Canadian Broadcasting Corp. v. Manitoba

Canadian Broadcasting Corp. v. Manitoba
Collection
Supreme Court Judgments
Date
2021-09-24
Neutral citation
2021 SCC 33
Report
[2021] 2 SCR 785
Case number
38992
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Manitoba
Subjects
Courts
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, [2021] 2 S.C.R. 785
Appeal Heard: March 17, 2021 Judgment Rendered: September 24, 2021 Docket: 38992
Between: Canadian Broadcasting Corporation Appellant
and
Her Majesty The Queen, Stanley Frank Ostrowski, B.B., spouse of the late M.D., and J.D., in his capacity as executor of the estate of the late M.D. Respondents
- and -
Attorney General of Ontario, Attorney General of British Columbia, Centre for Free Expression, Canadian Association of Journalists, News Media Canada, Communications Workers of America/Canada and Ad Idem/Canadian Media Lawyers Association Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 107)
Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe and Martin JJ. concurring)
Dissenting Reasons: (paras. 108 to 131)
Abella J.
Canadian Broadcasting Corporation Appellant
v.
Her Majesty The Queen,
Stanley Frank Ostrowski,
B.B., spouse of the late M.D., and
J.D., in his capacity as executor of the estate of the late M.D. Respondents
and
Attorney General of Ontario,
Attorney General of British Columbia,
Centre for Free Expression,
Canadian Association of Journalists,
News Media Canada,
Communications Workers of America/Canada and
Ad Idem/Canadian Media Lawyers Association Interveners
Indexed as: Canadian Broadcasting Corp. v. Manitoba
2021 SCC 33
File No.: 38992.
2021: March 17; 2021: September 24.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal of manitoba
Courts — Jurisdiction — Publication bans — Variation — Criminal proceedings — Court of Appeal ordering indefinite publication ban on affidavit filed in criminal proceedings before it — Motion brought by media representative after judgment on merits of proceedings rendered asking Court of Appeal to set aside publication ban — Court of Appeal declining to hear motion on basis that jurisdiction exhausted — Whether court retains jurisdiction to reconsider publication ban orders and other such ancillary orders after merits of criminal proceedings decided.
An affidavit filed in a criminal matter before the Court of Appeal had been subject to a publication ban pending a decision as to its admissibility as new evidence. In its November 2018 reasons allowing the appeal on the merits, the Court of Appeal dismissed the motion for new evidence but ordered that the publication ban remain in effect indefinitely. In May 2019, the CBC brought a motion before the Court of Appeal to have the publication ban set aside, arguing that having access to the affidavit would shed light on the criminal matter before the Court of Appeal and the court’s conclusion on the merits that a miscarriage of justice had occurred at trial.
The Court of Appeal declined to consider the CBC’s motion, citing its rule of practice against rehearings and the doctrine of functus officio. The court reasoned that its jurisdiction was exhausted once it had decided the merits of the case and entered its formal judgment disposing of the appeal. It concluded that it had no authority to hear the motion. The CBC applied for and was granted leave to appeal to the Court from both the Court of Appeal’s 2019 decision refusing to reconsider the publication ban (“2019 Jurisdiction Judgment”) and the Court of Appeal’s 2018 decision ordering the indefinite publication ban (“2018 Publication Ban Judgment”).
Held (Abella J. dissenting): The appeal from the 2019 Jurisdiction Judgment should be allowed and the matter remanded to the Court of Appeal. The appeal from the 2018 Publication Ban Judgment should be adjourned sine die.
Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.: The Court of Appeal had jurisdiction to consider the CBC’s motion to set aside the publication ban. While the court could not rehear the appeal on the merits and while the doctrine of functus officio precluded it from reconsidering the substance of the appeal, the court retained the authority to supervise access to the record of its own proceeding, which allowed it to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed. The matter should be remanded to the Court of Appeal, as it is best placed to decide the CBC’s motion and the discretionary and fact‑specific issues raised. It would be inappropriate for the Court to decide the CBC’s appeal from the 2018 Publication Ban Judgment before the Court of Appeal has had a chance to consider the CBC’s motion to have the publication ban set aside.
