Questions of Privilege and Openness: Proposed Search and
Seizure Reforms
Allan Manson*
Recent proposals for reform in the area of
search and seizure have focussed, in part, on
issues of information. These have included
access to search warrant information, solic-
itor-client privilege and public interest im-
munity. In addressing these areas, the author
suggests that preferences are developing for
greater openness in the judicial process, re-
spect for “fair trial” concerns and substantive
protection of the lawyer-client relationship.
Most jurisdictions, however, have rejected
absolute immunity without judicial scrutiny
for government documents. Since questions
of confidentiality and access to information
require an inquiry into the respective inter-
ests promoted by disclosure and non-disclo-
sure, underlying value choices must be
examined against preferences manifested
elsewhere in the criminal law. Legislative re-
form of search and seizure powers, the author
concludes, should therefore be both inter-
nally coherent and consistent with value choices
which have evolved in related areas of crim-
inal law.
L’acc6s aux renseignements ayant conduit A
l’emission d’un bref de perquisition, la rela-
tivit6 du privilfge de l’avocat et l’absolutisme
de celui accord6 a la Couronne, voilA tant de
questions que les r6centes esquisses de r6-
forme en mati~re de fouilles et saisies on clairi
d’un jour nouveau. Selon l’auteur, un souci
d’assurer une plus grande publicit6 A la d6-
marche judiciaire, de respecter les exigences
du fair trial et de raffermir la confidentialit6
entre l’avocat et son client se dessine peu A
peu. Quant au privilfge de la Couronne, la
plupart des juridictions en conditionnant au-
jourd’hui l’existence A un examen judiciaire
rigoureux. L’auteur estime que les probl~me
de confidentialit6 et d’acc~s i l’information
doivent etre trait6s en fonction des valeurs,
souvent difrerentes, que cherchent A pro-
mouvoir les nombreux domaines du droit
criminel. C’est donc dans une perspective
globale que devra etre amorc6e toute r6forme
16gislative en matire de fouilles et saisies.
*Of the Faculty of Law, Queen’s University. The author wishes to thank his colleagues
Donald Galloway, David Mullan and Don Stuart for their advice and valuable comments on
an earlier draft of this paper.
McGill Law Journal 1984
Revue de droit de McGill
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Synopsis
Introduction
I. Openness
A. Background
B. The Decision in Maclntyre
C. Proposed Section 443.2
D. The “Fair Trial” Issue
II. The Solicitor-Client Privilege
A. The Evidentiary Rule
B. The Decision in Desc6teaux
C. Proposed Section 444.1
III. Public Interest Immunity
A. Evolution
B. Proposed Section 444.2
C. The Constitutional Validity of the Statutory Exemption
Conclusion
Introduction
The extent of police powers and the ability of the criminal law to invade
the privacy of individuals have been the subject of much controversy in
recent years. In particular, the scope of the authority to search and seize is
one area which justifiably has received much attention.’ The entrenched
‘See generally Commission of Inquiry Concerning Certain Activities of the Royal Canadian
Mounted Police, Second Report: Freedom and Security under the Law (198 1), vol. 1, 103-23,
569-74 [herinafter cited as the McDonald Commission]; Hill, After McIntyre (1982) 26 C.R.
(3d) 245; Paikin, Attorney General of Nova Scotia v. Maclntyre: The Supreme Court of Canada
Grapples with PublicAccess to Search Warrant Proceedings (1981-82) 24 Crim. L.Q. 284; Paikin,
“The Standard of ‘Reasonableness’ in the Law of Search and Seizure” in V. Del Buono, ed.,
Criminal Procedure in Canada (1982) 93-129; Stuart, Annual Review of Criminal Law and
Procedure (1977) 9 Ottawa L. Rev. 568, 618-24. See also Re Bordon & Elliot and the Queen
(1975) 13 O.R. (2d) 248, (1975) 30 C.C.C. (3d) 337 (C.A.), where Arnup J.A. remarks that “the
need for considering possible legislation is abundantly apparent”.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
653
guarantee of security against unreasonable search and seizure enacted by
section 8 of the Canadian Charter of Rights and Freedoms has provided
the springboard for increased judicial scrutiny of search practices. 2 The
publication of the Law Reform Commission of Canada’s working paper
Police Powers – Search and Seizure in Criminal Law Enforcement3 has been
a welcome, albeit overdue, addition to the debate. The role of a working
paper is to generate discussion, and this ambitious effort contains a com-
prehensive analysis of the present legal framework and a blueprint for leg-
islative reform. In contrast, the proposed Criminal Law Reform Act, 1984,4
a bulky document which touches on a variety of subjects, does not represent
a re-thinking and general reform of the law of search and seizure. Instead,
we find patches of amendments which appear to be responses to recent
events in the area.5 The legislation deals with the openness of the process,
solicitor-client privilege and what is now commonly known as public interest
privilege, previously described as either Crown or executive privilege. The
impetus for the amendments relating to openness and solicitor-client priv-
ilege can be traced to the Supreme Court of Canada decisions in MacIntytre
v. Attorney General of Nova Scotia6 and Descbteaux v. Mierzwinski.7 The
public interest privilege sections arise as the final stage in the curious course
chosen to replace section 41 of the Federal Court Act.8
2Part 1 of Schedule B, Canada Act 1982, 1982, c. I 1 (U.K.) [hereinafter the Charter]. See,
R. v. Cohen (1983) 5 C.C.C. (3d) 156, (1983) 33 C.R. (3d) 151 (B.C.C.A.); R. v. Collins (1983)
5 C.C.C. (3d) 141, (1983) 33 C.R. (3d) 130 (B.C. C.A.); R. v. Esau (1983) 20 Man. R. (2d) 230,
(1983) 4 C.C.C. (3d) 530 (C.A.); Re Gillis and The Queen (1982) 1 C.C.C. (3d) 545 (Que. S.C.);
R. v. Longtin (1983) 41 O.R. (2d) 545, (1983) 5 C.C.C. (3d) 12 (C.A.); R. v. Morrison (1983)
6 C.C.C. (3d) 256, (1983) 34 C.R. (3d) 362 (B.C. Co. Ct.); Re Regina and Shea (1982) 38 O.R.
(2d) 582, (1982)1 C.C.C. (3d) 316 (H.C.); R. v. Stevens (1983) 58 N.B.R. (2d) 413, (1983) 35
C.R. (3d) I (C.A.); Re Trudeau and The Queen (1982) 1 C.C.C. (3d) 342 (Que. S.C.); R. v.
Taylor (1983) 25 Sask. R. 145, (1983) 7 C.C.C. (3d) 81 (Q.B.); R v. Rao (1984) 40 C.R. (3d)
I (Ont. C.A.); Hunter v. Southain Inc. 17 September 1984 S.C.C. [unreported].
3 Working Paper No. 30 (1983), published shortly before the announcement by the Minister
ofJustice ofthe CrimninalLaw Anendmnent Act, 1983, which contained the provisions discussed
herein (the proposed sections 443.2, 444.1 and 444.2) in the same form as they appeared in
Bill C-19, Criminal Law Reform Act, 1984, 2nd Sess., 32nd Pan., 1983-84 [hereinafter cited as
Bill C-19].
4 Bill C-19, First Reading, 7 February 1984, died on the order paper.
51n the area of search and seizure, the proposed amendments which may attract the most
attention are those dealing with “telewarrants” (s. 443.1) and “freezing orders” (ss 445.1-445.4,
446 and 446.2). A “freezing order” is the mechanism which authorizes the pre-trial seizure,
detention and subsequent forfeiture (s. 668) of property allegedly used or intended to be used
in the commission of an offence or was “obtained derived or realized directly or indirectly as
a result of the commission of the offence”.
6[1982] 1 S.C.R. 175, (1982) N.R. 181, (1982) 65 C.C.C. (2d) 129 [hereinafter cited to S.C.R.
as MacIntyre].
7[1982] 2 S.C.R. 860, (1982) 70 C.C.C. (2d) 385, (1982) 28 C.R. (3d) 289 [hereinafter cited
to S.C.R. as Descbteaux].
8R.S.C. 1970 (2nd Supp.), C. 10, rep. by S.C. 1980-81-82, c. 11, s.3.
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Although the various amendments seek to protect different sets of in-
terests, they are linked conceptually in that they all relate to information,
access and confidentiality. They involve a large cast of characters including
individuals, the public, the police, lawyers, the media, the judiciary and the
government. Each brings its respective responsibilities and claims. Any issue
of confidentiality or disclosure of information generates tension between
the interests of those who claim access and the rights of those who wish to
be protected from disclosure. Questions of privilege and openness are op-
posing sides of the same coin. The proper analytical approach is to examine
the rationale for protecting the information and the relationship or process
from which it flows. This must be weighed against the purpose of access or
disclosure. The search and seizure stage of the criminal process raises claims
for protection and countervailing claims to access which compel the con-
sideration of a wide range of competing interests. Recent developments and
proposals for reform provide an interesting opportunity to examine the
extent to which value choices are coherent and consistent with other pref-
erences manifested in our criminal law.
I. Openness
A. Background
There is no need to argue the importance ofjustice being done in public.
Political philosophers, legal historians and jurists have made and docu-
mented the argument irrefutably. 9 It has been said that public trials and
free access to courts “has been the rule in England from time immemorial”, 10
and the public trial has been imported into Canadian and American juris-
dictions as the presumptive rule. Openness is essential to promote a number
of public interests. Access to the courts allows the community to be confident
that its laws and values are being upheld and enhanced by its system of
justice. Public scrutiny provides a check to ensure that power entrusted to
the judiciary is not abused. Moreover, access to, and discussion about, the
judicial process encourages an informed debate about laws and their ap-
plication. It has also been said that public criminal trials serve a “prophy-
lactic” purpose by showing the community that its system of justice is an
9J. Bentham, Rationale of Judicial Evidence (London: Hunt & Clarke, 1827), vol. 1, 522-37;
W. Blackstone, Commentaries (Lewis Edition, 1893), vol. 3, 372-3; M. Hale, The History of
the Common Law, 3rd ed. (1739) 253-4; F Pollack, The Expansion of the Common Law (Lon-
don: Stevens & Sons, 1904) 31-2; L. Radzinowica, A History ofEnglish CriminalLaw (London:
Stevens & Sons, 1948), vol. 1, 714-77.
10E. Jenks, The Book of English Law, 4th ed. (1936) 91.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
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effective and fair means of responding to those who have offended the rules
of the community.I I
The right to a public trial has now been constitutionally entrenched in
section 11 (d) of the Canadian Charter of Rights and Freedoms. However,
a number of questions still remain: Is it an absolute right? Does the public
have an absolute correlative right of access regardless of the views of the
participants? Does a right of access imply an unrestricted right to com-
municate? Given that the administration ofjustice, and particularly criminal
law enforcement, commences much earlier than the trial, what preliminary
stages are equally amenable to a public right of access? At early stages of
the judicial process, while public scrutiny and accountability are still im-
portant factors, other confficting interests arise which are also related to the
integrity of the administration of justice. This is particularly true at the
investigative stage. For example, an application for authorization to inter-
cept private communications would be futile if free public access and an
unencumbered right to communicate were available. Similarly, publicity of
pre-trial hearings presents the danger of prejudicing the views of potential
jurors. As a result, the present Criminal Code permits orders banning the
publication of evidence adduced at bail hearings’ 2 and preliminary hearings 13
until the case is disposed. At the pre-trial stage, access and accountability
remain as substantial interests. However, other conflicting interests exist
and compel a careful balancing and selection of priorities. This is clearly
the case with search and seizure.
B. The Decision in Macintyre
Macintyre v. Attorney General of Nova Scotia14 involved a journalist
working for the Canadian Broadcasting Corporation who had approached
the Chief Clerk of the Provincial Magistrate’s Court at Halifax for access
to search warrants and supporting material. His request was refused and he
applied to the Trial Division of the Supreme Court of Nova Scotia for an
order declaring that the warrants and supporting material were matters of
public record that could be inspected. The Trial Division issued a declaration
that search warrants which had already been executed and the informations
relating to them were open to inspection by members of the general public.
An appeal by the Attorney General of Nova Scotia to the Appeal Division
IG. Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings (1961) 110
U. Pa L. Rev. 1, 6-7.
1’2Section 457.2
‘3Section 467. See note 39, infra, for an explanation of a proposed amendment to s. 467.
14Supra, note 6. For a more detailed discussion of Maclntyre, see Working Paper No. 30,
supra, note 3, 241-5; Mullan, Developments in Administrative Law: The 1981-82 Term (1983)
5 Sup. Ct L. Rev. 1, 58-60; Paikin, supra, note 1 (24 Crim. L.Q.); Hill, supra, note 1.
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was dismissed. However, in dismissing the appeal, the Court provides a
broader basis for access by ruling that MacIntyre was entitled to attend in
Court during the application for search warrants, as could anyone who would
be the subject of the proposed search. The order of the Appeal Division
also included the unqualified declaration that “a member of the public is
entitled to inspect informations upon which search warrants have been
issued pursuant to s. 443 of the Criminal Code of Canada.”‘ 5 This part of
the order appeared on its face not to be restricted to warrants that had been
executed or that had resulted in some seizure. An appeal to the Supreme
Court of Canada was dismissed by a narrow five-to-four margin.
In his majority decision Mr Justice Dickson, as he then was, recognized
that any discussion of search powers involves a conflict between the com-
peting interests of individual liberty and criminal law enforcement. He char-
acterized the applicable policy considerations as:
respect for privacy of the individual, protection of the administration ofjustice,
implementation of the will of Parliament that a search warrant be an effective
aid in the investigation of crime, and finally, a strong public policy in favour
of “openness” in respect of judicial acts.16
Quoting from Bentham, he characterized publicity as “the very soul of
justice”. 17 In the view of Dickson J., the ideal should be maximum ac-
countability limited only so as not to harm the innocent or impair the
“efficiency of the search warrant as a weapon”.’ 8 Ultimately, he concluded
that:
[C]urtailment of public accessibility can only be justified where there is present
the need to protect social values of superordinate importance. One of these is
the protection of the innocent.’ 9
Thus, privacy and the protection of reputations from the unjustified stigma
resulting from disclosure should prevail over the usually dominant interest
in accountability through accessibility. However, with respect to innocence,
Dickson J. was referring only to the situation “where a search is made and
nothing is found”. 20 He added, without amplification, that other consid-
erations arise when something is seized. 2′
When the Court dealt with the issue of access to the proceeding in
which the search warrant is sought, it was argued that openness would
15Maclntyre, supra, note 6, 178.
‘6Ibid., 183.
1’Ibid.
‘8Ibid.
’91bid., 186-7.
2Olbid., 187.
211bid.
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PROPOSED SEARCH AND SEIZURE REFORMS
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frustrate the administration ofjustice since individuals could hide or destroy
evidence before execution of the warrant. Dickson J. agreed that the process
of issuing a search warrant represented an exception to the general rule of
openness in that “the administration of justice would be rendered imprac-
ticable by the presence of the public”. 22 In the end, the majority position
permitted public access to search warrants and supporting material only if
the warrant was executed and objects seized. This position was qualified
however:
Access can be denied when the ends ofjustice would be subverted by disclosure
or the judicial document might be used for an improper purpose. The pre-
sumption, however, is in favour of public access and the burden of contrary
proof lies upon the person who would deny the exercise of the right.23
Thus, there exists a residual discretion to prevent access.
