Privilege of Confidentiality

The “Privilege” of Confidentiality: Guidance for Guidance Counsellors

What is Legal Privilege?

Generally speaking, all relevant evidence is admissible at trial and everyone who is competent to testify may be compelled to give evidence. Every witness has an enforceable legal duty to testify and give evidence to the best of their knowledge as well as produce any supporting documentation. However, there are important exceptions to this general rule when the relevant information should remain confidential. The information that falls under these exceptions is called privileged information. Solicitor-client privilege is a kind of privilege that we hear about on a regular basis ob television programs and in the media. However, the courts are reluctant to create new classes of privileged information and many kinds of communications that we think are confidential are not automatically privileged in the eyes of the courts.

When Does this Issue of Privilege Arise?

Usually questions of confidentiality and privilege arise when evidence given is a trail is challenged as inadmissible because the information was divulged in confidence. A test has evolved which sets out four criteria which must be met if “legal confidentiality” is to be established. These criteria are called “Wigmore’s Criteria” after the law professor who first extrapolated then into legal rules:

1. The communication must originate in a confidence that the parties would not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship.
3. The relationship must be one which in the option of the community ought to be actively or constantly fostered.
4. The injury that would have an effect on the relationship by the discloser of the communication must be greater than the benefit to be gained by the correct disposal of the case.

How Have the Courts Interpreted Student-Guidance Counsellor Communications?

There have been conflicting court decisions involving communications between students and guidance counsellors so it is important to understand in which circumstances a counsellor may be required to disclose confidential information and in which the counselor may successfully argue that notes and communication should not be disclosed.

Criminal Cases

As stated above, the default position of the courts is that all information is admissible as evidence. This remains the position of the courts where student-counsellor communications are concerned. The criminal courts have not directly dealt with disclosure of records by guidance counsellors per se but there have been cases that are comparable such as cases involving notes and communications between a psychiatrist and patient.

The 1997 Supreme Court of Canada decision, M.(A.) v. Ryan, is a seminal case on the application of the Wigamore criteria to situations where the courts must assess privilege on a case by case basis. Justice McLaughlin asserts that “[t]he defendant
in a civil suit stands to lose money and repute; the accused in a criminal proceeding stands to lose his or her very liberty.” As a result, privilege is less likely to be protected in a criminal case since the correct disposal of the charges outweighs the benefit of protecting the confidential information. The court does say, however, that this does not mean that everything must be disclosed but that there are circumstances where partial disclosure will achieve the ends of justice.

Motions in the Criminal Court

In 1992 the New Brunswick Provincial court dealt with the issue of counsellor communication in R v. M. (G.). An application was brought to transfer a young offender to adult court and a voir dire (a motion in criminal court) was held to determine whether
the counsellor’s file was privileged. The Court stressed that this case was not a trial of a criminal offense but rather a hearing to determine whether to transfer the case to adult court. The Wigamore Criteria were applied by the Court and it was determined that:

1. the communications and testing were made on the understanding that the information was confidential;
2. the confidentiality was important to maintain the relationship between the student and counsellor;
3. the relationship between a school counsellor or therapist and the student should be sedulously fostered.
4. “any disclosure of the information could cause greater damage than the benefit from receipt of such information for a Section 16 transfer hearing. At such a hearing the guilt or innocence of the young person is not to be determined. It might well be that a trial such information could be more crucial and the search for the truth might well outweigh the injury cause to counselling needy students in the school.”

Although access to the counsellor’s file was denied in this case, the Judge was careful to point out that Courts have historically been reluctant to extend privilege and that it should only do so in rare circumstances since the disclosure would cause less injury or harm than the benefit which would be derived from maintaining confidentiality. “As schools are public institutions, funded by the public, school officials should also be concerned that the administration of justice if facilitated. This will not involve the school becoming an arm of the police, but only remaining a responsible part of our society.”

Child Protection Hearings

Children’s Aid Society of Ottawa v. S. (N.) is a recent Ontario Superior Court case that involved a child protection hearing. The Court dealt specifically the confidentiality of guidance counsellor-student communications between the child and school guidance counsellor and the counsellor’s notes. The Court held that the notes were not protected by statutory privilege as they were not “pupil records” within meaning of Education Act. However, the notes did did meet the Wigamore four-part test for common law privilege:

1. The communications to the guidance counsellor were made in confidence they would not be disclosed;
2. The assurance of confidentiality was essential to the student-counsellor relationship;
3. The relationship was one that in opinion of community ought to be sedulously fostered; and
4. The child’s interest in the relationship with their guidance counsellor outweighed the benefit of disclosure.

The court noted that terms such as “full answer and defence” do not lead to automatic disclosure. “[T]he onus is any application for disclosure of school records that have elements of confidentiality and privilege falls on the Applicant.” Although the mother had an important interest in full disclosure in order to meet case against her, she in fact already received disclosure of communications through other sources. Disclosure was not in child’s best interests which was an overriding consideration in this case and so the mother was not entitled to question the guidance counsellor about the notes. The Court emphasized that its decision may have been different if the matter involved the laying of criminal charges or a finding of criminal liability which involves a different analysis.

The Bottom Line on Student-Guidance Counsellor Privilege

The bottom line is that there is no bottom line. As a rule, the communications and notes contained in a guidance counsellors’ file may be entered into evidence during a trial but there are circumstances where this information may be ruled as privileged. This decision will be made on a case-by-case basis. It is important to seek legal advice if a situation arises where a guidance counsellor might be asked to disclose the contents of his or her confidential communications with a student.