According to the rule of functus officio, a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision. A court loses jurisdiction once the formal judgment has been entered. This rule serves goals of finality and of an orderly appellate procedure. If lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court.
That said, it is important to distinguish between jurisdiction over the merits lost by operation of the doctrine of functus officio and jurisdiction that exists to supervise the court record. Even when a court has lost jurisdiction over the merits of a matter as a result of having entered its formal judgment, it retains jurisdiction to control its court record with respect to proceedings generally understood to be an ancillary but independent matter. This power is part of a court’s authority to control its own process and arises by necessary implication from the legislative grant of a court’s adjudicative authority. It is anchored in the vital public policy favouring public access to the workings of the courts. Important decisions about the openness of the court record, such as rendering, varying or vacating publication bans and sealing orders, may need to be taken after the proceeding on the merits is over. Recognizing that a court’s jurisdiction to control its record survives the end of the underlying proceeding is not inconsistent with the purposes of finality and stability of judgments as the doctrine of functus officio was never intended to restrict the ability of lower courts to control their own files.
That courts retain supervisory jurisdiction over their court records is not to say that once decisions concerning court openness have been made they are open to reconsideration at any time or for any reason. A publication ban or sealing order is susceptible of reconsideration by the issuing court on two narrow grounds and regardless of whether formalized in an order or not.
First, a court may vary or set aside a publication ban or sealing order it has made on timely motion by an affected person, such as the media, who was not given notice of the making of that order and to whom it is appropriate to grant standing for this purpose. Regarding publication bans in criminal matters, standing should be thought of as a matter of a court’s discretion. The media should generally have standing to challenge an order that threatens the open court principle where they are able to show they will make submissions that were not considered and that could have affected the result. A court does retain residual discretion to deny standing where hearing the motion would not be in the interests of justice, such as where it would unduly harm the parties or duplicate argument already before the court. As to delay, a moving party is expected to take prompt action to challenge such an order once it has become aware it exists. In the absence of legislative direction, a court must be guided by the purpose of the rule and the circumstances of each case. The task is a contextual balancing of finality and timely justice against the importance of the matter being heard on the merits. This determination is inherently tied to the facts of each particular case and the nature of the issue raised.
Second, a court may vary or set aside a publication ban or sealing order where the circumstances relating to the making of the order have materially changed. The moving party must establish both that a change of circumstances has occurred and that the change, if known at the time of the initial order, would likely have resulted in an order on different terms. The correctness of the initial order is presumed and is not relevant to the existence of a material change of circumstances.
Instances in which a court may reconsider a publication ban or sealing order are distinct from an appeal or application for certiorari made to a higher court from such decisions, as the original court is not being asked to reconsider its decision because it is wrongly decided. Finally, the general principles underlying the two grounds for reconsideration can be displaced by legislation, such as applicable rules of court.
In the present case, the Court of Appeal erred in concluding that applicable legislation, such as its rules of court procedure, or the doctrine of functus officio deprived it of jurisdiction to consider the CBC’s motion to set aside the publication ban. The Court of Appeal retained jurisdiction to oversee its record even after the certificate of decision in the underlying proceeding on the merits was entered. That the Court of Appeal had jurisdiction to consider the CBC’s motion does not mean, however, that the CBC is entitled to the relief it sought. The availability of relief turns on the proper application of the law to the facts, a determination that should be made by the Court of Appeal. Since the CBC has not established a material change of circumstances, it will therefore have to rely on the Court of Appeal’s power to reconsider an order on the basis that it was made without notice to an affected party. The impugned order was made of the Court of Appeal’s own accord at the oral hearing and then continued indefinitely. The court heard no submissions on point and provided no prior notice to anyone, including the media, notably the CBC who learned of the impugned ban shortly after the reasons were released. The Court of Appeal will have to determine whether the CBC has standing to challenge the relevant order and whether CBC’s motion was timely. Furthermore, any discretionary limits on access to and publication of the contents of the court record must be understood in reference to the test for discretionary limits on court openness: a court can order discretionary limits on openness only where (1) openness poses a serious risk to an important public interest, (2) the order sought is necessary to prevent that risk and (3) the benefits of the order outweigh its negative effects.
