R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 SCR 263

R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 SCR 263

Adele Rosemary Gruenke Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Gruenke

File No.: 21410.

1991: May 10; 1991: October 24.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

on appeal from the court of appeal for manitoba

Evidence ‑‑ Privilege ‑‑ Religious communications ‑‑ Church member accused with murder ‑‑ Communications between pastor and church member about involvement of murder admitted into evidence ‑‑ Counsel allowed time to argue point in absence of jury ‑‑ Whether communications protected by common law privilege ‑‑ Alternatively, whether communications protected confidential communications, and therefore inadmissible, both on the basis of the common law and of s. 2(a) of the Canadian Charter of Rights and Freedoms ‑‑ Whether absence of formal voir dire denied a fair trial ‑‑ Whether charge to jury such as to deny fair trial ‑‑ Canadian Charter of Rights and Freedoms, s. 2(a).

This appeal from a conviction for first degree murder involves the admissibility of evidence, given by a pastor and lay counsellor of a fundamentalist Christian church, regarding communications made to them by the appellant about her involvement in the crime. The Crown's theory was that the appellant had enlisted the aid of her boyfriend in the planning and commission of the murder, which she committed, to stop the victim's sexual harassment of her and to benefit from the provisions of his will. The evidence of the appellant's pastor and the lay counsellor, which directly supported the Crown's theory, was ruled admissible at trial. The communications between the appellant, the pastor and the lay counsellor took place when the lay counsellor, on hearing of the victim's death two days earlier, visited the appellant. When the appellant began speaking of her involvement in the murder, the pastor was called and the conversation continued.

The appellant and her co‑accused unsuccessfully appealed their convictions to the Manitoba Court of Appeal. Appellant was granted leave to appeal to this Court; the co‑accused did not appeal to this Court.

At issue here was whether the communications were protected by common law privilege, or alternatively, were protected confidential communications, and therefore inadmissible, on the basis of the common law and of s. 2(a) of the Canadian Charter of Rights and Freedoms. Other issues related to the absence of a voir dire and to the fairness of the trial judge's charge to the jury.

Held: The appeal should be dismissed.

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ.: The fact that English and Canadian courts have not, as a matter of practice, compelled members of the clergy to disclose confidential religious communications, does not answer the question of whether there is a legal common law privilege for religious communications. The existence of a limited statutory religious privilege in some jurisdictions does not indicate that a common law privilege exists; rather, it indicates that the common law did not protect religious communications and that the statutory protection was accordingly necessary.

Whether a prima facie privilege exists for religious communications is essentially a policy issue. As a general principle, all relevant evidence is admissible. The policy reasons supporting a class privilege for religious communications must be as compelling as the reason underlying the class privilege for solicitor‑client communications: that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication. Religious communications, notwithstanding their social importance, are not inextricably linked with the justice system in that way.

While the value of freedom of religion, embodied in s. 2(a), is significant in particular cases, this value need not necessarily be recognized in the form of a prima facie privilege in order to give full effect to the Charter guarantee. The extent (if any) to which disclosure of communications will infringe an individual's freedom of religion depends on the particular circumstances involved. Relevant factors include the nature of the communication, the purpose for which it was made, the manner in which it was made, and the parties to the communication.

The Wigmore test as to whether or not a communications is privileged requires that: (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 litigation. This test is consistent with a principled approach to the question which properly takes into account the particular circumstances of each case. These criteria are not carved in stone and only provide a general framework within which policy considerations and the requirements of fact‑finding can be weighed and balanced on the basis of their relative importance in the particular case before the court. They do not preclude the identification of a new class on a principled basis.

A case-by-case analysis allows the courts to determine whether, in the particular circumstances, the individual's freedom of religion will be imperilled by the admission of the evidence. This analysis must begin with a "non‑denominational" approach. The fact that the communications were not made to an ordained priest or minister or that they did not constitute a formal confession will not eliminate the possibility of the communications' being excluded. All of the relevant circumstances must be considered and the Wigmore criteria must be applied in a manner sensitive to Canada's multicultural heritage. This will be most important at the second and third stages of the Wigmore inquiry. Such a case-by-case approach will avoid the problem of "pigeon‑holing".

The communications at issue here were properly admitted. They did not even satisfy the first requirement that they originate in a confidence that they would not be disclosed. The expectation of confidentiality is absolutely critical to qualify as "privileged" for without it the raison d'être of the privilege is missing.

The parties' statements and behaviour in relation to the communication ‑‑ and not the lack of a formal practice of "confession" in appellant's church ‑‑ indicated that these communications were more to relieve appellant's emotional stress than to give effect to a religious or spiritual purpose. While the existence of a formal practice of "confession" may well be a strong indication that the parties expected the communication to be confidential, the lack of such a formal practice is not, in and of itself, determinative.

The trial judge's failure to hold a formal voir dire and her decision to rule on the defence motion on the basis of argument and the testimony given at the preliminary inquiry did not deny appellant a fair trial. Although an issue of privilege arising in the course of a trial may well be best determined within the sanctuary of a voir dire, failure to follow this procedure does not necessarily render the trial unfair. The trial judge here essentially held an informal voir dire, without the jury being present, in that counsel were given an opportunity to submit evidence and argument on the defence's motion for the exclusion of the evidence. While the trial judge bears the ultimate responsibility for determining questions of admissibility, he or she is not required to do more than provide counsel with a reasonable opportunity to elicit evidence and give argument on the issues before making a ruling.

The charge to the jury was full and fair. The charge was not rendered unfair because the trial judge failed to remind the jury that the co‑accused's explanation of protecting the appellant could be considered in relation to her, despite the fact that it could not (because of excessive force) constitute a defence within the meaning of s. 37 of the Code for him. The verdict would not have been different even if the jury had been reminded of this point. Once the communications in question were before the jury, a first degree murder conviction was inevitable.

Per L'Heureux-Dubé and Gonthier JJ.: One of the primary aims of the adversarial trial process is to find the truth and all relevant information is, therefore, presumptively admissible. Statutory and common law exceptions exclude evidence that is irrelevant, unreliable, susceptible to fabrication, or which would render the trial unfair or, even if probative and trustworthy, because of some overriding social concern or judicial policy. The categories of privileged communications are very limited.

The question of whether or not there should be a recognized privilege for confidential religious communications is a question of policy. Several rationales for such a privilege have been put forward.

The first is utilitarian. Religious confidentiality is vitally important not only to the maintenance of religious organizations but also to their individual members. Without it, individuals would be disinclined to confide in their religious leaders. Its value is the value to society of religion and religious organizations generally. Second, the Charter guarantee of freedom of religion indicates that a legal privilege for confidential religious communications is commensurate with Canadian values. The third rationale relates to privacy, where the emphasis is placed on the benefit to the individual as opposed to society as a whole. The religious element in the pastor-penitent relationship promotes special values of privacy characteristic of that relationship, and makes the privacy rationale a possible justification towards the recognition of the privilege. As well, it would be impractical and futile to attempt to force the clergy to testify because often the cleric would refuse. Compelling disclosure, or charging a cleric with contempt, could bring disrepute to the system of justice. Indeed, admitting such evidence has been compared to admitting confessions made under duress to police.

Taken as a whole, neither the historical nor the jurisprudential data seems to support the existence of a class‑based privilege for religious communications at common law in England. Some Canadian provinces have, however, enacted legislation in that respect.

A human need for a spiritual counsellor exists and, in a system of religious freedom and freedom of thought and belief, must be recognized. While serving a number of other policy interests, the value to society of disclosure to and guidance from a spiritual counsellor, in total and absolute confidence, must supercede the truth‑searching policy. An ad hoc approach may overshadow the long-term interest served by the recognition of the privilege since the relationship of the confidence between pastor and penitent may not develop in the absence of an assurance that communications will be protected. Not every religious communication will be protected. The creation of the category simply acknowledges that our society recognizes that the relationship should be fostered, and that disclosure of communications will generally do more harm than good.

A first step involves verifying whether the communications fall into the pastor-penitent category at all. The communications must be intended to be of a religious or spiritual nature. This involves inquiring into: (1) whether the communication involves some aspect of religious belief, worship or practice; (2) whether the religious aspect is the dominant feature or purpose of the communication; (3) whether the communication would have been called into being without the religious aspect; and (4) whether the religious aspect of the communication was a good faith manifestation of a religious belief, worship or practice, or whether it was colourable. The communication must also meet the first two parts of the Wigmore test: (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. The latter elements in the Wigmore test are answered by the recognition of a pastor-penitent category.

The requirement of confidentiality stresses that only private communications may be privileged. The analysis of this issue is a factual exercise, having regard to all the circumstances. An overly rigid application emphasizing the practice of the religious denomination should be avoided. The requirement or the availability of confidential communications such as confessions will not be determinative of the availability of the privilege, although it may be relevant. "Confessional" communications should accordingly not receive any "special privilege" going beyond the application of the principles defined here. The absence of a church practice of confession of sin is not determinative of the question of confidentiality.

The application of the privilege is narrowed by the requirement that confidentiality must be essential to the full maintenance of the relationship. The privacy interests of the religious leader and individual involved, in combination with the benefit to society of the relationship's confidentiality, will not be sufficient to pass the second criterion in every case. Determination of this issue will involve, among other things, a consideration of the nature of the particular relationship at bar and the nature of the cleric‑individual relationship in broader terms. The relationship envisaged in the privilege is one in which the individual approaches the religious leader with the intent of gaining religious or spiritual comfort, advice, or absolution.

The communications here did not originate in the confidence that they would not be disclosed. Although the people involved did converse in private, there is no evidence that the appellant believed or had reason to believe that the conversations were intended to be entirely confidential. Appellant felt remorse and sought out comfort, advice and guidance from her religious leaders. The evidence did not suggest an expectation of complete confidentiality but rather suggests that the appellant herself was preparing to divulge all the information the next day and wanted to tell her co‑accused of her intentions.

Cases Cited

By Lamer C.J.

Considered: Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449; referred to: Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254; Cook v. Carroll, [1945] Ir. R. 515; Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295.

By L'Heureux-Dubé J.

