SUPREME COURT OF CANADA
Appeal Heard: March 17, 2021 Judgment Rendered: September 24, 2021 Docket: 38992
Between: Canadian Broadcasting Corporation Appellant and Her Majesty The Queen, Stanley Frank Ostrowski, B.B., spouse of the late M.D., and J.D., in his capacity as executor of the estate of the late M.D. Respondents - and - Attorney General of Ontario, Attorney General of British Columbia, Centre for Free Expression, Canadian Association of Journalists, News Media Canada, Communications Workers of America/Canada and Ad Idem/Canadian Media Lawyers Association Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 107)
Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe and Martin JJ. concurring)
Dissenting Reasons: (paras. 108 to 131)
Abella J.
Canadian Broadcasting Corporation Appellant
v.
Her Majesty The Queen,
Stanley Frank Ostrowski,
B.B., spouse of the late M.D., and
J.D., in his capacity as executor of the estate of the late M.D. Respondents
and
Attorney General of Ontario,
Attorney General of British Columbia,
Centre for Free Expression,
Canadian Association of Journalists,
News Media Canada,
Communications Workers of America/Canada and
Ad Idem/Canadian Media Lawyers Association Interveners
Indexed as: Canadian Broadcasting Corp. v. Manitoba
2021 SCC 33
File No.: 38992.
2021: March 17; 2021: September 24.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal of manitoba
Courts — Jurisdiction — Publication bans — Variation — Criminal proceedings — Court of Appeal ordering indefinite publication ban on affidavit filed in criminal proceedings before it — Motion brought by media representative after judgment on merits of proceedings rendered asking Court of Appeal to set aside publication ban — Court of Appeal declining to hear motion on basis that jurisdiction exhausted — Whether court retains jurisdiction to reconsider publication ban orders and other such ancillary orders after merits of criminal proceedings decided.
An affidavit filed in a criminal matter before the Court of Appeal had been subject to a publication ban pending a decision as to its admissibility as new evidence. In its November 2018 reasons allowing the appeal on the merits, the Court of Appeal dismissed the motion for new evidence but ordered that the publication ban remain in effect indefinitely. In May 2019, the CBC brought a motion before the Court of Appeal to have the publication ban set aside, arguing that having access to the affidavit would shed light on the criminal matter before the Court of Appeal and the court's conclusion on the merits that a miscarriage of justice had occurred at trial.
The Court of Appeal declined to consider the CBC's motion, citing its rule of practice against rehearings and the doctrine of functus officio . The court reasoned that its jurisdiction was exhausted once it had decided the merits of the case and entered its formal judgment disposing of the appeal. It concluded that it had no authority to hear the motion. The CBC applied for and was granted leave to appeal to the Court from both the Court of Appeal's 2019 decision refusing to reconsider the publication ban ("2019 Jurisdiction Judgment") and the Court of Appeal's 2018 decision ordering the indefinite publication ban ("2018 Publication Ban Judgment").
Held (Abella J. dissenting): The appeal from the 2019 Jurisdiction Judgment should be allowed and the matter remanded to the Court of Appeal. The appeal from the 2018 Publication Ban Judgment should be adjourned sine die .
Per Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.: The Court of Appeal had jurisdiction to consider the CBC's motion to set aside the publication ban. While the court could not rehear the appeal on the merits and while the doctrine of functus officio precluded it from reconsidering the substance of the appeal, the court retained the authority to supervise access to the record of its own proceeding, which allowed it to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed. The matter should be remanded to the Court of Appeal, as it is best placed to decide the CBC's motion and the discretionary and fact‑specific issues raised. It would be inappropriate for the Court to decide the CBC's appeal from the 2018 Publication Ban Judgment before the Court of Appeal has had a chance to consider the CBC's motion to have the publication ban set aside.
According to the rule of functus officio , a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision. A court loses jurisdiction once the formal judgment has been entered. This rule serves goals of finality and of an orderly appellate procedure. If lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court.
That said, it is important to distinguish between jurisdiction over the merits lost by operation of the doctrine of functus officio and jurisdiction that exists to supervise the court record. Even 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. This power is part of a court's authority to control its own process and arises by necessary implication from the legislative grant of a court's adjudicative authority. It is anchored in the vital public policy favouring public access to the workings of the courts. Important decisions about the openness of the court record, such as rendering, varying or vacating publication bans and sealing orders, may need to be taken after the proceeding on the merits is over. Recognizing that a court's jurisdiction to control its record survives the end of the underlying proceeding is not inconsistent with the purposes of finality and stability of judgments as the doctrine of functus officio was never intended to restrict the ability of lower courts to control their own files.
That courts retain supervisory jurisdiction over their court records is not to say that once decisions concerning court openness have been made they are open to reconsideration at any time or for any reason. A publication ban or sealing order is susceptible of reconsideration by the issuing court on two narrow grounds and regardless of whether formalized in an order or not.
