Exception for lawyer’s accounting records in s. 232(1) of Income Tax Act (Can.) unconstitutional

Charter of Rights

Exception for lawyer’s accounting records in s. 232(1) of Income Tax Act (Can.) unconstitutional

Canada Revenue Agency (CRA) sent notaries practising law in Quebec requirements under s. 231.2 of Income Tax Act (Can.) to obtain information or documents relating to notaries’ clients for tax collection or audit purposes. Notaries’ association brought action against Attorney General of Canada and CRA (Crown) to have ss. 231.2 and 231.7 of Act and accounting records exception in s. 232(1) of Act declared to be unconstitutional with respect to notaries. Trial judge allowed action. Court of Appeal allowed Crown’s appeal but solely to make clarifications. Crown appealed. Appeal dismissed. Requirement scheme in ss. 231.2(1) and 231.7 of Act violated s. 8 of Canadian Charter of Rights and Freedoms and was of no force and effect for notaries and lawyers. Exception for lawyer’s accounting records set out in definition of “solicitor-client privilege” in s. 232(1) of Act was unconstitutional and invalid. There were defects in requirement scheme relating to information protected by professional secrecy that violated s. 8 of Charter. Exclusion of accounting records of notaries and lawyers from protection of professional secrecy as set out in definition of “solicitor-client privilege” in s. 232(1) of Act infringed s. 8 of Charter. Infringement of s. 8 of Charter was not justified by s. 1 of Charter. Act had pressing and substantial objective of collection of taxes. There was logical and direct connection between collection of taxes and requirement scheme. Sections 231.2(1), 231.7 and 232(1) of Act, in relation to notaries and lawyers, did not minimally impair right to professional secrecy.
Canada (Procureur général) c. Chambre des notaires du Québec (Jun. 3, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 35892) Decision at 242 A.C.W.S. (3d) 225 was affirmed. 265 A.C.W.S. (3d) 1082.