Referred to: Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821; R. v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479; Trammel v. United States, 445 U.S. 40 (1980); University of Pennsylvania v. Equal Employment Opportunity Commission, 110 S.Ct. 577 (1990); John Fairfax & Sons Ltd. v. Cojuangco (1988), 165 C.L.R. 346; McGuinness v. Attorney-General of Victoria (1940), 63 C.L.R. 73; R. v. Howse, [1983] N.Z.L.R. 246; Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158; Broad v. Pitt (1828), 3 Car. & P. 518, 172 E.R. 528; Garnet's Trial (1606), 2 How. St. Tr. 218; Wheeler v. Le Marchant (1881), 17 Ch. 675; R. v. Hay (1860), 2 F. & F. 4, 175 E.R. 933; Gill v. Bouchard (1896), 5 Que. Q.B. 138; Ouellet v. Sicotte (1896), 9 C.S. 463; R. v. Medina, (Ont. S.C., October 17, 1988, unreported); Moysa v. Alberta (Labour Relations Board), 1989 CanLII 55 (SCC), [1989] 1 S.C.R. 1572; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; Cook v. Carroll, [1945] Ir. R. 515; In re Keller (1887), 22 L.R.I. 158; Tannian v. Synnott (1903), 37 I.L.T. & Sol. J. 275; R. v. Lynch, [1954] Tas. S.R. 47; People v. Edwards, 248 Cal.Rptr. 53 (1988), cert. denied 109 S.Ct. 1158 (1989); Mullen v. U.S., 263 F.2d 275 (1959); Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), 1981 CanLII 33 (SCC), [1981] 2 S.C.R. 494; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860.

Statutes and Regulations Cited

Articuli Cleri, 9 Edw. 2, c. 10 (Eng. 1315).

Canadian Charter of Rights and Freedoms, Preamble, ss. 2(a), (b), 27.

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 9.

Criminal Code, R.S.C. 1970, c. C‑34, s. 37.

Evidence Act, R.S.N. 1970, c. 115, s. 6.

Evidence Act (Tasmania), 1910, s. 96(1).

Evidence Act (Victoria), 1958, No. 6246, s. 28.

Evidence Amendment Act (No. 2) (New Zealand) 1980, s. 31.

Evidence (Religious Confessions) Amendment Act (New South Wales), 1989.

Authors Cited

Bentham, Jeremy. Rationale of Judicial Evidence, vol. IV. London: Hunt and Clark, 1827.

Campbell, Simone, Sr. "Catholic Sisters, Irregularly Ordained Women and The Clergy‑Penitent Privilege" (1976), 9 U.C. Davis L. Rev. 523.

Canada. Law Reform Commission. Law of Evidence Project, Study Paper No. 12. Evidence: Professional Privileges Before the Courts. Ottawa: Law Reform Commission, 1975.

Canada. Law Reform Commission. Report on Evidence. Ottawa: Law Reform Commission, 1975.

Chambers, Robert and Mitchell McInnes. Commentary on R. v. Church of Scientology and Zaharia (1989), 68 Can. Bar Rev. 176.

Cole, William A. "Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis" (1988), 21 Colum. J.L. and Soc. Probs. 1.

Cotton, Barbara. "Is there a Qualified Privilege at Common Law for Non‑Traditional Classes of Confidential Communications? Maybe" (1990), 12 Advocates' Q. 195.

Goldsmith, Michael and Kathryn Ogden Balmforth. "The Electronic Surveillance of Privileged Communications: A Conflict in Doctrines" (1991), 64 S. Cal. L. Rev. 903.

Halsbury's Laws of England, 4th ed. (reissued), vol. 11(2). London: Butterworths, 1990.

Hogan, Edward A. "A Modern Problem on the Privilege of the Confessional" (1951), 6 Loyola L. Rev. 1.

Lindsay, James R. "Privileged Communications Part I: Communications with Spiritual Advisors" (1959), 13 N. Ir. L.Q. 160.

Lyon, J. Noel. "Privileged Communications ‑‑ Penitent and Priest" (1964‑65), 7 Crim. L.Q. 327.

McLachlin, Beverley. "Confidential Communications and the Law of Privilege" (1977), 2 U.B.C. L. Rev. 266.

Mitchell, Mary Harter. "Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion" (1987), 71 Minn. L. Rev. 723.

Ontario. Law Reform Commission. Report on the Law of Evidence. Toronto: Ontario Law Reform Commission, Ministry of the Attorney General, 1976.

Ontario. Royal Commission Inquiry into Civil Rights. Report of the Royal Commission Inquiry into Civil Rights, vol 2. (The McRuer Report). Toronto: Queen's Printer, 1968.

Plantamura, Michael G. "The Clergyman‑Penitent Privilege". In Scott N. Stone and Ronald S. Liebman, eds., Testimonial Privileges. Colorado Springs, Colo.: Shepard's/McGraw-Hill, 1983.

Pollock, Sir Frederick and Frederic William Maitland. The History of English Law Before the Time of Edward I, 2nd ed. (reissued). Cambridge: Cambridge University Press, 1968.

Reese, Seward. "Confidential Communications to the Clergy" (1963), 24 Ohio St. L.J. 55.

Reeves, John. History of the English Law, 2nd ed., vol. 2. New York: August M. Kelly, 1792. Reprinted South Hasensack, N.J.: Rothman Reprints, Inc. 1969.

Ryan, H. R. S. "Obligation of the Clergy not to Reveal Confidential Information" (1991), 73 C.R. (3d) 217.

Sim, Peter. "Privilege and Confidentiality: The Impact of Slavutych v. Baker on the Canadian Law of Evidence" (1984‑85), 5 Advocates' Q. 357.

Sopinka, John and Sidney N. Lederman. The Law of Evidence in Civil Cases. Toronto: Butterworths, 1974.

Stoyles, Robert L. "The Dilemma of the Constitutionality of the Priest‑Penitent Privilege ‑‑ The Application of the Religion Clauses" (1967), 29 U. Pitt. L. Rev. 27.

Tiemann, William Harold and John C. Bush, The Right to Silence: Privileged Clergy Communication and the Law, 2nd ed. Nashville: Abingdon Press, 1983.

Uniform Law Conference of Canada. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswell, 1982.

Wigmore, John Henry. Evidence in Trials at Common Law. McNaughton Revision, vol. 8. Boston: Little, Brown & Co., 1961.

Yellin, Jacob M. "The History and Current Status of the Clergy‑Penitent Privilege" (1983), 23 Santa Clara L. Rev. 95.

APPEAL from a judgment of the Manitoba Court of Appeal (1989), 1989 CanLII 211 (MB CA), 55 Man. R. (2d) 289, 68 C.R. (3d) 382, dismissing an appeal from conviction by Krindle J. sitting with jury. Appeal dismissed.

Allan S. Manson, for the appellant.

J. G. B. Dangerfield, Q.C., for the respondent.

//Lamer C.J.//

The judgment of Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ. was delivered by

Lamer C.J. -- This case, an appeal from a jury conviction for first degree murder, involves the alleged inadmissibility of certain evidence: the testimony of a pastor and lay counsellor of the Victorious Faith Centre Church regarding communications made to them by the appellant regarding her involvement in the murder. The appellant argues that the communications were privileged, and therefore inadmissible, both on the basis of the common law and on the basis of s. 2(a) of the Canadian Charter of Rights and Freedoms. Two further issues raised on appeal relate to the fairness of the trial judge's charge to the jury.

The appellant and her co-accused, Mr. Fosty, were convicted at trial and appealed unsuccessfully to the Manitoba Court of Appeal. Ms. Gruenke was granted leave to appeal to this Court; Mr. Fosty is not in appeal to this Court.

This case requires the Court to consider whether a common law prima facie privilege for religious communications should be recognized or whether claims of privilege for such communications should be dealt with on a case-by-case basis. The Court has also been invited to consider how the constitutional guarantee of freedom of conscience and religion impacts on these questions.

The Facts

The appellant was (at the time of the incident) a 22-year-old woman, trained in reflexology (reflexology is a form of therapy like acupressure). The victim, Philip Barnett, was an 82-year-old client of Ms. Gruenke who had befriended both Ms. Gruenke and her mother (the appellant's father died of leukemia when she was 15). Mr. Barnett loaned money to Ms. Gruenke to start her own reflexology business and had provided her with a car and an allowance. In his will, Mr. Barnett had left a life interest in his estate to the appellant. Ms. Gruenke testified that she considered Mr. Barnett to be a "surrogate father". At one point, Ms. Gruenke and the victim had lived together in a platonic relationship; however, she moved back to her mother's home after Mr. Barnett began to express jealousy over her relationships with men and to make unwelcome sexual advances toward her. After she moved home, Mr. Barnett would telephone her and visit her from time to time and his requests for sex became more and more insistent. Ms. Gruenke testified that she had become frightened of Mr. Barnett and did not want to be alone with him.

About the time Ms. Gruenke moved back home, she began to feel very ill and tired. She became convinced that she had leukemia (like her father) and began attending the Victorious Faith Centre (a born-again Christian Church) with the hope of receiving both physical and emotional healing. The church pastor, Ms. Harmony Thiessen, assigned a counsellor, Ms. Janine Frovich, to work with the appellant.

On November 28, 1986, Mr. Barnett telephoned Ms. Gruenke, again asking her to have sex with him, and insisted that he was coming over to see her. The appellant testified that she was frightened and asked her boyfriend (the co-accused) Mr. Fosty, to come over and wait outside in his car in case she needed him. Mr. Barnett arrived and Ms. Gruenke sat in his car and talked to him. According to Ms. Gruenke, Mr. Barnett suddenly pulled out of the driveway and drove off, saying that he had done a great deal for her and it was time for her to "repay his kindness". She said she attempted to jump out of the car while it was moving and a struggle ensued; eventually Mr. Barnett stopped the car. Ms. Gruenke testified that she struck Mr. Barnett with a piece of wood which was in the car and then the struggle continued outside with her and Mr. Barnett wrestling on the ground. She says then she saw Mr. Fosty's feet approaching, but could not recall much past this point, other than that she saw Mr. Barnett covered in blood before she and Mr. Fosty drove away. Later she remembered washing the car and going to a hotel with Mr. Fosty.