Per Abella J. (dissenting): The appeals should be dismissed. The CBC is not entitled to reconsideration of the publication ban as a result of its undue and unjustified delay.
The media is a crucial voice in protecting and promoting the openness of courts, and their right to challenge publication bans is undisputed. But once the underlying proceedings are over, the doctrine of functus officio means as a general rule that a final decision cannot be reconsidered by the court that rendered the decision. Although the application of functus officio is less formalistic and more flexible in respect of ancillary orders and publication bans, and circumscribed avenues must be maintained through which the media can ask a court to reconsider a publication ban after the underlying proceedings are over, the rationales underlying this doctrine show that it has a role to play in respect of publication ban orders.
Finality matters. The parties are entitled to move on with their lives and to be protected from the psychological and financial costs of being dragged back into the justice system when a case is over. A reconsideration of a publication ban must therefore be sought in a timely manner, and a publication ban should not generally be reconsidered after the main proceedings have ended unless there is a sound basis for believing the media’s application is in the public interest and could reasonably lead to a different result. It is a balancing exercise, not a hierarchical grid, between the interests of finality and the interests in support of the open court principle. Courts issuing publication bans are expected to consider the importance of the open court principle, even in the absence of a media representative making submissions, and there is no reason to assume that did not happen in this case.
In the present case, the CBC is unable to establish a material change in circumstances. The only bases under which it could move for reconsideration of the publication ban are by showing that the ban was issued without notice, that its submissions could make a material difference to the outcome, and that it moved for reconsideration in a timely manner. None of these conditions has been met.
First, the publication ban was not issued without notice. If the media is present in the courtroom when a publication ban is issued, as was the CBC, it follows that it knows of its existence. Second, the CBC has not discharged its burden of showing that its proposed submissions could make a material, or even any difference in the outcome.
Third, and more significantly, the CBC’s failure to act in a timely manner is determinative. An unexplained six‑month delay for filing a motion to have a publication ban reconsidered is inordinately long. Under no definition of “due dispatch” can this delay be justified, particularly since the CBC was fully aware of the ban from the outset of the proceedings. The delay in this case causes acute harm to the parties, who reasonably expected that their privacy and dignity interests were protected by the finality of the proceedings.
Cases Cited
By Kasirer J.
Referred to: Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 521; R. v. Ostrowski and Correia (1989), 57 Man. R. (2d) 255, aff’d R. v. Ostrowski, [1990] 2 S.C.R. 82; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; Reekie v. Messervey, [1990] 1 S.C.R. 219; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Adams, [1995] 4 S.C.R. 707; R. v. Smithen‑Davis, 2020 ONCA 759, 68 C.R. (7th) 75; Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186; R. v. H. (E.) (1997), 33 O.R. (3d) 202; The Queen v. Jacobs, [1971] S.C.R. 92; R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857; Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257; Ayangma v. French School Board, 2011 PECA 3, 306 Nfld. & P.E.I.R. 103; GEA Refrigeration Canada Inc. v. Chang, 2020 BCCA 361, 43 B.C.L.R. (6th) 330; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65; CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 59 O.R. (3d) 18; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; R. v. Wagner, 