The case R. v. Gruenke,  3 SCR 263, is noted in the text of my submission to the Justice Committee on Bill C-6, An Act to amend the Criminal Code (conversion therapy). In the Gruenke case, the Supreme Court of Canada deals directly with the issue of clergy-parishioner confidentiality and establishes a basis for assessing confidential ‘religious communications’ and confidential communications generally. Following is Chapter Ten –“Shh, Don’t Tell Anyone”– from my book UNDER SIEGE: Religious Freedom and the Church in Canada at 150 (1867–2017). Footnotes are here omitted.
Shh, Don’t Tell Anyone
Bear one another’s burdens, and so fulfill the law of Christ. — Galatians 6:2
Therefore, confess your sins to one another and pray for one another, that you may be healed. The prayer of a righteous person has great power as it is working. Elijah was a man with a nature like ours, and he prayed fervently that it might not rain, and for three years and six months it did not rain on the earth. Then he prayed again, and heaven gave rain, and the earth bore its fruit. — James 5:16–18
But you are a chosen race, a royal priesthood, a holy nation, a people for his own possession, that you may proclaim the excellencies of him who called you out of darkness into his marvelous light. Once you were not a people, but now you are God’s people; once you had not received mercy, but now you have received mercy. — 1 Peter 2:9–10
The Church has long placed great value on the importance of confessing sin. It is the route to forgiveness.
The Roman Catholic Church has formalized the practice in a way that is known, at least somewhat, even outside its body of adherents. They have confessional booths where the confessor is heard by a priest. The priest has plausible deniability as to the confessor’s identity because priest and confessor have separate entrances into the booth, a wall divides them once inside, and the confession is heard through a screen that obscures facial features. Outside of the Roman Church, I’m not aware that such a feature exists in standard Christian practice. But the expectation of confession, and confidentiality in hearing it, remains.
There are few pastors who have not heard a confession that troubles them deeply but which they cannot share. Marty Duren wrote a summary that aligns with my experience and the thoughts shared with me by many in pastoral ministry:
One of the heaviest burdens of ministry is the burden of knowing: knowing who’s hurting, knowing whose marriage is about to implode, knowing whose kid is heading to rehab, knowing who really sent that anonymous note. The burden of knowing cannot be delegated. Nor can your pastor easily offload it when turning into the driveway each evening.
I was a pastor in three different congregations over the course of six years before finishing law school and establishing The Salvation Army’s Canadian legal department. During that time I heard a number of confessions, including one concerning a fairly serious criminal offence. I encouraged the confessor to go to the authorities, even offering to go with him, but he felt his conscience was sufficiently clear when the burden shifted to my shoulders. No one was hurt or at risk as a result of what took place, and I bear that confession still. I don’t even know if the confessor is still alive.
In the Bible, the expectation of confession and burden-bearing isn’t just for priests and pastors. It is for the Church. The Church is you and me, all of us Christ-followers together. There is no Church without us. Before the Charter, Glen How fought for legal acknowledgement that one did not have to be recognized as part of the clergy to benefit from the military service exemptions in place during WWII. The Jehovah’s Witnesses believe that the words of 1 Peter 2:9–10 mean that all men are considered part of the priesthood. It is also the case for some Protestant denominations that there is no clergy category, in the sense of priests and pastors with which most are familiar in the congregational setting.
So what does one do, whether one is recognized formally as clergy or associationally as a member of the priesthood of all believers, when confronted with a confession of criminal behaviour while face to face with the confessor who will not report themselves to civic (state) authorities?
First, if there is a reasonable apprehension that a child is at risk, there are provincial and territorial reporting requirements that obligate the person hearing the confession to report it to appropriate civic authorities. Most denominations also have a prescribed reporting process to notify clerical (church) authorities in such a situation.
Second, the Supreme Court of Canada spoke to the issue in its 1991 decision in a case called R. v. Gruenke.
Adele Gruenke provided care to an elderly father figure who had assisted her financially to start her own business and included her in his will. They had a platonic relationship, but over time he started asking for sexual favours in repayment for his financial generosity. On one such occasion, the elderly man became forceful and a tussle ensued. Ms. Gruenke’s boyfriend was watching from a distance and intervened. The elderly man was found dead in his car the next morning. Two days later, Ms. Gruenke met with her counsellor from the church she attended, confessing her role in “a murder.” The counsellor called the pastor for advice, and the conversation moved from the counsellor’s home to the pastor’s office at the church building.
On appeal from Manitoba, at issue before the Court was whether the testimony of the counsellor and/or the pastor was admissible in court or whether the conversations with them were to be considered inadmissible as confidential communications.
The Court distinguished two different kinds of privileged communications, i.e. confidential communications that are inadmissible in court. The first is communications that are excluded as a class for reasons of public policy. The second is communications assessed on a case-by-case basis.
The first category includes solicitor (lawyer) and client communications, which are excluded from the requirement for testifying before the court because their confidential nature is essential to the workings of the judicial system. There is no such provision in law for what was once known as priest-penitent communications to be excluded from the requirement to testify in court. The Court decided that these will be referred to in Canada as “religious communications.”
Earlier lower court decisions had recognized a case-by-case analysis standard for priest-penitent privilege. The Supreme Court affirmed that recognition for religious communications, noting “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.”
The Court recognized that a certain deference is to be given to religious communications in the case-by-case analysis, quoting from an earlier decision of Ontario’s Court of Appeal in Re Church of Scientology and The Queen (No. 6):
Chief Justice Dickson stated in R. v. Big M Drug Mart Ltd. … 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.
The move from “priest-penitent” privilege to “religious communications” was explained as being informed by Section 27 of the Charter, which requires the Charter to be “interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” Additional words from Big M show that a “truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.” The result is that the assessment of the communications will 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.”
The standard applied by the Court is referred to as the Wigmore Test. The Wigmore criteria are so named because they were set out in 1904 by American lawyer and law professor John Henry Wigmore (1863–1943) in his book Evidence in Trials at Common Law:
(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.
In the case before him, Chief Justice Antonio Lamer found the circumstances did not indicate that the communications from Ms. Gruenke to her spiritual advisor and pastor were intended to be made with an expectation of confidentiality. Some of the reasons for this conclusion: there was no church policy outlining when communications were to be kept confidential, and there had been no expression during the course of the conversations that what was shared was to be kept in confidence.
This is instructive for the Church. Like the confessional booth, if confidentiality is expected:
- the expectation of confidentiality must be communicated and understood by both confessor and the person hearing the confession;
- confidentiality must be understood to be essential in the relationship between them (perhaps part of church policy);
- the community—undefined but generally regarded as “society,” although arguably the religious community—must be of the opinion that the confidentiality in the relationship is to be encouraged for a purpose that benefits the community, not just the confessor; and
- the injury (there’s that word again) that would result from disclosure must be greater than what the court would gain by having the evidence. This may be the most difficult hurdle as judges tend to think they, not Scripture, are the final decision-makers on this point.
These conditions do not require booth and collar. They can be established in a variety of settings, but the conditions must be established prior to the communications taking place, not assumed, and not after.