The testimony at trial revealed that the victim had been found in the front seat of his car which was in a ditch off the highway, not far from Ms. Gruenke's home. The victim's head had been severely battered with a heavy, blunt instrument consistent with a nail puller which Mr. Fosty had owned and had sold on the evening the victim was murdered. There was other physical evidence connecting Mr. Fosty and the appellant to the murder. Mr. Fosty did not testify at the trial, but the theory of the defence was that Mr. Fosty had killed Mr. Barnett in the course of defending Ms. Gruenke and that she had had little or nothing to do with the victim's death. The theory of the Crown was that Ms. Gruenke had enlisted the aid of Mr. Fosty in planning and committing the murder of Mr. Barnett both to stop his sexual harassment of Ms. Gruenke and to benefit from the provisions of his will.

The evidence of Harmony Thiessen (the pastor) and Janine Frovich (the counsellor), which was ruled admissible by the trial judge, directly supported the Crown's theory. The communications between the appellant, Pastor Thiessen and Ms. Frovich took place two days after Mr. Barnett's death. Ms. Frovich went to visit the appellant at her home after hearing of Mr. Barnett's death. After the appellant began to speak of her involvement in the murder, she and Ms. Frovich moved to the Frovich home, where there was a more "peaceful atmosphere", and Ms. Frovich telephoned Pastor Thiessen. The appellant and Ms. Frovich then met Pastor Thiessen at the church, where the discussion continued. Later, the appellant went home with Ms. Frovich and Mr. Fosty came by. I have reproduced the significant portions of this evidence below:

Pastor Thiessen:

Q: When you asked what this was all about, what did Ms. Gruenke tell you?

A: Well, she said that someone had been killed. That is the way it was put to me.

Q: Did you put another question to clarify what she had been speaking about? Did you ask her what she meant?

A: Yes.

Q: What did she say to that?

A: She said that she had killed this person, this older gentleman.

Q: Did she give this older gentleman a name?

A: Phil.

Q: And what did she tell you?

A: She said that her and - she went to pick up this old man, Phil, and that they went for a drive and that when they got to wherever, and I never asked her that detail, where it was, that she - she beat him up.

A: She told me that she had planned this. She thought about it. She went to pick him up. She went to pick him up to kill him.

Q: Did she tell you why she said that?

A: Because she was so angry with him.

Q: For what reason?

A: She told me that she had leukemia, that she believe [sic] she was dying, that Phil provided income for her and bought her treatment and whatnot to take care of it, that in exchange for that he was wanting sexual favours from her. We didn't really go into what detail and that it had gone on for some time. When it had first started it was no big deal. They were friends, but as time went on he got to be something that she just hated. She felt manipulated by him.

Q: So she said then she planned to kill him.

A: Right.

Ms. Frovich:

Q: When I say "alone", you had an opportunity to speak to Miss Gruenke by yourself.

A: Yes, that's right.

Q: How did that conversation begin. What started the session.

A: There's lots of tension. I had made her something to eat because it was a concern of her mum that she have some nourishment, and after I fed the family they went downstairs to play and Adele [Gruenke] approached me about, what if someone had committed murder, could God forgive that. And, what if someone had committed murder, would they go to Hell. And I had this feeling, inside, that she was leading to something. So after a few of these "what if's" I said to her, what are you trying to tell me, Adele. And, she started weeping, and she told me, I killed Phil.

A: Pastor Harmony specifically asked her, does it look that bad.

Q: Is that when Miss Gruenke told you what had happened.

A: That's right.

Q: What did you [sic] say had happened.

A: That she had beat Phil so badly and Pastor Harmony said, well, how badly; And she said, so badly that his guts were hanging out of his head and there was blood all over.

Q: Did she say at that time what she used.

A: No. I know it was a weapon of some sort in the car at that time but she didn't specifically say what she used then.

Q: So while you were trying to determine how awful this was, this is when you learned about the injuries that Adele said she had inflicted.

A: That's right, and Pastor Harmony made a comment that she was aking [sic] her, what made you think you could get away with this. Adele said she had it preplanned to be looking like a robbery; and Pastor Harmony said, well you are not a professional.

Q: Now she spoke of this business of needing money and fear of dying and the sexual harassment, I suppose is the word, did she say anything further about how she came to do this.

A: She had made a date with Phil and they were going to go on -- she took him out of the city limits and so it would look like a robbery.

Q: Now, when you got home, was your husband there.

A: Yes, he was there.

Q: And did the three of you again continue this discussion.

A: Yes, we did. Adele made a comment that she would like to phone Jim Fosty because she felt that he needed to know that she was going to tell everybody the truth because they had made a prearrangement that if she got caught she would not implement [sic] him, so she felt he should know she was going to confess everything to the lawyer the next day so she asked if we would allow him to come into our home, and we said, sure.

Q: So you got yourselves ready for the evening, for the night, prepared a bed for her.

A: Hmm mm (yes).

Q: And Mr. Fosty appeared.

A: That's right.

A: He was very visibly upset. He seemed very warm and friendly with us, and very open, and he made a comment that this was a stupid plan and he wished he had never gone along with it.

Q: You and Adele retired to your bedroom.

A: That's right.

Q: In the bedroom did the subject of the death of Phil Barnett come up again.

A: Yes, it did.

Q: And what did Miss Gruenke had to say about that.

A: She felt very guilty about Jim's [Fosty] involvement in it. That she had to get him involved. And, she was very upset. She felt like she betrayed him by having to tell the truth but she also wanted him to have the opportunity to say the truth so he could have that feeling of no guilt, and she made a comment that he -- that Jim had also hit Phil and she looked a little upset that she had told me that. She said, I shouldn't have said that to you.

Q: Now during this period of time, you are alone after Mr. Fosty had made his comments to you and your husband, did she discuss any further what brought her to do this, or how she had come to do it, or when she decided to do it.

A: She said that she knew it had to be done by no later than Friday because - she didn't say why it had to be, but she was desperate. She said she had to have it done by Friday, and that she was thinking of various ways throughout the week to commit this murder.

And, she gave an example that she was thinking of different ways of murdering him. One was a drowning in the bathtub, but she though [sic] that might incriminate her more because her pictures are all over his apartment and she wasn't sure how she was going to dispose of the body, so she planned this one.

At the conclusion of the trial, the jury deliberated for five hours and returned a verdict of guilty of first degree murder for both accused. Both accused appealed unsuccessfully to the Manitoba Court of Appeal. Ms. Gruenke was granted leave to appeal to this Court on June 29, 1989.

Judgments Below

Manitoba Court of Queen's Bench (Krindle J., October 16, 1987 unreported)

1. Motion to Exclude Evidence

During the course of the trial, counsel for the appellant made a motion to have the prospective testimony of Pastor Thiessen and Janine Frovich excluded on the grounds that it constituted inadmissible privileged communications both under the common law and s. 2(a) of the Charter. Counsel did not request that a formal voir dire be held and none was held (although the motion was heard in the absence of the jury). The trial judge relied on the transcript of the Preliminary Inquiry and on the submissions of counsel.

Krindle J., relying on Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449, held that there was no recognized class privilege accorded to priest and penitent relationships in Canada and, therefore, no prima facie entitlement to privilege. She stated that while it was not her preferred approach, she was bound to determine the admissibility of such communications on a case-by-case basis. Accordingly, she held that the evidence was admissible in this case based on the following reasons:

• The communications between the appellant and Ms. Frovich were not protected by any privilege because Ms. Frovich would not "qualify" as a priest as she was not an ordained Minister and was more akin to a social worker.

• The communications to Pastor Thiessen had already been revealed to the police and during the Preliminary Inquiry. "So, we are not talking about things becoming public that once were secret".

• Confidentiality of communications was not necessary to the operation of the Victorious Faith Church in the same way that it is to a priest in a confession. Rather, confidentiality was simply a means to effective "social working".

• The requirement that the witnesses testify as to what the appellant had told them did not interfere with the appellant's freedom of religion (or with others' freedom of religion). People would not be stopped from going to the Victorious Faith Center and were free to worship as they chose.

• The evidence to be gained was highly critical and could not have been obtained otherwise.

• The criminal charge in issue was the most serious known to law.

2. Jury Charge

Given that one of the grounds of appeal is that the jury charge was unfair, I will briefly describe certain relevant portions of Krindle J.'s charge to the jury.

In commenting on the evidence of a defence psychiatrist, Dr. Shane, who had questioned the appellant about her involvement in the murder under hypnosis and sodium amytal, Judge Krindle (presumably referring to Dr. Shane's statement that he was impressed with Ms. Gruenke's credibility under hypnosis) stated:

Dr. Shane is qualified to offer opinions in the realm of psychiatric medicine. He is not a lie detector machine. He is not an expert on who is telling the truth. He should not have commented before you on his opinion on credibility. He has no expertise in that area. I ask you to disregard any comments he may have made in that connection.

In reviewing the evidence of Pastor Thiessen and Ms. Frovich, Krindle J. highlighted the fact that Ms. Gruenke had not specifically denied having stated that she had considered killing Mr. Barnett by drowning him, despite the fact that she had not been asked about this either in direct or cross-examination.

In stating the theory of the Crown, Krindle J. made the following comments regarding the evidence of planning and deliberation:

I think you have to wonder and pay attention to the problem of what Fosty was doing sitting hidden in a car down the block. That strikes me as being an important piece of evidence when you are stopping to think about were people planning to do anything. Was there a plan. The Defense suggests that Fosty was sitting outside down the block in his car because Gruenke was frightened and was anticipating trouble. Gruenke herself says that her brother was home. She also says that she did not expect Phil [Barnett] to drive away with her in the car. As an aside to that, that is not consistent with what the women from the church recall her saying on that Sunday night. They say she told them, she asked Phil to go for a ride ostensibly to discuss their sexual problems but actually to get him out of town to kill him. In any event get him back to the car sitting down the block.

According to Gruenke she was shocked when Phil drove away with her in the car. She also says, however, that she expected Fosty to follow. I have a problem with it. If Gruenke was expecting to go nowhere with Phil why would she have Fosty parked in the car down the block. If she anticipated needing his help she would either need it at home or she needed it in her driveway. Why hide Fosty in a car some distance away. Why hide Fosty at all for that matter. Put him in the livingroom or in clear view if you think you are going to need help. I've tried to understand the Defense's position on why Fosty was hidden in a car down the block and I'm afraid I don't understand it. You heard the witness. You heard her explanation. I leave it to you and to your common sense. Can you think of a reasonable explanation as to why Fosty would be hidden in a car down the block to protect the Accused Gruenke who says she didn't expect to be going anywhere with Phil. [Emphasis added.]

