Recognition of Religious Advisor Privilege in Canada's Supreme Court
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb00960.x |
| Published date | 01 March 1993 |
| Date | 01 March 1993 |
| Author | John Arnold Epp |
March
19921
R
v
Gruenke
Cooperative Society36
should be remembered:
Unless some little care is taken in regard to these matters, we may find the administration
of this Act sliding down to the
sort
of
slipshod level at which all a defendant has to do is
say in general terms that the default must have been due to something in the shop, one of
the girls or some expression like that, and thereby satisfy the onus cast upon him.
It was surely not the intention of Parliament that the defence should be that easily
satisfied, but there is certainly concern that traders can too easily shift the blame
away from themselves. Although there is no specific requirement of
mens rea
on
the part of the defendant, the reality is that few defendants will be prosecuted who
are not at least a little slipshod in their practices.
Postscript
The House of Lords has recently allowed an appeal by Mr Johnson in
R
v
Warwickshire CC, exparte Johnson (The Times,
16
December
1992).
Lord Roskill
stated that the phrase ‘in the course of any business of his’ in
s
20(1)
means any
business of which the defendant is either the owner or in which he has a controlling
interest. His Lordship examined Hansard before coming to his conclusion. The other
Law Lords agreed.
Recognition
of
Religious Advisor Privilege
in
Canada’s Supreme Court
John
Arnold
Epp*
The Supreme Court of Canada has recognised religious advisor privilege on a case-
by-case basis in the recent decision of
R
v
Gruenke.1
For centuries, the court’s
duty to ascertain the truth has been at odds with the secrecy of confidential statements
or confessions made to religious advisors. Such advisors are often privy to confidential
information provided by an accused regarding matters relevant to the charges before
the court. Without that information the court’s function may
be
frustrated. The debate
in Canada and England is defined by three possible positions
-
those who favour
either no privilege, class privilege or case-by-case privilege. English law stubbornly
clings to the first position.*
In
Gruenke
the accused was charged with first degree murder. The prosecution
sought to introduce statements made by the accused to the pastor of her church and
a church counsellor two days after the victim’s death. Among other incriminating
comments, the accused said that she had killed the victim and asked if someone
could be forgiven if they had committed m~rder.~ Defence counsel objected to the
admissibility of this evidence on the grounds that either a common law privilege
existed or the fundamental freedom of religion enshrined in section
2(1)
of the
Canadian Charter
of
Rights and Freedoms
created a new class of privilege. In spite
of the objections, the trial judge ruled that the statements were admissible and
36
*Cayman Islands’
JAW
School.
The writer gratefully acknowledges the assistance
of
Ken Lidstone and Roger Brownsword.
(1976)
140
JP
306, 310.
1
2
3
(1991) 67 CCC (3d) 289 (SCC).
C. Tapper,
Cross
on
Evidence
(London: Butterworths, 7th ed, 1990)
p
448.
R
v
Gruenke
(1991) 67 CCC (3d) 289, at p 296 (SCC).
0
The
Modern
Law
Review Limited
1993
233
To continue reading
Request your trial