Downton Abbey... or the U.K. Supreme Court's latest case on
One of these will come up sometime soon at a social event.
"The public has the right to every person's
evidence," said Supreme Court of Canada Justice Ian
Binnie in a 2010 ruling. "That is the general
On Downton Abbey, will an important character be exonerated from
a crime based on evidence that shows apparent innocence? A witness
refuses to speak truthfully to someone investigating. A solicitor
now has to make the next move ... no, I won't spoil it.
This week the U.K. Supreme Court decided that tax law advice
provided by accountants is not covered by legal professional
privilege. So the government and the court will have relevant
evidence to use against the taxpayer. And tax law advice from a
lawyer is privileged in the U.K., but the very same advice from an
accountant is not.
The latest U.K. result may seem counterintuitive. Transnational
accountancy firms offer extremely sophisticated tax advice and
advocacy, and market their own tax planning "schemes"
(like the one in the U.K. case). Why differentiate between
two groups of professionals?
Better still, if you're not a tax professional or CFO, why
should you pay any attention to a foreign court's judgment on
privilege and tax advice (let alone a law firm's article on
Now, I am not saying this is more interesting to most people
than the goings-on at Downton Abbey. But I do think privilege
is one legal principle that actually matters to us all.
Lawyers fight about what evidence will be used at trial all the
time, usually in pre-trial motions. Privilege is often
claimed to exclude relevant information, or even to obscure where
information came from.
A couple of years ago investigative reporters from the
National Post and The Globe & Mail newspapers
tried to shield their sources from disclosure in court by claiming
a "privilege" for journalists. In two of the numerous
privilege cases over the past 25 years, the Supreme Court of
Canada decided that there was no such blanket exception to Justice
Binnie's general rule, but sometimes a source could remain
Rulings on privilege (and related law) affect our knowledge of
what government, and specific people in it, are up to. The
Globe case arose from journalists' investigations into
the so-called "sponsorship scandal". The National
Post case arose from bogus allegations against former Prime
Privilege law goes beyond what people and companies do in their
financial affairs, all the way to whether a person can speak
openly, candidly and confidentially to his or her lawyer, a police
officer, psychiatrist, physician, religious or spiritual
counsellor, or tax accountant (not necessarily in that order) and
to get confidential advice back from those people.
Canadian common law sometimes recognizes a "class"
privilege that would exclude all communications from use or
scrutiny by investigators, prosecutors, plaintiffs and courts. That
protects and promotes the relationship in which the communication
At the same time, excluding relevant evidence distorts a
fundamental purpose of the justice system: to find the truth. So
usually a more flexible, case-by-case approach is taken. That is
what happened when the journalists claimed privilege over
communications with their "sources".
The U.K. Supreme Court decided that the tax advice was not
privileged, so that information will be available to revenue
officials and the court.
Whether the Downton Abbey character will languish in jail for a
crime he or she may not have committed, you'll just have to
watch and see. Or raise it next time you're out with
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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