a source who had potentially forged documents implicating a former prime minister in an illegal transaction.