The minority judgment, delivered by Martland J., concluded that search
warrant proceedings are not analogous to the trial process and that access
to documentation must be restricted to persons with a direct and tangible
interest. He offered four reasons for ruling against public access: prejudice
to a subsequent trial, the risk of disclosing the identity of police informers,
the risk of disclosing patterns of police activity and rendering them ineffi-
cacious and the risk of harm to the reputations of innocent third parties. 24
These concerns are valid on their face; however, if directly interested persons
have access after execution, the second and third reasons represent a risk
that will arise in any event. As far as prejudice to a subsequent trial is
concerned, this is a significant issue and one which Dickson J. did not
address. Relying on a nineteenth-century English case, R. v. Fisher,25 Mart-
land J. concluded that the importance of publicity at trials has no application
at the pre-trial stage where the pre-eminent concern must be ensuring that
the course of a fair trial not be prejudiced.
C. Proposed Section 443.2
The Explanatory Notes to the Bill indicate that the purpose of the
proposed section 443.2 is to “prevent undue publicity relating to searches
under warrant…-.26 In the absence of consent or a consequential prose-
cution, the provision would prohibit publication or broadcast of the location
of the search 27 or the identities of any person who “appears to occupy or
22Ibid., 186, quoting Halsbury’s Law of England, 4th ed. (1975), vol. 10, 316, para. 316.
231bid., 189.
24Ibid., 198-201.
25(1811) 2 Comp. 563, 170 E.R. 1253.
26Bill C-19, s. 104.
27BilI C-19, s. 106, proposed s. 443.2 (1)(a).
McGILL LAW JOURNAL
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be in possession or control of that place”, or anyone suspected as involved
in the offence “in relation to which the warrant was issued”.28 The provision
is clearly a response to Maclntyre and the demand for public access to
information about searches which followed that decision. The proposed
section is not directed to interested persons, court personnel or law enforce-
ment officers, but to the media. It does not affect the issue of access as
decided in MacIntyre, but relates to the use which can subsequently be made
of the information. While MacIntyre delineated those search proceedings
where access to information would be provided, this enactment relates to
the publication of identities. It leaves the majority position substantially
untouched restricting only the publication of identities, without consent,
when no prosecution has been commenced. The issue of publication of the
contents of allegations, to the extent that allegations might be raised in the
material supporting a warrant application, is not addressed by this provision.
Two nagging questions which flow from Maclntyre are not resolved satis-
factorily by the proposed section.
First, one must consider the assertion of the majority that the privacy
of the individual, in the sense of protecting the innocent from harm to
reputation, is a “superordinate value”. To Dickson J., the definition of “in-
nocence” is determined by whether material has been seized. Of course, the
occupier or owner of premises where goods are seized may have no rela-
tionship with the offence alleged. As well, goods may be seized which, by
themselves or taken together with other evidence, assist in exculpating some-
one from suspicion. Also, even though goods are seized and a prosecution
commenced, the accused may ultimately be acquitted. In all these situations,
Maclntyre would permit access to search warrant material. In support of
employing seizure as the threshold test, Dickson J. expressed concern about
accountability in respect of the exercise of prosecutorial discretion not to
proceed after some material has been seized pursuant to a search warrant. 29
In contrast, the proposed amendment moves the threshold of “innocence”
to whether a prosecution has been commenced, at least for the purpose of
publication of identities. This tends to ignore Dickson J.’s concern about
the exercise of the Crown’s discretion not to prosecute. Perhaps the legis-
lation implies that, for the purpose of accountability, access to the infor-
mation as provided by Maclntyre is sufficient. When goods are seized but
no prosecution ensues, the public, including the media, can ask the appro-
priate questions if it learns of the event; only identities cannot be published.
What is significant is that privacy as a value is recognized as superordinate
only in respect of individuals characterized as innocent based on whether
28Bill C-19, s. 106, proposed s. 443.2 (1)(b).
29Supra, note 6, 187.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
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material is seized or a prosecution commenced. This re-arranging of prior-
ities occurs not because “innocence” has been shown to be absent but rather
because of a sense of proximity to criminality. The suggestion seems to be
that the adage “where there’s smoke, there’s fire” does have a role in criminal
law, at least to the extent of asserting the primacy of openness and account-
ability over privacy.
The second question raised by the proposed section concerns the re-
lationship between the disclosure of the contents of allegations and the
integrity of a subsequent trial process. Informations relied upon in support
of an application for a search warrant must be particular as to the offence
alleged, 30 the material sought 3l and the place to be searched. 32Before grant-
ing the warrant, the justice must be persuaded that there are reasonable
grounds to believe that the material sought will afford evidence. The mere
recital of the informant’s belief is inadequate; the justice must be per-
suaded. 33 Pursuant to section 445, material seized as a result of a search
warrant must be brought before a justice, who shall detain it pending the
events described in section 446. 3 4 It is unclear to what extent there will be
access to information about a seizure beyond indicating that something was
seized. Given that the material is intended as evidence, and that even an
interested person can only examine detained material upon application to
a judge, 35 there is no reason to interpret Maclntyre as requiring more than
disclosure of the fact that a seizure was made. However, it is not difficult
30Re Alder and The Queen (1977) 5 A.R. 473, 485-8, (1977) 37 C.C.C. (2d) 234 (Alta S.C.)
[hereinafter cited to A.R.]; Re RS.L Mind Development Institute (1977) 57 C.C.C. (20) 263
(Ont. H.C.); R. v. RoyalAmerican Shows [1975] 6 W.W.R. 571, 573 (Alta S.C.). Also see the
earlier case of R. v. Read [1966] 2 C.C.C. 137, 139-40 (Alta S.C.), although the test for par-
ticularity asserted therein (sufficient particulars to validate an indictment) has been rejected
in both the PSI case and Royal American Shows.
31 See Re Abou-Assak and Pollack and The Queen [1978] C.S. 142, 148, 154-5, (1978) 39
C.C.C. (2d) 546; R. v. Solloway and Mills [1930] 65 O.L.R. 667, (1930) 53 C.C.C. 271 (C.A.);
Shumiatcher v. A.G. Saskatchewan (1960) 129 C.C.C. 267 (Sask. Q.B.); Re Wotrall [1965] 1
O.R. 527, 537-39, [1965] 2 C.C.C. (2d) 1 (C.A.) [hereinafter cited to O.R.].
32Re McAvoy (1970) 12 C.R.N.S. 56, 65 (N.W.T. Terr. Ct.); R. v. Royal American Shows,
supra, note 30.
33See Re Alder and The Queen, supra, note 30, 477; R. v. Kehr [1906] 11 O.L.R. 517, (1906)
11 C.C.C. 52 (H.C.); Re Newfoundland and Labrador Corp. (1974) 6 Nfld and P.E.I.R. 274,
(1974) 138 D.L.R. (3d) 577 (Nfld C.A.) [hereinafter cited to Nfld and P.E.I.R.]; RoyalAmerican
Shows, supra, note 30, 576; R. v. Waterford Hospital (1983) 43 Nfld and P.E.I.R. 132, 136-7,
(1983) 35 C.R. (3d) 348 (Nfld C.A.) [hereinafter cited to Nfld and P.E.I.R.]; Re Worrall, supra,
note 31, 531.
34The present s. 446(1) requires detention, unless the prosecutor consents to release, for a
period of no more than three months unless proceedings are instituted or a justice is satisfied
that further detention for a specific period is warranted.
35Pursuant to s. 446(5), the operation of which is discussed in Re Canequip Exports Ltd and
Smith (1972) 8 C.C.C. (2d) 360 (Man. Q.B.); Re Sutherland and the Queen (1977) 38 C.C.C.
(2d) 252 (Ont. Co. Ct.).
REVUE DE DROIT DE McGILL
[Vol. 29
to imagine that the combination of the supporting information, with its
description of the offence and material sought, and the fact of a seizure, if
published, could produce some prejudicial effect on potential jurors.
Assuming the potential for prejudice, albeit not as great as the risk that
flows from evidence adduced at other pre-trial stages, the majority decision
in MacIntyre should have considered this issue as a concern pertaining to
the “administration of justice”.
The Criminal Code addresses this issue in the context ofjudicial interim
release hearings and preliminary inquiries by providing for orders banning
the publication of evidence upon the application of the accused. 36 The avail-
able prohibitions relate to the substance of evidence and submissions –
not to the identity of the parties or the nature of the charge. Such prohibiting
orders are made as a matter of course, since, on the accused’s application,
the justice’s responsibility is structured in the mandatory form by using the
phrase “shall … make an order”. 37 In these provisions, Parliament has
clearly chosen as the predominate interest the protection of the trial process
from the risk of prejudice. Surely it makes little sense to legislate with respect
to search warrants in a way that is inconsistent with the way that similar
material is treated at other pre-trial stages. This is not to say that new
legislation must conform with trends set by existing enactments. The leg-
islative framework of the criminal process must be developed to protect
some interests over others. The framework, however, must be consistent in
its preferences if it is to achieve its objectives. As well as the concerns of
accountability and efficacy of searches addressed by Dickson J., the need
to ensure a fair and impartial trial must also be addressed.
The Law Reform Commission’s Working Paper No. 30 has recom-
mended that access to search warrant material be available to the “indi-
vidual affected” and other members of the public, but that publication or
broadcasting of contents be prohibited until:
(a) upon application by an individual affected, the prohibition is revoked by
a superior court judge or judge as defined in section 482 of the Criminal Code,
(b) the individual affected is discharged at a preliminary inquiry; or
(c) the trial of the individual affected is ended. 38
36See Criminal Code ss 457.2 and 457.
37Section 132 of Bill C-19 proposes an amendment to s. 467 which will give a justice the
discretion to order non-publication of evidence adduced, and submissions made, at a prelim-
inary hearing on the application of the Crown. If enacted, this will create a curious inconsistency
with s. 457.2(1), which only permits applications by an accused and requires that the justice
“shall” make the order. Section 457.2 was amended in 1976 by S.C. 1974-75-76, c. 93, s. 48
so as to remove judicial discretion on applications for non-publication orders.
38 Working Paper No. 30, supra, note 3, 240, Recommendation 35.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
661
The recommendation speaks to contents not identities. It requires non-
publication, unlike the other Criminal Code mechanisms whereby an order
for non-publication must be sought. The reason offered is that, unlike pre-
liminary inquiries or bail hearings, the individual affected will not be present
at the application for the search warrant and, hence, will be unable to seek
an order banning publication. According to the recommendation, it is only
the person affected who can seek a revocation of the ban on publication. 39
Concerns about the identity of informers are addressed in another Law
Reform Commission recommendation which permits police officers making
applications for search warrants to obscure the name of an informant so
long as it is confirmed that the only information obscured is that which
could identify the informer.40 In this regard, it should be noted that infor-
mation outside the written material should not be used to supplement de-
fective material. 41 Furthermore, the characteristics of the items sought must
be set out with sufficient clarity so that, even if the source of information
is not revealed, the justice can be satisfied that there is “reasonable ground
to believe” that the items “will afford evidence”. 42 The Working Paper has
clearly chosen concern for the integrity of the trial process over other interests.
Before choosing between interests it is essential to understand them.
The policy question is not as simple as asking when the interests of the
individual should prevail over the systemic interests of the administration
ofjustice. There is no clear dichotomy. Even under the rubric of the admin-
istration of justice there are competing interests. In Maclntyre, the majority
attempted to balance public access and accountability on one hand and the
efficacy of law enforcement on the other. Martland J., for the minority,
focussed on the conffict between public access and the integrity of the trial
process. From the perspective of the individual, his or her interests cannot
be described in absolutely homogeneous terms either. Moreover, some in-
dividual interests are shared with other participants, but some are not. An
individual’s interest in liberty is obvious and generates a shared interest
with the public in a fair trial. Privacy, on the other hand, can be of relative
significance. When-speaking only of protection from unfounded accusations,
the privacy interest may be clear, but this can vary once an accusation
becomes formalized into a criminal prosecution. Depending on the charge,
39 Ibid., 244.
4Olbid., 240, Recommendation 36.
4 tSeeR. v. Silverman [1977] 5 W.W.R. 102, 103 (Man. Q.B.); R. v. Waterford Hospital, supra,
note 33, 137-9; Re Worral, supra, note 31, 535-6.
42See references in supra, note 33.
McGILL LAW JOURNAL
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some people will continue to prefer privacy.43 Others will look to the open-
ness of the judicial process as a vehicle for public vindication. Ultimately,
the only clear conclusion is that the matrix of interests has many elements
and dimensions. As well, it is not static. The value to be attached to any
interest can change at any stage in the process.44 While choosing priorities
is a difficult task, the debate must start with a careful analysis of the variety
of interests at stake.
D. The “Fair Trial” Issue
Recently, a number of cases have arisen in which representatives of
the media have challenged statutory provisions and prohibitory orders by
relying on arguments based on the right to public access and freedom of
the press. The courts have expressed a clear trend towards favouring the
interests of ensuring a fair trial. In Re Southam Inc. and The Queen (No.
1)45 the Ontario Court of Appeal examined section 12 of the Juvenile De-
linquents Act.46 This provision had previously been interpreted as requiring
in camera hearings. 47 MacKinnon A.C.J.O. was not persuaded that “an
absolute ban in all cases is a reasonable limit on the right of access to the
courts”. 48 While agreeing that the absolute prohibition was ultra vires, he
suggested that a discretionary power of exclusion based on the best interests
of the child, or others, or the administration of justice, might not offend
section 2(b) of the Charter.49 In R. v. C.ER.B.,50 Smith J. refused to grant
43See Re Regina and Several Unnamed Persons (1983) 44 O.R. (2d) 81, (1983) 8 C.C.C. (3d)
528 (H.C.) [hereinafter cited to O.R.], in which a number of accused charged with gross in-
decency applied unsuccessfully for an order prohibiting the publication of their names. The
judgment, at page 84, quoted with approval Dickson J.’s reference to Halsbury in Maclntyre:
“As a general rule the sensibilities of the individuals involved are no basis for exclusion of the
public form judicial proceedings.” The case represents a situation where consensual offenses
were alleged and the harm cuased to individuals by disclosure was likely far greater than any
harm to the community by the offense. It appears that the issue of publication of identities
depends not on the “sensibilities of the individuals involved” but rather with the sensibilities
and ethics of the journalists involved.
44See Dickson J. in Maclntyre, supra, note 6, 187-9.
45(1983) 41 O.R. (2d) 113, (1983) 3 C.C.C. (3d) 515 (C.A.) [hereinafter cited to O.R.]. This
decision is an appeal from the judgment of Smith J. who issued a declaration that s. 12 of the
Juvenile Delinquents Act, R.S.C. 1970, c. J-3 was unconstitutional and inoperative: see Re
Constitutional Validity of Section 12 of the Juvenile Delinquents Act (1982) 38 O.R. (2d) 748,
(1982) 70 C.C.C. (2d) 257 (H.C.).
46R.S.C. 1970, c. J-3. For pre-Charter considerations of this provision see C.B. v. The Queen
[1981] 2 S.C.R. 480, (1981) 62 C.C.C. (2d) 107 [hereinafter cited to S.C.R.]; Re Juvenile De-
linguents Act (1975) 13 O.R. (2d) 6, (1975) 29 C.C.C. (2d) 439 (Prov. Ct. Fain. Div.); ReProulx
and The Queen (1975) 27 C.C.C. (2d) 44 (Ont. Prov. Ct., Fam. Div.).
47See C.B. v. The Queen, supra, note 46, 488-9.
48Re Southam Inc. and The Queen, supra, note 45, 134.
49Ibid., 134.
50(1982) 30 C.R. (3d) 80 (Ont. H.C.).