2017 ONSC 6603; R. v. Henry, 2012 BCCA 374, 327 B.C.A.C. 190; In re St. Nazaire Co. (1879), 12 Ch. D. 88; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219; Wilson v. The Queen, [1983] 2 S.C.R. 594; Dickie v. Woodworth (1883), 8 S.C.R. 192; Hollinger Inc. v. The Ravelston Corp., 2008 ONCA 207, 89 O.R. (3d) 721; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; R. v. White, 2008 ABCA 294, 93 Alta. L.R. (4th) 239, aff’d Toronto Star Newspaper Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; Ivandaeva Total Image Salon Inc. v. Hlembizky (2003), 63 O.R. (3d) 769; Canadian Transportation Accident Investigation and Safety Board v. Canadian Press (2000), 184 N.S.R. (2d) 159; 9095‑7267 Québec inc. v. Caisse populaire Ste‑Thérèse‑de‑Blainville, 2001 CanLII 14878; Attorney General of Ontario v. 15 Johnswood Crescent, 2009 CanLII 50751; Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67; Toronto Standard Condominium Corporation No. 2058 v. Cresford Developments Inc., 2019 ONSC 801, 97 C.L.R. (4th) 306; 1202600 Ontario Inc. v. Jacob, 2012 ONSC 361; 585430 Alberta Ltd. v. Trans Canada Leasing Inc., 2005 MBQB 220, 196 Man. R. (2d) 191; Jane Doe v. Manitoba, 2005 MBCA 57, 192 Man. R. (2d) 309; M. (A.) v. Toronto Police Service, 2015 ONSC 5684, 127 O.R. (3d) 382; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; R. v. Vice Media Canada Inc., 2018 SCC 53, [2018] 3 S.C.R. 374; British Columbia v. BCTF, 2015 BCCA 185, 75 B.C.L.R. (5th) 257; Morin v. R. (1997), 32 O.R. (3d) 265; R. v. B. (H.), 2016 ONCA 953, 345 C.C.C. (3d) 206; R. v. Le, 2011 MBCA 83, 270 Man. R. (2d) 82; L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775; Droit de la famille — 132380, 2013 QCCA 1504, 37 R.F.L. (7th) 1; R. v. Baltovitch (2000), 47 O.R. (3d) 761; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. R., 2010 ONCA 726, 102 O.R. (3d) 673; Aboriginal Peoples Television Network v. Alberta (Attorney General), 2018 ABCA 133, 70 Alta. L.R. (6th) 246; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543; Wells v. Newfoundland, [1999] 3 S.C.R. 199; Secure 2013 Group Inc. v. Tiger Calcium Services Inc., 2017 ABCA 316, 58 Alta. L.R. (6th) 209; Canadian Planning and Design Consultants Inc. v. Libya (State), 2015 ONCA 661, 340 O.A.C. 98; Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65; MK Engineering Inc. v. Assn. of Professional Engineers and Geoscientists of Alberta Appeal Board, 2014 ABCA 58, 68 Admin. L.R. (5th) 135; Aleong v. Aleong, 2013 BCCA 299, 340 B.C.A.C. 44; Canadian Cablesystems (Ontario) Ltd. v. Consumers’ Association of Canada, [1977] 2 S.C.R. 740.
By Abella J. (dissenting)
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Adams, [1995] 4 S.C.R. 707; Nova Scotia Government and General Employees Union v. Capital District Health Authority, 2006 NSCA 85, 246 N.S.R. (2d) 104; Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Henry, 2012 BCCA 374, 327 B.C.A.C. 190; British Columbia v. BCTF, 2015 BCCA 185, 75 B.C.L.R. (5th) 257; R. v. Khela, [1995] 4 S.C.R. 201; Hollinger Inc. v. Ravelston Corp., 2008 ONCA 207, 89 O.R. (3d) 721; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 521; Canadian Cablesystems (Ontario) Ltd. v. Consumersʼ Association of Canada, [1977] 2 S.C.R. 740.
Statutes and Regulations Cited
Alberta Rules of Court, Alta. Reg. 124/2010, r. 9.15.
Canadian Charter of Rights and Freedoms, s. 2(b).
Code of Civil Procedure, CQLR, c. C‑25.01, art. 349.
Court of Appeal Rules, Man. Reg. 555/88R, r. 21(4), 33(4), 46.2(1), (2), (4), (12).
Court of Queen’s Bench Rules, Man. Reg. 553/88R, r. 37.11.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 696.1, 696.3(3)(a)(ii).
Manitoba Criminal Appeal Rules, SI/92‑106, r. 45.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 37.14.
Supreme Court Act, R.S.C. 1985, c. S‑26, ss. 40(1), 46.1.
Authors Cited
Barbeau, François‑Olivier. “Rétractation du jugement”, dans JurisClasseur Québec — Collection droit civil — Procédure civile I, par Pierre‑Claude Lafond, dir. Montréal: Lexis Nexis, 2015, fascicule 31 (feuilles mobiles mises à jour novembre 2020, envoi nº 11).
