Lawyers - client privileges

Privileged communication

Lawyer - Customer privilege is legal protection given in common law to communication between a lawyer and its customers. Because privileges belong to clients and not to lawyers, only clients can abandon it.

As a result, the lawyer has a legal and professional obligation to refuse disclosure of privileged communications unless the client relinquishes its privileges. A lawyer is forced by a competent court having jurisdiction.

Protection from this disclosure is absolutely faithful to a lawyer without concern that the client will be used for another purpose, with the exception of prior consent, what the client communicates with the lawyer It will be guaranteed to be.

The privilege between the soloist and the client is a basic right. Without it, the legal system could not function: Smith Jones (1999), 132 CCC (3 d) 225, (SCC), Cory J., p. 239 people, It is the highest privilege that the court accepts "

Accountant's privilege?

Generally, this protection is not applied to accountants. Baron et al. v. The queen , [1990] 1 CTC 84 (FCTD) aff. [1991] 1 CTC 125 (FCA); Egypt, USA: USA v. Arthur Young et al. , 1984 (465 US 805 (SC)

If the accountant is working as a lawyer 's agent, the product' s work is given privileges to facilitate the provision of legal advice. Goodman & Carr et al. [No. 1], [1968] CTC 484 (Ontario SC); and British Columbia Limited's south railroad and so on. v. Canada ( Deputy Minister of National Tax Service ), [1991] CTC 432 (BCSC)

The criteria for deciding whether to extend privileges to accountants was set by the Canadian Treasury Court. Susan Hosiery v. MNR , [1969] CTC 353.

Limited or absolute?

In the UK lawyers - customer privileges proved to be absolute. It was considered too cruel to manage justice to interfere with the following things. R.v. Derby Magistrates & # 39; Court , [1995] 4 All ER 526.

In the United States, lawyers - client communications generally turn out to be privileged when the four criteria of the Wigmore exam are met: JH Wigmore, Evidence in trial in customary law , Vol. 8. (McNaughton Revision) Boston: Little, Brown & Co., 1961

In Canada the privilege is not absolute, but the exceptions are limited. Smith vs. Jones ,the above). Preventing the risk of prison safety ( Soroski vs. Queen , [1980] 1 SCR 821); Communication itself is a crime ( Demotow vs Mieswinski , [1982] 1 SCR 860). Or if the accused is able to show that its innocence is being threatened ( R. v. Leipert , [1997] 1 SCR 281).

The court can invalidate the solter - client privilege, R.v. Dunbar and Logan (1982), 68 CCC (2 d) 13 (Ont. CA), even if the accused needs information to complete a complete solution and defense, R.v. Mills , (1999), 139 CCC (3 d) 321 (p. McLachlin J.

The court, with the principle of basic justice, charter Before allowing you to put aside the privilege.

The Supreme Court of the Canadian Federal Supreme Court of the Canadian Government has decided that in order to balance the defendant's complete solution and the necessity of defense and the optimistic interests of lawyers - client majeure, R.v. O & Connor , [1995] 4 SCR 411 (SCC)

With privilege Income tax law

Congress allows lawyers - the existence and application of customer privileges, Income tax law (Hereinafter referred to as "ITA"), Accounting record Lawyer journals, vouchers and checks mean that due to its limited definition, it is not protected from privilege disclosure (§ 232 (1) ITA).

Parliament stipulates that the procedure of claiming privileges on documents to be designated or examined will only be applied if the attorney was at a critical time: § 232 (3) and (3.1) ITA; With Re Sandwell Co., Ltd. , [1969] CTC 617.

If a seizure is made under § 232 (3) or (3.1) ITA, the taxpayer or its attorney only takes 14 days to apply to the court for a hearing confirming the existence of privilege 232 4) ITA). If no application is made within that period, the judge can order the documents submitted to the CRA: § 232 (6) ITA.

As a precautionary measure for CRA, § 488.1 Criminal law § 232 A provision ("CC") similar to ITA is unconstitutional under §§ 232 ITA § 8 charter . Canadian Supreme Court found that court proceedings infringed the court's discretion and handling lawyers - customer privilege claims. Lavallee, et al. v. Canada ( Attorney general ), [2002] 3 SCR 209.

Arbor, J. Comments Lavalier At §twenty one ) Suggests that §232 may not be customary as it reflects the CC of § 488.1.

Privilege and Canada Revenue Service

CRA has its own idea as to whether it is subject to a lawyer's privilege claim.

