CBC v Manitoba: A Decision Not to Decide
Can publication bans be indefinite, preventing the public from ever accessing court records? The Supreme Court of Canada (“SCC”) was expected to answer this question in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 [CBC v Manitoba]. Instead, the SCC focused on another question altogether: When can a court revisit its own ancillary orders?
History of the Case
In 1987, Frank Otrowski was convicted of first-degree murder. In 2009, he asked Manitoba’s Minister of Justice to review his conviction. The Minister then asked the Manitoba Court of Appeal (“MBCA”) to review Otrowski’s case. The MBCA had to determine if there had been a miscarriage of justice at trial. During the miscarriage of justice proceedings, the MBCA issued a publication ban. This ban later became the subject of Canadian Broadcasting Corporation (“CBC”)’s appeal.
The publication ban itself applied to an affidavit submitted by Otrowski. The affidavit allegedly included information about Crown misbehaviour. The MBCA did not admit the affidavit into evidence. But it did order that the publication ban remain in place indefinitely. This barred any party from reading or reporting on its contents. In May 2019, CBC asked the court to lift the ban, relying on the principles of court openness and freedom of the press. The MBCA refused. Having entered a decision, the MBCA claimed it had no jurisdiction to consider any part of the matter.
The SCC granted CBC leave to appeal both the MBCA’s refusal to hear the matter and its decision on the ban’s duration. The first appeal asked whether the MBCA can revisit a decision after entering a final order. The second appeal concerned only whether the MBCA erred in issuing a final, indefinite publication ban.
Complicating this matter further, after the MBCA refused to hear the motion, the SCC ruled in Sherman Estate v Donovan, 2021 SCC 55 [“Sherman”]. Sherman was about the courts’ discretion to issue publication bans and the open court principle. It altered the controlling approach from Dagenais v. Canadian Broadcasting Corp.,  3 SCR 835 [“Dagenais”]. Thus, the MBCA’s order issuing the ban relied on a now-outdated test; that court had not had the benefit of Sherman.
Held: Matter Remanded to the MBCA
Writing for the majority, Justice Kasirer addressed only whether the MBCA erred in refusing to hear the matter. He determined that the MBCA did have jurisdiction. Thus, he found it unnecessary and inappropriate to speak to the other issues raised by CBC. He instead remanded CBC’s challenge of the publication ban to the MBCA.
Doctrine of Functus Officio
Functus officio (Latin: having performed his function) is a common law doctrine. It presents a “general rule that a final decision of a court cannot be reopened” (Chandler v. Alberta Association of Architects,  2 SCR 848). A court that has already decided an issue no longer has jurisdiction over the matter. The doctrine is not without exception. It allows courts to revisit issues in three circumstances: (1) to correct errors in drafting, (2) to correct errors in manifesting the express intention of the court, or (3) where allowed by statute. One purpose of the doctrine is finality, which provides stable bases for appeals. Finality also allows litigants to move on once proceedings conclude.
The MBCA relied on functus officio in determining its own lack of jurisdiction. The SCC said that the doctrine is narrow in scope and applies only to jurisdiction over the merits. At issue here was a second type of jurisdiction over the court record. Justice Kasirer explained:
[E]ven 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.
He also made explicit that functus officio may apply to a publication ban. But here, it did not. The MBCA could not rehear the merits of the miscarriage of justice proceedings. But it should have heard CBC’s motion challenging the publication ban, an ancillary issue in its decision.
The SCC had to determine whether any statute prevented the MBCA from hearing the matter. They considered section 46.2 of the Court of Appeal Rules, Man Reg 555/88 [“Rules”] to determine that the MBCA could not rehear an appeal on its merits. But they could have heard a motion about an ancillary order for which no original hearing was ever held. The MBCA ordered the ban without hearing submissions or giving notice. Thus, Justice Kasirer said the ban order was a distinct matter that cannot be “reheard.” It was never “heard” in the first place.
Abella J (dissenting): Appeal Fails for Undue Delay
In her dissent, Justice Abella found that the doctrine of functus officio prevented the MBCA from hearing the motion. She saw no issue in deciding the merits and dispensed with the issues raised by the majority. The determining issue was delay.
Citing R. v. Adams,  4 SCR 707, she recognized that the doctrine of functus officio requires a flexible approach to ancillary orders. Yet she emphasized the need to “maintain circumscribed avenues through which the media can ask a court to reconsider a publication ban” (CBC v Manitoba, para 110). CBC could challenge the order through two avenues. It could (1) show that a material change in circumstances had occurred or, (2) apply for reconsideration under the open court principle, if MBCA issued the order without notice. The second avenue was open to CBC only as a member of the media. But, to pursue it, CBC must have applied in a timely matter—generally, thirty days or less.
