Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et al., (1991) 119 N.B.R.(2d) 271 (SCC)

• Judge: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 14, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 119 N.B.R.(2d) 271 (SCC);85 DLR (4th) 57;7 CRR (2d) 270;30 ACWS (3d) 44;[1991] 3 SCR 459;119 NBR (2d) 271;[1991] CarswellNB 24;130 NR 362;[1991] SCJ No 88 (QL);JE 91-1762;67 CCC (3d) 544;9 CR (4th) 192;1991 CanLII 50 (SCC);14 WCB (2d) 210;300 APR 271

Soc. Radio-Can. v. N.B. (P.g.) (1991), 119 N.B.R.(2d) 271 (SCC);

    119 R.N.-B.(2e) 271; 300 A.P.R. 271

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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La Société Radio-Canada (appellant) v. Le Procureur général du Nouveau-Brunswick (respondent) and L'Association canadienne des journalistes (intervener)

(21827)

Indexed As: Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et al.

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson, JJ.

November 14, 1991.

Summary:

The C.B.C. applied under rule 69 of the Rules of Court (N.B.) to quash a search warrant issued against it relating to a video­tape record of a demonstration that turned to violence.

In a judgment reported at (1989), 98 N.B.R.(2d) 306; 248 A.P.R. 306, the New Brunswick Court of Queen's Bench, Trial Division, allowed the application. The At­torney General of New Brunswick appealed.

The New Brunswick Court of Appeal allowed the appeal. See (1990), 104 N.B.R.(2d) 1; 261 A.P.R. 1; 68 D.L.R.(4th) 502; 55 C.C.C.(3d) 133. The C.B.C. appealed.

The Supreme Court of Canada, McLachlin, J., dissenting, dismissed the appeal.

(Editor's Note: See also the companion case of Société Radio-Canada c. Lessard (juge), Québec (Procureur général) et autres, reported at (1991), 130 N.R. 321.)

Civil Rights - Topic 1217

Security of the person - Lawful or reason­able search - What constitutes unreason­able search and seizure - Search warrants against the media - The C.B.C. applied to quash a search warrant issued against it relating to the videotape record of a vio­lent protest - The application was dis­missed - The Supreme Court of Canada applied the following test: taking into account all the circumstances, including the potentially damaging effect of a search and seizure upon the freedom and func­tioning of the press, and viewing them fairly and objectively, can it be said that the search was a reasonable one? - See paragraphs 28 to 47.

Civil Rights - Topic 1803

Freedom of speech or expression - Scope of freedom of expression - Search war­rants against the media - The C.B.C. applied to quash a search warrant issued against it relating to the videotape record of a violent protest - The application was dismissed - The Supreme Court of Canada held: "The constitutional protection of freedom of expression afforded by s. 2(b) of the Charter does not, however, import any new or additional requirements for the issuance of search warrants. What it does is provide a backdrop against which the reasonableness of the search may be eval­uated. It requires that careful consideration be given not only to whether a warrant should issue but also the conditions which might properly be imposed upon any search of media premises." - See para­graphs 28 to 47.

Criminal Law - Topic 3043

Special powers - Search warrants - Juris­diction to quash - Search warrants against the media - The Supreme Court of Canada summarized "the factors to be considered by a justice of the peace on an application to obtain a warrant to search the premises of a news media organization together with those factors which may be pertinent to a court reviewing the issuance of a search warrant." - See paragraphs 43 to 47.

Criminal Law - Topic 3095

Special powers - Issue of search warrants - Conditions precedent - Search warrants against the media - The Supreme Court of Canada summarized "the factors to be considered by a justice of the peace on an application to obtain a warrant to search the premises of a news media organization together with those factors which may be pertinent to a court reviewing the issuance of a search warrant." - See paragraphs 43 to 47.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information - Search war­rants against the media - The C.B.C. applied to quash a search warrant issued against it relating to the videotape record of a violent protest - The C.B.C. com­plained that, among others, the affidavit supporting the information giving rise to the search warrant did not say whether other sources of information were available and whether reasonable steps were taken to seek them - The application was dismissed - The Supreme Court of Canada held that it would be preferable for the affidavit to contain the detail argued for by the C.B.C. but that it was not constitutionally required - See paragraphs 43 to 47.

Criminal Law - Topic 3106

Special powers - Issue of search warrants - Discretion of judge - Search warrants against the media - The Supreme Court of Canada held: "The decisions in both Des­côteaux and Pacific Press recognized that a justice of the peace has a discretion to determine whether to issue a search war­rant. In exercising this discretion, a bal­ance must be struck between the interests of the state in investigating and prosecut­ing crime and the privacy interests of the individual or body whose premises the state wishes to search. Both cases indicate that a proper balancing of interests must involve a consideration of the effects of the search on both the ability of the police to proceed with their investigation and on the ability of those being searched to carry out their functions." - See paragraphs 15 to 27.

Cases Noticed:

Pacific Press and R., Re (1977), 37 C.C.C.(2d) 487, refd to. [para. 9].

Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 590, refd to. [para. 9].

Senior v. Holdsworth; Ex parte Indepen­dent Television News Ltd., [1976] 1 Q.B. 23, refd to. [para. 19].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321; 64 D.L.R.(4th) 577, refd to. [para. 29].

Zurcher v. Stanford Daily (1978), 436 U.S. 547, consd. [para. 40].

Société Radio-Canada c. Lessard (juge), Québec (Procureur général) et autres (1991), 130 N.R. 321 (S.C.C.), appld. [para. 49].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b), sect. 8, sect. 24.

Combines Investigations Act, R.S.C. 1970, c. C-23, sect. 41.

Criminal Code, R.S.C. 1970, c. C-34, sect. 443(1)(b), sect. 443(1)(d), sect. 443(1)(e).

Criminal Code, R.S.C. 1985, c. C-46, sect. 487(1)(b), sect. 487(1)(d), sect. 487(1)(e).

Counsel:

André G. Richard, Marie-Philippe Bou­chard and Michael Hughes, for the ap­pellant;

Graham J. Sleeth, for the respondent;

Richard G. Dearden and Randall J. Hofley, for the intervenor.

Solicitors of Record:

Stewart, McKelvey & Ass., Moncton, N.B., for the appellant;

Attorney General for New Brunswick, Fredericton, N.B., for the respondent;

Gowling, Strathy & Ass., Ottawa, Ont., for the intervenor.

This appeal was heard on May 31, 1991, by La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson, JJ., of the Supreme Court of Canada.

The decision of the court was delivered in both official languages on November 14, 1991, and the following opinions were filed:

Cory, J. (Sopinka, Gonthier and Steven­son, JJ., concurring) - see paragraphs 1 to 48;

La Forest, J. - see paragraph 49;

L'Heureux-Dubé, J. - see paragraphs 50 and 51;

McLachlin, J., dissenting - see para­graphs 52 to 54.