BenchPress - Vol 40-6 - LawNow Magazine

BenchPress – Vol 40-6

1. CRA loses out to Solicitor-Client Privilege

The Canada Revenue Agency (CRA) sent a lawyer a request to produce documents about his personal finances and also his current accounts receivable. The lawyer provided some material but refused to produce his current accounts, claiming that to do so would violate solicitor-client privilege, since it would reveal his clients’ names. The Federal Court and the Federal Court of Appeal sided with CRA, but the Supreme Court of Canada disagreed.  The unanimous judgment stated: “Solicitor-client privilege has evolved from being treated as a mere evidentiary rule to being considered a rule of substance and, now, a principle of fundamental justice. An intrusion on solicitor-client privilege must be permitted only if doing so is absolutely necessary to achieve the ends of the enabling legislation.”  The Court noted that the definition of “solicitor-client privilege” in the Income Tax Act is very clear and lawyers’ accounting records are expressly excluded.  It further noted that solicitor-client privilege belongs to the client and can only be waived by the client.

Minister of National Revenue v. Thompson 2016 SCC 21 (CanLII)


2. “Morally Blameworthy Conduct”

An Alberta couple has been convicted of failing to provide the necessaries of life to their 18-month-old son.  Baby Ezekiel fell ill, with symptoms including a fever, difficulty breathing and swallowing and decreased appetite. Over several weeks, as his symptoms worsened, his parents treated him with naturopathic remedies, natural supplements, fluids, fresh air and humidity. They did not take him to a doctor. One evening, Ezekiel stopped breathing.  His dad called 911 but cancelled the call when the baby began breathing again.  The family set out to the hospital but Ezekiel again stopped breathing. An ambulance met the family car and took over the baby’s care. Several days later, doctors at the Alberta Children’s Hospital Pediatric Intensive Care Unit declared the baby brain dead and life-sustaining therapies were discontinued. The parents were convicted by a jury of failing to provide the necessities of life to their son.  In a Finding of Fact as a preliminary to sentencing, Justice R.A. Jerke found:

  • A reasonably prudent person without medical training would have realized that Ezekiel needed medical attention;
  • A reasonably prudent and ordinary person would have foreseen that failing to provide medical attention would endanger Ezekiel’s life; and
  • A reasonably prudent person would have taken Ezekiel to a doctor.

Justice Jerke concluded: “Mr. and Mrs. Stephan did not provide Ezekiel with medical attention. This was a failure of their legal duty to provide necessaries of life. It was a marked departure from the required standard of care. It is morally blameworthy conduct.”

Justice Jerke sentenced the dad, David Stephan to four months in jail and the mom, Collet  Stephan to three months of house arrest.

R v. Stephan 2016 ABQB 319 (CanLII)

3. Fetal Alcohol Syndrome as a Mitigating Factor in Sentencing

The Manitoba Court of Appeal has reduced a convicted offender’s sentence for manslaughter from six years to four because he suffers from Fetal Alcohol Syndrome.  Justice Monnin wrote: “an offender’s moral blameworthiness may be reduced if he suffers from an FASD-related diagnosis and there is a connection between the condition and the offence for which he stands charged.”   He noted that the trial judge chose a lengthier sentence for reasons of public safety over the accused’s rehabilitation. However,  Justice Monnin stated:” …it would be inappropriate…to give up on the accused and park him in a penitentiary for an additional period of time on the basis of his partial FAS diagnosis.” He added that learning how to control and modify behaviour can be a form of rehabilitation and should be considered in sentencing, even if the condition that produced the illegal behaviour cannot be cured.

  1. v. Friesen, 2016 MBCA 50 (CanLII)


Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the Acting Editor and Legal Writer for LawNow Magazine at the Centre for Public Legal Education Alberta.

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