Mayrand, Albert. Dictionnaire de maximes et locutions latines utilisées en droit, 4e ed. Montréal: Yvon Blais, 2007.
Rossiter, James. Law of Publication Bans, Private Hearings and Sealing Orders. Toronto: Thomson Reuters, 2006 (loose‑leaf updated 2020, release 2).
Wong, Anna S. P. “Doctrine of Functus Officio: The Changing Face of Finality’s Old Guard” (2020), 98 Can. Bar Rev. 543.
APPEAL from a judgment of the Manitoba Court of Appeal (Beard, Burnett and Pfuetzner JJ.A.), 2019 MBCA 122 (sub nom. R. v. Ostrowski), [2019] M.J. No. 334 (QL), 2019 CarswellMan 923 (WL Can.), dismissing a motion to set aside a publication ban. Appeal allowed, Abella J. dissenting.
APPEAL from a judgment of the Manitoba Court of Appeal (Beard, Burnett and Pfuetzner JJ.A.), 2018 MBCA 125, 369 C.C.C. (3d) 139 (sub nom. R. v. Ostrowski), [2018] M.J. No. 306 (QL), 2018 CarswellMan 550 (WL Can.), ordering inter alia that a publication ban remain in effect. Appeal adjourned sine die, Abella J. dissenting.
Jonathan B. Kroft and Sean A. Moreman, for the appellant.
Michael Bodner and Denis Guénette, for the respondent Her Majesty The Queen.
Harvey T. Strosberg, Q.C., and James Lockyer, for the respondent Stanley Frank Ostrowski.
Robert Gosman, for the respondents B.B., spouse of the late M.D., and J.D., in his capacity as executor of the estate of the late M.D.
Michael Bernstein, for the intervener the Attorney General of Ontario.
Lesley A. Ruzicka, for the intervener the Attorney General of British Columbia.
Fredrick Schumann, for the interveners the Centre for Free Expression, the Canadian Association of Journalists, News Media Canada and Communications Workers of America/Canada.
Tess Layton, for the intervener Ad Idem/Canadian Media Lawyers Association.
The judgment of Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. was delivered by
Kasirer J. —
I. Overview
[1] The principal issue in these appeals concerns a court’s jurisdiction to render, vary or vacate orders — sealing orders, publication bans and the like — that limit the open court principle. The question is whether a court retains jurisdiction over these ancillary matters after it has decided the merits of the case and has entered its formal judgment. Does the doctrine of functus officio — the notion that once a court has performed its function, it has exhausted its authority — preclude that court from revisiting a publication ban that it had ordered or a sealing order put in place in the course of criminal proceedings?
[2] An affidavit filed in a criminal matter before the Court of Appeal of Manitoba had been held under seal and subject to a publication ban pending a decision as to its admissibility as new evidence. In its reasons allowing the appeal on the merits, the court dismissed the motion for new evidence because it was not relevant to the issue at hand. It nevertheless ordered that the publication ban remain in place indefinitely.
[3] Relying on the open court principle and the constitutionally‑protected right of freedom of the press with which it is bound up, the appellant Canadian Broadcasting Corporation (“CBC”) brought a motion in which it sought access to the affidavit and asked to have the publication ban set aside. It had been covering the proceedings as a representative of the media. Lifting the publication ban, said the CBC, would shed light on the principal matter before the Court of Appeal and its conclusion on the merits that a miscarriage of justice had occurred at trial. The Crown opposed the motion to disturb the ban, however, arguing that the affidavit was not relevant and the Court of Appeal had no continuing authority over the matter. Family members of a deceased person mentioned in the affidavit under seal also opposed lifting the ban since, they said, doing so would result in an unjustifiable violation of their privacy.
[4] The Court of Appeal declined to consider the CBC’s motion, citing its rule of practice against rehearings and the doctrine of functus officio. The court reasoned that its jurisdiction was exhausted once it had decided the merits of the case and entered its formal judgment disposing of the appeal. It concluded that it had no authority to hear the motion and said the CBC should turn to this Court, on appeal, to seek redress.