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
663
relief under section 24 of the Charter in respect of an order by a County
Court judge prohibiting publication, until the trial was completed, of the
fact that a change of venue application had been made. In dismissing the
application on behalf of a newspaper publisher, Smith J. concluded that a
“weighing process must always take place in each individual case and, the
right to a fair trial being paramount, an appellate court or a court of com-
petent jurisdiction will always be loath to interfere with the exercise of
discretion”. 5′ A similar recognition of the paramountcy of fair trial interests
arose in R. v. Banville,52 a case in which an American reporter was convicted
of failing to comply with an order made pursuant to section 467(1) of the
Criminal Code by publishing a report on a preliminary hearing. On appeal,
it was argued that section 467(1) could not be justified as a reasonable limit
prescribed by law within the meaning of section 1 of the Charter. In dis-
missing the appeal, Hoyt J. distinguished between preventing an open trial
and merely delaying the publication of evidence until some point in the
future. 53 A further case, Re Smith54 arose in the context of extradition pro-
ceedings following the death of John Belushi. At the bail hearing stage, an
order was made, at the request of counsel, that all evidence and submissions
should not be published. A representative of the media challenged this order
under section 24 of the Charter, arguing that the ban on publicity infringed
the right of freedom of the press under section 2(b). In examining the im-
pugned order, Linden J. noted that the ban was temporary and neither
denied access to the courtroom nor prohibited the publication of the dis-
position.5 5 Accordingly, he concluded that the order was premised on leg-
islation which constituted a reasonable limit on freedom of the press. 56 The
Ontario Court of Appeal agreed with Linden J.’s decision.5 7
For those who are influenced by the American treatment of this issue, 58
attention should be paid to the appellate decision in Re Smith where Thor-
son J.A. discusses the constitutional history and structure of criminal pro-
cedure which applies in the United States. 59 As Bender points out, the function
51bid., 86.
52(1983) 45 N.B.R. (2d) 134, (1983) 34 C.R. (3d) 20 (Q.B.), an appeal from (1982) 41 N.B.R.
(2d) 114, (1983) 30 C.R. (3d) 59 (Prov. Ct.) [hereinafter cited to N.B.R.].
53Ibid., 137-8.
54Also known as Re Global Communications Ltd and A.G. for Canada (1983) 42 O.R. (2d)
13, (1983) 5 C.C.C. (3d) 346 (H.C.) [hereinafter cited to O.R.].
55Ibid., 20.
561bid., 23.
57See Re Smith; Global Communications v. California and A.G. for Ontario (1984) 38 C.R.
(3d) 209 (Ont. C.A.).
58See, for example, the comments of David Lepofsky, Constitutional Right to Attend and
SpeakAbout Criminal Court Proceedings-An Emerging Liberty (1983) 30 C.R. (3d) 87; Section
2(b) of the Charter and Media Coverage of Criminal Court Proceedings (1983) 34 C.R. (3d) 63;
Annotation to R. v. Sophonow (1983) 34 C.R. (3d) 287, 288-9.
59Supra, note 57. Lepofsky argues that prior restraint in the form of gag orders should be
REVUE DE DROIT DE McGILL
[Vol. 29
imposed by section 1 of our Charter imposes a different form of constitu-
tional adjudication. 60 Any balancing of competing social interests comes
into play not at the stage of defining constitutional rights but only through
the application of section 1 when asking whether the impugned legislation
represents a “reasonable limit” that can be demonstrably justified in a free
and democratic society.6′ The hardest section 1 cases will be those which,
like “fair trial” and “freedom of the press”, involve a conflict between
constitutionally protected values. Care must be taken to ensure that pro-
tections contemplated by the framers of our constitution are preserved and
not emasculated in the haste to accelerate the evolution of a more recently
recognized freedom. 62 Thus, caution must be exercised when looking to the
American experience.
It is worth noting that the American position is not clear enough to be
characterized as stating an absolute preference for public access and freedom
of the press. In 1979, the United States Supreme Court held that the Sixth
Amendment’s guarantee of a public trial was personal to the accused and
rejected in favour of the control of irresponsible reporting by means ofjury selection procedures,
changes of venue and the exercise of the contempt power. With respect to contempt, and
following the lead of the Law Reform Commission of Canada, Report No. 17: Contempt of
Court (1982), Bill C-19 attempted to provide a codification. The proposed section 131.11(1)
would make it an offence to knowingly publish material “that creates a substantial risk that
the course ofjustice in any particular civil or criminal judicial proceeding pending at the time
of publication will be seriously impeded or prejudiced”. However, a “judicial proceeding” in
the criminal context, as defined in section 131.1 l(2)(b), does not commence until process has
been issued for the accused’s arrest, the accused has appeared in court or an indictment pre-
ferred. Thus, the search warrant stage is likely not protected by this provision.
6See Bender, The Canadian Charter of Rights and Freedoms and the United States Bill of
Rights: A Comparison (1983) 28 McGill L.J. 811. See also Manson, Annotation to Re Smith;
Global Communications (1984) 38 C.R. (3d) 210.
61This mode of analysis has been offered by a number of judges, including McDonald J. in
Soenen v. Director of Edmonton Remand Centre (1983) 48 A.R. 31, (1983) 35 C.R. (3d) 206
(Q.B.) and Lambert J.A., dissenting, in R. v. Smith (1984) 8 D.L.R. (4th) 565, (1984) 39 C.R.
(3d) 305 (B.C. C.A.).The formulation of some guaranteed rights, such as the protection against
” unreasonable search and seizure”, will require some balancing of interests at the definition
stage. However, this is not a question of looking for “rationality in furthering some valid
government objective”: per Dickson J. in Hunter v. Southam Inc. supra, note 2.
62The recent unreported Supreme Court of Canada decision A.G. Quebec v. Quebec Asso-
ciation of Protestant School Boards (26 July 1984) exemplifies the importance of discerning
the intention of the framers of our constitution as it relates to the scope of guaranteed rights
and freedoms. That case held that the class of persons protected by s. 23 of the Charter could
not be redefined by provincial legislation and, thus, the “language of instruction” provisions
of Quebec’s Charter of the French Language R.S.Q. 1977, c. C-Il could not be legitimized by
s. 1 of the Charter.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
665
did not give the public or the press an enforceable right of access to a pre-
trial suppression hearing. 63 Even the subsequent case of Richmond News-
paper Inc. v. Virginia, which concluded that the First and Fourteenth
Amendments guaranteed the public and the press a right of attendance at
criminal trials, contained reservations about pre-trial matters.64 The lead
judgment of Chief Justice Burger explicitly distinguished the pre-trial con-
text as it relates to the “constitutional demands of fairness”. 65 As well, the
judgment was followed by a footnote which stated that “our holding today
does not mean that First Amendment rights of the public and representatives
of the press are absolute” and that reasonable limitations may be imposed
in individual cases. 66
At the pre-trial stage, 67Canadian courts have uniformly voiced pref-
erence for the concern to avoid prejudice at a subsequent trial. Absolute
prohibitions against access have been struck down. However, provisions
and orders which permit access to the public and the media, but which
restrict temporarily what can be published, have all survived challenges
brought on the grounds of public access and freedom of the press. The
resolution of confficts between competing values involves an inquiry into
the potential prejudice which can result to an accused from publication or
63Gannett Co. v. De Pasquale 443 U.S. 368, 99 St. Ct 2898 (1979), with Blackmun, Marshall
and White dissenting.
64448 U.S. 555, 100 S. Ct 2814 (1980) [hereinafter cited to U.S.]. See the discussions of this
in Brailas, Press Access to Government-Controlled Information and the Alternative Means Test,
(1981) 59 Texas L. Rev. 1279; Note, The Executioner’s Song: Is There a Right to Listen? (1983)
69 Va L. Rev. 373; Cox, The Supreme Court, 1979 Term: Freedom of Expression in the Burger
Court (1980) 94 Harv. L. Rev. 1, 20-6. Cox states, at page 23: “the Court was so badly splintered
and the opinion delivered by the Chief Justice is woven of so many strands that the decision
can stand only for the proposition that the public has a constitutional right to attend the kind
of criminal trial that has historically been open to the public, unless circumstances justify its
closure.”
65lbid., 580.
66Ibid., 581-2, note 18.
67The case of R. v. Sophonow (1983) 21 Man. R. (2d) 110, (1983) 34 C.R. (3d) 287, (1983)
6 C.C.C. (3d) 396 (C.A.) involved an application to an appellate court for an order restricting
publication of material and commentary about guilt or innoncence after conviction but pending
an appeal. A number of articles had been published in which an individual who had not testified
at the trial claimed that she had been sexually assaulted by the “real killer” after the appellant
had been arrested. The appellant argued that the newspaper articles could prejudice a future
trial, if ordered, in that it would be difficult to explain to the jury the absence of the person
at the centre of the articles if she should disappear and not be available as a witness. In
concurring judgments, both Hall and Matas JJ.A. were of the view that the contempt power
and existing procedural safeguards would protect the appellant’s right to a fair trial. It is
significant, however, that Matas J.A., at page 115, was concerned to “reaffirm the importance
of maintaining freedom of the press in balance with other freedoms and rights”. Given that
the application arose after conviction and during the appellate process, the case may be an
example of how interests can vary as the process progresses.
McGILL LAW JOURNAL
[Vol. 29
broadcast. The first question must be whether there will be a risk to a fair
trial viewed from the perspective of how that concept has evolved in Canada.
While time may provide an expansion of the elements of a fair trial, the
framers of the constitution surely did not intend any depreciation of those
aspects which had already been developed. As Thorson J.A. has said:
The right to a fair trial is a fragile right. It is quite capable of being shattered
by the kind of publicity that can attend a bail hearing and, once shattered, it
may, like Humpty Dumpty, be quite impossible to put together again.68
Recognizing the risk to an accused, one must also appreciate that other
participants – witnesses and victims – may suffer harm from disclosure.
To the extent that privacy may be recognized as a constitutionally protected
interest,69 risks of this sort may, in particular cases, add another factor to
the crucible of competing constitutional entitlements. But one must also
assess the impact on freedom of the press. A restriction on the ability to
publish material until a later time, so long as access is ensured, does not
constitute a denial but rather, more accurately, is a limitation. 70 Further-
more, the constitutional validity of legislation is a different question from
its applicability in an individual case. A valid enactment can, on particular
facts, result in an unjustifiable infringement or limitation of a constitution-
ally guaranteed right. 7′ Thus, in an individual case where it can be shown
that there is no risk to the right to a fair trial, a limitation on the freedom
of the press may be unjustifiable. In such cases, the interests of privacy must
still be considered but may not prevail. However, a statutory provision
premised on a presumption of risk to the accused conforms with the concern
to preserve the impartiality of the trier of fact and keep him free from the
potential prejudice which can be caused by indiscreet and unrestricted pub-
lication. With respect to the search and seizure stage of the criminal process,
and consistent with other pre-trial stages, attention must be paid to the need
to protect the fairness of a subsequent trial. From the constitutional per-
spective, giving priority to the protection of the right to a fair trial when
faced with competing claims is both reasonable and sound.
68Supra, note 57, 228.
69See Griswold v. Connecticut 381 U.S. 479 (1965) and Roe v. Wade 410 U.S. 113 (1973)
which, while not dealing directly with privacy in the sense of protection from unwanted dis-
closure of information, assert the notion of constitutionally protected “zones of privacy”.
70The distinction between “denial” and “limit” was drawn by Desch~nes C.J.S.C. in Quebec
Association of Protestant School Boards v. A.G. Quebec [1982] C.S. 673, (1982) 140 D.L.R.
(3d) 33. That case did not, however, involve a conflict between constitutional entitlements.
Rather it brought into question provincial legislation which conflicted directly with a consti-
tutional right: see supra, note 62.
71For example, with respect to s. 8 of the Charter and the search provisions of the Narcotic
Control Act, see R. v. Rao, supra, note 2, per Martin J.A. speaking for a five judge panel.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
667
III. Solicitor-Client Privilege
A. The Evidentiary Rule
Communications between a client and his legal advisor are privileged
and kept confidential in order that advice can be given on the basis of a
frank and truthful account of events without fear of prejudice arising from
the discussion.72 The privilege exists to protect the client and attaches to
any communications, regardless of whether litigation is contemplated, so
long as the purpose is to obtain professional legal advice.73 While com-
munications which themselves constitute a crime, or which are made to
facilitate a crime, are not protected, 74 the privilege extends to protect com-
munications by the client with agents and subordinates of his solicitor.75
Thus, some prefer to use the broader label “legal professional privilege”. 76
The rationale of the solicitor-client privilege clearly stresses the im-
portance of the relationship to the fair and efficient administration ofjustice.
Consequently, all communications properly within the umbrella of the re-
lationship must be kept confidential. Despite general acceptance of this
rationale, the scope of the protection which it generated was restricted for
many years to matters of evidence. 77 The privilege could only be asserted
during the conduct of litigation to prevent tendering protected documents
or communications into evidence without the client’s consent or waiver.
Though the rationale for the solicitor-client privilege appeared to shelter the
relationship itself, restricting the scope of the privilege to evidentiary matters
rendered inchoate and inadequate any right to confidences within the
relationship.
This narrow view of the scope of the privilege was particularly apparent
with respect to the issue of search and seizure. Because the privilege was
72See Solosky v. The Queen [1980] 1 S.C.R. 821, 835, (1979) 50 C.C.C. (2d) 495 [hereinafter
cited to S.C.R. as Solosky], where Dickson J. quoted the classic statement of the rationale by
Jessel M.R. in Anderson v. Bank of British Colombia (1876) 2 Ch. 644, 649. Also see Mc-
Naughton, ed., Wigmore on Evidence (1961), vol. 8, para. 2291 [hereinafter Wigmore].
73See Solosky, supra, note 72, 835; Wiginore, supra, note 72, para. 2292; Sir Rupert Cross,
Evidence 5th ed. (1979) 282-3.
74See Solosky, supra, note 72, 835 and Wiginore, supra, note 72, para. 2298.
75See Cross, supra, note 73, 283; Wiginore, supra, note 72, para. 2301; McLachlin, Confi-
dential Communications and the Law of Privilege (1977) 11 U.B.C. Law Rev. 266, 275.
76See, e.g., Cross, supra, note 73, 282-95.
77See R. v. Colvin [1970] 3 O.R. 612, 617, (1970) 1 C.C.C. (2d) 8 (H.C.) per Osler J. Osler
J. subsequently recanted in Re Pressvood and International Chem-Alloy Corp. (1975) 11 O.R.
(2d) 164, (1975) 36 C.R.N.S. 332 (H.C.). See also Chasse, The Solicitor-Client Privilege and
Search Warrants (1977) 36 C.R.N.S. 349, 350; Kasting, Recent Developments in the Canadian
Law of Solicitor-Client Privilege (1978) 24 McGill L.J. 115, 115-7.
REVUE DE DROIT DE McGILL
[Vol. 29
viewed solely as a rule of evidence,78 many judges held the view that search
warrants could be issued authorizing the search of lawyers’ offices and the
seizure of material which might properly be the subject of solicitor-client
privilege. Conversely, others ruled that the privilege should be recognized
by the justice at the time a warrant to search was requested, and some held
it applicable in the course of a motion to quash or upon application to
return things seized. 79 By 1979, when the Supreme Court decided Solosky
v. The Queen,80 the prison mail-opening case, progress beyond a pure rule
of evidence was apparent. However, questions still remained as to the extent
of the protection afforded the solicitor-client relationship.8′
B. The Decision in Desc6teaux
The evolution of solicitor-client privilege into a substantive rule or
matter of property has now been clearly recognized in the case of Desca-
teaux.82 This decision also represents a refined re-statement of the operation
and scope of the privilege and the right to confidentiality in both the evi-
dentiary and substantive contexts. The unanimous judgment delivered by
Lamer J. dealt with the issuance and execution of a search warrant in respect
of a legal aid office. The warrant, issued pursuant to section 443 of the
Criminal Code, authorized the seizure of an application form and other
related documents as evidence that a legal aid applicant had misrepresented
his income in order to qualify for assistance and thus obtain a benefit by
false pretense. Lamer J. stated that individuals are entitled as of right to
have their communications with their lawyer kept confidential. He added
that this right to confidentiality, although evidentiary in origin, must be
recognized as a substantive rule with broader applicability.8 3 The same con-
ditions precedent, limitations and exceptions, which had been judicially
T. (1977) 2 C.R. (3d) 30 (Que. S.C.).
78See R. v. Colvin, supra, note 77; Re Alder and The Queen, supra, note 30; A.G. Quebec v.
