MacIntyre v. Attorney General of Nova Scotia and Grainger, (1980) 38 N.S.R.(2d) 633 (CA)

• Judge: Hart, Jones and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 14, 1980
• Jurisdiction: Nova Scotia
• Citations: (1980), 38 N.S.R.(2d) 633 (CA)

MacIntyre v. N.S. (A.G.) (1980), 38 N.S.R.(2d) 633 (CA);

    69 A.P.R. 633

MLB headnote and full text

MacIntyre v. Attorney General of Nova Scotia and Grainger

(S.C.A. 00605)

Indexed As: MacIntyre v. Attorney General of Nova Scotia and Grainger

Nova Scotia Supreme Court

Appeal Division

Hart, Jones and Macdonald, JJ.A.

March 14, 1980.

Summary:

This case arose out of an application by a reporter for an order that a Justice of the Peace make available to him for inspection search warrants 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 reporter, as a member of the general public, was entitled to inspect the search warrants. The Crown appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The Court of Appeal held that the reporter was entitled to see executed search warrants and informations upon which any issued search warrants were based, but was not entitled to see other items contained in the court file as a result of return of the search warrant having been made.

Administrative Law - Topic 1117

Classification of power or function - Judicial function - The Nova Scotia Court of Appeal held that the issuance of a search warrant by a Justice of the Peace was a judicial function - See paragraphs 12 to 14.

Courts - Topic 1404

Administration - Public access to judicial proceedings - On an application by a reporter to see search warrants issued by a Justice of the Peace in a criminal investigation the Nova Scotia Court of Appeal generally discussed the right of the public to access to judicial proceedings - The Court of Appeal stated that generally all court proceedings are open to the public - See paragraphs 4 to 9 - The Court of Appeal then discussed the problem of access to court documents and concluded that the public has access to those parts of the record that are part of the public presentation of the judicial proceeding in open court, but other records are available only to interested persons on application - See paragraphs 9 to 38.

Criminal Law - Topic 3050

Special powers - Search warrants - Public inspection of information and warrant - The Nova Scotia Court of Appeal held that a reporter as a member of the general public was entitled to see executed search warrants and informations upon which any issued search warrants were based, but was not entitled to see other items contained in the court file as a result of return of the search warrant having been made - See paragraphs 9 to 38.

Cases Noticed:

Scott v. Scott, [1913] A.C. 417, appld. [para. 4].

McPherson v. McPherson, [1936] A.C. 177, appld. [para. 4].

F.P. Publications (Western) Limited v. Conner Provincial Judge, [1980] 1 W.W.R. 504; 2 Man.R.(2d) 1, appld. [para. 8].

Kimber v. The Press Association, Limited, [1893] 1 Q.B. 65, [para. 13].

Attorney General v. Scully (1902), 4 O.L.R. 394, consd. [para. 17].

Realty Renovations Ltd. v. Attorney General for Alberta (1979), 44 C.C.C.(2d) 249, appld. [para. 21].

Gannett Co., Inc. v. DePasquale (1979), 47 L.W. 4902, consd. [para. 23].

Gazette Printing Company v. Shallow (1909), 41 S.C.R. 339, consd. [para. 24].

Nixon v. Warner Communications Inc., 98 S.C.R. (U.S.) 1306, refd to. [para. 26].

R. v. Waterfield, [1975] 2 A11 E.R. 40, consd. [para. 29].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 442(1) [para. 7]; sect. 443 [para. 12]; sect. 446(5), sect. 446(6) [para. 27]; sect. 500, sect. 531 [para. 20].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 10, p. 316 [para. 7].

Taylor on Evidence (11th Ed.), p. 1026 [para. 15].

Wright, Peter, The Open Court: The Hallmark of Judicial Proceedings (1947), 25 Can. Bar Rev. 721 [para. 6].

Counsel:

J.W. Kavanagh, Q.C., and Mollie E. Gallagher, for the appellants;

R.P. Murrant and G.G. Proudfoot, for the respondent.

This case was heard on February 11, 1980, at Halifax, Nova Scotia before HART, JONES and MACDONALD, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On March 14, 1980, HART, J., delivered the following judgment for the Appeal Division: