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 (CanLII), per Lamer CJ
  2. ↑ R v National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII), per Binnie J
    Gruenke, ibid.

Journalist Sources

See also: Protection of Journalist Records and 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]

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