[5] In point of fact, this Court is seized of two appeals. In the first, leave was granted from the Court of Appeal’s refusal to hear the motion in which it was asked to reconsider its own publication ban and, in addition, to grant the CBC access to the affidavit. This first appeal raises preliminary issues about the Court of Appeal’s powers to reconsider such decisions after it had entered the formal order on the merits of the miscarriage of justice case, including consideration of the doctrine of functus officio. In the second appeal for which leave was also granted, the CBC challenges the publication ban directly. This second appeal is taken directly from the publication ban itself, and unlike the first appeal, it does not concern the order granting access to the affidavit also sought in the CBC’s motion. It raises the sole issue of whether the Court of Appeal was correct to order the final, indefinite publication ban made in the judgment which disposed of the merits of the appeal.
[6] As to the first appeal, and so said with great respect, I do not share the Court of Appeal’s view that it was without jurisdiction to consider the motion brought by the CBC. It is true that, in the exercise of its appellate authority, the Court of Appeal could not rehear the appeal on the merits and that the doctrine of functus officio precludes it from reconsidering the substance of the appeal. But after a court loses jurisdiction over the merits, it generally retains the authority to supervise access to the record of its own proceedings. Even after the formal judgment on the merits is filed, this ongoing authority allows the court to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed. Indeed, it is critical to upholding the responsibility all courts have to manage their records in accordance with the Canadian Charter of Rights and Freedoms and the proper administration of justice. As ancillary court openness issues have no bearing on the judgments on the merits, there was no reason for the Court of Appeal to tie its own hands in service of the finality of the underlying judgment that was not at risk.
[7] Moreover, the Court of Appeal had ordered the continuing publication ban in its judgment on the merits without a hearing to determine whether the open court principle should be limited in the circumstances. The Court of Appeal ought to have considered whether it was appropriate to set aside its publication ban on motion by the CBC in these circumstances.
[8] For the reasons that follow, to dispose of the first appeal I propose that the matter should be remanded to the Court of Appeal to decide the CBC’s motion. That court is best placed to decide the discretionary and fact‑specific issues raised, including whether the CBC should be granted standing to challenge the publication ban, whether the motion was unreasonably delayed such that it is not in the interests of justice to hear it and whether the lifting of the publication ban is justified here taking into account this Court’s decision in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 521
[9] Given that I propose to dispose of the first appeal by returning the matter to the Court of Appeal to decide the CBC’s motion, in my respectful view it would be inappropriate for this Court to decide the second appeal challenging the ban directly now, before the Court of Appeal has had a chance to reconsider the matter. Accordingly, I would adjourn the second appeal sine die.
II. Background and Proceedings Below
A. The Miscarriage of Justice Reference
[10] Following a jury trial in 1987, Stanley Ostrowski was convicted of first degree murder. He appealed the conviction unsuccessfully to the Court of Appeal and later this Court (R. v. Ostrowski and Correia (1989), 57 Man. R. (2d) 255, aff’d R. v. Ostrowski, [1990] 2 S.C.R. 82).
[11] In 2014, the Minister of Justice referred the matter to the Court of Appeal pursuant to ss. 696.1 and 696.3(3)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C‑46. These provisions allow matters to be referred back to the Court of Appeal in circumstances where, in the Minister’s view, there is a reasonable basis to conclude that a miscarriage of justice has likely occurred.
[12] Certain new evidence relating to the conviction at trial in 1987 was proposed for consideration by the Court of Appeal upon joint motion of the Crown and Mr. Ostrowski. Unusually, this included the live testimony of 12 witnesses heard before a panel of appellate justices. The Crown conceded this evidence was admissible, that it proved a miscarriage of justice had occurred and, accordingly, that the 1987 conviction should be set aside. The concession was based on evidence pointing to the existence of a deal made between prosecutors and a witness whose testimony had linked Mr. Ostrowski to the murder. The evidence had not been disclosed to Mr. Ostrowski at trial, violating his right to make full answer and defence.