Justice Abella agreed with the majority that no material change had occurred. She also agreed generally on the notice issue. She established a clear timeline which set the date of notice, at her most “charitable” estimate, as 21 January 2019. CBC did not file until 10 May 2019. Justice Abella contrasted this four-month delay with the thirty-day filing period for a rehearing under the Rules. She thus determined that CBC’s delay was “inordinate” and “undue,” and disentitled CBC to review (para 126).
On this timeline, it seems likely that CBC ‘s own delay will bar it from challenging the publication ban at all. That is how Justice Abella would have decided, and I find it hard to imagine how the MBCA could find otherwise.
A Decision Not to Decide: The Question of Judicial Efficiency?
The controlling issue in this case was a question of jurisdiction. For me, the problem with the decision is one of access to justice. Professor Trevor Farrow has explained that the procedural pursuit of access to justice aims at speed and efficiency. But the decision in CBC v Manitoba creates inefficiency. The majority encourages further proceedings to resolve the dispute. It returns CBC’s motion to the backlog of our lethargic justice system. Doing so delays determination of the issues. The decision is emblematic of a systemic barrier to access to justice: the procedural trappings of legal formalism, which at times appear to stand on principle for the sake of principle.
I do not mean to say that the SCC is incorrect or that its analysis is in any way flawed. This decision is well-reasoned and legally sound. It deals with the issues before the Court to the extent that it is the competent adjudicator and no further. Having found that the MBCA has jurisdiction to determine the second appeal, and with an explicit acknowledgement that the MBCA is better positioned to rule on the appeal’s merits, it is both logical and appropriate to remand the matter. Rather, what troubles me about this type of decision is that it creates more problems than it solves. It creates yet more proceedings.
Indeed, Justice Abella sees this issue clearly. She criticizes the majority’s choice not to address the ban, even in light of Sherman, as inconsistent with the SCC’s previous jurisprudence:
[I]t was open to the majority to seek further submissions based on the Sherman reasons. This would have been more consistent with this Court’s usual practice in dealing with appeals of publication bans, namely, deciding them in our Court rather than remanding them back to the issuing court. It would also have curtailed the prolongation of these proceedings.
The majority also contemplates a multiplicity of proceedings. Instead of ruling on the ban, Justice Kasirer canvasses the applicable principles and issues but leaves any ruling for the MBCA. But the various procedural hurdles inherent in prolonging these proceedings are clear. The SCC has identified that issues of standing and delay may prevent the MBCA from hearing CBC’s motion. In this way, the SCC extended an implicit invitation to the province to challenge CBC’s motion on the questions of standing and delay. If the MBCA hears both of these challenges and the motion, and the matter ends up back at the SCC, there will have been three to five more hearings. The SCC could have decided any or all of these issues this year.
Indefinite Bans and Section 2(b)
If the MBCA heard CBC’s motion despite the delay, they would need to assess the validity of the publication ban. Even with statutory authority to issue such an order, it must be a constitutional action. Before the SCC ruled in CBC v Manitoba, Kerry-Ann Cornwall explored the case’s constitutional dimensions. She considered whether indefinite publication bans might violate either the open court principle or the freedom of the press guarantee in section 2(b) of the Canadian Charter of Rights and Freedoms.
I point only to the main issue with the ban: its duration. The problem with justifying this ban is its indefinite nature. The ban could be perpetual, sealing the affidavit from the public and the press forever. A court sealing an affidavit, which communicates meaning, no doubt reaches the low bar for a section 2(b) infringement.
As Chief Justice Lamer (as he then was) said in Dagenais, “the party claiming…that a publication ban is necessary…bears the burden of justifying the limitation” (Dagenais, 840) under section 1 of the Charter (R. v. Oakes,  1 SCR 103 [“Oakes“]). Blanket prohibitions are not typically found justified under the Oakes. They do not satisfy the test’s minimal impairment branch. An indefinite ban has the potential to last forever. It is so much like a blanket prohibition that it could not be difficult to convince any court that such a distinction was not without a difference.
After Sherman, it is not surprising that the SCC did not address court openness or publication bans, though CBC raised both issues in its factum. And while it was open to the court to discuss section 2(b), the SCC did not need to to dispense with this appeal. Thus, the constitutionality of indefinite publication bans is still in question. The MBCA may find cause to address it in CBC’s challenge, or it may dismiss the case for undue delay. Regardless, when the question is heard—by any court—I, for one, eagerly await the answer.
While the SCC did not address some highly anticipated issues, it has made an important move in CBC v Manitoba. The Court has distinguished two forms of jurisdiction that apply to the doctrine of functus officio. Jurisdiction over the merits is distinct from jurisdiction to supervise the court record. Courts may revisit certain ancillary orders even after concluding their underlying proceedings.
Though the effect here is to create additional proceedings, the decision may have positive effects on judicial efficiency long-term. In certain circumstances, courts may keep the jurisdiction to revisit matters. This could prevent litigants from pursuing lengthy appeal processes to higher courts. Enabling courts to revisit ancillary matters could simplify and speed up procedures—just not in this case.
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