79See Re Director of Investigation and Research and Canada Safeway Ltd (1972) 26 D.L.R.
(3d) 745, [1972] 3 W.W.R. 547 (B.C. S.C.); Re Steel and The Queen (1979) 21 C.C.C. (2d) 278
(Ont. Prov. Ct.); Re Director of Investigation and Research and Shell Canada [1975] EC. 184,
(1975) 22 C.C.C. (2d) 70 (C.A.); Re Presswood and International Chem-Alloy Corp., supra, note
77; Re B.X. Development Inc. and The Queen (1976) 31 C.C.C. (2d) 14, (1976) 36 C.R.N.S.
313 (Que. S.C.); Re Borden & Elliot; supra, note 1.
8OSupra, note 72, 836 where Dickson J. discusses how “[r]ecent case law has taken the
traditional doctrine of privilege and placed it on a new plane”. See also, McLachlin & Thomas,
Solicitor-Client Privilege? (1981) 2 Sup. Ct. L. Rev. 387.
81As McLachlin & Thomas, supra, note 80, suggest, Solosky is ambiguous on this issue. At
one point, Dickson J. looked for “the evidentiary connection”; later he spoke of a fundamental
right “to communicate in confidence with one’s legal adviser”. Clearly, he recognized that
Canadian courts were “moving towards a broader concept of solicitor-client privilege”, but
chose, in the context of the case before him, not to attempt to define it.
82Supra, note 9.
83Ibid., 870-3.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
669
crafted in the evidentiary context and explained by Dickson J. in Solosky,
applied to the substantive rule.84 Its foundation is the uniqueness of the
relationship between client and lawyer.85 The substantive rule is encapsu-
lated in the following quotation from Wigmore:
Where legal advice of any kind is sought from a professional legal adviser in
his capacity as such, the communications relating to that purpose, made in
confidence by the client, are at his instance permanently protected from dis-
closure by himself or by the legal adviser, except the protection be waived. 86
Before applying the rule to the question of search and seizure and the facts
of the particular case, Lamer J. formulated the four elements of the sub-
stantive rule:
1. confidentiality can be raised in any circumstances where disclosure without
the client’s consent may result;
2. when the legitimate exercise of a right comes into conflict with the right to
confidentiality in solicitor-client communications, the issue should be resolved
in favour of confidentiality “unless the law provides otherwise”;
3. when there exists lawful authority to act in a way which might interfere with
confidentiality, “the decision to do so and the choice of means of exercising
that authority” should be structured so as not to impair confidentiality “except
to the extent necessary in order to achieve the ends sought by enabling legislation”;
4. statutes which can interfere with confidentiality as contemplated in rules 2
and 3 above must be interpreted restrictively.87
The interaction of the rule of evidence and the rule of substance is
interesting. From the evidentiary perspective, a third party to the solicitor-
client relationship who is privy to confidential material is not prohibited
from introducing it into evidence. However, the substantive rule would
require the trial judge to balance the respective interests of breaching and
protecting confidences:
The trial judge must satisfy himself, through the application of the substantive
rule (no. 3), that what is being sought to be proved by the communications is
important to the outcome of the case and that there is no reasonable alternative
form of evidence that could be used for that purpose. 88
84Ibid., 872-3.
851bid., 871.
86bid., 872.
87jbid., 875.
8SSbid., 876.
McGILL LAW JOURNAL
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This represents a refinement of the principles set out in Slavutych v. Baker 9
in that it requires an indication that the information has more than trifling
probative value and an inquiry into alternative sources of information. This
approach should also apply to obtaining evidence. The Newfoundland Court
of Appeal recently applied this analysis, without reference to Slavutych or
Descbteaux, in a case where a search warrant had been issued to seize hos-
pital records allegedly containing admissions made by an accused during
her stay for a court-ordered mental examination. 90 The court balanced the
competing interests and quashed the search warrant, concluding that the
integrity of the assessment process required maintenance of confidentiality. 91
In applying the evidentiary and substantive rules to the question of
search and seizure, Lamer J. noted that the solicitor-client relationship arises
not at the time a retainer is effected but earlier, when the client first ap-
proaches the lawyer or his office in order to obtain legal advice.92 Thus, all
preliminary discussions including those related to fees, financial ability and
other personal matters are protected, whether the lawyer ultimately acts for
the client or not.93 The issue is whether the object of the discussions with
the lawyer, associates or staff is the creation of a professional relationship.
Lamer J. added the essential qualification that communications about legal
problems or financial means, while ordinarily privileged, lose that character
“if and to the extent that they were made for the purpose of obtaining legal
advice to facilitate the commission of a crime”, or where the communication
itself “is the material element (actus reus) of the crime”. 94 Thus, with ref-
erence to the case before him, he concluded that the statements of financial
means contained in the seized forms were allegedly “criminal in themselves”
and could not benefit from any protection that would have been provided
by the substantive or evidentiary rule.95
89[1976] 1 S.C.R. 254, 260, which adopted Wigmore’s “four fundamental tests”:
1. The communications must originate in a confidencethat they will not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory main-
tenance of the relation between the parties.
3. The relation must be one which in the community ought to be sedulouslyfostered.
4. The injurythat would inure to the relation by the disclosure of the communication
must be greater than the benefit thereby gained for the correct disposal of litigation.
90See R. v. Waterford Hospital, supra, note 33.
91Ibid., 138. The Court remarked that the admissions allegedly made to a doctor could be
obtained by the alternative route ofsubpoening the doctor. Of course, an application by analogy
of Lamer J.’s analysis should result in precluding the oral testimony as well. See Manson,
Annotation to R. v. Waterford Hospital (1983) 35 C.R. (3d) 349.
92Descgteaux, supra, note 7, 876-8.
93Ibid., 877-8.
94Ibid., 881.
95Ibid., 894.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
671
Though not directly required to do so by the case before him, Lamer
J. addressed a number of procedural questions relating to section 443(1)(b)
and the solicitor-client privilege.96 In so doing, he faced two conflicting
interests: the quest for evidence and the right to confidentiality in solicitor-
client communications. He confirmed that the jurisdiction of the justice to
authorize a search depends on the reasonable belief that the search will
result in the seizure of material that will “afford evidence”. 97 Thus, on the
basis of the evidentiary rule of privilege, Lamer J. accepted the views of
Southey J. in Re Borden and Elliot and The Queen98 and concluded that
the justice would be without jurisdiction to issue a warrant in respect of
material that could not subsequently be received in evidence because of the
protection of solicitor-client privilege.99 If the material sought to be seized
appears to the justice to be protected by the evidentiary privilege, no warrant
can issue.
Where a search involves the solicitor-client relationship two hard cases
can arise: either the search is pursuant to section 443 (1)(a) or (c) and
involves material which cannot be protected by the evidentiary rule, or that
the material sought, while confidential, falls arguably into an exception to
the evidentiary rule. Although Lamer J. stated that the evidentiary rule
“seems to be applicable only” to searches pursuant to section 443(l)(b), he
concluded that the substantive rule applies to “any search affecting the right
of confidentiality”. I00 Accordingly, any search of a lawyer’s office or files
for material not subject to the evidentiary rule “should be limited to what
is absolutely necessary in order to seize the things for which the search was
authorized”.’ 0′ Even though there is material in a file which is no longer
confidential, the remainder of the file may be entitled to protection. More-
over, files relating to other clients will be confidential. Thus, he recognized
that the mere presence of police in a lawyer’s office, or even the risk of their
attendance, tends to create a “chilling effect”‘ 02 on the confidential nature
of the relationship, an effect which must be limited by restrictive conditions.
With this in mind, Lamer J. reached two significant conclusions. First,
he noted that the justice has the discretion to refuse to issue a warrant even
if the requirements of section 443 appear to have been met so long as the
961bid., 882-92.
97Ibid., 883.
981bid., 884. See Re Borden and Elliot and the Queen, supra, note 1.
991bid., 884-7 and 893.
MIbid., 888.
IO Ibid.
02This descriptive phrase appeared in Solosky, supra, note 72, 510. It was used in Appellant’s
factum with reference to the impact of intrusions on confidential relationships: see Procunier
v. Martinez 416 U.S. 396, 427 (1974); Minnesota Civil Liberties Union v. Schoen 448 E Supp.
960, 965 (1978).
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decision is reached judicially and not capriciously or arbitrarily. 10 3 The
nature of the place to be searched is a factor which might bear on the exercise
of discretion to deny the issuance of a warrant. In this regard, he suggested
that the tests in Re Pacific Press are applicable: is a reasonable alternative
source available and have reasonable steps been taken to obtain it from that
alternative source? 10 4 He qualified the Pacific Press test, however, because
of the need to preserve the utility of the search warrant as an investigative
tool which can assist in determining whether a crime has been committed,
by whom and whether evidence exists. Accordingly, “the reasonable alter-
native …
is not an alternative to the method of proof but to the benefits
of search and seizure of the evidence”. 05 This is a curious basis for a
qualification since, as Lamer J. pointed out, Pacific Press related solely to
section 443(l)(b), and the tests do not seem amenable to subsections (a)
and (c) which encompass the purely investigative role of search warrants.
Second, given concerns arising from the nature of the place to be searched,
the justice has the power to impose specific execution procedures circum-
scribing the search. Lamer J. went even further by indicating that the justice
has a duty to consider the execution procedures. He stated:
the justice of the peace must set out procedures for the execution of the warrant
that reconcile protection of the interests this right is seeking to promote with
protection of those the search power is seeking to promote, and limit the breach
of this fundamental right to what is strictly inevitable. 0 6
Specifically with respect to lawyers’ offices, he offered the following guidelines:
1. it would be desirable, as soon as a search warrant application is commenced
in respect of a lawyer’s office, to notify the Crown Attorney and “Bar author-
ities” who can provide assistance as to appropriate execution procedures; 0 7
2. “the search should be made in the presence of a respresentative of the Bar”; 0 8
3. if the justice of the peace is not “a judge by profession”, he would be “well
advised” to refer the application to a judge of a court of criminal jurisdiction
or even a superior court judge; 0 9
4. when material is seized, part of which may be’confidential, the material
should be examined by the justice;I 10
‘O3Desc6teaux, supra, note 7, 888-9.
’04Ibid., 889-90. See Re Pacific Press and the Queen (1977) 37 C.C.C. (2d) 487 (B.C. C.A.).
It should be noted that while the Pacific Press tests were specifically ruled applicable in cases
involving interference with fundamental freedoms, Lamer J. also raised the suggestion that
the tests could, arguably, be appropriate “whenever a search is sought to be conducted, under
443(l)(b), of premises occupied by an innocent third party”: Desc6teaux, ibid., 890.
10SIbid., 891.
O6Ibid.
’07Ibid.
08Ibid., 892.
109Ibid., 896.
“0 bid., 895.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
673
5. if any parts of the original are confidential, the unprotected portions should
be photocopied for use and the entire original sealed only to be opened by
judge’s order if, for example, the accused disputes the authenticity of the copied
portions.”I
At one point, Lamer J. asked himself whether search guidelines were not
the proper subject matter for Parliamentary redress rather than judicial
attention. After characterizing the absence of a framework as a legislative
gap, he concluded that the judiciary had an obligation to use its discretion
to preserve the confidentiality of solicitor-client communications.112
C. Proposed Section 444.1
In Desc6teaux, the Supreme Court of Canada faced two elements of
the administration of criminal justice which were in conflict: the utility of
search powers and the confidentiality of the solicitor-client relationship. The
latter interest prevailed. Accordingly, the integrity of the professional re-
lationship is subject to intrusion only in cases where the material sought
does not appear to be privileged in itself, and, even then, only when no
alternate source of evidence exists. The proposed amendments go some way
to codifying this protection. Section 444.1 will prohibit the copying or sei-
zure of any document “without affording a reasonable opportunity for a
claim of solicitor- client privilege”.’13 If an objection to disclosure is made
on the basis of solicitor-client privilege, the document must be sealed, with-
out copying or examination, and delivered into the custody of the sheriff.114
The client or lawyer then has fourteen days to apply to a judge for an
appointment to determine “the question whether the document should be
disclosed”.1 5 Thereafter, he or she attends at the appointed time to apply
for an order determining the question.1 6 Such applications are made to a
“judge of a superior court of criminal jurisdiction of the province where
the seizure was made”. 1 7 On application, the judge may examine the doc-
ument and “may allow the Attorney General to inspect the document and
make representations”.118 If the judge is “of the opinion that the document
should be disclosed”, an order will issue requiring the custodian to deliver
it to the officer who effected the seizure.” 9 If the conclusion is that the
document should not be disclosed, the document must be resealed and an
I” Ibid., 895-6.
1″21bid., 892.
’13Section 444.1(10).
” 4Section 444.1(2).
’15Section 444.l(3)(a)(i).
116Section 444.1(3)(c).
’17Section 444.1(1)(b).
I sSection 444.1(6)(b) and (c).
“19Section 444. l(6)(d)(ii).
McGILL LAW JOURNAL
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order for its return issued. 120 In either case, the judge is obliged to “deliver
concise reasons for the determination in which the nature of the document
is described without divulging the details thereof’.’ 2′ If an application is
not made or not followed through, the Attorney General can apply to a
judge for an order requiring the custodian to deliver the document to the
officer who seized it.122 Reflecting a sensitivity to the subtleties of the evi-
dentiary rule, there is a sub-section in the proposed legislation which ensures
that a document considered to be privileged continues to be protected by
privilege even though the Attorney General was permitted to inspect it
during the course of the application. 23
The legislative scheme is unsatisfactory in two ways. First, the proce-
dure is triggered only in respect of documents “in the possession of a law-
yer”. Desc6teaux involved the search of a legal aid office, and it is understand-
able that Lamer J. would direct his attention to the issue of searching law-
yers’ offices. Parliament, however, is obliged to take a more expansive view.
The privilege and the right to confidentiality are vested in the client. The
procedures in section 444.1 provide a mechanism for adjudicating claims
of privilege only when the documents are seized from the custody or pos-
session of a lawyer. One must recognize that documents and communica-
tions generated by, and within, the solicitor-client relationship may be in
the possession of the client or someone else. The case of Solosky, 124 relied
upon by Lamer J., related to correspondence between a penitentiary prisoner
and his lawyer. While that case did not involve a search warrant, it provides
a good example of a situation where the professional relationship begs for
protection beyond the limits of the lawyer’s office.’ 25 Completeness requires
an extension of the prohibition in section 444.1 to ensure that documents
cannot be seized without first providing an opportunity to object on the
ground of solicitor-client privilege. Given that some degree of caution might
be expected when a lawyer’s office is involved, it can be argued that it is
more important to the integrity of the lawyer-client relationship to extend
the mechanism for asserting claims of privilege to situations where the
existence of the relationship might not be so apparent. The present Income
Tax Act provisions dealing with solicitor-client privilege are also restricted
’20Section 444.1(6)(d)(i).
’21Section 444.1 (6)(d).
’22Section 444.1(8).
23Section 444.1(7).
124Supra, note 72.
125Solosky, supra, note 72, involved mail exchanged between a solicitor and his prisoner
client for the purpose of obtaining legal advice whether emanating from the lawyer or the
client. Mail had been opened and examined by penitentiary authorities at Millhaven Institution.
