Two Supreme Court decisions confirm solicitor-client privilege

  • June 06, 2016

The CBA is very pleased with two decisions handed down by the Supreme Court of Canada on Friday that confirm the importance of solicitor-client privilege.

The CBA intervened in both Canada (National Revenue) v Thompson and Canada (Attorney General) v Chambre des notaires du QuĂ©bec et Barreau du QuĂ©bec, arguing that the Income Tax Act requirement that lawyers and Quebec notaries divulge clients’ privileged information without their consent encroaches on privilege and abrogates section 8 of the Charter.

“That s. 232 of the Income Tax Act can be interpreted so as not to abrogate solicitor-client privilege means that it must be interpreted that way. Otherwise the privilege is encroached on the basis of something that is less than ‘clear and explicit’ language, contrary to this Court's directive in Blood Tribe,” the CBA team, led by Mahmud Jamal of Osler Hoskin and Harcourt LLP, said in its factum for the December 2014 hearing in Thompson.

In the factum for Chambre des notaires, the team acting pro bono on the CBA’s behalf, once again led by Jamal, wrote:

Solicitor-client privilege is a “fundamental civil and legal right” that is “essential to the effective operation of the legal system.” The vitality of the administration of justice depends on a zone of protection for clients to communicate candidly and in confidence with legal advisors without fear of disclosure. Abrogating that protection chills clients’ communications, lessens confidence in the legal system, and compromises access to justice.

And it would appear that the Supreme Court agrees.

“The exception for a lawyer’s accounting records set out in the definition of ‘solicitor‑client privilege’ in s. 232(1) of the ITA is unconstitutional and invalid,” the court said in Chambre des notaires.

“Solicitor‑client privilege has evolved from being treated as a mere evidentiary rule to being considered a rule of substance and, now, a principle of fundamental justice. An intrusion on solicitor‑client privilege must be permitted only if doing so is absolutely necessary to achieve the ends of the enabling legislation,” the justices wrote in Thompson.

This is not at all the case with the Income Tax Act, they write in Chambre des notaires. The requirement scheme itself “serves legitimate purpose,” they say, but “the existence of an important purpose cannot justify sidestepping the protection afforded by s. 8  of the Charter.”

… (W)here the interest at stake is the professional secrecy of legal advisers, which is a principle of fundamental justice and a legal principle of supreme importance, the usual balancing exercise under s. 8  will not be particularly helpful. Stringent standards must be adopted to protect professional secrecy. This means that any legislative provision that interferes with professional secrecy more than is absolutely necessary will be labelled unreasonable.

In this case there are several defects that cause a requirement sent to a notary or lawyer concerning information that is protected by professional secrecy to be unreasonable and contrary to s. 8 , namely that the client is given no notice of the requirement, that an inappropriate burden is placed solely on the notary or lawyer concerned, that compelling disclosure of the information being sought is not absolutely necessary and that no measures have been taken to help mitigate the impairment of professional secrecy.