In regard to Mr. Fosty's claim to the defence of defence or protection of another under s. 37 of the Criminal Code, R.S.C. 1970, c. C-34, the trial judge stated:

Finally, yesterday, Mr. Wolch mentioned the possibility of self defense and in defense of another. The law clearly recognizes the right of a person to defend himself or defend someone in his charge but the law is equally clear that there has to be a proportionality between the threat defended against and the degree of force used to repel that threat. The degree of force here is so manifestly excessive that I am not putting the defense of self defense to you for your consideration.

Having removed this defence from the jury, Krindle J. did not go on to say that the explanation (i.e., protecting Ms. Gruenke) could still be considered by the jury in determining whether and to what extent she had been involved in the murder.

Manitoba Court of Appeal (1989), 1989 CanLII 211 (MB CA), 55 Man. R. (2d) 289, per Twaddle J.A.

The Court of Appeal found the allegation that the trial judge had failed to charge the jury adequately and fairly to be without merit. The charge was, in the court's view, full and fair as it affected the appellant. In this respect, Twaddle J.A. remarked that "[n]o doubt the charge was prejudicial to her, in the sense that it harmed her case, but no more so than was the inevitable result of any objective review of the evidence".

Turning to the issue of the admissibility of the communications between the appellant, Pastor Thiessen and Janine Frovich, the court held that s. 2(a) of the Charter did not give rise to a new class of prima facie privileged communications which did not exist under the common law. The court relied on a statement of the Ontario Court of Appeal in Re Church of Scientology, supra, to the effect that while s. 2(a) may enhance a claim to privilege in a priest-penitent situation, its applicability would have to be determined on a case-by-case basis.

The court stated that the exclusion of relevant evidence could only be justified on grounds of public policy and that undue emphasis on particular categories such as: solicitor-client, state secrets, priest-penitent, etc., tends to shroud the real issue, which is whether there is a greater public interest in excluding the evidence than in admitting it. Given that the public interest in freedom of religion is clearly established by s. 2(a) of the Charter, it was the view of the court that in this case, the real issue was whether the admission of Ms. Gruenke's statements impinged upon her freedom of religion. The court stated that this was to be determined by considering the following questions: What is the religious practice? Was the confession made pursuant to that practice? What is the likely consequence of requiring disclosure on the individual's freedom of religion?

In considering these questions on the facts of the case at bar, Twaddle J.A. stated, at p. 299:

In the case at bar, I accept that the church to which the pastor and the counsellor belonged believed in the confession of sin. I also accept that the accused Gruenke was told that, if she told the truth, she would feel better spiritually as well as physically and emotionally. There is, however, no evidence of a church practice requiring that a confession be made in such circumstances. Nor is there evidence that the accused Gruenke made her confession pursuant to such a practice. There is nothing on the record which even suggests that the accused Gruenke's freedom of religion was impinged upon in any way by requiring the pastor and the counsellor to relate what was told to them by her on November 30, 1986. Indeed, the record suggests that the admissions were made by the accused Gruenke as much for her emotional comfort as for her spiritual well-being and that her religious belief required her to accept responsibility for her conduct. [Emphasis added.]

The court also considered whether the communications would be privileged (and therefore inadmissible) under the "Wigmore test", although Twaddle J.A. stated that he was not satisfied that the comments of Spence J. in Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254, were intended as an acceptance of Wigmore's principle for all purposes.

Given that the Wigmore criteria play a central role in this case, I will set out the "test" below for ease of reference (Wigmore, Evidence in Trials at Common Law, vol. 8, McNaughton Revision, para. 2285):

(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.

(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 litigation.

The Court of Appeal held that not one of Wigmore's four conditions had been met in this case. Although the pastor and the counsellor may each have believed that her relationship with the appellant was of a confidential nature, there was no evidence that the appellant made the admissions to them in the confident belief that they would be disclosed to no one. Confidentiality may have been a desired aspect of that relationship but it was not essential. The court was of the view that the relationship was not one "which community opinion requires to be fostered sedulously", unlike the relationship between a catholic priest and his parishioners which was involved in the case of Cook v. Carroll, [1945] Ir. R. 515. Twaddle J.A. added at p. 300 that "[n]or is the public interest in fostering [the relationship] so great as to require the exclusion of [the appellant's] otherwise admissible statements as evidence on a charge of first degree murder".

Turning to the issue of whether the trial judge ought to have held a voir dire to determine the admissibility of the communications, the court held that because the evidentiary burden is on the accused to establish facts giving rise to a privilege, the trial judge could not be faulted for not entering upon a voir dire without a request that she do so. Here, the defence seemed satisfied to let the trial judge decide the motion on the basis of the transcript from the preliminary inquiry and the arguments of counsel. The failure to hold a voir dire would only be significant if it resulted in a miscarriage of justice in the sense that the accused has been deprived of an opportunity to elicit facts germane to the issue. Such was not the case here.

Accordingly, the Manitoba Court of Appeal dismissed both accuseds' appeal from conviction.

Issues

1. Whether the Court of Appeal erred in failing to conclude that the conversations between the appellant and Pastor Thiessen and Janine Frovich, the church's lay counsellor, were protected by common law privilege such that disclosure ought not to have been compelled.

2. Alternatively, whether these conversations were confidential communications the disclosure of which ought not to have been compelled in accordance with the principles accepted in Slavutych v. Baker, supra.

3. Whether the Court of Appeal erred in failing to conclude that the absence of a voir dire to determine the admissibility of the conversations denied the appellant a fair trial.

4. Whether the trial judge's charge to the jury unfairly diminished the case for the appellant in the eyes of the jury and thereby denied her a fair adjudication of the issues.

5. Whether the trial judge erred when she stated her conclusion that, due to unreasonable or excessive force, the jury should not consider the co-accused's defence of `defence of another person' without expressly cautioning the jury that it should still consider in respect of the appellant the factual issue of whether the co-accused was acting to defend her, this being the central premise of the appellant's defence.

Analysis

Before delving into an analysis of the issues raised by this appeal, I think it is important to clarify the terminology being used in this case. The parties have tended to distinguish between two categories: a "blanket", prima facie, common law, or "class" privilege on the one hand, and a "case-by-case" privilege on the other. The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). Such communications are excluded not because the evidence is not relevant, but rather because, there are overriding policy reasons to exclude this relevant evidence. Solicitor-client communications appear to fall within this first category (see: Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353 and Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821). The term "case-by-case" privilege is used to refer to communications for which there is a prima facie assumption that they are not privileged (i.e., are admissible). The case-by-case analysis has generally involved an application of the "Wigmore test" (see above), which is a set of criteria for determining whether communications should be privileged (and therefore not admitted) in particular cases. In other words, the case-by-case analysis requires that the policy reasons for excluding otherwise relevant evidence be weighed in each particular case.

Throughout these reasons, I will be using the terms "class privilege" and prima facie privilege to refer to the first category of communications and will generally use the term "case-by-case privilege" to refer to the second category of communications. I should note that some writers tend to use the term "privileged communications" or "privilege" only in relation to communications which are class-based or prima facie inadmissible. I will be using the term "privilege" in relation to both types of communications.

The Motion to Exclude Evidence

The first two grounds of appeal (see above) require this Court to consider four basic questions:

• whether there is a common law, prima facie privilege for religious communications which would cover the communications involved in this case

• if not, whether such religious communications can be excluded in particular cases by applying the Wigmore criteria on a case by case basis

• if so, whether the communications in this case should have been excluded on the Wigmore criteria

• how the constitutional guarantee of freedom of religion affects the determination of the above questions

1. Common Law, prima facie Privilege

The parties to this appeal have (understandably) urged conflicting interpretations of pre-Reformation history on this Court, in order to support their respective positions on the existence of a common law, prima facie privilege for religious communications. In my opinion, the best that can be said of this material is that it is inconclusive with respect to this question. While the appellant may well be correct in pointing out that English and Canadian courts have not, as a matter of practice, compelled members of the clergy to disclose confidential religious communications, this does not answer the question of whether there is a legal common law privilege for religious communications. Furthermore, I cannot agree with the appellant that the existence of a limited statutory religious privilege in some jurisdictions (see: Quebec's Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 9, and Newfoundland's Evidence Act, R.S.N. 1970, c. 115, s. 6) indicates that a common law privilege exists. If anything, the fact that there is a statutory privilege in some jurisdictions indicates that the common law did not protect religious communications -- thus necessitating the statutory protection.

In the end, the question of whether a prima facie privilege exists for religious communications is essentially one of policy. As Justice Wilson stated in Geffen v. Goodman Estate, supra, at p. 387:

Their [the respondent's] argument is reminiscent of earlier days when the "pigeon hole" approach to rules of evidence prevailed. Such, in my opinion, is no longer the case. The trend towards a more principled approach to admissibility questions has been embraced both here and abroad (see, for example, in Canada, Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608 (hearsay) and R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 (hearsay), and in the United Kingdom, Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.) (similar fact)), a trend which I believe should be encouraged.

As I have mentioned, a prima facie privilege for religious communications would constitute an exception to the general principle that all relevant evidence is admissible. Unless it can be said that the policy reasons to support a class privilege for religious communications are as compelling as the policy reasons which underlay the class privilege for solicitor-client communications, there is no basis for departing from the fundamental "first principle" that all relevant evidence is admissible until proven otherwise.

In my view, the policy reasons which underlay the treatment of solicitor-client communications as a separate class from most other confidential communications, are not equally applicable to religious communications. The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication (see: Geffen v. Goodman Estate, supra, and Solosky v. The Queen, supra). In my view, religious communications, notwithstanding their social importance, are not inextricably linked with the justice system in the way that solicitor-client communications surely are.

While the value of freedom of religion, embodied in s. 2(a), will become significant in particular cases, I cannot agree with the appellant that this value must necessarily be recognized in the form of a prima facie privilege in order to give full effect to the Charter guarantee. The extent (if any) to which disclosure of communications will infringe on an individual's freedom of religion will depend on the particular circumstances involved, for example: the nature of the communication, the purpose for which it was made, the manner in which it was made, and the parties to the communication.

Having found no common law, prima facie privilege for religious communications, I will consider whether such communications can be excluded in particular cases by applying the Wigmore criteria on a case-by-case basis.

