SEATON,
J.:—The
applicant
seeks
to
invoke
the
summary
procedure
in
Section
126A
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
as
amended.
On
this
initial
application
the
question
is
not
whether
or
not
the
documents
are
privileged
but
whether
or
not
they
are
within
the
ambit
of
the
summary
procedure
provisions.
Section
126A(3)
and
(4)
provide
as
follows:
(3)
Where
an
officer
is
about
to
examine
or
seize
a
document
in
the
possession
of
a
lawyer
and
the
lawyer
claims
that
a
named
client
of
his
has
a
solicitor-client
privilege
in
respect
of
that
document,
the
officer
shall,
without
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
upon
a
person
to
act
as
custodian,
in
the
custody
of
such
person.
(4)
Where
a
document
has
been
seized
and
placed
in
custody
under
subsection
(3),
the
client,
or
the
lawyer
on
behalf
of
the
client,
may
(a)
within
14
days
from
the
day
the
document
was
so
placed
in
custody,
apply,
upon
3
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
custodian
to
produce
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
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
he
has
proceeded
as
authorized
by
paragraph
(b),
apply,
at
the
appointed
time
and
place,
for
an
order
determining
the
question.
It
is
common
ground
that
the
documents
were
not
‘in
the
possession
of
a
lawyer’’
but
were
in
the
possession
of
a
chartered
accountant
when
seized.
The
only
case
on
point
cited
by
counsel
is
he
Evans
(1968),
68
D.T.C.
5277,
where
the
file
in
the
hands
of
the
client
was
held
to
be
privileged.
It
does
not
appear
that
the
issue
we
are
concerned
with
was
raised
or
considered.
I
see
no
ground
on
which
the
clear
language
of
subsection
(3)
could
be
broadened
to
bring
within
its
provisions
all
documents
with
respect
to
which
a
claim
of
solicitor-client
privilege
is
made.
The
subsequent
provisions
of
the
section
bear
out
the
conclusion
that
it
is
restricted
to
‘‘documents
in
the
possession
of
a
lawyer’’.
Subsection
(5)
directs
that
the
documents
may
be
ordered
to
be
delivered
‘‘to
the
lawyer’’
or
to
the
Department.
A
further
indication
of
the
purpose
is
found
in
subsection
(12)
which
provides
:
(12)
No
officer
shall
examine
or
seize
a
document
in
the
possession
of
a
lawyer
without
giving
him
a
reasonable
opportunity
of
making
a
claim
under
subsection
(8).
The
section
does
not
allow
of
any
interpretation
other
than
that
this
remedy
is
only
available
in
respect
of
documents
seized
while
in
the
possession
of
a
lawyer.
In
the
result,
I
do
not
fix
a"
day
and
place
for
the
determination
of
the
question
whether
the
client
has
a
solicitor-and-client
privilege.
If
no
other
remedy
is
available
the
applicant’s
claim
to
privilege
may
well
be
defeated.
Mr.
Jackson
says
the
applicant
is
not
prejudiced
as
it
can
still
object
to
the
documents
being
put
in
evidence
at
a
trial.
If
there
were
only
evidentiary
privilege
that
might
be
the
case
and
the
provision
of
a
summary
procedure
would
not
be
necessary.
The
definition
of
‘‘solicitor-client
privi-
lege’’
in
the
Act
would
seem
to
encompass
the
common
law
privilege
against
production
which
is
left
unprotected.
I
have
not
decided
that
the
Department
is
entitled
to
examine
the
documents
in
question,
that
there
is
not
privilege
or
that
the
seizure
is
valid.
The
applicant
may
find
that
there
are
other
methods
of
examining
those
questions
and
should
have
the
opportunity.
Subsection
(10)
provides:
(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
(2)
or
(3))
and
there
is
no
direction
in
this
section
with
respect
thereto,
a
judge
may
give
such
direction
with
regard
thereto
as,
in
his
opinion,
is
most
likely
to
carry
out
the
object
of
this
section
of
allowing
solicitor-client
privilege
for
proper
purposes.
Pursuant
thereto
I
direct
that
the
documents
be
held
in
their
present
sealed
condition
by
Mr.
McNeill
for
a
further
30-day
period.
Since
writing
the
above
I
have
received
further
argument
from
Mr.
Legg
and
the
current
edition
of
the
Canadian
Bar
Journal,
vol.
12,
No.
2
containing
an
interesting
article
on
this
section.
In
this
case
no
purpose
is
served
by
challenging
the
constitutionality
of
the
section
as
it
is
the
taxpayer
who
seeks
to
invoke
the
procedure.
Nor
do
I
think
it
useful
to
consider
whether
or
not
the
documents
are
privileged;
an
inquiry
to
be
made
on
the
second
application.
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