Publication bans should be put to the test in CBC v the Queen
Canadian Broadcasting Corporation v Her Majesty the Queen, et al. 38992 [CBC v the Queen] considers whether evidence not admitted as part of the record prima facie can be subject to a publication ban.This challenge resulted from the Manitoba Court of Appeal’s (“MBCA”) decision to implement a publication ban over a set of fresh evidence that was introduced during R v Ostrowski, 2019 MBCA 122 [Ostrowski]. The ban was granted because the court determined that the evidence was irrelevant to the decision. The Canadian Broadcasting Corporation (CBC) tried to have the publication ban overturned with no success at the MBCA and appealed to the Supreme Court of Canada (“SCC”). This matter was heard by the SCC only a few weeks ago. As we await the decision, this piece considers the possible directions the decision may take, as well as how the court can address issues related to publication bans.
A publication ban may be imposed by a court at any level to prevent the dissemination of information during a trial. This can range from a publishing a person’s name to most aspects of the case. The restriction is conferred to all those that are privy to the information subject to the ban. There is a myriad of reasons why a publication ban may be ordered in a given case, including a need to preserve trial fairness, the administration of justice, exchange of confidential information, and personal privacy. According to the Department of Justice, publication bans may be necessary to “encourage witnesses who are afraid to testify; protect vulnerable witnesses, including children and victims of crime; encourage victims and others to report offences that are usually under-reported, such as sexual offences; and protect the privacy of justice system participants.” Any party in a trial can request a publication ban so long as the reason for requesting the ban is consistent with factors found in the Criminal Code of Canada [Criminal Code] such as “the right of the accused person to a fair and public hearing; whether there is a risk that the victim, witness or justice system participant; whether the order is needed to protect a victim, witness or justice system participant; and society’s interest in encouraging the reporting of offenses.”
Facts of the Case
The CBC is trying to overturn a publication ban that resulted from the Ostrowski appeal, where the accused’s first-degree murder charge was reviewed at the request of the Minister of Justice. The accused was convicted of first-degree murder in 1987 and both of his appeals to the MBCA and the SCC were denied. In 2014, the Minister of Justice asked the MBCA to review the case, due to a concern that there may have been a miscarriage of justice. In order to complete this review, several witnesses were required to testify, including a former Crown attorney who was not identified. The testimonies of the witnesses were introduced to the court as fresh evidence (Ostrowski, para 7). As a result of this fresh evidence, the Crown agreed that the accused had experienced a miscarriage of justice and the 1987 conviction for first degree murder should be overturned. In the proceedings before the MBCA, the key issue was determining an appropriate remedy. Specifically, the MBCA needed to determine whether an acquittal or a new trial with a stay of proceedings was the best remedy.
The accused also hoped to admit a second set of fresh evidence that related to an incident of misconduct involving the former Crown who testified in the appeal. The second set of fresh evidence was reviewed by the MBCA. Since the MBCA found that the first set of fresh evidence exonerated the accused, the second set of fresh evidence was determined to be irrelevant to the finding that there had been a miscarriage of justice, and the determination as to what the remedy should be. The second set of fresh evidence was sealed, not admitted into the trial, and the MBCA placed a publication ban on it (Ostrowski, para 8).
In December of 2018, following this decision, the CBC sought information about the publication ban on the second set of fresh evidence. After the certificate of the decision to place a publication ban was released on January 24th, 2019, the CBC filed a motion on May 10th, 2019 to have the publication ban removed (Ostrowski, para 8).
In a separate hearing, the MBCA focused much of its reasoning on whether the court had jurisdiction to hear the case and, if necessary, overturn the publication ban. The Crown, acting as the respondent, argued that the MBCA did not have jurisdiction to overturn the ban as per Rule 46.2(2) of the Court of Appeal Rules, Man Reg 555/88R because the certificate of the decision was already released. The CBC argued that the MBCA did have the authority to intervene, because the order for the publication ban was not yet finalized. The MBCA agreed with the government. Due to rule 46.2(2), the MBCA was functus officio – the court’s mandate had expired. The matter was appealed to the SCC.
Issues at Hand
This case raises issues of freedom of expression as it relates to sealing evidence and tests the requirements of the open principle. There are three issues in particular that the SCC should give weight to in their decision. The first relates to jurisdiction. It must be determined if Rule 42.2 of the Court of Appeal Rules correctly prevented the MBCA from revoking the publication ban. Another issue concerns whether allowing the evidence in question to be sealed breaches freedom of expression and is, therefore, unconstitutional, pursuant to s 2(b) of the Charter of Rights and Freedoms [Charter] or violates the open court principle. Finally, the Court must determine whether the court hearing the case must give notice to the public and the media about the ban and provide reasons for it.
