Court dealt with question of when a judge can limit open court principle and impose ban
In a decision dealing with when the court can exercise discretion to limit the open court principle, the Supreme Court of Canada has dismissed a request from the CBC to set aside a publication ban.
In Canadian Broadcasting Corp. v. Manitoba, 2023 SCC 27, the SCC delivered its ruling from the bench on Oct. 19 but released its reasons Thursday. The court unanimously dismissed CBC’s appeal, upholding a publication ban on an affidavit concerning the death of a witness involved in a man’s wrongful conviction trial, which he unsuccessfully sought to enter into evidence.
The court said Sherman Estate v. Donovan, 2021 SCC 25 provides the test to determine whether a court can accede to a party’s request to limit the open court principle and order a publication ban. The party must establish that the “court openness poses a serious risk to an important public interest,” that the requested order is necessary because reasonable alternative measures will not prevent the risk, and that the benefits of the requested order outweigh its adverse effects.
The court found that the first prong of the Sherman test was satisfied because disclosure of the affidavit would reveal highly sensitive and personal information that would violate the dignity of the deceased witness’s spouse. On the second prong, the court found the publication ban was necessary to protect the spouse’s dignity, and the ban was not overbroad or vague, and its terms had no other reasonable alternative. In weighing proportionality, the court concluded that the “minimal deleterious effect” on the right to free expression and open and accessible court proceedings was less significant than the benefit in protecting the spouse’s dignity.
In 1987, a Manitoba court convicted Frank Ostrowski of first-degree murder and sentenced him to life with no parole for 25 years. After the federal justice minister asked the Court of Appeal to determine whether there had been a miscarriage of justice in his case, Ostrowski’s conviction was set aside in 2018.
Ostrowski tried to enter a sworn statement into evidence about the death of a witness involved in his case. The appeal court issued a publication ban on the affidavit and did not accept the affidavit into evidence. The following year, the CBC asked the court to lift the publication ban, but it refused. The court said it no longer had jurisdiction to decide that issue because it had already decided Ostrowski’s case.
The CBC appealed both the decision ordering the publication ban and the appeal court’s decision that it lacked the authority to reconsider it. In 2021, the SCC found that the Court of Appeal did have jurisdiction to lift the ban after the case's conclusion.
“The decision that came out in 2021, which was that the Court of Appeal did have jurisdiction to reconsider a publication ban, has a significant impact on how the media and members of the public can challenge a publication ban that has already been made,” says Jonathan Kroft, counsel for the CBC and counsel at MLT Aikins LLP in Winnipeg.
For example, he says it is significant for the media to know that they are not required to apply for leave if they want reconsideration of a publication ban. The media organization can go back to the same court.
In September 2021, the SCC found in an 8-1 decision that while a court cannot rehear a case after rendering its judgment, it has the authority to control access to court records afterwards.
Kroft told Canadian Lawyer at the time that the ruling confirmed that people impacted by publication bans and sealing orders could go back to the issuing court if they were not able to make submissions in the first place or if circumstances have changed. The 2021 decision clarified the doctrine of functus officio, according to which a court cannot rehear a case it has decided, he said.
As to whether a publication ban can be justified under the principles from Sherman, Kroft could not comment on the specifics without breaching the publication ban.
“There were all kinds of issues that were raised about how the Sherman case should be applied, about what evidence is required in order to support an claim for protectable privacy interest, and about how publication bans should be documented. But it's really impossible to talk about the specifics.”