First, a court may vary or set aside a publication ban or sealing order it has made on timely motion by an affected person, such as the media, who was not given notice of the making of that order and to whom it is appropriate to grant standing for this purpose. Regarding publication bans in criminal matters, standing should be thought of as a matter of a court's discretion. The media should generally have standing to challenge an order that threatens the open court principle where they are able to show they will make submissions that were not considered and that could have affected the result. A court does retain residual discretion to deny standing where hearing the motion would not be in the interests of justice, such as where it would unduly harm the parties or duplicate argument already before the court. As to delay, a moving party is expected to take prompt action to challenge such an order once it has become aware it exists. In the absence of legislative direction, a court must be guided by the purpose of the rule and the circumstances of each case. The task is a contextual balancing of finality and timely justice against the importance of the matter being heard on the merits. This determination is inherently tied to the facts of each particular case and the nature of the issue raised.
Second, a court may vary or set aside a publication ban or sealing order where the circumstances relating to the making of the order have materially changed. The moving party must establish both that a change of circumstances has occurred and that the change, if known at the time of the initial order, would likely have resulted in an order on different terms. The correctness of the initial order is presumed and is not relevant to the existence of a material change of circumstances.
Instances in which a court may reconsider a publication ban or sealing order are distinct from an appeal or application for certiorari made to a higher court from such decisions, as the original court is not being asked to reconsider its decision because it is wrongly decided. Finally, the general principles underlying the two grounds for reconsideration can be displaced by legislation, such as applicable rules of court.
In the present case, the Court of Appeal erred in concluding that applicable legislation, such as its rules of court procedure, or the doctrine of functus officio deprived it of jurisdiction to consider the CBC's motion to set aside the publication ban. The Court of Appeal retained jurisdiction to oversee its record even after the certificate of decision in the underlying proceeding on the merits was entered. That the Court of Appeal had jurisdiction to consider the CBC's motion does not mean, however, that the CBC is entitled to the relief it sought. The availability of relief turns on the proper application of the law to the facts, a determination that should be made by the Court of Appeal. Since the CBC has not established a material change of circumstances, it will therefore have to rely on the Court of Appeal's power to reconsider an order on the basis that it was made without notice to an affected party. The impugned order was made of the Court of Appeal's own accord at the oral hearing and then continued indefinitely. The court heard no submissions on point and provided no prior notice to anyone, including the media, notably the CBC who learned of the impugned ban shortly after the reasons were released. The Court of Appeal will have to determine whether the CBC has standing to challenge the relevant order and whether CBC's motion was timely. Furthermore, any discretionary limits on access to and publication of the contents of the court record must be understood in reference to the test for discretionary limits on court openness: a court can order discretionary limits on openness only where (1) openness poses a serious risk to an important public interest, (2) the order sought is necessary to prevent that risk and (3) the benefits of the order outweigh its negative effects.
Per Abella J. (dissenting): The appeals should be dismissed. The CBC is not entitled to reconsideration of the publication ban as a result of its undue and unjustified delay.
The media is a crucial voice in protecting and promoting the openness of courts, and their right to challenge publication bans is undisputed. But once the underlying proceedings are over, the doctrine of functus officio means as a general rule that a final decision cannot be reconsidered by the court that rendered the decision. Although the application of functus officio is less formalistic and more flexible in respect of ancillary orders and publication bans, and circumscribed avenues must be maintained through which the media can ask a court to reconsider a publication ban after the underlying proceedings are over, the rationales underlying this doctrine show that it has a role to play in respect of publication ban orders.
Finality matters. The parties are entitled to move on with their lives and to be protected from the psychological and financial costs of being dragged back into the justice system when a case is over. A reconsideration of a publication ban must therefore be sought in a timely manner, and a publication ban should not generally be reconsidered after the main proceedings have ended unless there is a sound basis for believing the media's application is in the public interest and could reasonably lead to a different result. It is a balancing exercise, not a hierarchical grid, between the interests of finality and the interests in support of the open court principle. Courts issuing publication bans are expected to consider the importance of the open court principle, even in the absence of a media representative making submissions, and there is no reason to assume that did not happen in this case.
In the present case, the CBC is unable to establish a material change in circumstances. The only bases under which it could move for reconsideration of the publication ban are by showing that the ban was issued without notice, that its submissions could make a material difference to the outcome, and that it moved for reconsideration in a timely manner. None of these conditions has been met.
First, the publication ban was not issued without notice. If the media is present in the courtroom when a publication ban is issued, as was the CBC, it follows that it knows of its existence. Second, the CBC has not discharged its burden of showing that its proposed submissions could make a material, or even any difference in the outcome.
Third, and more significantly, the CBC's failure to act in a timely manner is determinative. An unexplained six‑month delay for filing a motion to have a publication ban reconsidered is inordinately long. Under no definition of "due dispatch" can this delay be justified, particularly since the CBC was fully aware of the ban from the outset of the proceedings. The delay in this case causes acute harm to the parties, who reasonably expected that their privacy and dignity interests were protected by the finality of the proceedings.