Hence, it appears that none of the correspondence in question was actually in the possession
of the solicitor.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
675
to documents in the possession of a lawyer. 26 These have been criticized
on the ground that “if a statutory mechanism for the invocation of solicitor-
client privilege is to be employed, it must be comprehensive and apply to
all documents regardless of their location”. 127 The Law Reform Commis-
sion’s Working Paper on search warrants has recommended that “the pro-
tection should extend to materials in possession of the client as well as the
solicitor”. 28
The second defect in the legislative scheme relates to the process of
issuing and executing warrants. Lamer J. directed substantial attention to
these areas, and it is regrettable that the proposed legislation ignores them.
DescOteaux clearly states that there is no jurisdiction to issue a warrant in
respect of material which is privileged. As well, Lamer J. offered a number
of suggestions about problems inherent in searching law offices and the ways
in which searches should be circumscribed. If these matters are to be ad-
dressed on a search warrant application, the justice’s obligations should be
codified and the officer applying must be frank about material which may
be privileged and premises which may contain other confidential material.
An analogy can be drawn to the treatment of privilege in the context
of wiretap applications. The Criminal Code only permits interceptions at a
solicitor’s office, residence or a place where consultation with clients occurs
if there are reasonable grounds to believe that the solicitor or an associate
is a party to an offence. 129 Furthermore, the authorizing judge “shall include
… such terms and conditions as he considers advisable to protect privileged
communications between solicitors and clients”. 30 Recently, in R. v. Cham-
bers (No. 1), Spencer J. indicated that failure to disclose to the authorizing
judge the full extent of the risk to privileged communications “may be a
matter which vitiates the authorizations”.’ 3′ Ultimately, he opened the sealed
packets, ruled on other grounds that the authorizations were invalid and
12 6See s. 232, formerly R.S.C. 1970, c. I-5, s. 187. Note that the proposed s. 444.1(18) expressly
provides that the provision “does not apply in circumstances where a claim of solicitor-client
privilege may be made under the Income Tax Act”.
127See Manitoba Law Reform Commission, Report on Enforcement of Revenue Statutes
(1979) 25, quoted in Working Paper No. 30, supra, note 3, 257.
’28Supra, note 3, 256, Recommendation 40.
129Section 178.13(1.1), enacted by S.C. 1976-77, c. 53, s.9.
130Section 178.13(1.2), enacted by S.C. 1976-77, c. 53, s.9. While the provision goes some
way towards protecting privileged communications, its inadequacy has been the subject of
criticism by D. Watt, Law of Electronic Surveillance in Canada (1979) 175-7, and Cohen, supra,
note 5, 169-75.
131R. v. Chambers (1983) 34 C.R. (3d) 302, 310 (B.C. S.C.). This comment was made in the
context of the ruling by Spencer J. that he was entitled to open the sealed packet, a decision
which may now be questionable in light of the judgment of McIntyre J. in Wilson v. R (1983)
37 C.R. (3d) 97 (S.C.C.). Compare the views of Dickson J. in Wilson, 107-13.
REVUE DE DROITDE McGILL
[Vol. 29
directed a verdict of acquittal.’ 32 The British Columbia Court of Appeal
allowed an appeal against the directed verdict. 133 With respect to the ques-
tion of solicitor-client interceptions, the Court held that the authorizing
judge is not required to impose special terms and conditions. In his con-
curring judgment, Anderson J.A. considered the Court’s power to impose
conditions when a solicitor-client conversation was involved and stated that
“in most cases… a protective clause should be inserted in the authorization
to protect persons other than the named targets”. 134 It should be noted that
the Court did not comment on the obligation to disclose the full nature of
potential risk to privileged material, since it was of the view that the in-
terception application in fact revealed the “true role” played by the lawyer. 135
What is significant, however, is the concern reflected by the Criminal Code
and the judiciary to protect the lawyer-client relationship from improper
intrusions. It would seem that an obligation to disclose potential risk must
be implied by the statutory provisions in order to ensure proper consid-
eration by the authorizing judge. Surely the Criminal Code should pay sim-
ilar attention to the intrusive risks of searches.
With respect to execution, it should be noted that the only qualification
in the Criminal Code is section 444, which provides that warrants “shall
be executed by day, unless the justice, by the warrant, authorizes execution
of it at night”. 1 36 Lamer J. was concerned that the Crown Attorney’s office
and officials of the local Bar be consulted and assist in developing appro-
priate limits and controls for the search of a lawyer’s office. His concern
was that clearly privileged material, particularly confidential material re-
lating to other clients, not be violated. Section 445 authorizes an officer
executing a search warrant to “seize, in addition to the things mentioned
in the warrant, anything that on reasonable grounds he believes has been
obtained by or has been used in the commission of an offence”. 137 This
provision, without qualification, certainly encourages officers to be, at the
132R. v. Chambers (No. 2) (1983) 34 C.R. (3d) 311 (B.C. S.C.).
’33R. v. Chambers (1983) 9 C.C.C. (3d) 132, (1983) 37 C.R. (3d) 128 (B.C. C.A.).
134Ibid., 141. Anderson J.A. showed some concern about an obligation to disclose by indi-
cating that a ruling of invalidity may have resulted if the police practice had been both to
intercept conversations between a solicitor and clients who were not named targets and then
to forward information to the Minister of National Revenue.
135Ibid., 140.
136Enacted by S.C. 1953-54, c. 51, s. 430. Its statutory predecessors can be traced back to
R.S.C. 1886, c. 50, s. 101. The common law prohibited nocturnal searches: see R. v. Adams
[1980] Q.B. 575, [1980] 1 All E.R. 473 (C.A.).
‘ 37This was a new provision introduced by S.C. 1953-54, c. 51, s. 431. It will be modified
slightly by s. 107 of Bill C-19 so as to extend its scope to include telewarrants and freezing
orders. However, there is no proposed amendment to restrict its operation to items in “plain
view”. See the discussion above at note 138 et seq. and Recommendation 24 of Working Paper
No. 30, supra, note 3.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
677
very least, inquisitive. The Law Reform Commission Working Paper points
out that the Metropolitan Toronto Police training manual instructs officers
not to confine their attention to items specified in the warrant. 1 38 The Com-
mission’s empirical research indicated that “33.7% of seizures represented
objects that the issuer of the warrant did not, on evidence before him, order
seized”. 139 Without specific regard to the offices of lawyers and solicitor-
client privilege, the Working Paper recommends:
A peace officer executing a search warrant should be empowered to search only
those areas, within the places and vehicles, or upon the persons mentioned in
the warrant, in which it is reasonable to believe that the objects specified in
the warrant may be found. A peace officer performing such a search should be
empowered to seize, in addition to “objects of seizure” specified in the warrant,
other “objects of seizure” he finds in plain view.’ 40
By including “plain view”,’ 4′ the recommendation is clearly too broad to
cover the situation of lawyers’ offices in a way that discourages intrusions
into confidential relationships. Legislation should require the justice to con-
sider appropriate execution procedures in order that warrants contain pro-
cedures which are tailored to the circumstances of each case and which
reflect, as a paramount consideration, the substantive rule defined by Lamer
J. The broad scope of section 445, as it relates to the seizure of items not
specified in the warrant, must be qualified so that, in respect of lawyers’
offices, only specified items can be seized in the absence of an express au-
thorization to extend seizure to material in “plain view”. Again, Mr Justice
Lamer’s suggestion about consultation with the local Crown Attorney and
officials of the Bar might provide the necessary encouragement to ensure
that searches are authorized in ways that interfere with confidentiality only
to the extent absolutely necessary in order to achieve the object of the
authorizing legislation.
I. Public Interest Immunity
A. Evolution
It has long been recognized that, in some cases, documents relating to
government activities ought not to be disclosed in the course of litigation. 142
In Commonwealth jurisdictions, this form of immunity has been tradition-
ally and misleadingly known as Crown privilege. Elsewhere, it is called
138Supra, note 3, 213, where a police manual is quoted: “Be alert for anything unlawful”.
1391bid., 213. The methodology of the report is described at ibid., 80.
14Obid., 212.
141This appears to be an adoption of the American doctrine. See the discussion in Working
Paper No. 30, supra, note 3, 225-6. Also see Coolidge v. New Hampshire 403 U.S. 443 (1971).
142See generally Cross, supra, note 73, 306-13; Brun, L’Executifet ses documents: orientation
rcente du droit canadien (1974) 15 C. de D. 659; Bushness, Crown Privilege (1973) 51 Can.
McGILL LAW JOURNAL
[Vol. 29
executive privilege.143 At its heart lies the idea that the public interest is
best served in some cases by preventing public disclosure of documents
relating to government activities. Hence, the more recent and appropriate
label has become public interest immunity. 44 The public has a significant
interest both in the integrity of the administration of justice and in gov-
ernment activities. Some government activities, if they are to achieve their
goals, require confidentiality. The scope of government involvement in the
lives of individuals and the affairs of the community has increased sub-
stantially. It is inevitable that occasions will arise when parties to the liti-
gation process seek to adduce into evidence material relating to government
activity. The disclosure of such material might cause harm to the interests
of the state with little countervailing benefit to the administration ofjustice.
The harm is usually directed to matters of national security, national defence
or international relations, but other governmental interests have also been
recognized.145 The nature of the potential harm depends on the role which
the government has played. The governmental role may be consistent with
its historical function as defender of the security of the nation. With in-
creasing frequency, however, the government participates in the trade and
commerce of the community. To prevent the risk of harm to the public
interest, the law of evidence has provided that officials or Ministers of the
Crown can object to the disclosure of a document either because of its
particular contents or because it falls into a class of documents which is
entitled to protection.’ 46 It is an understatement to suggest that the task of
weighing claims as between the institutions of government and the admin-
istration of justice is inherently difficult and problematic. The threshold
question, however, is who should perform the function: the courts or Min-
isters of the Crown.
Bar. Rev. 551; Lederman, The Crown’s Right to Suppress Information Sought in the Litigation
Process: The Elusive Public Interest (1973) 8 U.B.C. Law Rev. 272; Molnar, Crown Privilege
(1977-78) 42 Sask. L. Rev. 173; Tanning, Crown Privilege in Regard to Upper Echelon Gov-
ernment Documentation (1981) 30 U.N.B.L.J. 121; and Wells, Crown Privilege (1976) 3 Queen’s
L.J. 126.
’43See generally Wigmore, supra, note 72, para. 2378 and R. Berger, Executive Privilege: A
Constitutional Myth (1974) 215-33.
‘”This contemporary phraseology flows from the recognition that, unlike other examples of
privilege which exist to protect a litigant and can be waived by him, this protection arises in
the public interest to avoid jeopardizing by disclosure a significant state interest. See the remarks
of Viscount Simon in Duncan v. Camell, Laird, & Co. [1942] A.C. 624, 641-2; Lederman,
supra, note 142, 272-4.
145See Cross, supra, note 73, 306; Bushnell, supra, note 142, 551-2; Jacob, Discovery and
Public Interest [1976] Public Law 134, 142-152.
’46The extension to include “class” claims can be attributed to Viscount Simon in Duncan
v. Camell, Laird, supra, note 144, 642; see Lederman, supra, note 142, 276.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
679
In Robinson v. State of South Australia (No. 2), 14 7 the Judicial Com-
mittee of the Privy Council inquired into an Australian High Court ruling
which upheld a ministerial claim for privilege without examining the doc-
uments. The action involved a claim in negligence by a group of farmers
relating to the manner in which the government stored wheat pursuant to
a state-run wheat marketing scheme. Recognizing the probative value of the
documents in question, the Judicial Committee commented that the inter-
ests of justice were “only to be overborne by the gravest considerations of
state policy or security”. 48 It ruled that the documents ought to have been
examined in order to weigh the adequacy of the claim for privilege. 149
In 1942, a claim for Crown privilege was argued in the House of Lords
in Duncan v. Cammell, Laird.15 0 The case involved an action for damages
in negligence brought by the survivors of crew members when the experi-
mental submarine Thetis sank on a trial run in 1939. An objection to pro-
duction of government documents was made by the First Lord of the Admiralty
on grounds of public interest, and the objection was upheld by a Master
without examination. The case arose during wartime and the documents in
question contained military secrets about new weapons. After a series of
unsuccessful appeals, the issue eventually reached the House of Lords where,
again, the original objection was upheld.
On its facts, the result is not open to question. Given the nature of the
litigation, the description of the claim for privilege and the exigencies of
the particular period in history, one can appreciate not only the desire to
favour confidentiality but also the deference to the ministerial assertion of
the claim. However, the judgment generated implications far beyond the
case itself, since it appeared to hold that a ministerial objection to disclosure
on proper grounds was conclusive and that the court had no power to inspect
documents in order to assess the claim.151 Available grounds would include
national defence, international relations and “the proper functioning of the
public service”. 52 In this context, Viscount Simon created the dual notion
147[1931] A.C. 704, [1931] All E.R. 333 (J.C.P.C.) [hereinafter cited to A.C.].
148Ibid., 716.
14 9The South Australian Rules of Court, Order 31, provided expressly for inspection of
documents in cases of claims of privilege. It is clear, however, that Lord Blanesbrough rested
his opinion on an inherent power to inspect regardless of the existence of express authority:
ibid., 722.
150Supra, note 144.
1’Ibid., 641-2 per Viscount Simon.
152Ibid., 642.
REVUE DE DROIT DE McGILL
[Vol. 29
of contents and class objections. The respected constitutional and admin-
istrative law scholar S.A. de Smith has stated:
Probably no modem rule of English law has attracted so much criticism. The
courts had abdicated in favour of the executive at the expense of the interests
of the litigants and the public interest in the due administration ofjustice. 153
The decision has been challenged because of its unsatisfactory and often
inconsistent reasoning and inadequate attention to precedent. 154 The more
significant focus of critical attention has been the unqualified breadth of the
absolute immunity which it created.’ 55
In 1968, the House of Lords was faced with the same question in Con-
way v. Rimmer.156 Conway was a probationary police constable who had
been prosecuted for the theft of a flashlight. The jury acquitted him at the
close of the Crown’s case. Subsequently, he was dismissed from the police
force and began an action for malicious prosecution against his superin-
tendent. At the discovery stage, the existence of various internal reports
came to light, but the Home Secretary objected to their disclosure on the
ground that they belonged to classes of documents which were in the public
interest and therefore immune from disclosure. Surprisingly, the objection
was overruled and production ordered. The Crown appealed successfully,1 57
and the case ultimately came before the House of Lords for consideration.
Of the five judgments rendered in the course of resurrecting the court’s
function as arbiter of claims of privilege, two judges expressly rejected the
decision in Duncan v. Cammell, Laird, 58 one judge distinguished it t59 and
the remaining two were ambiguous in their treatment of the earlier deci-
sion.’ 60 Commenting on Conway v. Rimmer, D.H. Clark has said:
it is unquestionably of great constitutional importance as an authoritative res-
tatement of the law relating to Crown privilege. In short, the decision restores
to the judiciary in England its inherent residual power… to overrule a formally
unimpeachable objection made on behalf of the Crown, in the name of the
153S.A. de Smith, Constitutional andAdministrative Law, 2nd ed. (Hammondsworth: Penguin,
154Clark, Administrative Control ofJudicial Action: TheAuthority ofDuncan v. Camnell, Laird
1973) 619.
& Co. (1967) 30 Mod. L. Rev. 489.
155C.K. Allen, Law and Order, 3rd ed. (1965) 347; de Smith, supra, note 153; Street, State
Secrets – A Comparative Study (1951) 14 Mod. L. Rev. 121.
156[1968] A.C. 910 (H.L.). For discussions of this case which are more careful and thoughtful
than the brief comments herein, see Bushnell, supra, note 142, 563-8 and Clark, The Last Word
on the Last Word (1969) 32 Mod. L. Rev. 142.
