Michael Bodner

The appellant media organisation challenged a publication ban issued by the Manitoba Court of Appeal over an affidavit filed in wrongful conviction proceedings.

The affidavit concerned the death of a witness and contained highly sensitive personal information about the witness's spouse.

Applying the three-branch test from Sherman Estate v. Donovan, 2021 SCC 25, the Court held that court openness posed a serious risk to the spouse's dignity as an important public interest, the ban was necessary and not overbroad, and the benefits of the ban significantly outweighed its minimal effect on free expression and the open court principle.

The affidavit was not admitted as evidence and played no role in determining that a wrongful conviction had occurred.

The appellant media organization sought to set aside an indefinite publication ban ordered by the Manitoba Court of Appeal in connection with a sealed affidavit filed in criminal proceedings involving an alleged miscarriage of justice.

The Court of Appeal declined to hear the motion, holding that its jurisdiction was exhausted after it entered its formal judgment on the merits.

The majority of the Supreme Court held that courts retain supervisory jurisdiction over their court records — including the power to vary or set aside publication bans and sealing orders — even after entering formal judgment on the merits, as this authority exists independently of the doctrine of functus officio.

The majority allowed the appeal from the 2019 Jurisdiction Judgment and remanded the matter to the Court of Appeal to decide the motion on its merits.

The appeal from the 2018 Publication Ban Judgment was adjourned sine die pending that determination.

Abella J. dissented, concluding that the appellant's undue delay in bringing its motion was determinative and both appeals should be dismissed.