2. Case-by-Case Privilege

In Re Church of Scientology and The Queen (No. 6), supra, the Ontario Court of Appeal recognized the existence of a "priest and penitent" privilege determined on a case-by-case basis, having regard to the Wigmore criteria. This approach is consistent with the approach taken by this Court in Slavutych v. Baker, supra, and is, in my view, consistent with a principled approach to the question which properly takes into account the particular circumstances of each case. This is not to say that the Wigmore criteria are now "carved in stone", but rather that these considerations provide a general framework within which policy considerations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particular case before the court. Nor does this preclude the identification of a new class on a principled basis.

Furthermore, a case-by-case analysis will allow courts to determine whether, in the particular circumstances, the individual's freedom of religion will be imperilled by the admission of the evidence. As was stated in Re Church of Scientology and The Queen (No. 6), at p. 540:

Chief Justice Dickson stated in R. v. Big M Drug Mart Ltd. (1985), 1985 CanLII 69 (SCC), 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, [1985] 1 S.C.R. 295, that the fundamental freedom of conscience and religion now enshrined in s. 2(a) of the Charter embraces not only the freedom of religious thought and belief but also "the right to manifest religious belief by worship and practice or by teaching and dissemination". This protection will no doubt strengthen the argument in favour of recognition of a priest-and-penitent privilege. The restrictive common law interpretation of the privilege may have to be reassessed to bring it in conformity with the constitutional freedom.

In our view, however, while s. 2 of the Charter enhances the claim that communications made in confidence to a priest or ordained minister should be afforded a privilege, its applicability must be determined on a case-by-case basis. The freedom is not absolute. [Emphasis added.]

The Wigmore criteria will be informed both by the Charter guarantee of freedom of religion and by the general interpretative statement in s. 27 of the Charter:

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

I note that in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, the majority adopted the following words in interpreting s. 2(a), at p. 336:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter.

It is for this reason that I have, throughout these reasons, employed the general term "religious communications" in place of the more traditional term "priest-penitent communications". In applying the Wigmore criteria to particular cases, both s. 2(a) and s. 27 must be kept in mind. This means that the case-by-case analysis must begin with a "non-denominational" approach. The fact that the communications were not made to an ordained priest or minister or that they did not constitute a formal confession will not bar the possibility of the communications' being excluded. All of the relevant circumstances must be considered and the Wigmore criteria applied in a manner which is sensitive to the fact of Canada's multicultural heritage. This will be most important at the second and third stages of the Wigmore inquiry. In my view, such a case-by-case approach will avoid the problem of "pigeon-holing" referred to by Wilson J. in Geffen v. Goodman Estate, supra.

Having found that religious communications can be excluded in particular cases where the Wigmore criteria are satisfied, I turn now to the question of whether the communications involved in this case satisfy the Wigmore criteria.

Application of the Wigmore Criteria

In my opinion, a consideration of the Wigmore criteria and the facts of this case reveals that the communications between the appellant, Pastor Thiessen and Janine Frovich were properly admitted at trial.

In my view, these communications do not even satisfy the first requirement; namely, that they originate in a confidence that they will not be disclosed. Leaving aside the other components of the Wigmore test, it is absolutely crucial that the communications originate with an expectation of confidentiality (in order for those communications to be qualify as "privileged" and to thereby be excluded from evidence). Without this expectation of confidentiality, the raison d'être of the privilege is missing.

In the case at bar, there is evidence that Ms. Gruenke's communications to Pastor Thiessen and Ms. Frovich did not originate in a confidence that they would not be disclosed. The testimony of Pastor Thiessen and Janine Frovich indicates that they were unclear as to whether they were expected to keep confidential what Ms. Gruenke had told them about her involvement in the murder. As was stated by Twaddle J.A. in the Court of Appeal judgment at p. 300, "there was no evidence that the accused Gruenke made her admissions to them in the confident belief that they would be disclosed to no one". Ms. Gruenke did not approach Ms. Frovich and the Pastor on the basis that the communications were to be confidential. In fact, Ms. Frovich initiated the meeting and Ms. Gruenke testified that she saw no harm in speaking to Janine Frovich because she had already made up her mind to turn herself into the police and "take the blame". In my view, the Court of Appeal accurately described these communications as being made more to relieve Ms. Gruenke's emotional stress than for a religious or spiritual purpose. I note that my view is based on the parties' statements and behaviour in relation to the communication and not on the lack of a formal practice of "confession" in the Victorious Faith Centre Church. While the existence of a formal practice of "confession" may well be a strong indication that the parties expected the communication to be confidential, the lack of such a formal practice is not, in and of itself, determinative.

The communications in question do not satisfy the first Wigmore criterion and their admission into evidence does not infringe Ms. Gruenke's freedom of religion. As I have stated above, whether an individual's freedom of religion will be infringed by the admission of religious communications will depend on the particular facts of each case. In the case at bar, there is no such infringement.

I turn now to the third ground of appeal, whether the Court of Appeal erred in failing to conclude that the absence of a voir dire denied Ms. Gruenke a fair trial.

Failure to Hold a Voir Dire

I am of the view that Krindle J. essentially did hold a voir dire in the case at bar. While this was done informally and was not referred to as a voir dire by the trial judge, she did give counsel an opportunity to submit evidence and argument on the defence's motion for the exclusion of the evidence and she did so in the absence of the jury. Trial counsel for Ms. Gruenke did not ask to call any evidence and seemed completely satisfied to rely on the evidence given at the preliminary inquiry. In my view, it was the appellant who had the burden of establishing that the communications should be excluded on the basis of privilege -- it was for Ms. Gruenke and her counsel to determine how best to discharge that burden. While the trial judge carries the ultimate responsibility for determining questions of admissibility, he or she is not required to do more than provide counsel with a reasonable opportunity to elicit evidence and give argument on these issues before making a ruling.

Thus, it is my view that Ms. Gruenke was not denied a fair trial by the trial judge's failure to hold a formal voir dire and by her decision to rule on the defence motion on the basis of argument and the testimony given at the preliminary inquiry.

At the same time, I think it useful to point out for the benefit of future cases that when an issue of privilege arises in the course of a trial, the issue may well be best determined within the sanctuary of a voir dire. Generally speaking, the trial judge will often be aided by a formal voir dire in which evidence can be heard and argument submitted in the absence of the jury. In addition, for both jury and non-jury trials, a formal voir dire affords an accused the opportunity to take the stand and be heard for a limited purpose without being subject to general cross-examination. The trial judge will then be in the best position to apply the Wigmore criteria and to rule on the admissibility of the communication in question. While this may well be the preferred method of determining issues of privilege, the failure to follow this procedure does not necessarily render the trial unfair.

I turn now to the last two grounds of appeal, dealing with the trial judge's charge to the jury.

Jury Charge

I am in full agreement with the Manitoba Court of Appeal that, taken as a whole, the charge to the jury was full and fair. While I have some concern about the trial judge's failure to remind the jury that Mr. Fosty's explanation of protecting Ms. Gruenke could be considered in relation to her, despite the fact that it could not (because of excessive force) constitute a defence within the meaning of s. 37 of the Code for him, I do not think that this omission rendered the charge unfair.

Furthermore, given that I have found that the communications between the appellant, Pastor Thiessen and Ms. Frovich were properly admitted at trial, it is my view that even if the jury had been reminded of this point this could not have altered the verdict. In other words, once the communications in question were before the jury, a first degree murder conviction was inevitable.

Disposition

In light of the analysis set out above, I would dismiss the appeal.

//L'Heureux-Dubé J.//

The reasons of L'Heureux-Dubé and Gonthier JJ. were delivered by

L'Heureux‑Dubé J. -- I have had the opportunity to read the reasons of the Chief Justice, and I agree with him that the appeal should be dismissed, substantially for the reasons he proposes. However, due to the nature of the parties' arguments and of the case, I feel compelled to make some comments of my own regarding the "religious communications" privilege.

This appeal presents the Court with an opportunity to consider whether confidential communications between an individual and a religious leader may be privileged, and if so, the circumstances in which such a privilege should apply. In order to assess whether a religious communications privilege should be recognized, the fundamental principles and values such a privilege is intended to protect and promote must be examined.

One of the primary aims of the adversarial trial process is to find the truth. To assist in that search, all persons must, if requested, appear before the courts to testify about facts and events in the realm of their knowledge or expertise. This requirement ‑‑ some would call it a duty ‑‑ can be traced far back into the history of the common law, and can now be found in statutory form in the federal and provincial Evidence Acts. If the aim of the trial process is the search for truth, the public and the judicial system, must have the right to any and all relevant information in order that justice be rendered. Accordingly, relevant information is presumptively admissible. Exceptions may be found both in statutory form, and in the common law rules of evidence, which have developed in order to exclude evidence that is irrelevant, unreliable, susceptible to fabrication, or which would render the trial unfair. Courts and legislators have also been prepared to restrict the search for truth by excluding probative, trustworthy and relevant evidence to serve some overriding social concern or judicial policy. The latter are the source of privileges for certain private communications. Perhaps the most common example is the solicitor and client privilege: see Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821.

The categories of privileged communications are, however, very limited ‑‑ highly probative and reliable evidence is not excluded from scrutiny without compelling reasons. In Sopinka and Lederman, The Law of Evidence in Civil Cases (1974), the authors remark at p. 157:

The extension of the doctrine of privilege consequentially obstructs the truth‑finding process, and, accordingly, the law has been reluctant to proliferate the areas of privilege unless an external social policy is demonstrated to be of such unequivocal importance that it demands protection.

See also R. v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479, in particular Rand J.'s opinion at pp. 482‑83, and Wigmore, Evidence in Trials at Common Law, McNaughton Revision, vol. 8, para. 2192, at p. 73. The American case law takes the same position: Trammel v. United States, 445 U.S. 40 (1980); University of Pennsylvania v. Equal Employment Opportunity Commission, 110 S.Ct. 577 (1990). For the Australian position, see John Fairfax & Sons Ltd. v. Cojuangco (1988), 165 C.L.R. 346 (H.C.), and McGuinness v. Attorney-General of Victoria (1940), 63 C.L.R. 73 (H.C.), especially at pp. 102‑3.

