Consistency in Case-by-Case Privilege for Religious Communications

Solicitor-client privilege has been described by the Court in Lavallee, Rackel & Heintz v. Canada as a principle of fundamental justice and civil right of supreme importance in Canadian law. The Court went further in R. v. McClure and stated at para 35, “solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.”

Not all forms of privilege though are so strongly protected. For forms of privilege that is not historically protected on the basis of class or category, the courts have employed the test originally set out in the 1961 tet by John Henry Wigmore, as described by the Court in R. v. Gruenke:

(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.

These types of privilege are assessed on a case-by-case basis. In Gruenke, the Court assessed the admissibility of inculpatory statements about a murder to a pastor, and did not provide it protection on the basis that confidentiality was not assumed. Justice Lamer stated,

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 statements made in this case appeared to be intended more to relieve the accused’s emotional stress rather than to give purpose to religion or spirituality. The Court was also attune to the multicultural nature of Canada, the need for a non-denominational approach, and preferred the term “religious communications” over the historic use of “priest-penitent communications.”

What the Court did not perhaps envision is what transpired in R. v. Welsh, where the communication was made to a police officer posing as a religious figure, who pressured those involve to adopt the faith, and then used this believe to extract a confession. The facts of the case pertinent to this point was summarized by the Ontario Court of Appeal as follows,

[21] Obeah describes a system of spiritual and mystical beliefs practiced in Jamaica and other black communities of the West Indies. The police learned that Colette Robinson, mother of Evol Robinson and Jahmar Welsh, believed in spirits and that she thought Shemaul Cunningham’s ghost was around her house. An undercover police officer, Andrew Cooper, posed as an Obeahman called “Leon”. He befriended Ms. Robinson and held himself out as possessing mystical powers and as capable of providing protection from the justice system (the “Babylon system”) and the police (the “beast” or “beastman”). He told Ms. Robinson that a good spirit, Shemaul Cunningham, was in conflict with a bad spirit, Youhan Oraha ([the victim] referred to as “the white boy”) and that the bad spirit was seeking revenge against the Robinson family. Cooper carried out elaborate ruses to demonstrate his powers, including placing a dead crow on the doorstep of the Robinson home and arranging for a police officer to feign illness during a fake traffic stop of Ms. Robinson. “Leon” also met with Robinson and Pinnock and insisted in his meetings with Ms. Robinson and the two appellants that he had to know the full details of the incident that “created” the evil spirit to be able to protect them.

What perhaps did not receive adequate attention by the Court of Appeal is that Obeah has an extensive history of persecution by the British Crown, specifically under the common law system, especially during periods of slavery and colonial discrimination. It encompasses aspects of West African religions, and is typically positioned in opposition to the justice system and its agents given this context of discrimination.

The police in Welsh went as far as staging and faking supernatural events, which were then invoked by the undercover officer, in order to secure the belief of the parties. Although the accuseds invoked ss. 2(a) and 15 of the Charter and were also protected by privilege, the trial judge, Justice O’Connor, ruled that the statements were admissible,

42 …this Applicant must demonstrate that the degree of interference with his religious freedom was more than trivial or insubstantial and if so, that it would not threaten or cause physical or psychological harm to the well-being of others. In my view, he has not succeeded on the first point. While the police conduct did interfere to a degree with his religious freedom, it did not do so in a manner that was more than trivial or insubstantial. He was not constrained or coerced in his religious practice. The planted fake religious leader did not interfere with his freedom to worship or express himself spiritually. In fact, Leon encouraged him to believe in Obeah, to participate in the chanting, the use of candles and handkerchiefs and the various rituals of the belief system, as only then could he help him defeat those who wished to harm him. While Leon was a fake, playing on the Applicant’s belief in his authority as a spiritual leader who could bring him positive benefits, i.e. protection from evil spirits and from prosecution, Leon did nothing to interfere with this Applicant’s ability or right to worship, nor did he coerce him to disbelieve or disavow his religious beliefs.
[emphasis added]

The trial judge also found that if there was a s. 2(a) breach it would be saved by s. 1, and that there was no s. 15 breach because they were targeted based on suspected involvement in a crime, and not race or religion.