157[1967] 2 All E.R. 1260 (C.A.).
158Lords Morris and Hodson.
159 Lord Upjohn.
16rLords Reid and Pearce. Clark, supra, note 156, 142 suggests that these judges inclined
toward distinction rather than rejection.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
681
public interest, to the disclosure of documentary or oral evidence in legal
proceedings.’ 6′
From the five judgments, one can discern a number of variations. However,
three common elements can be distinguished as essential to the process of
responding to claims of public interest immunity: first, “it is for the court
to decide whether to uphold the objection”; second, the adjudicative re-
sponsibility “must include a power to examine documents privately”; and,
third, there is no inherent difference between contents and class claims. 162
In Canada, even before the decision in Conway v. Rimmer, the judiciary
had expressed grave doubts about an absolute privilege vesting in govern-
ment documents. 163 In R. v. Snider, the question arose as to whether income
tax returns held by the Minister of National Revenue could be produced
in a criminal trial after the Minister had filed an affidavit expressing his
opinion that production would be injurious to the public interest. 164 Early
in his judgment, Rand J. took care to distinguish the conceptual difference
between concerns about privilege when “the matter relates to evidence sought
by either the Crown or the accused in a criminal prosecution” as compared
to civil proceedings. 165 In his reasoning, he followed the judgment of Ro-
binson v. South Australia and concluded that it is for the court, having been
shown the nature of the documents in question, to decide whether the “pub-
lic interest requires that they should not be revealed”. 66 He stated:
To eliminate the courts in a function with which the tradition of the common
law has invested them and to hold them subject to any opinion formed, rational
or irrational, by a member of the executive to the prejudice, it might be, of
the lives of private individuals, is not in harmony with the basic conceptions
of our polity. 67
The judgment of Kellock J., which arguably represented the majority, 68
also reflected a concern to distinguish between the civil and criminal con-
texts. He relied upon an excerpt from Duncan v. Cammell, Laird, which
stated that the interests which apply “in criminal trials where an individual’s
life or liberty may be at stake” are “not necessarily the same” as those
‘6’Supra, note 156, 142.
162See Clark, ibid., 143.
’63Re Constitutional Questions Determination Act; R. v. Snider [1954] S.C.R. 479, [1954] 4
D.L.R. 483 [hereinafter cited to S.C.R. as R. v. Snider]; Gagnon v. Quebec Securities Com-
mission [1965] S.C.R. 73, (1965) 50 D.L.R. (2d) 329 [hereinafter cited to S.C.R.]; Willis Com-
ment (1955) 33 Can. Bar. Rev. 352, 353.
1641bid.
’65Ibid., 481. Rinfret C.J.C. concurred in this judgment.
166Ibid., 485.
167Ibid., 485.
’68Kerwin, Taschereau and Fauteux JJ. concurred and Estey J., in his separate judgment,
expressed approval.
McGILL LAW JOURNAL
[Vol. 29
applicable to civil actions.169 The Court unanimously ruled that the Min-
ister’s opinion was not conclusive.170
Within the federal sphere in Canada the issue of public interest im-
munity has been codified. Until recently, the power to assess claims was
determined by section 41 of the Federal Court Act.’ 71 Sub-section 41(1)
empowered the courts, when faced with a ministerial affidavit claiming that
a document belonged to a class, or contained information, “which on grounds
of a public interest” should not be produced, to examine the document and
decide whether the “public interest in the administration of justice [out-
weighed] in importance the public interest specified in the affidavit”. Sub-
section 41(2), however, described particular objections to disclosure which
resulted in absolute immunity. In the face of a ministerial affidavit indicating
that disclosure “would be injurious to international relations, national def-
ence or to security, or to federal provincial relations, or that it would disclose
a confidence of the Queen’s Privy Council for Canada”, the Court could
not examine the document and was obliged to refuse discovery and pro-
duction. Because of the conclusive nature of the minister’s affidavit and the
emasculation of the courts when faced with it, sub-section 41(2) was the
subject of substantial criticism. 172
On 7 July 1982, royal assent was given to a package of legislation
consisting of the Access to Information Act, the Privacy Act and amendments
to the Canada Evidence Act. 173 It also included the express repeal of section
41 of the Federal Court Act.’ 74 In its place, an array of provisions were
enacted dealing with access to the kinds of documents which previously fell
within the scope of section 41. The new sections 36.1 and 36.2 of the Canada
Evidence Act give to the courts the role of adjudicating objections to dis-
closure on “the grounds of a specified public interest”. 75 The authority to
deal with objections based on international relations or national defence or
security is vested in the Chief Justice of the Federal Court.176 These matters
are dealt with in camera and the government can make its representations
169Ibid., 481.
170Bushnell, supra, note 142, 570-2; Lederman, supra, note 142, 278-9.
17 1R.S.C. 1970 (2nd Supp.), C. 10.
172See, for example, Mullan, Not in the Public Interest: Crown Privilege Defined (1971) 19
Chitty’s L.J. 289; McDonald Commission, supra, note 1, 57-9.
’73See respectively S.C. 1980-81-82-83, c. 111, Schedule I; S.C. 1980-81-82-83, c. 111, Schedule
II; R.S.C. 1970, c. E-10, as am. S.C. 1980-81-82-83, c. 11, s. 4, Schedule III, adding ss 36.1-
36.3.
174R.S.C. 1970 (2nd Supp.), c. 10, repealed by S.C. 1980-81-82-83, c. 111, s. 3.
175Canada EvidenceAct, R.S.C. 1970, c. E-10, as am. S.C. 1980-81-82-83, c. 111, s. 4, Schedule
III, adding ss 36.1-36.3. With respect to the operation of s. 36.2, see Goguen and Allbert v.
Gibson (1984) 50 N.R. (Fed. C.A.).
1760r such other judge of that court as he may designate: see Canada Evidence Act, s. 36.2(1).
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
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ex parte.177 With one striking exception, all claims based on public interest
are determined either by the superior courts of the provinces or the Federal
Court – Trial Division. The exception, 78 also found in the Access to Infor-
mation Act 79 and Privacy Act,’ 80 relates to confidences of the Queen’s Privy
Council for Canada. While these are commonly referred to as Cabinet doc-
uments, the definitions in section 36.3(2) of the Canada Evidence Act are
much broader than that phrase would ordinarily convey. This class of doc-
uments, without regard to their contents and without inspection or argu-
ment, is immune from disclosure in the course of litigation upon presentation
of a written certificate by a Minister or the Clerk of the Privy Council stating
that the documents belong to the described class.’ 8′
B. Proposed Section 444.2
Until the tabling of the recent amendments, there has been no legislative
attempt to extend public interest immunity to the powers of search and
seizure. Much of the case law, as we have seen, has arisen in the context
of civil cases and the leading authorities have recognized that different con-
siderations arise in a criminal proceeding. 82 Employing a similar procedure
as that provided in cases of solicitor-client privilege, the proposed section
444.1 vests in the judiciary the authority to adjudicate claims on “grounds
of a specified public interest”.183 Recognizing the evolving nature of the
public interest, the scope of the category is unrestricted, either with respect
to claims of contents or class, and the only differentiation arises with respect
to those kinds of documents traditionally characterized as involving high
state interests. When an objection is based on “the grounds that the dis-
closure would be injurious to international relations or national defence or
security”, the responsibility for assessing the claim is vested in the Chief
Justice of the Federal Court, or such other Federal Court judge as might be
177Canada Evidence Act, ss 36.2(5) and (6).
7 8Canada Evidence Act, s. 36.3. For a criticism of the special treatment afforded to Cabinet
1
documents, see Hewett, Editorial: Cabinet Secrets (1983) 25 Crim. L.Q. 257.
17S.C. 1980-81-82-83, c. 111, Schedule I, s. 69.
180S.C. 1980-81-82-83, c. 11, Schedule II, s. 70.
’81Canada Evidence Act, s. 36.3(1). But is the immunity absolute? See infra, note 240.
182See the discussion of Snider, above at note 164.
183The procedures set out in s. 444.1 apply, with minor exceptions, both to objections made
on the basis of solicitor-client privilege and grounds of a specified public interest: see s. 444.1(2).
The procedural differences relate to which courts have jurisdiction to deal with certain kinds
of “public interest” claims involving international relations or national defence or security:
see ss 444.1(4) and (5). As well, specific appeal provisions are included for these matters: see
ss 444.1(12), (13) and (14). In the version published at first reading, there appears to be an
error in s. 444.1(12) where it refers to determinations under “subparagraph (6)(c)(i) or (ii)”.
These determinations are actually made under subparagraphs (6)(d)(i) and (ii).
REVUE DE DROIT DE McGILL
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designated.’ 84 This is consistent with the recommendation made by the
McDonald Commission in its report on Security and Information.8 5 From
the constitutional perspective, it is interesting that, while concern about
harm to federal-provincial relations may still provide a basis for an objection
to disclosure, the jurisdiction for dealing with such claims is shared between
the provincial superior courts and the Federal Court and depends on the
context within which the claim arises. 186 As with solicitor-client privilege
cases, section 444.1(15) provides that any applications seeking an order
precluding disclosure on public interest grounds, and any appeal therefrom,
shall be heard in camera.
I
The major question relating to these proposals and other recent amend-
ments dealing with government information is why “a confidence of the
Queen’s Privy Council for Canada” is to be accorded special status. The
proposed section 444.2 deals solely and separately with this class of docu-
ments. This remains the one class of documents which is absolutely immune
from production and disclosure even in the face of a validly issued warrant.
The class is defined in terms identical to those used in related statutes:
(a) A memorandum the purpose of which is to present proposals or recom-
mendations to Council;
(b)A discussion paper the purpose of which is to present background expla-
nations analysis of problems or policy options to Council for consideration by
Council in making decision;
(c) An agenda of Council or a record recording deliberations or decisions of
Council;
(d) A record used for or reflecting communications or discussions between
Ministers of the Crown on matters relating to the making of government de-
cisions or the formulation of government policy;
(e) A record the purpose of which is to brief Ministers of the Crown in relation
to matters that are brought before, or are proposed to be brought before, Council
or that are the subject of communications or discussions referred in paragraph
(d); and
(f) Draft legislation. 8 7
In respect of the seizure of any such document, the officer is required to
seal the document and deliver it to the Clerk of the Privy Council. 88 The
Clerk, or a Minister, then has ten days within which to provide a written
184Section 444.1(4).
185Supra, note 173.
’86This category, previously referred to specifically in the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 41(2), repealed by S.C. 1980-81-82-83, c. 111, s. 3, receives no special mention
in the proposed legislation. Thus, adjudicative jurisdiction is determined by a combination of
s. 441.1(3)(a) and the definition of “judge” in s. 444.1(1).
187Section 444.2(4). For related provisions employing an identical definition, see supra, notes
188Section 444.2(l).
178, 179 and 180.
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PROPOSED SEARCH AND SEIZURE REFORMS
685
certificate “that the document constitutes a confidence of the Queen’s Privy
Council for Canada”. 89 Only if the certificate is not produced will the
documents be delivered to the officer who seized it.19 Thus, when an in-
formant has satisfied a judicial officer that there are reasonable grounds,
according to section 443, that a document will afford evidence of a criminal
offence, it cannot be seized simply because of the bald assertion that it falls
within a described class.
The impact of these amendments can bear on three kinds of situations.
First, there may be cases where a Cabinet document might afford evidence
of criminal wrongdoing on the part of a Minster or other official. Anyone
who considers this category hypothetical and not worthy of serious attention
should consider the recent case of U.S. v. Nixon.’ 91 Second, there will be
documents which might have probative value, either of an inculpatory or
exculpatory nature, relating to allegations of criminality on the part of some-
one not related to the government. Third, there may be cases where the
object of access to documents is not to obtain evidence but to further the
progress of an investigation. In this regard, the Courts in both Maclntyre92
and Descrteaux 93 distinguished the investigative aspect of a search from
its evidence-gathering function.
The Minister of Justice has suggested that the special treatment offered
to Cabinet documents is merely a codification of existing law. 194 If he had
in mind the evolving common law of privilege and confidentiality, this view
cannot be supported. With respect to rights of confidentiality, it is clear that
substantive protection as well as evidentiary protection should be afforded
to confidential communications.195 However, all authorities retain for the
judiciary the role of balancing interests and determining when disclosure
in the interests of justice outweighs the maintenance of a confidence. The
most relevant case is Descbteaux, which clearly preserves a role for the
judiciary. Throughout his judgment, Lamer J. emphasized the balancing
process. A significant factor to be taken into consideration in the process is
the utility of the search warrant as an investigative tool.196
189Section 444.2(2).
1901bid.
191418 U.S. 683, 41 L. Ed. (2d) 1039 (1974) [hereinafter cited to U.S.]. All the documents
filed in this case have been collected and published in L. Friedman, ed., U.S. v. Nixon: The
President Before the Supreme Court (1974).
192Supra, note 4, 186.
193Supra, note 9, 891.
’94Remarks of the Hon. Mark MacGuigan made in response to questions during a public
address at Queen’s University, Kingston, 18 October 1983 [unpublished].
195See Descteaux, supra, note 7; Slavutych v. Baker, supra, note 89.
’96See Descrteaux, supra, note 7, 889-91.
McGILL LAW JOURNAL
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Confidentiality can also be used as a basis for comparing both solicitor-
client and Cabinet document claims. While both are essentially claims of
class, there are significant distinctions in the rationale upon which each is
based. The confidential nature of the solicitor-client relationship is an es-
sential element of the administration of justice and must be maintained in
order to ensure the integrity of the judicial process as a whole. 197 The client
needs to know that advice can be obtained based on information candidly
exchanged. Privileged documents and communications are protected not
only from disclosure but also from the peering investigative eyes of the
police. However, it is recognized that the substance of a document or com-
munication can remove the basis for protection if its nature is inconsistent
with the proper role which the relationship ought to play within the admin-
istration of justice. 198 Thus, protection flows from the roles which partici-
pants play within the administration ofjustice, and the courts are competent
to define these roles. Cabinet documents, on the other hand, are unrelated
to the administration of justice, but generate a right to confidentiality be-
cause of the manner in which they relate to the proper functioning of the
executive. While the solicitor-client relationship must be viewed as an ele-
ment of the system of justice, the executive must be viewed as an integral
part of the larger constitutional structure consisting of the legislature, the
judiciary and the executive. 199 However, the judiciary’s ability to adjudicate
cases involving claims of executive privilege should not be diminished sim-
ply because the rationale for the privilege is external to the administration
of justice. Arguments about the need for candour within the executive as
the operative rationale for Crown privilege have been repeatedly rejected.200
It is hard to accept that the rare prospect of an in camera judicial hearing
about disclosure would so impair frankness and discourage candour as to
render ineffectual the discussions of Cabinet Ministers and senior officials.
Another ground which is often raised in defence of the executive privilege
is the need to protect government from “ill-informed or captious” criti-
cism. 20 1 However, the most persuasive rationale is the preservation of the
concept of collective responsibility. 20 2 That is, on matters of policy the
197See text, infra, at note 72 et seq., and sources cited there.
198Ibid., and Cross, supra, note 73, 282-95.
199See R. Dawson, The Government of Canada, 5th ed. (1970) 57-75.
20OSee Conway v. Rimnmer, supra, note 156, 957 per Lord Morris, 976, 986-7 per Lord Pearce,
993-5 per Lord Upjohn, 952 per Lord Reid. Burmnah Oil Co. Ltd. v. Bank of England [1980]
A.C. 1090, 1132-3 (H.L.) per Lord Keith; cf 1112 per Lord Wilberforce.
20 See Conway v. Riminer, supra, note 156, 952 per Lord Reid; Burnah Oil, supra, note
200, 1112 and 1145 per Lords Wilberforce and Scarma respectively; cf Lord Keith, 1133-4.