I agree with the Chief Justice, and with Twaddle J.A. in the Court of Appeal (1989), 1989 CanLII 211 (MB CA), 55 Man. R. (2d) 289, that the question of whether or not there should be a recognized privilege for confidential religious communications is a question of policy. I believe then that it is important to articulate explicitly what policy considerations are relevant to a religious communications privilege, in order to ascertain the need to exclude what might otherwise be probative evidence.

This Court has not yet had the occasion to consider the principles underlying a religious communications privilege. However, the New Zealand Court of Appeal recently addressed the issue while interpreting a statutory privilege for confessions. In R. v. Howse, [1983] N.Z.L.R. 246 (C.A.), speaking for the Court, Cooke J. stated at p. 251:

The rationale of any such privilege must be that a person should not suffer temporal prejudice because of what is uttered under the dictates or influence of spiritual belief.

In Trammel v. United States, supra, at p. 51, Burger C.J. of the United States Supreme Court observed:

The privileges between priest and penitent, attorney and client, and physician and patient limit protection to private communications. These privileges are rooted in the imperative need for confidence and trust. The priest‑penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return. [Emphasis added.]

Scholars have also attempted to decipher the principles and values which would be preserved by a religious communications privilege. According to them, such a privilege would protect: (a) society's interest in religious communications; (b) freedom of religion; (c) privacy interests; (d) other concerns. The parties in this appeal have also referred to historical sources, the case law and statutory responses to the perceived need for such a privilege. It is with this spectrum of considerations in mind that the availability and breadth of a religious communications privilege can be assessed.

I The Values Promoted by a Religious Communications Privilege

(a) Society's Interest in Promotion Religious Communications

Several authors have suggested that utilitarian (or "instrumental") values would be promoted by a privilege for confidential religious communications. Confidentiality in the relationship between the religious leader and an individual allows full and frank discussion of matters which are troubling to the individual, allowing the individual to draw "psychological and spiritual sustenance" from the relationship: Cole, "Religious Confidentiality and the Reporting of Child Abuse: A Statutory and Constitutional Analysis" (1988), 21 Colum. J.L. and Soc. Probs. 1, at p. 15. The spiritual benefit to the individual is said to contribute to the overall health of society. By creating a privilege, the law, it is argued, "has determined that, in the long run, society gains more by fostering these relationships than it gains from disclosure of communications within those relationships": Mitchell, "Must Clergy Tell? Child Abuse Reporting Requirements Versus the Clergy Privilege and Free Exercise of Religion" (1987), 71 Minn. L. Rev. 723, at p. 762.

Professor Mitchell captures the utilitarian argument in her analysis of the four‑part Wigmore test, when she remarks at p. 767:

A more commonly mentioned reason [for fostering the clergy‑confider relationship] is the benefit the community derives from the mental, emotional, and spiritual health of its members. One author has written that the privilege is important to the health and stability of the whole society and that it enables people to deal with their problems with positive results. The individual penitent or counselee may receive forgiveness, absolution, advice and comfort; from these may flow spiritual, emotional, mental, and even physical health. The community benefits from the health of its citizens, and for many persons religion, including confidential consultations with clergy, contributes significantly to that health. [Footnotes omitted.]

This argument is based on several propositions. First, it must be that confidentiality is necessary to allow the cleric to give spiritual guidance to the individual. Tiemann and Bush, The Right to Silence: Privileged Clergy Communication and the Law (2nd ed. 1983), remark at p. 23:

There must be a genuine trust between the clergy and the congregant or their relationship cannot proceed to the deep level of understanding necessary for good pastoral care. While the average pastor or rabbi is not prepared to engage in depth therapy, there can be no hinderance to the counseling relationship which might cause those who seek help to hold back mention of the very act, feeling, or circumstance causing the most spiritual turmoil. Confidence must be complete if pastoral counseling is to be helpful. There must be no possibility of a disclosure of the shared confidences should a court of law call the pastor or rabbi as a witness.

In addition, the utilitarian rationale rests in part on the view that, in the absence of complete confidentiality, individuals would be disinclined to approach and confide in religious leaders. Bentham, who supported an absolute class privilege for Roman Catholics communicating under the seal of confession, identified the problem of compelling the clergy to testify, and argued at p. 587 of vol. IV of Rationale of Judicial Evidence (1827):

What would be the consequence [of compelling testimony]? ‑‑ That, of that quantity of confessorial evidence which is now delivered in secret for a purpose purely religious, a certain proportion (it is impossible to say what, but probably a very considerable one) would not be so delivered: would be kept back, under the apprehension of its being made use of for a judicial purpose. The rule would operate as a prohibition upon all such confessions for the spiritual purpose, as would be applicable to the temporal purpose . . . .

Yet, this argument is not solely concerned with numerical results, as Professor Mitchell observes at p. 765:

It would be difficult to test how many people fail to come forward for help because they fear disclosure. Furthermore, at issue is not just the number of persons who consult clergy or the number of consultations, but the healing quality of those consultations. [Footnote omitted; emphasis in original.]

Another benefit to society as a whole is articulated by Professor Cole in his article, supra. He suggests, at pp. 15-16:

Religious confidentiality is vitally important to the maintenance of religious organizations as well as to their individual members. An atmosphere of trust, made possible by the knowledge that communications made in secret will remain secret, is the keystone of strong clergy‑communicant relationships which are in turn the cement that holds many religious organizations together. In a very real sense, then, the value of religious confidentiality is the value to society of religion and religious organizations generally. Even from a purely utilitarian perspective, that value cannot be overstated. Religious organizations based on claims to unchanging truths are a stabilizing influence in an increasingly fast‑paced and atomized society where bonds of community are scarce and worth preserving. Moreover, many provide needed social services that government is unwilling or unable to provide in a cost‑efficient and humane manner.

See also Yellin, "The History and Current Status of the Clergy‑Penitent Privilege" (1983), 23 Santa Clara L. Rev. 95, at p. 113.

These societal interests are intuitively compelling, if they acknowledge a privilege in those uncommon situations where the confidentiality of a relationship is so fundamental that breaching it will do more harm than good to society. In those circumstances, public policy would be promoted at the cost of the search for truth.

(b) Freedom of Religion

Some scholars, including Professor Cole, prefer to base their support of a religious communications privilege on freedom of religion. Professor Cole writes, at p. 16:

Religious confidentiality, like other religious practices, should be afforded legal protection simply because all persons have a fundamental right to exercise those religious beliefs freely and without worry as to the popularity of their beliefs. Religious practices deserve legal protection not because the results of some cost‑benefit analysis tip in their favor, but because it is fundamentally important that government respect the sincerely‑held religious beliefs of its citizens. Religious confidentiality is founded on such beliefs and therefore deserves protection. [Emphasis added.]

As a policy basis for a privilege, freedom of religion (or conversely religious tolerance) was also the primary rationale advocated by Bentham, supra, at pp. 588‑92, and is discussed by Professor Mitchell at pp. 776‑77. In particular Mitchell makes this observation at p. 776:

Although the accommodation of religion reflected in the clergy privilege may be partly an accommodation of the religious practices of confiders, surely it is also an accommodation of clergy's religious objections to disclosure. [Emphasis in original.]

Freedom of conscience and religion in Canada as well as freedom of thought and belief are guaranteed by the Canadian Charter of Rights and Freedoms and cannot be ignored in this discussion. The preamble to the Charter reads:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Section 2 enshrines fundamental freedoms:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

The Court of Appeal in the present case, as well as the Ontario Court of Appeal in Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449, have noted the potential impact of s. 2(a) of the Charter on the religious communications privilege. As this Court has held, even in the absence of constitutional challenge, the interests and values protected by the Charter should be considered to allow the common law to develop in accordance with those principles (RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, McIntyre J. for the majority, at p. 603, Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at p. 184). In effect, the inclusion of a guarantee of freedom of religion in the Charter indicates that a legal privilege for confidential religious communications is commensurate with Canadian values.

While the impact of the Charter in a particular case must, of course, be assessed on the facts of that case, the values outlined above and the constitutional protection of freedom of religion bring support to the recognition of a religious communications privilege at common law.

(c) Privacy Interests

A third potential rationale for a religious communications privilege relates to privacy. Professor Mitchell articulates this concern, at p. 768:

The privacy rationale rests the clergy privilege on each person's interest in the dignity of privacy for his most intimate relationships. A confider who seeks out a member of the clergy for confession and counsel draws on or establishes a soul‑baring relationship as deeply intimate as any among family members. There is general repugnance at the law's intrusion into such a relationship.

Privacy values are distinct from the utilitarian view, because the emphasis for this rationale for the privilege is on a benefit to the individual, not to society as a whole. Professor Mitchell explains at p. 769:

Unlike Wigmore's utilitarian rationale, the privacy rationale justifies the clergy privilege primarily in terms of the participants' interests and not society's benefit ‑‑ except to the extent that everyone benefits from living in a society in which the law does not intrude unnecessarily into people's private lives. Whereas the Wigmore rationale seems to imply that society favors persons confiding in their clergy, the privacy rationale is consistent with society's neutrality or even antipathy toward such confidences. The privacy rationale protects the clergy‑confider relationship because the confider, and not society generally, values that relationship. One advantage, then, of the privacy rationale over the Wigmore rationale is that a privacy rationale maintains the privilege even in the face of popular loss of confidence in the clergy. A related advantage of the privacy rationale is that it does not depend on any showing that disclosure of confidences would in fact deter or inhibit relationships with clergy. In other words, the privacy rationale eliminates the need to meet Wigmore's second and third prerequisites for a privilege. [Footnotes omitted.]

It should be stressed that this privacy interest does not simply address the interest all people have in the privacy of their conversations; it goes much further in that the individual seeks out the religious leader for spiritual guidance and assistance. This religious element in the relationship promotes special values of privacy characteristic of that relationship, and makes the privacy rationale a possible justification towards the recognition of the privilege.

One might note here the American constitutional dimension of the privacy concern, as expressed by Professor Mitchell at pp. 770‑76. For a discussion of the interaction of privilege rules and state intrusions into private communications, see Goldsmith and Balmforth, "The Electronic Surveillance of Privileged Communications: A Conflict in Doctrines" (1991), 64 S. Cal. L. Rev. 903.

