Case-by-Case Privilege: Difference between revisions
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{{LevelOne}}{{HeaderPrivilege}} | {{LevelOne}}{{HeaderPrivilege}} | ||
==General Principles== | ==General Principles== | ||
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Case-by-case privilege can be invoked where:<ref> | Case-by-case privilege can be invoked where:<ref> | ||
{{CanLIIRP|National Post|29l77|2010 SCC 16 (CanLII)|, [2010] 1 SCR 477}}{{perSCC|Binnie J}}<br> | |||
{{ibid1|Gruenke}}<br> | {{ibid1|Gruenke}}<br> | ||
</ref> | </ref> | ||
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{{seealso|Protection of Journalist Records and Sources}} | {{seealso|Protection of Journalist Records and Sources}} | ||
Confidentiality of journalistic sources can be measured on a case-by-case basis based on the "Wigmore criteria".<ref> | Confidentiality of journalistic sources can be measured on a case-by-case basis based on the "Wigmore criteria".<ref> | ||
{{CanLIIRP|National Post|29l77|2010 SCC 16 (CanLII)|, [2010] 1 SCR 477}}{{perSCC|Binnie J}}<br> | |||
see "case-by-case privilege" above</ref> | see "case-by-case privilege" above</ref> | ||
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."<ref> | 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."<ref> | ||
Revision as of 21:28, 23 February 2021
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]
- the communication originates in a confidence that the identity of the informant will not be disclosed;
- the confidence is essential to the relationship in which the communication arises;
- the relationship is one which should be sedulously fostered in the public good; and
- the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.
- ↑ R v Gruenke, 1991 CanLII 40 (CanLII), per Lamer CJ
- ↑
R v National Post, 2010 SCC 16 (CanLII), , [2010] 1 SCR 477, per Binnie J
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 an illegal transaction.[3]
- ↑
R v National Post, 2010 SCC 16 (CanLII), , [2010] 1 SCR 477, per Binnie J
see "case-by-case privilege" above - ↑
National Post, ibid.
- ↑
National Post, ibid.