202See Attorney General v. Jonathan Cape Ltd [1976] Q.B. 752, [1975] 3 All E.R. 484 and
the discussion of Sankey v. Whitlam, infra, note 213. The concept of collective responsibility
appears to be the truest source of the recurring phrase “the proper functioning of the govern-
ment” as explained by Lord Upjohn in Conway v. Rhnner, supra, note 156, 992-5.
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PROPOSED SEARCH AND SEIZURE REFORMS
687
Cabinet must show a single and unified face to the world. 203 Clearly, the
definition of “a confidence of the Queen’s Privy Council” goes far beyond
documents which might reflect a lack of unanimity within the Cabinet.
Moreover, if collective responsibility is the guiding principle, then a member
of the judiciary must surely be competent to determine whether the sub-
stance of a document relates to the confidential relationship in that way or
not.20 4 When considering the class claim of Cabinet documents, the inquiry
would not involve the judiciary in weighing matters of high policy. In fact,
by offering the proposed section 444.1, which deals specifically with inter-
national relations, national defence and national security, the Minister of
Justice has recognized the ability of the judiciary to give appropriate weight
to all aspects of matters of high policy and, in particular, the opinions of
the relevant Minister. Thus, the long-awaited evolution of substantive pro-
tections for other relationships cannot be used as an argument to preclude
a judicial role in assessing objections to disclosure of Cabinet documents.
In considering the codification argument, we must also examine the
evolution of the common law of public interest immunity. The cases do
not support the absolute protection given to Cabinet documents by this
proposed amendment. Recent decisions from Canada,20 5 the Common-
wealth, 20 6 and the United States 207 have treated the disclosure of Cabinet
documents in a restrictive manner which does not involve limiting the
judiciary’s traditional role as adjudicator. In Sankey v. Whitlam, four mem-
bers of the Australian High Court addressed the question of an absolute
class privilege for Cabinet documents and unanimously concluded that it
is the role of the court to balance the need for confidentiality against the
interests of justice.208 The case arose from informations laid by a private
citizen against the former Prime Minister and Cabinet members alleging a
criminal conspiracy with respect to the manner in which monies were bor-
rowed. Both the prosecutor and some of the defendants issued subpoenas
203See Dawson, supra, note 199, 188-90.
2 Judicial competence to assess claims in relation to ministerial responsibilities (as compared
to questions of national defence and security) was asserted explicitly and implicitly in Conway
v. Rinner, supra, note 156; see the remarks of Lord Morris, 956-7, and Lord Pearce, 987.
205Mannixv. The Queen (1981) 31 A.R. 169, (1981) 119 D.L.R. (3d) 722 (C.A.); Glouchester
Properties v. The Queen (1981) 32 B.C.L.R. 61 (B.C. C.A.); Re Carey and The Queen (1982)
43 O.R. (2d) 161, (1982) 1 D.L.R. (4th) 498 (C.A.).
206England: Burnah Oil, supra, note 200. Australia: Sankey v. Whitlam (1978) 142 C.L.R.
1, (1978) 21 A.L.R. 457 (C.A.). New Zealand: Environmental Defence Society v. South Pacific
Ahuminum Ltd [1981] 1 N.Z.L.R. 146, 153 (C.A.). See Evans, Comment (1980) 58 Can. Bar.
Rev. 360.
207U.S. v. Nixon, supra, note 191.
208Supra, note 206. For helpful discussions of this case see Goldring, Crown Privilege, Scrutiny
of the Administration and the Public Interest (1978) 10 Fed. L. Rev. 80, and Hodge, Sankey’s
Case Against Whitlamn: Crown Privilege (1977) N.Z.L.R. 58.
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seeking production of Minutes of Federal Executive Council meetings, mem-
oranda prepared for these meetings and documents produced for ministerial
use by their respective departments. Of the four judgments which addressed
the question of Crown privilege, the common position was most clearly
formulated by Gibbs A.C.J.:
It is in all cases the duty of the court, and not the privilege of the executive
government, to decide whether a document will be produced or may be with-
held. The court must decide which aspect of the public interest predominates,
or in other words, whether the public interest which requires that the document
should not be produced outweighs the public interest that the court of justice,
in performing its functions, should not be denied access to the relevant
evidence …
209
The fundamental principle is that documents may be withheld from disclosure
only if, and to the extent, that the public interest renders it necessary. That
principle, in my opinion, must also apply to state papers. It is impossible to
accept that the public interest requires that all state papers by kept secret forever
or until they are only of historical interest.21 0
Significantly, Mason J., who had been Solicitor-General of the Common-
wealth, 2 1 agreed with the views of Gibbs A.C.J. He rejected arguments for
non-disclosure based on candour or the fear of “ill-informed and captious”
criticism while recognizing the harm that could flow from premature pub-
lication of high level decisions and policies. 212 To Mason J., one could not
seek “refuge in the amorphous statement that non-disclosure is necessary
for the proper functioning of the Executive Government and of the public
service”. Rather, the proper rationale for non-disclosure lay in the consti-
tutional doctrine of collective responsibility. 213 When balancing that interest
against the public interest in the administration of justice, he stressed the
need to consider whether the documents in question related to “important
matters of policy” or current issues which were before the government. 21 4
The House of Lords considered public interest immunity once again
in Burmah Oil Co. Ltd v. Bank of England where the plaintiff was seeking
to set aside the transfer of a large number of shares to the Bank at a fixed
price per share. The plaintiff argued that the agreement was “unconscion-
able, inequitable and unreasonable”. 215 The Bank of England was acting in
close contact with the government, and while the Crown was not a party
to the litigation, the plaintiff sought production of a number of documents
209Sankey v. Whitlam, supra, note 206, 38-9.
21Ibid., 41-2.
2 1’See Goldring, supra, note 208, 88.
212Supra, note 206, 97.
213 bid., 96-8.
2141bid., 98-9.
215Supra, note 156.
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PROPOSED SEARCH AND SEIZURE REFORMS
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in the possession of the Crown. A certificate from the Chief Secretary to
the Treasury was filed objecting to production on public interest grounds.
The documents in question were diverse, but it was clear that the case
represented a class claim for immunity. With the exception of Lord Wil-
berforce, the House of Lords concluded that the documents should be pro-
duced for inspection in order to decide whether the public interest was best
enhanced by disclosure or protection.216 However, even to Lord Wilberforce
the ministerial certificate was not conclusive. His view was that the parties
seeking disclosure must “demonstrate the existence of a counter-acting in-
terest” with reference to the litigation and the probative value of the doc-
uments sought. He concluded that there was no need to examine the documents,
because there was not “the slightest ground, apart from pure speculation”
for suggesting that the documents could outweigh the claim for immunity.217
Lord Keith, in rejecting the notion of absolute immunity from judicial
scrutiny, suggested that the judicial inquiry must look to “the nature of the
subject matter, the person who dealt with it, and the manner in which they
did so”.218 A further consideration is the degree to which the policies pre-
sented in the documents remain “unfulfilled”, as this will increase the risk
of prejudice from premature disclosure. 219 The strongest rejection of ab-
solute immunity can be found in the judgment of Lord Scarman, who,
relying on Sankey v. Witlam and U.S. v. Nixon, asked “what is so important
about secret government that it must be protected even at the price of
injustice in our courts?” 220 He concluded that it is the court’s role to balance
competing interests and that “the court may always, if it thinks it is nec-
essary, itself inspect the documents”. 22′
Sankey v. Whitlam and Burmah Oil Co. Ltd v. Bank of England have
had a substantial persuasive effect on Canadian courts. An absolute privilege
for Crown documents has been rejected by the Alberta Court of Appeal in
Mannix v. The Queen in Right of Alberta222 and by the British Columbia
26Ibid., 1121 per Lord Salmon, 1130 per Lord Edmund-Davies, 1136 per Lord Keith, 1147
per Lord Scarman.
2171bid., 1113-4.
21ISbid., 1134.
2191bid,
2201bid., 1144.
2 21 bid., 1145. Recognizing the role of the judiciary in cases of public interest immunity, the
House of Lords has more recently been occupied with questions relating to how that role should
be played. In Air Canada v. Secretary of State [1983] 1 All E.R. 910, the Court considered
what an applicant must show to warrant a judicial inspection of documents in the face of a
Ministerial objection. Three Lords were of the view that the party must show that the material
sought would likely assist his case. Lords Scarman and Templeman would be satisfied if the
party could show that the material was necessary to the disposition of the case in that it would
assist any of the parties.
222Supra, note 205.
McGILL LAW JOURNAL
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Court of Appeal in Gloucester Properties v. The Queen in Right of British
Columbia.223 More recently, the issue was considered by the Supreme Court
of Canada in Smallwood v. Sparling (also known as Re Canada Javelin)224
in which the former Premier of Newfoundland used the grounds of Crown
privilege in seeking an injunction to restrain an inspector appointed by the
Restrictive Trade Practices Commission from compelling Mr. Smallwood’s
participation in a federal inquiry. With respect to documentary evidence,
Wilson J. considered the relevant authorities, particularly Burmah Oil Co.
Ltd, and concluded that:
The decision indicates that it is the role of the courts, not the administration,
to determine whether disclosure of the documents would be injurious to the
public interest.22 5
The same question received a full and careful analysis by Thorson J.A.
of the Ontario Court of Appeal in the recent case of Re Carey and The
Queen.226 The plaintiff had commenced an action against the Crown and
others claiming damages for breach of an agreement, deceit and damage to
reputation as well as other declaratory relief. Before trial, the plaintiff served
a subpoena on the Secretary of the Ontario Cabinet requiring him to attend
as a witness with relevant documents. The Crown brought an application
to quash the subpoena, relying on an affidavit sworn by the Secretary which
objected to disclosure on the grounds that “it would not be in the public
interest to produce these documents, or to make them available for in-
spection, even for the limited purposes of this litigation”. 227 After a lengthy
and scholarly review of the evolution of public interest immunity, Thorson
J.A. concluded that:
in the absence of some special statutory protection, an absolute protection can
no longer be claimed for such documents whatever their class or contents, since
ultimately it is the duty of the courts to assess any such claim in light of the
competing public interests involved.228
While Thorson J.A. qualified his conclusion by reference to the possibility
of a statutory exception, no consideration was given to the question of the
constitutional validity of such an enactment. He offered a two-stage process
by which the party seeking production would first be required to show how
the evidence would substantially assist its postion.229 In this regard, the
inquiry would be directed to relevance, probative value and the existence
223Supra, note 205.
224[1982] 2 S.C.R. 686, (1982) 141 D.L.R. (3d) 395 [hereinafter cited to S.C.R.].
225 bid., 704.
226Supra, note 205.
227Ibid., 167.
228Ibid., 195.
2291bid., 201-2. See Air Canada v. Secretary of State, supra, note 221.
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PROPOSED SEARCH AND SEIZURE REFORMS
691
of alternative means of establishing the facts in issue. 230 Only after this
threshold had been crossed would the court proceed to the second stage
where the competing aspects of public interest would be weighed in the
balance. 23′
Recently the Supreme Court of Canada considered the issue of police
informer privilege. 232 In the course of distinguishing it from Crown privilege,
Beetz J. offered the following procedural view of objections based on Crown
privilege:
The common law allows a member of the executive to make the initial decision;
if he decides in favour of secrecy and states his reasons for doing so in a sworn
statement, the law empowers the judge to review the information and in the
last resort to revise the decision by weighing the two conflicting interests, that
of maintaining secrecy and that of doing justice.2 33
The common law position is clear, and there can be no doubt but that the
proposed amendments are contrary to the present state of judicial thinking
on the question of public immunity privilege.
Can it then be argued that the amendments are necessary in order to
provide statutory consistency with the recent amendments to the Canada
Evidence Act? In other words, because the Canada Evidences Act protects
Cabinet documents from disclosure in evidence, is it an essential corollary
that section 443(1)(b) can only provide authority for search and seizure in
respect of items that can ultimately be adduced as evidence? Without con-
sidering the wisdom of section 36.3 of the Canada Evidence Act, one would
hope that the courts would reserve to themselves the discretion to consider
the validity of an objection in the context of the proceedings. Even the
Attorney General in Conway v. Rimmer agreed that objections to disclosure
could be overridden when there was an indication of bad faith, improper
purpose or a false premise. 234 One need look no further than the authority
of Roncarelli v. Duplessis for the proposition that the prerogative of a Min-
ister of the Crown only exists so long as the Minister is acting bona fide
and within the proper limits of his or her authority. 235 Accordingly, there
should be no doubt, in a case where allegations of criminal conduct are
made against either a Minister or senior official, that a court would be
entitled to adjudicate an objection to disclosure if it was concerned that the
objection was really premised on self interest rather than public interest. In
cases where an accused is seeking disclosure of Cabinet documents in order
230Re Carey and The Queen, supra, note 205, 202.
231Ibid.
232Bisaillon v. Keable (1983) 7 C.C.C. (3d) 385, (1983) 37 C.R. (3d) 289.
2331bid., 415.
234Conway v. Rimner, supra, note 156, 957.
235[1959] S.C.R. 121, (1959) 16 D.L.R. (2d) 689.
REVUE DE DROIT DE McGILL
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to prove his or her innocence, 236 reference must be made to sections 7 and
11(d) of the Charter and the right to make full answer and defence. An
analogy lies to the cases of police informer privilege in which it has been
traditionally agreed that the protection must fall when the evidence sought
tends to show the innocence of the accused. 237 It would seem that the con-
stitutional entrenchment of the principles of fundamental justice, when jux-
taposed with the indivisibility of the Crown, should persuade a trial judge
that a Crown objection to the disclosure of evidence which is material to
the defence may create a substantial fear that justice to the accused cannot
be done. 238 Even if the trial judge is reluctant to embark on a balancing
process which requires inspection and might ultimately result in disclosure,
other avenues are available. The scope of section 24(1) of the Charter is
sufficiently broad to support a stay of proceedings in the face of a perceived
denial of “fundamental justice”. 239 Section 36.3 of the Canada Evidence Act
does not expressly and absolutely preclude a judicial role with respect to
claims of privilege from production. 240 However, if the search and seizure
Davies in Burmah Oil, supra, note 200, 1128.
236Reference should be made to the speech of Lord Kilmuir in the House of Lords on 6 June
1956, reproduced in the report of Conway v. Rimnmer, supra, note 156, 922-3, in which the
Lord Chancellor stated that “Crown privilege should not be claimed” with respect to documents
“relevant to the defence in criminal proceedings”. It is also important to remember that most
Crown privilege cases have arisen in the civil context and have expressly distinguished the
criminal context where liberty is at stake: see R. v. Snider, supra, note 163, 486 and 489.
237Solicitor-General v. Royal Commission of Inquiry into the Confidentiality of Health Rec-
ords in Ontario [1981] 2 S.C.R. 494, 536, (1981) 128 D.L.R. (3d) 193, per Martland J. See the
dissenting judgment of Laskin C.J.C., at 516, in which the exception to the applicability of
police informer privilege is described as arising when disclosure would be “material to the
defence”. This is a preferable approach since the traditional statement of the exception, repeated
by Martland J. and finding its source in Marks v. Beyfus (1890) 25 Q.B.D. 494, gives the
erroneous impression that the accused carries the burden of showing that disclosure will ex-
onerate him. See also Taylor, The Health Records Case: Judicial “Misprescription”? (1983) 5
Sup. Ct L.R. 329, 354-6.
