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By Peggy Amirault
HALIFAX—Search warrants and the informations on which they are based are court records and therefore open to public inspection, the Nova Scotia Supreme Court Appeal Division has ruled.
Handing down the ruling March 17, the Court rejected an appeal brought by the Attorney General's office against an earlier Supreme Court Trial Division declaratory judgement to the same effect. That ruling had been sought by Halifax journalist Linden MacIntyre. The Attorney-General will appeal again, this time to the Supreme Court of Canada.
An information is a document filed by police with a justice of the peace in support of an application for a search warrant. It contains the reasons why the police believe that a search will reveal evidence of criminal activity.
Linden MacIntyre, of CBC-TVs MacIntyre File, sought the declaratory judgement through his attorneys, Gordon Proudfoot (a former broadcaster) and Robert Murrant, after he was refused access to the search warrant files of a justice of the peace.
While researching a program on political patronage, MacIntyre became aware of an RCMP investigation into political fundraising. During a Quebec crime probe, information concerning financial contributions to political parties by distilleries and breweries was uncovered. This was forwarded to various provincial jurisdictions, including Nova Scotia. RCMP search and seizures were executed in the province against the Nova Scotia Liquor Commission, businesses and individuals' homes. MacIntyre wanted to know the who, why and what of the search warrants.
J. W. Kavanagh representing the Attorney-General's department before the Appeal Division, argued there is no public right to see informations of this sort, because the issuance of search warrants is part of the investigative process and the police would be severely hampered if details of their investigations were made public before the laying of charges.
He also cited possible evidentiary problems if such material was released. A letter from the RCMP to the Attorney General expressing such concerns was submitted to the appeal bench.
Furthermore, he said, search warrants are often issued against innocent persons for the purpose of obtaining evidence in their control or custody to reveal the contents of informations would cloud such persons with unjustified suspicion. Kavanagh argued that search warrants are often based on suspicion, hearsay and gossip and that the individual's right to privacy should be protected.
Proudfoot and Murrant argued that, in issuing a search warrant, a justice of the peace is performing a judicial function and must leave his or her records open to the public, like all court records. They also referred to Britain's Imperial Statute of 1372, which established access by the public to "whatever record touches them in any manner."
In reaching its decision, the Court agreed that the issuance of a search warrant is a judicial function. It noted that court proceedings generally must be open to the public unless the court itself, for valid reasons, says differently or unless the legislature has provided for closed hearings.
It then considered the extent to which the records of these court proceedings are open to the public. The Court found no provincial statute which specifically states such records may be examined and copied by the public. But the Costs and Fees Act establishes fees for searches of these records and permits copying of some documents. Further it has been the custom to permit such searches, not only by lawyers but by the public. Justice Hart, author of the unanimous 29-page Appeal Division decision, wrote: "In my opinion any member of the public does have a right to inspect informations upon which search warrants are based, since the issue of the search warrant is a judicial act performed in open court by a justice of the peace.
Even so, he noted that other documents in a court file are available only with the permission of the court and only if the applicant can prove him or herself to be "an interested party." For example, any items in the court file as a result of the return of an executed search warrant could be inspected only with the permission of a superior court judge (pursuant to section 446 of the Criminal Code).
The Appeal Division ruling has played a part in recent Nova Scotia news items — financial contributions to the provincial Liberal Party from breweries and distillers, the existence of a trust fund for the incumbent leader of the Liberals and the personal financial problems of the minister of development. Because of the Attorney-General's appeal, the public and, therefore, the press are back to square one — denied access to search warrants and their informations.
The last word on the subject will come from the Supreme Court of Canada later this year or early in 1981.
Published in SOURCES May-June 1980