[13] The parties did not agree on the appropriate remedy for the miscarriage of justice. The Crown sought a new trial order and a judicial stay of those proceedings, while Mr. Ostrowski asked that an acquittal be entered by the Court of Appeal.
[14] Mr. Ostrowski also sought to introduce further new evidence, specifically an affidavit sworn by his lawyer, Richard Posner (“Posner affidavit”). The affidavit contained details of certain events that had occurred after one of the 12 witnesses, M.D., had testified before the Court of Appeal in this matter. Unlike the material relating to the other motion for new evidence, the Crown did not consent to the Posner affidavit being admitted into evidence.
[15] The Court of Appeal heard oral argument from the parties on May 28, 2018, including submissions regarding the admissibility of the Posner affidavit. The affidavit was sealed, pursuant to the Court of Appeal Rules, Man. Reg. 555/88R, relating to motions for new evidence, but the Court of Appeal nevertheless reviewed it on the consent of the parties (r. 21(4)). It also ordered a publication ban respecting this material at the outset of the May 28 hearing:
THE COURT: . . . [I]n our view, unless counsel feel otherwise, there must be a publication ban. There’s no point in having the sealed material to the extent that it’s referred to in argument without a publication ban. So there will be a publication ban as well unless counsel wish to address that?
Ban on Publication
(R.R. (Crown), at p. 137)
[16] As it would later concede before the Court of Appeal, the CBC was reporting on the proceedings, and its journalists could have attended any of the hearings, including the May 28 hearing.
B. The 2018 Publication Ban Judgment (2018 MBCA 125, 369 C.C.C. (3d) 139 — Beard, Burnett and Pfuetzner JJ.A.)
[17] The Court of Appeal found a miscarriage of justice as a result of the non‑disclosure based on material revealed by the first motion for new evidence, accepting the concession of the Crown noted above. This was sufficient to conclude the conviction should be set aside. The Court of Appeal ultimately quashed the conviction, ordered a new trial and entered a stay of any further proceedings, and continued the publication ban indefinitely (“2018 Publication Ban Judgment”).
[18] The court declined to admit the Posner affidavit as further new evidence, because it concluded that it was not relevant to the determination of the only live issue of the appropriate remedy for Mr. Ostrowski. Instead, the evidence went to “the issue of whether there was Crown misbehaviour, which was relevant to whether there had been a miscarriage of justice” (para. 82). Beard J.A. wrote the following in concluding: “I am of the view that the evidence is not relevant to the issues to be determined and the motion should be dismissed. I would order that the publication ban regarding this evidence should remain in effect” (ibid.).
[19] For our purposes, it bears emphasizing that the publication ban that the Court of Appeal had ordered at the hearing was, in para. 82 of the court’s reasons on the merits, ordered to “remain in effect.” This was done without either a motion to that end or particularized pleadings on the appropriateness of the continuing order in light of the open court principle. The Posner affidavit had been sealed pursuant to a rule of court during the proceedings on appeal (Court of Appeal Rules, r. 21(4)). That sealing order is not mentioned in the 2018 Publication Ban Judgment.
[20] A formal certificate of decision of this judgment was entered in January 2019, recording the orders on the appeal and the two new evidence motions. The certificate made no reference to a sealing order or a publication ban.
C. The 2019 Jurisdiction Judgment (2019 MBCA 122 — Beard, Burnett and Pfuetzner JJ.A.)
[21] Following the disposition of the appeal on the miscarriage of justice, the CBC petitioned the Court of Appeal to obtain access to the Posner affidavit and to ask the court to set aside the publication ban referred to in the 2018 Publication Ban Judgment. The CBC’s motion was brought in May 2019, following the release of reasons on the merits of Mr. Ostrowski’s appeal and the filing of the formal judgment in that matter.
[22] The CBC had contacted the Registrar at the Court of Appeal seeking access to the Posner affidavit. Evidence suggests the CBC received word from the Court of Appeal’s media relations officer alerting it to the existence of the publication ban in the days following the release of the 2018 reasons on the merits of Mr. Ostrowski’s appeal. However, it was over five months later that the CBC filed the above-mentioned motion.