In applying the Wigmore test, Justice O’Connor stated,

92 …Pinnock’s and Robinson’s motive in attending the Obeah sessions was not sincere participation in a religious rite or service; rather, their purpose was to seek protection from the evil spirit of the deceased Oraha and to cause harm to those who sought to bring them to justice for allegedly committing a serious crime.

93 The Applicants have not met the test in this second branch of the Wigmore test.

94 On this third branch of the Wigmore test, Campbell J. in Medina said:

The relation must be one in the opinion of the community ought to be sedulously fostered. I must take it as authoritatively determined by the guarantee of the fundamental freedom of conscience and religion in s. 2(b) [sic] of the Canadian Charter of Rights and Freedoms that the relation of pastoral counselling grounded in the word of God and the teachings of the community ought to be sedulously fostered. There is, however, no community interest in protecting statements made for the purpose of getting away after a crime. Because the accused has not established on a balance of probabilities Because the accused has not established on a balance of probabilities any sufficient connection between the statement and the relation of pastoral counselling, the third test has not been met.

95 As one of the purposes of the Applicants’ communications with the Obeahman was expressly to obstruct law enforcement officials and the judiciary from prosecuting them, I find as did Campbell J. in Medina that the Applicants have failed the community interest component of the Wigmore test. They have not established on a balance of probabilities a sufficient connection between their statements and the relation of “pastoral counselling” or religious guidance.

Justice Campbell’s statement in R. v. Medina, [1988] O.J. No. 2348 was in the context of a Christian pastor, where the accused was unable to demonstrate any sufficient connection between the statement and pastoral counselling. The communication here involved little to no element of religious belief, worship or practice.

The Ontario Court of Appeal in Welsh upheld the trial level decision, likening it more to a case where a suspect is seeking assistance in thwarting the authorities. In conducting a “dirty tricks” analysis under s. 7, they referenced the Court of Appeal’s earlier decision in R. v. Rowe, the only authority where the police posed as a religious advisor.

As in Welsh, the impersonation in Rowe was of a “non-traditional” belief system, as a spiritualist and psychic counsellor who also possessed Obeah powers. Unlike in Welsh, the impersonator in Rowe was not himself a police officer, but instead cooperated and informed on the accused. Where the two cases did parallel was in the court’s understanding of how a confession was made in the context of Obeah,

[104] …as in Rowe, and as we have stated above in relation to the s. 2(a) and common law privilege claims, the appellants’ corrupt purpose significantly undermines any religious element there may have been in their relationship with Leon. Unlike the priest-penitent example, and quite apart from any distinction drawn on formal differences between the confessional and merely confiding in a religious adviser, the appellants did not communicate with Leon to fulfill a religious purpose or spiritual need. They were induced to make incriminating statements to Leon in the hope that he would use his powers to thwart the police and the justice system and to allow them to escape prosecution for a serious crime.

Although the Court of Appeal cited several authorities confirming that an undercover agent is not typically a person in authority for the purposes of confessions, these same authorities indicate that there may be unusual circumstances where it may (R. v. Grandinetti at para 40), while the Ibrahim rule adopted in R. v. Oickle and protects against coercion against those in authority.

While a person in authority can include a social worker or an interpreter involved in an interrogation, it will not include an officer posing a as cellmate or as a criminal in a Mr. Big operation. What distinguishes a Mr. Big operation from the confession in Welsh, is that in the former the accused is seeking admission or protection from a gang, and contains a strong motive for false confessions. The protection sought from the Obeahman is religious in nature.

The challenge here in the Court of Appeal’s analysis appears to be a limited appreciation of how Obeah is understood from the perspective of the adherents, despite expert evidence introduced on this at trial. The positioning of an Obeahman in a supernatural state, not only knowing about elements of an offence but purporting to be able to communicate with metaphysical powers around it, creates the type of relationship with these authorities similar to an interpreter in a traditional context for a party who believes in this power.

The confidentiality element of the Wigmore test must also be understood within a non-Christian perspective that Obeah is itself closely aligned and provides purpose through its opposition to the justice system and mainstream society. Its origins are closely aligned with the rebel and maroon groups of the Caribbean, whose descendants today are only alive because they fought and fled from the justice system, including from offences that were otherwise deemed as criminal. The ability to worship in this context is directly linked to a non-trivial empowerment that would provide a perception of protection against any state persecution.

