Jacques Lagasse v. Deputy Attorney-General of Canada, [1961] CTC 105, [1961] DTC 1025

MITCHELL, J.:—The Court, having heard the parties by their respective counsel on the merits of the petitioner’s petition, examined the proceedings and the proof of record and deliberated, doth now render the following judgment:

The petitioner applies pursuant to Section 126A, subsection (4) of the Income Tax Act (4-5 Eliz. II, c. 39) for the determination of the question whether there exists a solicitor-client privilege in respect of a number of documents duly seized pursuant to the provisions of the said Act. The parties have agreed with respect to all the documents seized with the exception of books known as the Repertory, the Index and the Journal which the petitioner kept in his capacity as a Notary.

By the Notarial Act (1-2 Eliz. II, c. 54, Sections 62, 64 and 65), Notaries must have and keep in good order and in a proper state of preservation in repertory in the form of a bound or sewn volume with binder of all deeds executed by them en minute, in which they shall enter consecutively, upon their closing, the date, the number and the nature or character of such deeds and the Christian names and surnames of the parties and also must keep and preserve an index to the repertory. In addition the Notary in this Province keeps what he calls a journal which is a day to day record of all the deeds passed by him each day. All the books contain substantially the same information. The Notary is furthermore bound to keep secret the confidences made to him professionally and he cannot be compelled to declare what has been revealed to him confidentially in his professional character as a Notary (Notarial Act, Sections 50, 62, and Code of Civil Procedure, Section 332).

The question to determine therefore is whether the repertory, the index and the journal contain communications of a privileged nature and should not be admitted as evidence for the protection of the clients of Notary Lagassé. The reason for the exclusion of the privileged communications has been explained by Lord Brougham, L.C. (Greenough v. Gaskell, 1883, 1 My & K. 98, pages 102 et seq.) in the following passage:

"‘If touching matters that come within the ordinary scope of professional employment they’’ (legal advisers) ‘‘receive a communication in their official capacity either from a client or on his account and for his benefit in the transaction of his business, or, which amounts to the same thing, if they commit to paper in the course of their employment on his behalf matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any court of law or equity, either as party or as witness . . . The foundation of this rule is not difficult to discover . . . It is out of regard to the interest of justice which cannot be upholden, and the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privileges were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.’’

In this instance, the only two matters communicated and which appear in all three documents which could be considered privileged communications are the identity of the client and the nature of the deed. It is perhaps true to say that the identity of the client might on balance in most cases be considered as evidence which should not be excluded. The following passage from a judgment by Clark, J., in Mauch v. Commissioner of Internal Revenue (3rd C.C.A., 113 Fed. 2d, 555, 556) illustrates the nicety of the decision.

"‘Like so many others, it is a rule of balance. Some truth is suppressed so that the general process of administering truth may be furthered. Our circumstance, the identities, rather than the sayings, of client, is at the fulerum. The record discloses no offer by the petitioner to obtain the permissible waiver from his anonymous clients. The absence of such offer may very well dispense with any necessity for a present determination of where the scale should come down. If we assume, however, a refusal to waive, the authorities are almost unanimous in excluding bare identity from the scope of the privilege.

A party sued or suing is entitled to know who his opponent is, Wigmore on Evidence, 3rd Ed., Vol. 8, p. 2313. Quite aside from this, it is clear that clients may desire freedom to as much as freedom of consultation. The former freedom may well suffer from the prying eyes and gossiping tongues. Jane Doe may object to her neighbors knowing that she has been in to consult Dodson & Fogg, attorneys and counsellors at law; Thornton, Attorneys and Counsellors at Law, p. 124. She will object much more to their knowing what she said to those eminent practitioners. We think the privilege must be shaped and the balance struck accordingly. The slight, though real, objection of one actual client must yield to any great interest of that body of prospective clients, the public. Such an interest appears most certainly where, as here, the claimed protection includes the attorney charged with defrauding that publie. One almost may suggest such yielding as the penalty for an unfit selection of advisers. One surely can analogize in reverse from the judicial privilege in the law of libel. It is absolute because vital to the administration of justice. Here, that same administration requires disclosure.’’

But in the circumstances involved in the present instance the repertory, the index and the journal go further than giving just the name. They also give the nature and character of the deed and there is no doubt that the execution of some deeds, particularly wills, is a communication desired by the client to be kept secret during his lifetime and is accordingly a part of the solicitor-(Notary)-client privilege. “It must be assumed that, during that period, the attorney ought not to be called upon to disclose even the fact of a Will’s execution much less of his tenor.” (Wigmore, 3rd Ed., Vol. 8, No. 2314).

Therefore, if it is correct, and I believe it to be so, that neither the repertory, the index nor the journal can be divided but each must be considered as one document, the fact that they contain evidence of the execution of wills alone would justify the holding that they are privileged communications and consequently a solicitor-client privilege exists in respect of the said Repertory, the Journal and the Index seized as aforesaid.

I would therefore MAINTAIN the petition and DETERMINE, pursuant to the provisions of Section 126A of the Income Tax Act (4-5 Eliz. II, c. 39) that there exists a solicitor-client privilege with respect to the respondent on the 28th day of January 1958, and the custodian in whose custody the said Repertory, Index and Journal have been placed pursuant to the said Section 126A of the Income Tax Act is ORDERED to deliver the said Repetory, Index and Journal to the petitioner.