[23] The CBC relied on s. 2(b) of the Charter and alleged that the evidence did not support “any continued restriction on the right of the media and the public to access and report upon the full record of these [p]roceedings” (A.R., at p. 75). In its motion brief, the CBC emphasized its purpose to render transparent the circumstances that led to the miscarriage of justice, arguing that it was of the utmost importance that material in the Posner affidavit concerning M.D., one of the 12 witnesses at the miscarriage of justice proceeding, be open to public scrutiny. In an affidavit filed in support of the motion, the CBC’s Director of Investigative Journalism: Regions observed that there had been no formal motion filed requesting a publication ban of the material and there was no notice to the public or the media that a ban was being sought.
[24] M.D.’s spouse, B.B., and the executor of his estate, J.D. (collectively, “interested parties”) opposed the CBC’s motion on jurisdictional grounds, as did the Crown. Noting that the certificate of decision had already been entered, the interested parties and the Crown argued that the Court of Appeal had no authority to decide the motion by reason of the rule against rehearing in the Court of Appeal Rules.
[25] The Court of Appeal dismissed the motion, citing a lack of jurisdiction (“2019 Jurisdiction Judgment”). It explained that the CBC was seeking a rehearing of a publication ban order made as part of the final disposition of Mr. Ostrowski’s appeal. “[N]o rehearing of an appeal, or any issue dealt with on an appeal, can occur once the certificate of decision has been entered”, wrote Pfuetzner J.A. for the court, relying on r. 46.2 of the Court of Appeal Rules and the common law doctrine of functus officio (para. 17 (CanLII)). The certificate had been entered well before the motion was brought. The fact that the certificate did not mention the publication ban was held not to be determinative because it was “subsidiary” to the ruling on the new evidence motion and the final disposition of the appeal. It was further barred by r. 46.2(12), which provides a motion cannot be reheard. The Court of Appeal concluded that the “proper route for a third party . . . to challenge a publication ban issued by a superior court (including one issued by an appellate court) is to seek leave to appeal to the Supreme Court of Canada” (para. 21). It dismissed the motion on this jurisdictional basis alone.
III. Issues
[26] As is plain from the CBC’s two applications seeking leave, the terms of the leave judgment and the arguments of the parties before us, this matter raises two distinct appeals. The CBC is appealing both from the 2019 Jurisdiction Judgment dismissing the motion for reconsideration, and from the 2018 Publication Ban Judgment, which made the indefinite publication ban at issue in this case.
[27] In these two appeals, the CBC seeks three orders from this Court. First, the CBC asks for an order setting aside the 2019 Jurisdiction Judgment. It argues the Court of Appeal erred in concluding it had no jurisdiction to hear its motion and should have addressed the issues of whether to reconsider the publication ban and of whether the public and the press have the right to access the Posner affidavit. Notably, the CBC argues that neither the rule against rehearings in the Court of Appeal Rules nor the doctrine of functus officio deprived the Court of Appeal of jurisdiction to consider the motion based in constitutional principles of court openness. It says that the publication ban could be reconsidered on the basis of a change in circumstances or because, as an affected party, it did not have notice of the making of this order.
[28] The CBC also asks this Court for a second order setting aside the continuing publication ban in the 2018 Publication Ban Judgment and a third giving it access to the Posner affidavit as part of the court record. It argues the open court principle applies to material that is tendered as new evidence even if, at the end of the day, it is not admitted. In this instance, it says the publication ban fails the test for discretionary limits on this principle set forth in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. It contends further that the public is legally entitled to access the Posner affidavit because the applicable rules do not provide for continued sealing of this material. Mr. Ostrowski adopts the CBC’s position and adds that the orders of the Court of Appeal preclude the proper accountability of public officials whose actions he alleges contributed to his wrongful conviction.
[29] The Crown takes the position that the Court of Appeal was right to conclude that it had no jurisdiction to consider the CBC’s motion. The Crown says, however, that if the Court of Appeal had authority to consider these issues, this Court does not have jurisdiction with respect to the publication ban and, if it does, it should decline to exercise its authority. Should this Court proceed to consider the merits, the Crown’s position is that the Court