Although the community may wonder why this type of relationship with a faith system that appears so opposed to the principles of that community should be fostered, the question is also whether the patterns of marginalization and exclusion of Obeah believers should continue to be perpetuated. Actual formal adherence to Obeah is increasingly rare, and instead we observe it today as part of Christian tradition, or more commonly, as broad spiritual and cultural aspects of the Afro-Caribbean community. To ameliorate and rehabilitate the tensions and distrust between these communities, and allow for more bridges to be built between the them, a different approach may indeed be warranted.

Most concerning is that the police believed it appropriate to impersonate and then induce beliefs amongst criminally accused. Justice O’Connor rejected the officer’s position that Obeah was not a religion under Syndicat Northcrest v. Amselem, but rejected the s. 15 claim on other grounds,

81 Criminality is not a protected analogous ground under s. 15(1). As a suspect in a criminal investigation, the Applicants received the same treatment any other suspects would have received under similar circumstances. They were singled out and targeted by the police not on the basis of their race, but on the basis of their suspected involvement in a serious and violent offence. They just happened to be black, of Jamaican heritage and therefore possibly susceptible to the Obeah sting. The police undercover tactics were not motivated by racism. They were motivated by a desire to solve a brutal killing. Having exhausted other avenues for obtaining evidence, the police engaged in a novel undercover operation, customizing the setting, the approach and the techniques to the particular facts of this case.

The fact remains that law enforcement in Canada have never impersonated a religious figure as part of any operations in the past, and in this case indicated they only did so because they did not consider it to be a real religion. The complete lack of precedent for this tactic, especially with more traditional and mainstream religions, certainly suggests an discriminatory attitude that was more cavalier about this type of faith as opposed to others. Although the context in which this discrimination may have occurred was within a criminal investigation, the basis was clearly linked to race, national origin, and expressed perspectives on religion.

Indeed, there is some evidentiary record that at least one of the officers involved in the task force in Welsh expressed derogatory and demeaning statements about Obeah and its traditions. The knowledge that officers would personally impersonate an Obeahman for the purpose of eliciting a confession, and that the courts have upheld the practice in this instance, is likely to have far reach effects on the willingness of other adherents to engage in practice. Secrecy, especially from police and law enforcement, is more central to Obeah than perhaps any other religious tradition, but this does not appear to have been given proper weight by the courts.

A similar dichotomy was observed in the recent Supreme Court decision in Ktunaxa Nation v. British Columbia, which appears to treat the objects of non-traditional religions markedly differently than it has in previous jurisprudence. The Code provisions on witchcraft, when they were used, were disproportionately targeting non-Western religious traditions.

The Court of Appeal state at para 61 that the undercover officer did not compel any action for a religious purpose, because the Charter does not contain an establishment clause that would forbid state action promoting religion. However, the passage quoted by the court from Hogg is perhaps an incomplete statement of our understanding of the state’s relationship with religion. Jeremy Patrick states in the Tulsa Journal of Comparative and International Law that there is a hidden establishment clause on based on judicial interpretation of the Charter since its inception, and the reality of effecting a democracy in a legitimate and appropriate way,

Although it is certainly true that the Charter (Canada’s constitutional bill of rights) does not contain an explicit textual limitation on government establishments of religion, this prohibition is effectuated in other ways…

The proposition that section 2(a) incorporates, to an unclear degree, both “free exercise” and “anti-establishment” values in a unitary guarantee of religious freedom can be supported by the language of the text itself… the Charter is not restricted to protecting only the free exercise of religion, but “freedom of… religion” in a larger sense. This is important because freedom of religion has long been perceived as including a prohibition on the government identifying itself closely with a single religion.

Unfortunately the Supreme Court of Canada denied leave to appeal in this case, so further clarity on the subject is unlikely at this time. Instead, the case created the basis for the Julius Alexander Diversity Moot on Feb. 2, 2018, where law students across Canada struggled with these issues. It falls on them, as future members of the bar and the bench to perhaps inject greater nuance into future decisions on case-by-case privilege for religious communications.