Ottawa – In its intervention before the Supreme Court of Canada in the appeal of Minister of National Revenue v. Thompson, the Canadian Bar Association (CBA) defends the integrity of solicitor-client privilege and argues that the definition of “solicitor-client privilege” in s. 232(1) of the Income Tax Act maintains the common law definition and does not restrict its scope.
“Any statutory encroachment on solicitor-client privilege must be clear and explicit and interpreted restrictively,” says Mahmud Jamal, pro bono legal counsel in the intervention. “Client names and other financial information contained in a law firm’s administrative records can be privileged if they were provided to obtain legal advice,” he added.
In its factum, the CBA says the clause in s. 232(1) that states “an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be [a privileged] communication” is a merely a codification of the common law principle that solicitor-client privilege does not extend to communications where legal advice is not sought or offered. “Accounting records may or may not contain privileged information and, if they do, that information can be redacted from the accounting record and is protected from disclosure,” says Mahmud Jamal.
The CBA further argues that any ambiguity must be resolved in favour of protecting the near absolute character of solicitor-client privilege as recognized by ss. 7 and 8 of the Charter and that the undefined term “accounting record of a lawyer” is not sufficiently clear and explicit to provide abrogate privilege over a whole class of documents.
The CBA has intervened in several appeals to the Supreme Court of Canada to defend the integrity of solicitor-client privilege in different contexts.
The appeal was heard at the Supreme Court of Canada on December 4.
The CBA is dedicated to support for the rule of law, and improvement in the law and the administration of justice. Some 36,000 lawyers, law teachers, and law students from across Canada are members.