The Court comes to the defence of solicitor-client privilege – Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20

On June 3, 2016, the Supreme Court of Canada yet again upheld the constitutional principle in support of professional secrecy between legal advisors and their clients. Justices Wagner and Gascon, rendering reasons for the Court in Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, underscored the importance of solicitor-client privilege, not only in the judicial system, but also in the legal system. Accordingly, in Chambres des notaires, as well as in Canada (National Revenue) v. Thompson, 2016 SCC 21, released contemporaneously, the Court held that the right to professional secrecy trumped the need of the government to be able to obtain accounting records of legal advisors in so far as they related to clients.

The Chambre des notaires decision has a fairly simple factual background. The Canada Revenue Agency (“CRA”) had issued to notaries in Québec “requirements” under s. 231.2 of the Income Tax Act (“ITA”) to produce information and documents that the CRA said fell under the exception to the exemption provided for information and documents protected by solicitor-client privilege under s. 232(1), namely, accounting records. Failure to comply with the requirement could result in a fine or imprisonment or both being imposed on the notaries in question.

The Court set constitutional questions respecting whether the relevant provisions of the ITA contravened ss. 7 and/or 8 of the Charter and, if so, whether they were saved under s. 1.

In their opening, Justices Wagner and Gascon noted the central importance that professional secrecy plays in our legal structure:

[5] The Court has held in the past that professional secrecy is a principle of fundamental justice within the meaning of s. 7 (Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 49). It is also a civil right of supreme importance in the Canadian justice system. Professional secrecy must thus remain as close to absolute as possible, and the courts must adopt stringent standards to protect it.

They also held that the ITA “requirements” constituted seizures as that word is understood under s. 8 of the Charter. They stated:

Section 8 of the Charter does not explicitly protect professional secrecy. Rather, it protects against unreasonable searches and seizures. There are two questions that must be answered to determine whether a government action was contrary to s. 8. The first is whether the government action intruded upon an individual’s reasonable expectation of privacy. If it did, it constitutes a seizure within the meaning of s. 8. The second is whether the seizure was an unreasonable intrusion on that right to privacy (R. v. Edwards, [1996] 1 S.C.R. 128, at para. 33; Lavallee, at para. 35). In the case at bar, the first step is not really problematic, as the Court held in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, that a requirement under s. 231(3) of the ITA (now s. 231.2(1)) constitutes a seizure within the meaning of s. 8 (pp. 641 42).

Observing that professional secrecy has started out simply as a rule of evidence, the learned justices noted that it has since become a “substantive rule” and has been recognized that it has “deep significance and a unique status in our legal system” [para. 28]. Indeed it is so fundamental to our justice system that it has been found to be a “principle of fundamental justice” under s. 7 and should remain “as close to absolute as possible” [para. 28]:

In Lavallee, the Court reaffirmed that the right to professional secrecy has become an important civil and legal right and that the professional secrecy of lawyers or notaries is a principle of fundamental justice within the meaning of s. 7 of the Charter (para. 49). Moreover, professional secrecy is generally seen as a “fundamental and substantive” rule of law (R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 39). Because of its importance, the Court has often stated that professional secrecy should not be interfered with unless absolutely necessary given that it must remain as close to absolute as possible (Lavallee, at paras. 36-37; McClure, at para. 35; R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at para. 27; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32, at para. 15).

Wagner and Gascon JJ held that the clients of legal advisors (they expressly noted that, for this case, there was no distinction between notaries in Québec and lawyers and solicitors in Québec and elsewhere in Canada) have a reasonable expectation of privacy for the information and documents held by their legal advisors and in respect of which a requirement has been issued [para. 35]. They then asked whether the requirements constituted “unreasonable intrusions” on the clients’ right to privacy. They held that they did.

A number of reasons were given for this determination. First, there was no requirement under the ITA provisions that the clients be given notice that a requirement was being issued to their legal advisors. Second, the burden of determining whether or not to provide the requested information and documents is placed solely on the legal advisor in question. Third, the government did not establish that compelling disclosure of the information and documents from the legal advisors was absolutely necessary. Finally, they determined that there had been no measures taken to mitigate against the encroachment of solicitor-client privilege (they compared the ITA’s approach to that taken by Revenu Québec which did provide for notice to the client and for a judge to review the necessity of the documents’ production).

The learned justices held that, in the circumstances, it would be best if they simply declared that the provisions outlining the use of requirements were not applicable to legal advisors insofar as they pertained to their clients’ information and documents and that s. 232(1) be found to be constitutionally invalid insofar as the exception for legal advisors’ accounting records was concerned.

In sum, the Court has come again to the defence of the fundamental principle of justice, namely, solicitor-client privilege, now using the expectations of privacy protected by s. 8 of the Charter as another vehicle for that protection.

I remain

 

Constitutionally yours,

Arthur Grant

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