The SCC’s Possible Approach
The issue of jurisdiction is pertinent given that the MBCA found that if the CBC wanted to appeal the publication ban, it had to appeal to the SCC. Since the MBCA filed the certificate of decision, rule 46.2 of the Court of Appeal Rules moves jurisdiction from the MBCA to the SCC. It is incumbent on the SCC to clarify if the MBCA has an inherent right to review the publication ban or if the legislation lawfully makes the court functus officio upon entering the certificate of decision.
The second issue relates to the set of fresh evidence that the MBCA sealed under the publication ban. As it relates to the freedom of expression, the SCC may consider whether rule 21(4) of the Court of Appeal Rules contravenes s. 2(b) of the Charter. Rule 21(4) allows for further evidence introduced in an appeal to be sealed until a motion is heard to determine whether the evidence should be admitted into the official trial record. The party that moves to introduce further evidence must indicate the nature of the evidence, how it may be determinative of the appeal, and why it was not introduced in the initial proceeding.
The SCC may need to consider whether sealing evidence perpetually infringes the right to freedom of expression under s. 2(b) of the Charter. Since the test for freedom of expression carries a low threshold for a breach, it is likely that the SCC will find a breach. If so, they will then need to balance the reasons for sealing evidence against the potential societal harms of not doing so. This issue can also be examined vis-à-vis the open court principle. The open court principle “assumes that public confidence in the integrity of the court system and understanding of the administration of justice is fostered by openness and full publicity.” Sealing further evidence seems antithetical to this principle. If it is determined that sealing evidence in this case did unjustifiably violate the open court principle, the SCC will likely source this allowance in rule 21(4) and determine whether there is a s. 2(b) violation of the Charter.
Freedom of expression, with or without the open court principle analysis, is likely to play a significant factor in the SCC’s decision. There is, however, value in engaging with the open court principle by bolstering the freedom of expression argument with the importance of open and accessible trials. The SCC may also want to clarify the actions of the MBCA as it related to this evidence. In the case, the court reviewed the evidence and then sealed it. It is not clear that rule 21(4), nor any related rule, allows for such a step. Definitively stating whether the MBCA acted appropriately is important.
Another major issue in this case relates to the discretionary authority of the courts to implement a publication ban, whether that discretionary authority should be managed and, if so, how. In Dagenais v Canadian Broadcasting Corp.  3 SCR 835 [Dagenais], the SCC developed the Dagenais/Mentuck test to guide the courts as they determine whether or not to implement a publication ban. The test asks whether:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. (Dagenais, para 32)
This current case may prompt the SCC to consider if courts, when ordering a publication ban, must give prior notice, set out the terms of the ban, record the ban in a way that the public can access it, and provide reasons, in accordance with the Dagenais/Mentuck test. The importance of the SCC speaking on this issue goes beyond the publication ban in question. Publication bans are often portrayed as a tool of protection for witnesses, victims, and others who may be reluctant to participate in a trial. In cases of sexual assault, for example, there seems to be no question of the need for publication bans to encourage women and children to come forward with their stories. Elizabeth A Sheehy specifically states that publication bans that protect women and children who are victims of sexual assault are legislative wins and must be protected. However, it must be acknowledged that publication bans can be misused. While these bans can protect women and children against the scrutiny and stigma that often comes from accusing someone of sexual assault, they can be used to silence and intimidate them. Recently, a woman in Kitchener, Ontario was fined by a court for breaching a publication ban when she told her support network about a trial decision concerning her own sexual assault. CBC v The Queen is not intended to be a referendum on publication bans, but managing discretion by requiring reasons as per the Dagenais/Mentuck test and setting out the terms of the ban is something the SCC should address.
The SCC’s decision in this case is poised to be a defining case for freedom of expression jurisprudence. It will be interesting to see what role, if any, the open court principle will play in its outcome. Though not necessary to the outcome of the decision, engaging with the open court principle in tandem with a s. 2(b) Charter analysis may offer strong commentary about the purposes of trials and concerns associated with sealing evidence unnecessarily. Personally, I hope the SCC will speak to publication bans more broadly. The issue that gave rise to a publication ban in this case concerned the apparent misbehaviour of the former Crown attorney after their testimony. This case represents a troubling example of when publication bans are applied inappropriately and, as a result, offers an opportunity for the SCC to address issues related to them. It is important that the SCC take time to convey the purposes of publication bans as set out in the Criminal Code, and put in place steps, such as offering reasons for the ban and indicating its terms, to ensure that when publication bans are granted, they are according to those purposes.