Privileged Communications & State Secrets
1. General Concept
- Definition: Any communication that is legally protected from forced disclosure in a court of law is called a Privileged communication.
2. Judges & Magistrates (Article 4)
- Core Rule: No Judge or Magistrate can be compelled to answer questions regarding their own conduct in court, or anything that came to their knowledge as a judge, except upon the Special Order of a Superior Court (a court to which they are subordinate).
- The Presence Exception: A Judge or Magistrate may be examined as to other matters/crimes that occurred in their presence while they were acting.
3. Affairs of State & Official Confidence (Articles 6 & 7)
- State Secrets (Article 6): No one is permitted to give evidence derived from unpblished official records relating to the affairs of State without permission from the head of the department.
- Commercial Coverage (The Correction): "Official records relating to the affairs of State" includes documents concerning industrial or commercial activities carried on directly or indirectly by the Federal or Provincial Government, corporations, or statutory bodies.
- Official Confidence (Article 7): No Public officer shall be compelled to disclose communications made to them in official confidence if they believe public interests would suffer.
4. Legal Professional Privilege (Articles 9 & 14)
- General Rule: An advocate cannot disclose any client communications or advice given during employment unless they have the express permission of his client.
- Third-Party Documents (Article 14): No one can be compelled to produce documents in their possession which another person could refuse to produce, unless that last-mentioned person consents to their production.
- The Illegal Purpose Exception (Article 9): Legal privilege does not protect any communication made in furtherance of an illegal/criminal purpose.
5. Self-Incrimination (Article 15)
- Core Rule: A witness shall not be excused from answering a relevant question in a case on the ground that the answer will criminate them (subject them to a penalty/forfeiture). They must answer.