(d) Other Concerns

Other authors express the view that it would be impractical and futile to attempt to force the clergy to testify, because often the cleric would refuse. In his article "Confidential Communications to the Clergy" (1963), 24 Ohio St. L.J. 55, Professor Reese argues this point at p. 81:

Most clergy will not testify concerning confidential communications regardless of whether there is a statutory privilege. They are bound by an overpowering discipline that dictates the strictest standards of conduct concerning the maintenance of the inviolability of the confidential communication made to them in their ministerial capacity. . . . Therefore, in a state without the privilege, a clergyman facing contempt charges for refusing to testify would have little trouble making the decision about what to do. He would refuse, face contempt charges, and imprisonment. The pressure from an institutional standpoint would reinforce his determination. To testify would cast doubt upon the security all people have toward the secrecy of confidential communications to the clergy.

This is perhaps what motivated Best C.M. to write in Broad v. Pitt (1828), 3 Car. & P. 518, 172 E.R. 528, at p. 519 and p. 529, respectively:

I, for one, will never compel a clergyman to disclose communications, made to him by a prisoner; but if he chooses to disclose them, I shall receive them in evidence.

Compelling disclosure, or charging a cleric in contempt, it is further argued, places the presiding judge in the position of having either to force the breach of a confidence, or to imprison the cleric, both of which may arguably bring disrepute to the system of justice: Reese, supra, pp. 60‑61.

A final perspective which may be mentioned in passing is found in Professor Lyon's brief commentary, "Privileged Communications ‑‑ Penitent and Priest" (1964‑65), 7 Crim. L.Q. 327. He argues, at p. 327, that the "best reason" for granting the privilege is that "to admit in evidence confessions made to a priest would be so similar to admitting confessions made under duress to police that the idea should be expressly condemned by the common law".

II Historical and Jurisprudential Data

The appellant submits that the historical underpinnings of the religious communications privilege favour its recognition. A number of authors refer to Roman Catholic confession practices as the source from which any religious communications privilege in the common law would emanate. In apparent support of a privilege prior to the sixteenth century Reformation in England, various sources detail the relationship between the Roman Catholic church and the government in England, the coexistence of ecclesiastical and temporal laws, and the special legal privileges held by the clergy (see Pollock and Maitland, The History of English Law Before the Time of Edward I (2nd ed. 1968), particularly vol. I, at pp. 437‑57). An early statute in common law was the Articuli Cleri, enacted by the English Parliament in 1315: 9 Edw. 2, c. 10. The statute is summarized in Reeves, History of the English Law (1787), vol. 2, beginning at p. 291. The meaning of the actual provisions is, however, unclear: see Yellin, supra, at p. 99; Tiemann and Bush, supra.

Various authors were also cited to the Court to support the view that after the Reformation, or at least after the Restoration in the 1660s, the privilege fell into disfavour with the ascendancy of the Anglican Church of England, the increasing power of Parliament and the growing independence of courts from ecclesiastical influence. For more comprehensive historical discussions of the religious communications privilege, see Chambers and McInnes, "Commentary on R. v. Church of Scientology and Zaharia", in (1989), 68 Can. Bar Rev. 176; Tiemann and Bush, supra, at pp. 34‑54; Hogan, "A Modern Problem on the Privilege of the Confessional" (1951), 6 Loyola L. Rev. 1, at pp. 7‑14; Yellin, "The History and Current Status of the Clergy‑Penitent Privilege", supra, at pp. 96‑104.

However, it is far from clear that, historically, the common law recognized the privilege, at least as it evolved through the centuries.

The case law which addresses this issue can be traced as far back as Garnet's Trial (1606), 2 How. St. Tr. 218, and a number of cases are listed in the Ontario Court of Appeal's reasons in Re Church of Scientology, supra, at p. 537. The cases, with some notable exceptions, do not support the existence of a "class" privilege for religious communications. Perhaps the most famous dicta is that of the Jessel M.R. in Wheeler v. Le Marchant (1881), 17 Ch. 675 (C.A.), who remarked (albeit in a case concerning the solicitor‑client privilege) at p. 681:

There are many communications which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. . . . Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected.

Indeed, one may find examples where the cleric has apparently been imprisoned for failure to testify: see R. v. Hay (1860), 2 F. & F. 4, 175 E.R. 933, at p. 9 and p. 936, respectively.

Taken as a whole, then, neither the historical nor the jurisprudential data seems to support the existence of a class‑based privilege for religious communications at common law in England.

III Recent Development in Canada and Other Countries

Currently there are two Canadian provinces, Quebec and Newfoundland, that have statutes which recognize a privilege for communications between a religious leader and an individual: Quebec's Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 9; Evidence Act, R.S.N. 1970, c. 115, s. 6. See also Gill v. Bouchard (1896), 5 Que. Q.B. 138, and Ouellet v. Sicotte (1896), 9 C.S. 463. Otherwise, the Canadian case law is almost silent on the subject. Re Church of Scientology and The Queen (No. 6), supra, and R. v. Medina, (Ont. S.C., October 17, 1988, unreported) are the only cases that I could find dealing squarely with the issue.

Although several Canadian law reform bodies have examined the issues of pastor-penitent privilege, few have demonstrated a desire to expand currently existing privileges requiring the exclusion of evidence of communications between an individual and a religious leader. (See Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), at pp. 417‑23; Ontario Law Reform Commission, Report on the Law of Evidence (1976), at pp. 145‑46; Ontario, Royal Commission Inquiry into Civil Rights (The McRuer Report) (1968), vol. 2, at pp. 820‑21; Law Reform Commission of Canada, Report on Evidence (1975), at pp. 29‑34 and pp. 77‑83 (see Study Paper No. 12, Evidence: Professional Privileges Before the Courts (1975)). Perhaps the most sympathetic to new privileges was the Law Reform Commission of Canada's Report on Evidence, supra. The new federal Evidence Code, as drafted by the Commission, would have allowed exclusion of evidence of confidential communications made to professionals, in their professional capacities, if the "public interest in the privacy of the relationship outweighs the public interest in the administration of justice": see pp. 29‑34 and 77‑83 and Study Paper No. 12 Evidence: Professional Privileges Before the Courts, supra, which endorsed a clergy privilege (at p. 17).

In fact, the trend in Canada is to limit the recognition of privileges generally in favour of the search for truth in the judicial process. Recent cases in this Court and comments bear this out; see Cotton, "Is there a Qualified Privilege at Common Law for Non‑Traditional Classes of Confidential Communications? Maybe" (1990), 12 Advocates' Q. 195; Sim, "Privilege and Confidentiality: The Impact of Slavutych v. Baker on the Canadian Law of Evidence" (1984‑85), 5 Advocates' Q. 357; McLachlin (now of this Court), "Confidential Communications and the Law of Privilege" (1977), 2 U.B.C. L. Rev. 266; Moysa v. Alberta (Labour Relations Board), 1989 CanLII 55 (SCC), [1989] 1 S.C.R. 1572; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.

The privilege has, in the meantime, flourished in several other countries. The English position has not changed since Wheeler v. Le Marchant (see Halsbury's Laws of England, vol. 11(2), para. 1163, at note 5). The Irish position, on the other hand, appears to recognize the privilege: Cook v. Carroll, [1945] Ir. R. 515 (H.C.); In re Keller (1887), 22 L.R.I. 158; Tannian v. Synnott (1903), 37 I.L.T. & Sol. J. 275. See also Lindsay, "Privileged Communications Part I: Communications with Spiritual Advisors" (1959), 13 N. Ir. L.Q. 160.

In Australia, three states have enacted statutes recognizing the privilege: Tasmania (Evidence Act, 1910, s. 96(1)), Victoria (Evidence Act, 1958, No. 6246, s. 28) and New South Wales (Evidence (Religious Confessions) Amendment Act, 1989). See R. v. Lynch, [1954] Tas. S.R. 47 (S.C.). There are also statutory provisions protecting these communications in New Zealand: Evidence Amendment Act (No. 2) 1980, s. 31. See R. v. Howse, supra.

Each of the 50 American states now has a statute dealing with a privilege for religious communications (Professor Mitchell, supra, on p. 734, note 56, lists most of these provisions). Appellate courts have had numerous opportunities to interpret these statutes; for a recent example, see People v. Edwards, 248 Cal.Rptr. 53 (Cal.App. 1 Dist. 1988), cert. denied 109 S.Ct. 1158 (1989). In addition, federal evidence rules have allowed the privilege to be taken into account in some federal decisions: see Mullen v. U.S., 263 F.2d 275 (1959). For a discussion of these statutes, see Plantamura, "The Clergyman‑Penitent Privilege", in Stone and Liebman, eds., Testimonial Privileges (1983), p. 359.

Concerning the American Constitution, Campbell in her article "Catholic Sisters, Irregularly Ordained Women and The Clergy‑Penitent Privilege" (1976), 9 U.C. Davis L. Rev. 523, observes at p. 525:

The amendment creates an inherent tension: to protect the free exercise of religion is often to aid in its establishment. This tension is reflected in the clergy‑penitent privilege: to grant the privilege is to aid in the establishment of religion by protecting communications to members of the clergy; to deny the privilege is to prohibit the free exercise of religion by forcing the violation of the church law of some congregations.

See also Stoyles, "The Dilemma of the Constitutionality of the Priest‑Penitent Privilege ‑‑ The Application of the Religion Clauses" (1967), 29 U. Pitt. L. Rev. 27; Mitchell, supra, at pp. 777‑85; Cole, supra, at pp. 35‑50.

The appellant submits that this body of law and case law is persuasive evidence that the common law should recognize the privilege. It could equally be argued that not the Courts but the legislatures should be the bodies responsible for enacting such a privilege. But the statutory provisions suggest that the public interest in various jurisdictions has been served by the recognition of a privilege for confidential religious communications. This factor is also important to the assessment of the relevant test for recognition of a privilege in a particular case.

IV Summary

With these rationales and policy, and constitutional and historical considerations in mind, as well as the case law and the statutory provisions previously discussed, should this Court recognize a particular category of privileges for religious communications? While it may be that Parliament or the provincial legislatures are at liberty to enact statutory provisions creating such a privilege besides those already existing in Quebec and Newfoundland, it is my view that there is a human need for a spiritual counsellor, a need which, in a system of religious freedom and freedom of thought and belief, must be recognized. While serving a number of other policy interests, the values to society of "the human need to disclose to a spiritual counsellor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return" in the words of Berger C.J. in Trammel v. United States, supra, at p. 51, must supercede the truth‑searching policy.

