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Canada

8 June 2016

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Canadian Supreme Court Holds Tax Information Requests Unconstitutional where Solicitor-Client Privilege Applies

On 3 June 2016, the Supreme Court of Canada issued two decisions concerning the constitutionality of demands for information and documents sent to lawyers and notaries by the Canada Revenue Agency (CRA) under Canada’s Income Tax Act (Act) as it relates to solicitor-client privilege. The cases involved legal action brought on by the Quebec Chamber of Notaries against CRA requests for information from various notaries and an appeal by an Alberta-based lawyer against a CRA request for client documentation.

Regarding the Quebec notaries case, the Supreme Court found that the requirement to furnish requested information and documentation to CRA under the Act is unconstitutional as it relates to lawyers and notaries because it is an unreasonable seizure in breach of section 8 of the Canadian Charter of Rights and Freedoms. Further, the Court found that the lawyers’ accounting records exception in the Act’s solicitor-client privilege definition is wholly unconstitutional. Regarding the Alberta lawyer case, the Court found that documentation containing client information is presumably privileged and therefore can only be disclosed if a court determines that solicitor-client privilege does not apply. Because the Supreme Court found the requirements unconstitutional for lawyers and notaries in the Quebec notaries case, the same applies in the Alberta lawyer case.

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