CBC v Manitoba: Tying up a loose end

In Canadian Broadcasting Corp. v Manitoba, 2023 SCC 27 [CBC v Manitoba], the Supreme Court of Canada (“SCC” or “the Court”) unanimously dismissed from the bench an appeal from the Canadian Broadcasting Corporation (“CBC”) to set aside a publication ban. 

The SCC affirmed that Sherman Estate v Donovan, 2021 SCC 25 [Sherman Estate] sets out the principles for justifying a publication ban. Applying these principles, the Court upheld a publication ban over an affidavit introduced as novel evidence concerning the death of a witness in the course of wrongful conviction proceedings before the Court of Appeal of Manitoba (“MBCA”) in 2018.

Facts & Judicial History

This case is an appeal of a 2018 publication ban that was previously appealed to the SCC in 2021, but was adjourned indefinitely (sine die) pending another decision remanded to the MBCA (Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 [CBC v Manitoba, 2021]).

In 2018, the MBCA set aside the 1987 conviction of Frank Ostrowski after being asked by the federal Justice Minister to determine if there had been a miscarriage of justice (R v Ostrowski, 2018 MBCA 125 [2018 Publication Ban Judgement]). During the wrongful conviction proceedings, Mr. Ostrowski sought to introduce an affidavit that addressed the death of a witness involved in the wrongful conviction proceedings, though the affidavit was ultimately not admitted (CBC v Manitoba, para 2). The MBCA issued a publication ban over the affidavit.

The CBC filed a motion at the MBCA to set aside the publication ban, but the court found it did not have jurisdiction to hear the motion because it was functus officio — i.e., once a final decision is reached, that decision cannot be revisited (R v Ostrowski, 2019 MBCA 122 [2019 Jurisdiction Judgement].

The SCC granted the CBC leave to appeal both the 2018 Publication Ban and the 2019 Jurisdiction Judgement. In 2021, the Court heard both appeals; they allowed the appeal from the 2019 Jurisdiction Judgement, but remanded the motion to have the publication ban set aside back to the MBCA (CBC v Manitoba, 2021). The Court determined that while a court cannot rehear a case after judgement, it retains jurisdiction to control its record. Here, the MBCA should have heard the CBC’s motion because it was an ancillary matter (CBC v Manitoba, 2021, para 56).

The SCC adjourned the 2018 Publication Ban appeal sine die, pending the  remanded 2019 Jurisdiction Judgement decision, which would have a significant bearing on issues raised. 

In January 2023, the MBCA dismissed the CBC’s remanded motion to have the publication ban set aside (R v Ostrowski, 2023 MBCA 6 [Ostrowski]; CBC v Manitoba, para 4). The MBCA denied the CBC standing to bring the motion for three reasons. First, the CBC had notice of the publication ban and the court was not convinced that the CBC would make novel submissions that could have influenced the original decision had they been made before the ban (Ostrowski, para 3). Second, the court declined to hear the motion because the CBC did not act with “due dispatch in seeking to set aside” the publication ban (Ostrowski, para 3). Third, even if the court was wrong to deny standing or decline to hear the motion, the MBCA found that the publication ban satisfied the Sherman Estate three-part analysis for limiting the open court principle. The judgement on remand, Ostrowski, was not appealed. 

SCC Decision

The open court principle holds that any material made available to the court for its exercise of judicial power and  the entire record of proceedings should be available for public access (CBC v. Manitoba, 2021, at para 83). The principle emerged through the common law, but is now constitutionally protected by freedom of expression and freedom of the press under s. 2(b) of the Canadian Charter of Rights and Freedoms.

Judges have limited discretion in limiting the open access to courts, and any restrictions must be justified under the Sherman Estate test. Per Sherman Estate, the party seeking a limitation on the open court presumption must establish that (i) court openness poses a serious risk to an important public interest; (ii) the sought-after order is necessary to prevent this serious risk to the identified interest because reasonable alternative measures would not suffice; and (iii) as a matter of proportionality, the benefits of the order outweigh its negative effects (CBC v Manitoba).

In CBC v Manitoba, the Court agreed with the MBCA’s reasoning in Ostrowski that all three branches of the Sherman Estate test were satisfied, offering minimal commentary in its concise 15-paragraph decision.

Analysis

The scope of justification for discretionary exceptions to the open court principle has expanded with time, as previously noted by the Court in Sherman Estate (para 41). It shifted from merely requiring a risk to the fairness of the trial (Dagenais v Canadian Broadcasting Corp. [1994] 3 SCR 835, page 878) to requiring a risk to an “important [public] interest, including a commercial interest, in the context of litigation” (Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, para 53). Then, in Sherman Estate, the Court found that “[p]ersonal concerns that relate to aspects of the privacy of an individual who is before the courts can coincide with a public interest in confidentiality” (Sherman Estate, para 47). 

The SCC endorsed the MBCA’s assessment in Ostrowski that under the first branch of the test, the information in the affidavit posed a serious risk to the spouse of the deceased witnesses, disclosure of which would reveal sensitive and personal information (CBC v Manitoba, para 9). The risk of compromising dignity was deemed sufficient to qualify as an important public interest. Moreover, the potential for such compromise to the dignity of the witness’ spouse was considered an adequate measure for assessing the dignity interest (CBC v Manitoba, para 10). 

On its own, a potential affront to the dignity of an individual seems like a modest threshold for the principle. To that point, Sherman Estate clarified that “mere embarrassment” does not warrant limitations on court openness, except where “an aspect of a person’s private life has a plain public interest dimension” (para 32). On this third stage of the Sherman Estate analysis, the Court did not place a marked emphasis on the proportionality analysis, but it seems clear that by virtue of the affidavit having not been accepted into evidence, and not relating to the wrongful conviction, it mattered little to the philosophical underpinnings of an open court. 

Edited by Farah Abdel Haleem