V The Wigmore Approach and Religious Communications

While the category of pastor‑penitent privilege was not specifically recognized as such in common law, it was not discouraged as long as the communication fell within the general test of Wigmore, a test which applied to all categories of privileges. Courts, including this Court have tended to consider this test to apply on a case‑by‑case basis: see Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254, at pp. 260‑61; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), 1981 CanLII 33 (SCC), [1981] 2 S.C.R. 494, per Laskin C.J. dissenting at p. 512.

The Chief Justice proposes that Wigmore's test continue to be used as a general approach to considering whether particular religious communications should be admitted into evidence, or found inadmissible by virtue of privilege. At this point it is useful to recall the conditions set out by Wigmore (para. 2285) to determine whether a particular communication should be considered privileged:

(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.

(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. [Emphasis in original.]

It is interesting to note, however, that Dean Wigmore himself originally formulated the four canons of privilege in order to assess what kind of relationships would attract a new category of privilege. In fact, using his own four‑step approach, Wigmore concluded that "[the pastor's] privilege has adequate grounds for recognition": Wigmore, supra, at p. 878. The balancing of the societal interests of maintaining the confidential relationship (by assessing the potential injury done) with the truth‑seeking function of the judicial system which Wigmore proposes have been dealt with earlier. An ad hoc approach to privilege may overshadow the long-term interest which the recognition of a religious privilege seeks to preserve. As Professor Mitchell, supra, writes at pp. 767-68:

Although Wigmore expressly contemplated a balancing of interests, he did not contemplate weighing clerics' and confiders' interests in confidentiality against specific litigants' interests in the outcome of their litigation. Rather, he contemplated weighing society's interest in clergy‑confider relationships generally against society's interest in access to full information in every litigation. Apparently, Wigmore also had in mind a single conclusive balancing that would determine whether, in the long run, society benefits more from nondisclosure than from disclosure. If so, the privilege should be recognized; if not, the privilege will fail. Wigmore was not advocating ad hoc judicial determinations following every individual claim of privilege. This all‑or‑nothing approach has been criticized by some who prefer more ad hoc balancing. . . . One danger of the ad hoc approach to privileges, however, is its tendency to focus on the palpable need for evidence in the individual case and to neglect more intangible and long‑term interests. Even in ad hoc weighing, the balancer must take into account the long‑term effects of disclosure on the practice of religion and the benefits the community derives from clergy's contributions to the health of many citizens. [Final emphasis added.]

In my view, it is more in line with the rationales identified earlier, the spirit of the Charter and the goal of assuring the certainty of the law, to recognize a pastor‑penitent category of privilege in this country. If our society truly wishes to encourage the creation and development of spiritual relationships, individuals must have a certain amount of confidence that their religious confessions, given in confidence and for spiritual relief, will not be disclosed. Not knowing in advance whether his or her confession will be afforded any protection, a penitent may not confess, or may not confess as freely as he or she otherwise would. Both the number of confessions and their quality will be affected; see Mitchell at p. 763. The special relationship between clergy and parishioners may not develop, resulting in a chilling effect on the spiritual relationship within our society. In that case, the very rationale for the pastor‑penitent privilege may be defeated. The lack of a recognized category also has ramifications for freedom of religion. Concerns about certainty apply as much to the development of specific religions as to spiritual practices in general.

Of course, this does not mean that every communication between pastor and penitent will be protected. The creation of the category simply acknowledges that our society recognizes that the relationship should be fostered, and that disclosure of communications will generally do more harm that good. Accordingly, the pastor-penitent relationship answers the third and fourth legs of the Wigmore test. But in any given case, the specific nature of the relationship must be examined to ensure it fits the category. Furthermore, the extent of the privilege will still be determined in accordance with the first and second legs of Wigmore's test.

VI General Application of the Privilege

In analyzing a claim for religious communications privilege, it goes almost without saying that the facts and circumstances of the particular case will be of primary importance.

A first step involves verifying whether communications fall into the pastor‑penitent category at all. If the communications are not intended to be of a religious or spiritual nature, then the policy considerations articulated above will not apply. In R. v. Medina, supra, Campbell J. carefully considered a claim for privilege covering communications between a religious leader and an individual later accused of murder, who was attempting to flee the locale. He set out the following criteria for evaluating the confidentiality of the communication:

(1) Does the communication involve some aspect of religious belief, worship or practice?

(2) Is the religious aspect the dominant feature or purpose of the communication?

(3) Even if the religious aspect is not the dominant purpose, how significant is it? Would the communication have been called into being without the religious aspect? . . .

(4) Is the religious aspect of the communication sincere or is it colourable? Did it amount to a good faith manifestation of religious belief, worship or practice?

The answers to these questions are helpful in determining whether the communications are of a religious or spiritual nature, and as such whether the values protected and promoted by the privilege would be actually be fostered.

Once this first test has been met, the communication must be further scrutinized to see whether or not it meets the other aspects of the Wigmore test.

The first of these two aspects is that the religious communications must originate in the expectation that they will not be disclosed. It is clear that the requirement of confidentiality serves to stress that only private communications may be privileged. This analysis protects both privacy and utilitarian values. The analysis of this issue is a factual exercise, having regard to all the circumstances. In particular, the persons involved and the place where the communications take place will be relevant. In addition, the expectations of the people involved may be assessed through testimony where that is possible, and by some examination of the practices of the religious denomination involved. In making this latter assessment, however, an overly rigid application of the practice of the religious denomination should be avoided. Chambers and McInnis, supra, observe at p. 186:

It would be inconsistent with expectations if a communication received by a cleric in confidence was privileged only if the rules governing his or her conduct required the maintenance of secrecy.

This position is strengthened by reference to s. 27 of the Charter, which mandates an interpretation of the Charter consistent with the multicultural heritage of Canadians. The requirement or the availability of a confidential communications such as a confession will not be determinative of the availability of the privilege, although it may be relevant. Accordingly, I would not accord "confessional" communications any "special privilege" going beyond the application of the principles defined here (see Ryan, "Obligation of the Clergy not to Reveal Confidential Information" (1991), 73 C.R. (3d) 217, at p. 218).

The second Wigmore criteria, that confidentiality be essential to the full maintenance of the relationship, highlights the narrow application of the privilege. The privacy interests of the religious leader and individual involved, in combination with the benefit to society of the relationship's confidentiality, will not be sufficient to pass the second criteria in every case. Determination of this issue will involve, among other things, a consideration of the nature of the particular relationship at bar and the nature of the cleric‑individual relationship in broader terms.

In this context, the practice or procedure used to communicate and perhaps the very fact of confidential communication will have to be probed. An example of this type of analysis is found in Slavutych, supra. The relationship envisaged in the privilege is one in which the individual approaches the religious leader with the intent of gaining religious or spiritual comfort, advice, or absolution. For instance, the communications made in an effort to flee from the criminal justice system (see R. v. Medina, supra) will not attract the privilege since gaining the assistance of anyone, let alone a religious leader, to escape justice is not the kind of relationship society seeks to foster and, consequently, cannot be covered by the pastor‑penitent privilege.

Finally, it will be recognized that there are a number of complex questions which may arise in the context of a claim for a religious communications privilege. Among these are the following: Who may claim the privilege? Does the privilege cover written as well as oral communications? What is the effect of a waiver by the confident? Does the religious leader have an independent legally protected interest in the privileged communications, and if so what is its extent? In what circumstances may a privilege be claimed? (See Re Church of Scientology and The Queen (No. 6), supra, which applied Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860). These questions may eventually have to be considered by courts with regard to the principles articulated above but they must be left for another day since they do not arise in the present case.

VII Application to the Facts of the Case

In the present case, Krindle J. admitted the testimony given at the preliminary inquiry by Pastor Harmony Thiessen and Ms. Janine Frovich. The Court of Appeal, in dismissing the appeal, agreed. After consideration of the impact of the Charter and the case law, Twaddle J.A. applied Wigmore's four canons as follows at pp. 299-300:

On the issue of confidentiality, I am of the view that not one of Wigmore's four conditions is met. It may well be that the pastor and the counsellor each believed that her relationship with the accused Gruenke was of a confidential nature, but there was no evidence that the accused Gruenke made her admissions to them in the confident belief that they would be disclosed to no one. The pastor and the counsellor might be described as caring friends who offered emotional support and spiritual comfort. Whilst confidentiality might be a desirable aspect of that relationship, I do not think it was essential in the way that it was for the relationship of the priest and his parishioners in Cook v. Carroll, supra. However the relation between Gruenke and the church workers may be labelled, on the facts of this case it is not one which the community opinion requires to be fostered sedulously. Nor is the public interest in fostering it so great as to require the exclusion of Gruenke's otherwise admissible statements as evidence on a charge of first degree murder.

Counsel for the appellant maintained that the communications were of a religious or a spiritual nature, particularly considering that the appellant had attended the Pastor's church and several counselling sessions with Ms. Frovich. The Chief Justice's recitation of the testimony reveals that the appellant approached the communications in question to determine whether ". . . if someone had committed murder, could God forgive that . . . ." This would support the appellant's view that the communications were, at least in part, for a spiritual or religious purpose.

However, I share the Chief Justice's view that, in the circumstances of this case, the communications did not originate in the confidence that they would not be disclosed. Although the people involved did converse in private, there is no evidence that the appellant believed or had reason to believe that the conversations were intended to be entirely confidential. It is apparent that she felt remorse and sought out comfort advice and guidance from her religious leaders. Yet, the evidence does not suggest an expectation of complete confidentiality. Rather, the testimony suggests that the appellant herself was preparing to divulge all the information the next day and wanted to tell her (later) co‑accused, Mr. Fosty, of her intentions.

I want to reiterate, at this point, that the absence of a church practice of confession of sin is not, in my view, determinative of the question of confidentiality. In any event, I agree with the Chief Justice that the evidence in this case does not attract the privilege of religious communications, although, arguably the communication was made for a religious or spiritual purpose.

Since I agree with the Chief Justice regarding the other grounds of appeal, I would dispose of this appeal as he suggests.

Appeal dismissed.

Solicitor for the appellant: Allan S. Manson, Kingston.

Solicitor for the respondent: The Attorney General of Manitoba, Winnipeg.