On June 3, 2016 the Supreme Court of Canada released two judgments that will have an impact on the scope of solicitor-client privilege: Canada (National Revenue) v Thompson, 2016 SCC 21 and Canada (AG) v Chambre des notaires, 2016 SCC 20. Lawyers from Stockwoods intervened in both decisions on the behalf of the Criminal Lawyers Association (now Justice Michal Fairburn and Carlo Di Carlo in Thompson and Brian Gover, Justin Safayeni and Carlo Di Carlo in Chambres).
Both decisions dealt with a provision of the Income Tax Act governing the power of tax authorities to require individuals to produce documents. Although this document production regime protected solicitor-client privilege, the provision in question created an exception for “accounting record of a lawyer”. Thompson dealt with the interpretation of this potentially broad exception, whereas Chambre dealt with its constitutional validity.
Ultimately, the Supreme Court found this exception (as well as other aspects of the document production regime) to violate s. 8 of the Charter. In so holding, the Court’s reasons reflect the arguments made by Stockwoods in its submissions on the CLA’s behalf. In particular, the SCC confirmed that the civil and administrative context of the Income Tax Act does not diminish the taxpayer’s invariably high expectation of privacy in information and documents protected by solicitor-client privilege.
