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Questions of Privilege and Openness - Proposed Search and Seizure Reforms

NCJ Number
McGill Law Journal Volume: 29 Issue: 4 Dated: (October 1984) Pages: 651-698
A Manson
Date Published
48 pages
This examination of recently proposed Canadian search-and-seizure reform legislation focuses on public access to search warrant information and the application of attorney-client privilege and public interest immunity in the issuing of search warrants.
In MacIntyre v. Attorney General of Nova Scotia (1983), the court permitted public access to search warrants and supporting material only if the warrant has been executed and objects have been seized. The proposed Section 443.2 to the Canadian Criminal Code does not address the full range of issues raised in this court decision. It is designed only to prevent undue publicity relating to searches under warrant. The issue of publication of the contents of allegations, to the extent that they might be raised in the warrant application material, is not addressed by the proposed provision. The Supreme Court of Canada has held that attorney work products may be seized in a legitimate search only when the material does not appear to be privileged and, even then, only when no alternative source of evidence exists. The proposed Section 444.1 to the Criminal Code reflects this position in prohibiting the copying or seizure of any document under a search warrant 'without affording a reasonable opportunity for a claim of solicitor-client privilege.' The Canadian courts have generally held that judicial discretion must determine whether government documents targeted for a search warrant are immune from seizure because disclosure would harm public interest. Proposed Section 444.2 goes beyond this policy in making Cabinet documents immune at the discretion of the executive branch. 260 footnotes.