Income Tax Act

Marginal note:Definitions

• 232 (1) In this section,

  custodian

  custodian means a person in whose custody a package is placed pursuant to subsection 232(3); (gardien)

  judge

  judge means a judge of a superior court having jurisdiction in the province where the matter arises or a judge of the Federal Court; (juge)

  lawyer

  lawyer means, in the province of Quebec, an advocate or notary and, in any other province, a barrister or solicitor; (avocat)

  officer

  officer means a person acting under the authority conferred by or under sections 231.1 to 231.5; (fonctionnaire)

  solicitor-client privilege

  solicitor-client privilege means the right, if any, that a person has in a superior court in the province where the matter arises to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between the person and the person’s lawyer in professional confidence, except that for the purposes of this section an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be such a communication. (privilège des communications entre client et avocat)

• Marginal note:Solicitor-client privilege defence

  (2) Where a lawyer is prosecuted for failure to comply with a requirement under section 231.2 with respect to information or a document, the lawyer shall be acquitted if the lawyer establishes to the satisfaction of the court

  • (a) that the lawyer, on reasonable grounds, believed that a client of the lawyer had a solicitor-client privilege in respect of the information or document; and

  • (b) that the lawyer communicated to the Minister, or some person duly authorized to act for the Minister, the lawyer’s refusal to comply with the requirement together with a claim that a named client of the lawyer had a solicitor-client privilege in respect of the information or document.

• Marginal note:Seizure of certain documents where privilege claimed

  (3) Where, pursuant to section 231.3, an officer is about to seize a document in the possession of a lawyer and the lawyer claims that a named client of the lawyer has a solicitor-client privilege in respect of that document, the officer shall, without inspecting, examining or making copies of the document,

  • (a) seize the document and place it, together with any other document in respect of which the lawyer at the same time makes the same claim on behalf of the same client, in a package and suitably seal and identify the package; and

  • (b) place the package in the custody of the sheriff of the district or county in which the seizure was made or, if the officer and the lawyer agree in writing on a person to act as custodian, in the custody of that person.

• Marginal note:Examination of certain documents where privilege claimed

  (3.1) Where, pursuant to section 231.1, an officer is about to inspect or examine a document in the possession of a lawyer or where, pursuant to section 231.2, the Minister has required provision of a document by a lawyer, and the lawyer claims that a named client or former client of the lawyer has a solicitor-client privilege in respect of the document, no officer shall inspect or examine the document and the lawyer shall

  • (a) place the document, together with any other document in respect of which the lawyer at the same time makes the same claim on behalf of the same client, in a package and suitably seal and identify the package or, if the officer and the lawyer agree, allow the pages of the document to be initialed and numbered or otherwise suitably identified; and

  • (b) retain it and ensure that it is preserved until it is produced to a judge as required under this section and an order is issued under this section in respect of the document.

• Marginal note:Application to judge

  (4) Where a document has been seized and placed in custody under subsection 232(3) or is being retained under subsection 232(3.1), the client, or the lawyer on behalf of the client, may

  • (a) within 14 days after the day the document was so placed in custody or commenced to be so retained apply, on three clear days notice of motion to the Deputy Attorney General of Canada, to a judge for an order

    • (i) fixing a day, not later than 21 days after the date of the order, and place for the determination of the question whether the client has a solicitor-client privilege in respect of the document, and

    • (ii) requiring the production of the document to the judge at that time and place;

  • (b) serve a copy of the order on the Deputy Attorney General of Canada and, where applicable, on the custodian within 6 days of the day on which it was made and, within the same time, pay to the custodian the estimated expenses of transporting the document to and from the place of hearing and of safeguarding it; and

  • (c) if the client or lawyer has proceeded as authorized by paragraph 232(4)(b), apply at the appointed time and place for an order determining the question.

