N.S. rulings blazed trail of openness

By Dean Jobb

Linden MacIntyre’s request was simple. The CBC Television reporter, now a host of the investigative program the fifth estate, wanted to see search warrants used to seize documents from Liberal party fund-raisers in Nova Scotia, as part of an RCMP investigation into allegations of political corruption.

When MacIntyre went to Halifax’s provincial court office more than 25 years ago, it was not clear whether search warrants – and what they reveal about criminal suspects and ongoing police investigations – were in the public domain. The justice of the peace who issued the warrants refused to hand them over.

The CBC took the matter to court. In a ground-breaking decision, Justice Peter Richard, a trial judge of the Nova Scotia Supreme Court, ruled that once a search has been carried out, the warrant and its supporting documents must be made public. The Supreme Court’s Appeal Division (since renamed the Court of Appeal) granted even more access, opening warrants to inspection regardless of whether they had been executed and requiring public hearings when police apply for a warrant.

The case ultimately reached the Supreme Court of Canada, which adopted a middle course in its January 1982 judgment. By a margin of 5-4 the court rejected the notion that applications for warrants should be vetted in public, since this would give suspects a chance to hide or destroy evidence. But Justice Brian Dickson, the future chief justice who wrote the majority judgment, declared that warrants are public documents once a search has been conducted. Dickson made one exception – to protect innocent parties, he ruled that a warrant should remain private if the search did not yield evidence.

Attorney General of Nova Scotia v. MacIntyre is one of a handful of important media law precedents to come out of Nova Scotia. Dickson’s ruling recognized that the business of Canada’s courts, with few exceptions, must be conducted in the public eye. “At every stage” of the court process, Dickson wrote, “the rule should be one of public accessibility and concomitant judicial accountability.” Public access can only be restricted “to protect social values of superordinate importance,” such as the need to protect innocent persons caught up in police investigations.

Protection of the innocent was the key issue in Vickery v. Nova Scotia Supreme Court (Prothonotary), another Nova Scotia case that wound its way to the Supreme Court of Canada. In 1988 Claude Vickery, a producer with CBC Television, sought access to audio and video recordings in which a man confessed to murder and re-enacted the crime. The confessions were ruled inadmissible and the man was acquitted, but Vickery argued the tapes were still on the public record.

Then-Chief Justice Constance Glube agreed but the Appeal Division overturned her ruling and the CBC took the case to Ottawa. This time the Supreme Court split 6-3 and ruled in 1991 that judges can control access to exhibits used as evidence in court. Citing MacIntyre, the majority said a person acquitted of a crime must be considered innocent and privacy rights take precedence. The public’s right of access to the confession, the court added, was fulfilled when the tapes were played at the man’s trial.

Other, lesser-known Nova Scotia rulings have expanded news coverage of the courts. In 1995 the Halifax Chronicle Herald won access to the transcript of a controversial youth court trial. In June 2006, Provincial Court Judge James Burrill granted a joint request from the newspaper and the CBC for access to exhibits filed at the sentencing of a teenager who killed a Halifax woman while speeding in a stolen car.

In 2001 the Herald and The Daily News fought against a motion to ban publication of the names of two young assault victims, which also would have prevented the media from identifying their assailant – one of the first tests of a new Criminal Code provision. Associate Chief Judge Brian Gibson of the Provincial Court refused to impose the ban, ruling the identities of people involved in criminal cases should not be shielded simply to avoid embarrassment or humiliation.

MacIntyre remains one of the leading cases on access to court records even though it predates the Charter of Rights and Freedoms, which enshrined the media’s right to freedom of expression. In fact, when Parliament introduced Criminal Code amendments in 1985 to limit the impact of MacIntyre and restrict access to search warrants, courts in Ontario, Quebec and Manitoba struck down the amendments as a violation of the Charter.

In 2005 Justice Morris Fish of the Supreme Court of Canada cited MacIntyre in a ruling out of Ontario that further refined how the courts should deal with access to search warrants. “The administration of justice,” he wrote in Toronto Star Newspapers Ltd. v. Ontario, “thrives on exposure to light – and withers under a cloud of secrecy.”

After more than two decades, the impact of one Nova Scotia journalist’s simple request is still being felt.

This article originally appeared in the Society Record, a publication of the Nova Scotia Barristers Society.