238As well, the importance of the “appearance of justice” was stressed by Lord Edmund-
239In the pre-Charter case of R. v. Farrer (1975) 32 C.C.C. (2d) 84 (Ont. Co. Ct.), a directed
verdict of acquittal was ordered solely on the basis of a denial of the right to make full answer
and defence. For a discussion of the authority to stay proceedings in the face of a Charter
violation, see Stuart, Annotation to R. v. Belton (1982) 31 C.R. (3d) 223 and the references
cited therein. See also the comments of Barrette-Joncas J. regarding s. 41(2) of the Federal
Court Act (since repealed) in R. v. Vermette (No. 2) (1982) 68 C.C.C. (2d) 565, 571 (Que. S.C.):
“I do not want to suggest that the court does not have the power to stay proceedings in cases
where it is clearly shown that an accused has been prevented from putting into evidence the
essential elements in his defence by an affidavit under s. 41(2).”
240While s. 36.3(1) provides that “disclosure … shall be refused without examination”, s.
36.3(4) exempts from the application of sub-section (1) some documents which would otherwise
fit within the definition contained in sub-section (2). It is significant that the exceptions are
not found within the definition provision, but rather operate to preclude the operation of sub-
section (1), the provision which appears to exclude the judicial assessment role. Hence, it can
be argued that some assertions of absolute privilege can be the subject of adjudication to
determine whether the sub-section (4) exemption applies. See the obiter remarks of Marceau
J. in Goguen, supra, note 174, who suggested that a s. 36.3 objection is “definitive and unassailable”.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
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power is negated, the issue of evidentiary privilege can never arise. Thus,
to argue that there is a need to provide consistency between search and
seizure powers and section 36.3 of the Canada Evidence Act would be to
emasculate the judiciary’s role in assessing and responding to claims of
evidentiary privilege in the criminal context –
a role which section 36.3
does not preclude. The result would be inconsistency, not the consistency
upon which the argument is ostensibly based. Moreover, such an argument
ignores the investigative function of search warrants.
C. The Constitutional Validity of the Statutory Exception
It is important to consider the issue of a statutory exception as suggested
by Thorson J.A. in Carey. Throughout his judgment, general statements
about the primacy of the court’s role in assessing claims for immunity were
qualified by reference to the possibility of exclusion by statute. These ref-
erences were not explained or developed and certainly not examined from
the perspective of constitutional validity. The existing section 41 of the
Federal Court Act represented an example of a statutory exclusion of the
judicial function. It could be argued that its constitutional validity was
confirmed in the case of Human Rights Commission v. Attorney General
of Canada.241 However, as Professor Mullan has pointed out, the consid-
eration of this issue by the Supreme Court of Canada was incomplete.242
An argument based on the separation of powers thesis was not advanced
beyond the Court of first instance:
Indeed, it was not raised before the Quebec Court of Appeal and, in Chouinard
J.’s judgment in the Supreme Court of Canada, it seemed to be accepted that
Parliament and the provincial legislatures could legislate on the subject of
executive privilege. Thus, almost by default, legislative authority to restrict
party and adjudicator access to pertinent material in the course ofjudicial and
administrative proceedings has been conceded…-.243
In the original case before D~schenes C.J., it was suggested that a statute
that precluded a judicial role of inspecting and assessing claims of crown
immunity privilege violated the constitutional separation of powers. 244 The
argument flows from the earlier work of Professor W.R. Lederman, who
examined the history and contents of sections 96 to 100 of the Constitution
241(1982) 134 D.L.R. (3d) 17 (S.C.C.).
24 2Developments in Administrative Law: The 1981-82 Term (1983) 5 Sup. Ct L.R. 1, 12-14.
243Ibid., 13.
-44[1977] C.S. 47. See also Mullan, supra, note 242, 12-13.
McGILL LAW JOURNALV
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Act, 1867.245 It was his view that these provisions circumscribing the con-
stitution of the judiciary did more than just ensure a federal appointment
power. They also crystalized a core jurisdiction which could not be dimin-
ished by legislative act. Thus, the various branches of the government have
been separated functionally, each with its own constitutionally defined sphere
of responsibility. While this argument was not accepted by Deschenes C.J., 24 6
it is unclear from the decision whether he was rejecting the separation of
powers thesis generally or the subsidiary and more refined question of whether
matters of Crown privilege were part of the core jurisdiction of superior
courts. 247 The distinction is significant in that, at the time of Deschenes
C.J.’s decision, one could offer very little as evidence of any judicial ac-
ceptance of the separation of powers thesis. As Elliot has said:
Attempts to persuade the courts of the validity of this thesis have been few
and far between. They have also been singularly unsuccessful. In fact, in each
case in which the thesis has been advanced it has been rejected almost out of
hand. As yet, however, this disappointing track record does not include a de-
finitive rejection of the thesis by the Supreme Court of Canada.2 48
Thus, it is not surprising that D~schenes C.J. would be unpersuaded.
However, there may now be some reason to suggest that the trend has
changed and that the present analytical posture of the Supreme Court of
Canada is in line with the separation of powers thesis. In McEvoy v. Attorney
General ofNew Brunswick andAttorney General of Canada, the Court unan-
imously ruled that a unified criminal court staffed with provincially ap-
pointed judges to exercise complete criminal jurisdiction could not be
established validly even by jointly cooperative actions of both the provincial
Legislature and the federal Parliament. 249 In its language and analysis, the
McEvoy decision gave substantial support to the separation of powers thesis.
Specifically with respect to section 96, the Court said it “has long been the
rule that section 96, although in terms an appointing power, must be ad-
dressed in functional terms lest its application be eroded”. 250 The decision
245See particularly Lederman, The Independance of the Judiciary (1956) 34 Can. Bar Rev.
769 and 1139, and The Supreme Court and the Canadian Judicial System (1975) 13 Trans-
actions of the Royal Society of Canada (4th Series) 209. For interesting and helpful discussions
of Professor Lederman’s thesis, see Elliot, Comment: Reference Re Establishment of Unified
Criminal Court of New Brunswick (1982) 16 U.B.C. Law Rev. 313; Mullan, The Uncertain
Constitutional Position of Canada’s Administrative Appeal Tribunals (1982) 14 Ottawa L.R.
239, 260-9. See also Hogg, Constitutional Law of Canada (1977) 116-7 and Abel, Laskin’s
Canadian Constitutional Law, 4th ed. (1975) 762.
246Supra, note 244, 66.
247See Mullan, supra, note 242, 13.
248Eliot, supra, note 245, 314-5.
249(1983) 4 C.C.C. (3d) 289 (S.C.C.).
2501bid., 301.
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
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then referred to the body of provisions found between sections 96 and 100
of the Constituion Act, 1867 and concluded that the proposed unified court
scheme would constitute “a complete obliteration of superior court criminal
law jurisdiction”. 25′ Without using the label, and without any specific ref-
erence to Professor Lederman’s arguments, the Court described the consti-
tutional framework in what can only be characterized as “separation of
powers” terms:
The traditional independence of English Superior Court judges has been raised
to a level of fundamental principle of our federal system, by the Constitution
Act, 1982 and cannot have less importance and force in the administration of
criminal law than in the case of civil matters. Under the Canadian Constitution
the superior courts are independent of both levels of government. The prov-
inces constitute, maintain and organize the superior courts; the federal au-
thority appoints the judges. The judicature sections of the Constitution Act,
1867 guarantee the independence of the superior courts; they apply to Parlia-
ment as well as to the provincial Legislature.252
Hence, the time may be right to build on the McEvoy decision by attempting
to define the core jurisdiction which our Constitution has invested in our.
superior courts.
With respect to the question of an absolute immunity from judicial
scrutiny as established by recent statutory amendments and the proposed
amendments to the Criminal Code, a separation of powers argument can
be approached both historically and functionally. If one looks at the many
English253 and Scottish254 cases which antedate 1867, it is clear that superior
courts exercised jurisdiction to consider claims of Crown privilege. Of course,
there were some examples of judicial reluctance to inspect documents and
disagree with the opinion of a Minister of the Crown, but it is wrong to
view these examples of deference as an abrogation of jurisdiction. 255 In
251 bid.
252 bid., 302.
253See, for example, Heslap v. Bank of England (1833) 6 Sim. 192, 58 E.R. 566 (action for
share of residue of estate); Smith v. East India Co. (1841) 1 P1. 50, 41 E.R. 550 (action for
share of proceeds of sale); Wadeer v. East India Co. (1856) 8 DeG. M. & G. 182, 44 E.R. 360
(action for delivery of promissory note).
254See Glasgow Corporation v. Central Land Board, [1956] A.C. I (H.L.), where it was
confirmed that there has always been an inherent power in Scotland to override Crown ob-
jections to production: see the judgment of Lord Normand at 11-17.
255For example, Beatson v. Skene (1860) 5 H. & N. 838, 157 E.R. 1415 (slander action arising
from inquiry into general’s conduct during Crimean War). Martin B. dissented. For many
years, the majority judgment of Pollock C.B. was touted as authority for the conclusiveness
of a Ministerial objection. More recently, this has been refuted by careful analysis of the case.
Lord Denning in In Re Grosvenor Hotel London (No. 2) [1965] Ch. 1210, [1964] 3 All E.R.
354, 1244-5 (C.A.) pointed out that the judgment in Beatson was qualified by the recognition
that “cases might arise where the matter would be so clear that the judge might well ask for
it in spite of some official scruples as to producing it”. In Conway v. Rimmer, supra, note 156,
REVUE DE DROIT DE McGILL
[Vol. 29
Conway v. Rimmer, Lord Upjohn specifically characterized the recognition
of the judicial role in assessing claims of Crown privilege not as an assertion
of new jurisdiction but as a means of regaining “its control over the whole
of this field of the law”. 256 Lord Pearce referred to the judicial role as the
exercise of the High Court’s “inherent power to decide what evidence it
shall demand in fulfillment of its public duty to administer justice”. 257 His-
torical sources thus support the view that matters of Crown privilege were
properly within the jurisdiction of superior courts at the time of Confederation.
A functional analysis of the issue as it relates to the efficacy of an
independent judiciary should settle the argument. The process of decision-
making will always be impaired when relevant material is denied to the
decision-maker. One is reminded of the conclusion of Ellis v. Home Office
in which Devlin J. applied reluctantly the rigid doctrine of Duncan v. Cam-
mell, Laird to exclude, without examination, government documents. 258 In
dismissing a claim for damages for personal injuries by a prisoner, His
Lordship expressed grave doubts whether justice had been done. 259 Of course,
the law recognizes that some material should not be admitted into evidence
based on concerns about fairness, reliability or the protection of a particular
relationship. However, these are issues which usually either relate to the
efficacy of the decision-making process or represent an evolved policy pro-
tecting certain relationships such as solicitor and client, husband and wife
or police officer and informer. The protection was crafted by the judiciary
and not thrust upon it by those who benefit from the protection.
963-4, Lord Morris focused on Pollock C.B.’s conclusion that “the judge ought not to compel
the production of it”. To Lord Morris, the use of “ought” rather than “cannot” flowed from
a recognition of the Court’s inherent power to override a Ministerial objection in the proper
case. Perhaps the most significant example of deference amongst the pre-Confederation cases
is Gugy v. Maguire (1863) 13 L.C.R. 33 because it appears to be the only decision ofa Canadian
court. Four of the five judges were of the view they should defer to the objection to production
by the provincial secretary. Meredith J., for the majority, stated, at page 53, that “the most
important English case” was Beatson v. Skene, which, as noted above, has since been rejected
as an authority for the conclusiveness of a Ministerial objection. The lone dissent came from
Mondelet J. who stated, at page 36, that the “existence of such an extraordinary privilege would
be a most unjust exception to the law of this country”. The case arose in curious circumstances
in that a copy of the document which the provincial secretary sought to keep out of evidence
had already been given to the plaintiff The original was required as evidence according to the
rules of the day and at that stage the objection on the ground of “injury to the public service”
was raised. Mondelet J. was obviously disturbed by the “pretension” of a member of the
government to suggest that injury might flow from a document the contents of which had
already been made public.
256Coniway v. Rimmer, supra, note 156, 994.
2571bid., 980.
258[1953] 2 Q.B. 135, [1953] 2 All E.R. 149.
2591bid., 138 (Q.B.).
1984]
PROPOSED SEARCH AND SEIZURE REFORMS
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Specifically with reference to the separation of powers doctrine, the
United States Supreme Court in U.S. v. Nixon concluded that:
The impediment that an absolute, unqualified privilege would place in the way
of the primary constitutional duty of the Judicial Branch to do justice in crim-
inal prosecutions would plainly conflict with the function of the courts under
Article III. …
[T]o read the Article II powers of the President as providing an absolute
privilege as against a subpoena essential to enforcement of criminal statutes
on no more than a generalized claim of the public interest in confidentiality
of non-military and non-diplomatic discussions would upset the constitutional
balance of a “workable government” and gravely impair the role of the courts
under Article III.
Since we conclude that the legitimate needs of the judicial process may
outweigh Presidential Privilege, it is necessary to resolve those competing in-
terests in a manner that preserves the essential functions of each branch. The
right and indeed the duty to resolve that question does not free the judiciary
from according high respect to the representations made on behalf of the
President. 260
It may be true that the disclosure of some Cabinet documents would impair
the functioning of the Executive. It is for this reason that our law entertains
claims of privilege. However, an absolute privilege from disclosure and
production will always impede the functioning of the courts. If one accepts
that the separation of powers thesis is premised on the need to ensure the
independent and unimpaired functioning of different branches of govern-
ment, it is logically inconsistent to argue that the Constitution empowers
Parliament to legislate in a way that can, in serious cases, emasculate the
judiciary. Particularly when one notes the respect and deference which courts
have paid to ministerial opinions that documents ought not to be disclosed,
an absolute privilege does not enhance the functions of the executive, but
merely permits them to be carried out in secret.
Conclusion
The Criminal Law Reform Act, 1984 died on the order paper in June
of 1984. One can only speculate about the extent to which it will be res-
urrected in the future. Of the three proposed amendments considered in
this paper, only the new section 444.1 dealing with solicitor-client privilege
and public interest immunity reflects a needed change to the procedural
structure of the Criminal Code. With respect to solicitor-client privilege, it
represents a substantial adoption of the analysis offered by Lamer J. in
Descbteaux. One cannot speak so favourably about the other amendments.
260Supra, note 191, 707. Of particular interest are the Special Prosecutor’s Main Brief and
Reply Brief found in Friedman, supra, note 191, 209 and 427 respectively. See also Brun, La
separation des pouvoirs, la supr~matie legislative et l’intimite de l’xecutif (1973) 14 C. de D.
387.
McGILL LAW JOURNAL
[Vol. 29
The proposed section 443.1 ignores almost entirely the difficult issues re-
lating to public access to search warrant material. The proposed section
444.2 is another unjustifiable attempt to render secret the affairs of the
Cabinet, Ministers of the Crown and senior officials.
Other general observations arise from a consideration of these proposed
amendments. First, the amendments tell us some interesting things about
the process of law reform in Canada. There appears to be no co-ordination
between the work of the Law Reform Commission of Canada and the De-
partment of Justice. It is almost as if the Commission’s working paper on
search and seizure has been rendered anachronistic as soon as it was pub-
lished. Instead of major reform, we see piecemeal amendments which are
offered as solutions to particular, though difficult, issues. These questions,
to be resolved satisfactorily, must be integrated into a consistent and com-
prehensive review of search and seizure based on accepted principles. Sec-
ondly, the amendments, while dealing with questions of priorities as between
competing social interests, ignore a substantial body of judicial analysis of
these social interests. With respect to both the conflict between the issues
of fair trial and freedom of the press, and the issue of privilege for Cabinet
documents, a number of courts have attempted to balance social interests
and articulate priorities. Given the new constitutional mandate of the ju-
diciary and the continuing role which it will play in shaping value prefer-
ences, it is ironic that the proposed amendments seem to ignore the views
of the judiciary.