• Marginal note:Disposition of application

  (5) An application under paragraph 232(4)(c) shall be heard in camera, and on the application

  • (a) the judge may, if the judge considers it necessary to determine the question, inspect the document and, if the judge does so, the judge shall ensure that it is repackaged and resealed; and

  • (b) the judge shall decide the matter summarily and,

    • (i) if the judge is of the opinion that the client has a solicitor-client privilege in respect of the document, shall order the release of the document to the lawyer, and

    • (ii) if the judge is of the opinion that the client does not have a solicitor-client privilege in respect of the document, shall order

      • (A) that the custodian deliver the document to the officer or some other person designated by the Commissioner of Customs and Revenue, in the case of a document that was seized and placed in custody under subsection 232(3), or

      • (B) that the lawyer make the document available for inspection or examination by the officer or other person designated by the Commissioner of Customs and Revenue, in the case of a document that was retained under subsection 232(3.1),

    and the judge shall, at the same time, deliver concise reasons in which the judge shall identify the document without divulging the details thereof.

• Marginal note:Order to deliver or make available

  (6) Where a document has been seized and placed in custody under subsection 232(3) or where a document is being retained under subsection 232(3.1) and a judge, on the application of the Attorney General of Canada, is satisfied that neither the client nor the lawyer has made an application under paragraph 232(4)(a) or, having made that application, neither the client nor the lawyer has made an application under paragraph 232(4)(c), the judge shall order

  • (a) that the custodian deliver the document to the officer or some other person designated by the Commissioner of Customs and Revenue, in the case of a document that was seized and placed in custody under subsection 232(3); or

  • (b) that the lawyer make the document available for inspection or examination by the officer or other person designated by the Commissioner of Customs and Revenue, in the case of a document that was retained under subsection 232(3.1).

• Marginal note:Delivery by custodian

  (7) The custodian shall

  • (a) deliver the document to the lawyer

    • (i) in accordance with a consent executed by the officer or by or on behalf of the Deputy Attorney General of Canada or the Commissioner of Customs and Revenue, or

    • (ii) in accordance with an order of a judge under this section; or

  • (b) deliver the document to the officer or some other person designated by the Commissioner of Customs and Revenue

    • (i) in accordance with a consent executed by the lawyer or the client, or

    • (ii) in accordance with an order of a judge under this section.

• Marginal note:Continuation by another judge

  (8) Where the judge to whom an application has been made under paragraph 232(4)(a) cannot for any reason act or continue to act in the application under paragraph 232(4)(c), the application under paragraph 232(4)(c) may be made to another judge.

• Marginal note:Costs

  (9) No costs may be awarded on the disposition of any application under this section.

• Marginal note:Directions

  (10) Where any question arises as to the course to be followed in connection with anything done or being done under this section, other than subsection 232(2), 232(3) or 232(3.1), and there is no direction in this section with respect thereto, a judge may give such direction with regard thereto as, in the judge’s opinion, is most likely to carry out the object of this section of allowing solicitor-client privilege for proper purposes.

• Marginal note:Prohibition

  (11) The custodian shall not deliver a document to any person except in accordance with an order of a judge or a consent under this section or except to any officer or servant of the custodian for the purposes of safeguarding the document.

• Marginal note:Idem

  (12) No officer shall inspect, examine or seize a document in the possession of a lawyer without giving the lawyer a reasonable opportunity of making a claim under this section.

• Marginal note:Authority to make copies

  (13) At any time while a document is in the custody of a custodian under this section, a judge may, on an ex parte application of the lawyer, authorize the lawyer to examine or make a copy of the document in the presence of the custodian or the judge by an order that shall contain such provisions as may be necessary to ensure that the document is repackaged and that the package is resealed without alteration or damage.

• Marginal note:Waiver of claim of privilege

  (14) Where a lawyer has, for the purpose of subsection 232(2), 232(3) or 232(3.1), made a claim that a named client of the lawyer has a solicitor-client privilege in respect of information or a document, the lawyer shall at the same time communicate to the Minister or some person duly authorized to act for the Minister the address of the client last known to the lawyer so that the Minister may endeavour to advise the client of the claim of privilege that has been made on the client’s behalf and may thereby afford the client an opportunity, if it is practicable within the time limited by this section, of waiving the claim of privilege before the matter is to be decided by a judge or other tribunal.

• Marginal note:Compliance

  (15) No person shall hinder, molest or interfere with any person doing anything that that person is authorized to do by or pursuant to this section or prevent or attempt to prevent any person doing any such thing and, notwithstanding any other Act or law, every person shall, unless the person is unable to do so, do everything the person is required to do by or pursuant to this section.