For example, the CRA publishes an international guide to handle privilege requests during the execution of search warrants. Their document R 350 O (99)

"(3) Despite recent legal challenges Lawyer - As for the privileges of the client, you need to pay attention to the following points. Place it so that solitor-client authority is applied. ... Lawyers - Limits on customer privileges may not be fully understood by all members of the legal profession. Some lawyers confuse the principle of confidentiality with privilege rules ": Pp.1 - 2. [Emphasis added]

In this word, the CRA gives the impression that the CRA considers it to be an excellent arbitrator than a lawyer who is solely responsible for defending it.

Is the interpretation of CRA's privilege law correct? In this writer's opinion - no, and for the following reasons:

Me. It is not appropriate for the CRA to advise executives searching for law firms to ignore the law ( That is, , " Despite recent legal challenges ");

ii. A search warrant can not be issued for documents that are known to be protected by solitor-client authority. Laval , Supra, § 49.1;

iii. It is the obligation of the CRA's accused to satisfy certain criteria and satisfy the justice of the same before such search is allowed ( Ibid. , § 49.2 - 4. And § 487 CC).

iv. Lawyers - Despite the fact that legal advisers bought to claim customer privileges as customer obligations, privileged communication can not be done otherwise. Bell v. Smith , [1968] SCR 664 (SCC);

v. § 488.1 (8) CC, The officer shall investigate any document and make a copy without giving reasonable opportunities for attorney - customer privilege claims under paragraph (2) ";and

§ 232 (12) ITA, There is no official To inspect, inspect or seize documents held by lawyers without having reasonable opportunity for lawyers to make a claim under this section "

In other words, the officers of the CRA should, prior to doing what is necessary to ensure that taxpayer's attorneys or state law associations members exist to protect the privilege under study,

Therefore, Onous is in a detective role First of all, be sure to get a reasonable opportunity for an attorney to file a complaint. Since claims have not been created, it is assumed that no privilege exists. CRA is also bound by law. Ludmer v. Canada , [1995] 2 FC 3 (FCA), Chevalier DJ With curium p. 17;

vi. Since privileged communications may be disclosed without the client's consent, the lawyers - client privileges may occur under any circumstances. Descoteaux v. Mierzwinski , [1982] 1 SCR 860;

vii. If the claim is § 488.1 (2) CC ( cf. , § 232 (3) or (3.1) ITA), the law requires that before sealing whether the sealed material is privileged § 488.1 (2) cf. , § 232 (4) ITA).

The law granting authority does not give CRA officials the authority to invalidate the right to require a lawyer for privileges or to abolish the privilege itself.

In counseling, officers who do both of the CRA, their legal order, the prevailing case law, and charter ;

viii. Clearly the CRA still considers privilege as a matter of evidence, but soloist / client privilege is a substantial legislative rule. Solosky v. The queen , [1980] 1 SCR 821; Descoteaux v. Mierzwinski , [1982] 1 SCR 860; Lavallee, Rackel & Heintz v. Canada ( Attorney general ) et al. , [2002] 3 SCR 209;

ix. Even though the CRA does not submit to the court, it is not a CRA but a court and establishes a proper interpretation of the law. Descoteauxv. Mierzwinski , [1982] 1 SCR 860, p. Lamer, J. And

Cats. Communication between confidential manufacturers and customers is given some protection. Greenough v. Gaskel (1833), 39 ER 618; Soroski ,Up; Smith Jones ,the above.

Allowing the CRA or its officers to infringe ITA or the decision-making authority of the law has no just cause for ITA or case law Justice : Descoteauxv. Mierzwinski , Above, at p. 891.

It was built correctly

According to Congress it is the judicial responsibility to decide whether a particular document is the subject of an arbitrator - customer privilege is not a CRA, § 232 (4) ITA and § 488.1 (4) CC is there.

Arbor, J. in Lavalier (§ 20), "... The solitor-client privilege must be compromised only when necessary, but still needs to be kept to a minimum "

Upon application Lavalier Principal is defining a law office. " Places where privileged documents are reasonably expected ": Festival v. Canada ( Attorney general ), (2003), § 30 223 DLR (4th) 448 (BCCA).

Policy considerations

It is difficult to reconcile Crown's greatest obligation to maintain the integrity of the justice system, using a limited interpretation of attorney / client privileges as described in R350 E (99) above . Lavalier , § 21, 22 and charter § 7 and 8.

Privilege is an integral part of the management of judicial and legal counsel of taxpayers who possessed beneficial materials. charter Rights have not been infringed.

We still know whether CRA's position for Soldier client privileges will improve, but until that time the taxpayer will have to rely on the court.

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