Morris – Court of Quebec finds that disclosure of part of a legal opinion in an audit report was not a waiver of privilege

The taxpayer, who faced tax evasion charges, argued that there had been waiver of the privilege attached to a legal opinion prepared by a notary working for the ARQ when part of that opinion was included in an audit report that had been provided to him. He claimed that this represented waiver of such privilege.

In finding that there had been no such waiver, so that the opinion continued to be protected by the privilege, Asselin JCQ stated:

Only the client can waive it. …

[T]he disclosure of part of the legal opinion does not constitute an implied waiver of the right to legal professional privilege. … [T]here is no evidence that the auditor … was authorized, in the course of her duties, to disclose it in whole or in part.

However, the taxpayer was successful in his claim that it was contrary to his Charter rights for his file to be disclosed to him on a USB key without the benefit of a search engine or electronic disclosure management system that would permit him to readily search the file, and the prosecution was ordered to provide this to him.

Neal Armstrong. Summaries of R. v. Morris, 2019 QCCQ 7635 under s. 232(1) – solicitor-client privilege and Charter – s. 7.