MacIntyre v. N.S. (A.G.) (1982), 49 N.S.R.(2d) 609 (SCC);
96 A.P.R. 609
MLB headnote and full text
MacIntyre v. Attorney General of Nova Scotia and Grainger (defendants) and Attorney General of Canada et al. (intervenants)
Indexed As: MacIntyre v. Attorney General of Nova Scotia and Grainger and Attorney General of Canada et al.
Supreme Court of Canada
Laskin, C.J.C., Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
January 26, 1982.
Summary:
A television journalist applied for an order that a Justice of the Peace make available to him for inspection search warrants and informations in his possession. The Nova Scotia Supreme Court, Trial Division, in a judgment reported 37 N.S.R.(2d) 199; 67 A.P.R. 199, allowed the application and held that the journalist, as a member of the general public, was entitled to inspect executed search warrants and supporting informations. The Crown appealed. The Nova Scotia Court of Appeal in a judgment reported 38 N.S.R.(2d) 633; 69 A.P.R. 633, dismissed the appeal and further did not restrict the right of access to only executed search warrants. The Crown appealed.
The Supreme Court of Canada dismissed the appeal, but varied the declaration of the Nova Scotia Court of Appeal to restrict the right of access to only executed search warrants and supporting informations. Martland, J., with Ritchie, Beetz and Estey, JJ., concurring, dissented and was of the opinion that only interested persons were entitled to access to executed search warrants.
Courts – Topic 1404
Administration – Public access to judicial proceedings – Search warrants and supporting informations – The Supreme Court of Canada held that the public has a right of access to executed search warrants and supporting informations – See paragraphs 1 to 38 – The court held that the public has no right of access to the proceeding in which a search warrant is issued, because secrecy was crucial to the success of the search warrant as an investigative tool – See paragraphs 29 to 31 – The court held that to protect the innocent the public had no right of access to an executed search warrant, which yielded nothing – See paragraphs 27 to 28.
Criminal Law – Topic 3050
Special powers – Search warrants – Public inspection of information and warrant – The Supreme Court of Canada held that the general public, including a journalist, was entitled to see executed search warrants and supporting informations – See paragraphs 1 to 38.
Cases Noticed:
Inland Commissioners v. Rossminister Ltd., [1980] 2 W.L.R. 1, consd. [paras. 11, 70].
In Re Rex and Solloway Mills & Company Limited, [1930] 3 D.L.R. 293 (Alta. S.C.), consd. [para. 12].
Realty Renovations Limited v. Attorney General for Alberta et al. (1979), 16 A.R. 1; 44 C.C.C.(2d) 249, consd. [para. 12].
Nixon v. Warner Communications Inc. (1978), 98 S.C.R. 1306, consd. [para. 16].
R. v. Wright, 8 T.R. 293, consd. [para. 23].
Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339, consd. [para. 23].
Scott v. Scott, [1913] A.C. 417, consd. [paras. 24, 63].
McPherson v. McPherson, [1936] A.C. 177, [paras. 24, 63].
Caddy v. Barlow (1827), 1 Man. & Ry. 275, refd to. [para. 51].
Attorney General v. Scully (1902), 4 O.L.R. 394, consd. [para. 55].
R. v. Fisher (1811), 2 Camp. 563; 170 E.R. 1253, consd. [para. 67].
Statutes Noticed:
Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 443(1), sect. 446(5).
Authors and Works Noticed:
Halsbury’s Laws of England (4th Ed.), vol. 1, para. 97 [para. 59]; vol. 10, p. 316, para. 705 [paras. 26, 31].
Taylor, Treatise on the Law of Evidence (11th Ed. 1920) [paras. 11, 57].
Counsel:
Reinhold M. Endres and Mollie Gallagher, for the appellants;
Robert Murrant and Gordon Proudfoot, for the respondent;
J.A. Scollin, Q.C., and S.R. Fainstein, for the Attorney General of Canada;
S. Casey Hill, for the Attorney General of Ontario;
Ronald Schacter, for the Attorney General of Quebec;
Eugene D. Westhaver, for the Attorney General of New Brunswick;
E. Robert A. Edwards, for the Attorney General of British Columbia;
Kenneth W. MacKay, for the Attorney General of Saskatchewan;
Y. Roslak, Q.C., and Lloyd Nelson, for the Attorney General of Alberta;
Alan D. Gold, for the Canadian Civil Liberties Association.
This case was heard on February 3, 1981, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.
On January 26, 1982, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:
DICKSON, J. – see paragraphs 1 to 38;
MARTLAND, J., dissenting – see paragraphs 39 to 74.
LASKIN, C.J.C., McINTYRE, CHOUINARD and LAMER, JJ., concurred with DICKSON, J.
RITCHIE, BEETZ and ESTEY, JJ., concurred with MARTLAND, J.