Cases Cited
By Kasirer J.
Referred to: Sherman Estate v. Donovan , 2021 SCC 25 , [2021] 2 S.C.R. 521; R. v. Ostrowski and Correia (1989) , 57 Man. R. (2d) 255, aff'd R. v. Ostrowski , [1990] 2 S.C.R. 82; Dagenais v. Canadian Broadcasting Corp. , [1994] 3 S.C.R. 835; R. v. Mentuck , 2001 SCC 76 , [2001] 3 S.C.R. 442; Chandler v. Alberta Association of Architects , [1989] 2 S.C.R. 848; Reekie v. Messervey , [1990] 1 S.C.R. 219; Doucet‑Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3 ; R. v. Adams , [1995] 4 S.C.R. 707; R. v. Smithen‑Davis , 2020 ONCA 759 , 68 C.R. (7th) 75; Paper Machinery Ltd. v. J.O. Ross Engineering Corp. , [1934] S.C.R. 186; R. v. H. (E.) (1997) , 33 O.R. (3d) 202; The Queen v. Jacobs , [1971] S.C.R. 92 ; R. v. Burke , 2002 SCC 55 , [2002] 2 S.C.R. 857; Tsaoussis (Litigation Guardian of) v. Baetz (1998) , 41 O.R. (3d) 257; Ayangma v. French School Board , 2011 PECA 3 , 306 Nfld. & P.E.I.R. 103; GEA Refrigeration Canada Inc. v. Chang , 2020 BCCA 361 , 43 B.C.L.R. (6th) 330; Attorney General of Nova Scotia v. MacIntyre , [1982] 1 S.C.R. 175; Canadian Broadcasting Corp. v. The Queen , 2011 SCC 3 , [2011] 1 S.C.R. 65; CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002) , 59 O.R. (3d) 18; Vancouver Sun (Re) , 2004 SCC 43 , [2004] 2 S.C.R. 332; R. v. Wagner , 2017 ONSC 6603 ; R. v. Henry , 2012 BCCA 374 , 327 B.C.A.C. 190; In re St. Nazaire Co. (1879), 12 Ch. D. 88 ; Supermarchés Jean Labrecque Inc. v. Flamand , [1987] 2 S.C.R. 219 ; Wilson v. The Queen , [1983] 2 S.C.R. 594; Dickie v. Woodworth (1883) , 8 S.C.R. 192; Hollinger Inc. v. The Ravelston Corp. , 2008 ONCA 207 , 89 O.R. (3d) 721; Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 , [2002] 2 S.C.R. 522; R. v. White , 2008 ABCA 294 , 93 Alta. L.R. (4th) 239, aff'd Toronto Star Newspaper Ltd. v. Canada , 2010 SCC 21 , [2010] 1 S.C.R. 721; Canadian Broadcasting Corp. v. Canada (Attorney General) , 2011 SCC 2 , [2011] 1 S.C.R. 19; Ivandaeva Total Image Salon Inc. v. Hlembizky (2003) , 63 O.R. (3d) 769; Canadian Transportation Accident Investigation and Safety Board v. Canadian Press (2000) , 184 N.S.R. (2d) 159; 9095‑7267 Québec inc. v. Caisse populaire Ste‑Thérèse‑de‑Blainville ; Attorney General of Ontario v. 15 Johnswood Crescent ; Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd. , 2007 ONCA 695 , 87 O.R. (3d) 660 ; 1196158 Ontario Inc. v. 6274013 Canada Ltd. , 2012 ONCA 544 , 112 O.R. (3d) 67 ; Toronto Standard Condominium Corporation No. 2058 v. Cresford Developments Inc. , 2019 ONSC 801 , 97 C.L.R. (4th) 306 ; 1202600 Ontario Inc. v. Jacob , 2012 ONSC 361 ; 585430 Alberta Ltd. v. Trans Canada Leasing Inc. , 2005 MBQB 220 , 196 Man. R. (2d) 191 ; Jane Doe v. Manitoba , 2005 MBCA 57 , 192 Man. R. (2d) 309 ; M. (A.) v. Toronto Police Service , 2015 ONSC 5684 , 127 O.R. (3d) 382; R. v. National Post , 2010 SCC 16 , [2010] 1 S.C.R. 477; R. v. Vice Media Canada Inc. , 2018 SCC 53 , [2018] 3 S.C.R. 374; British Columbia v. BCTF , 2015 BCCA 185 , 75 B.C.L.R. (5th) 257; Morin v. R. (1997) , 32 O.R. (3d) 265; R. v. B. (H.) , 2016 ONCA 953 , 345 C.C.C. (3d) 206; R. v. Le , 2011 MBCA 83 , 270 Man. R. (2d) 82; L.M.P. v. L.S. , 2011 SCC 64 , [2011] 3 S.C.R. 775; Droit de la famille — 132380 , 2013 QCCA 1504 , 37 R.F.L. (7th) 1; R. v. Baltovitch (2000) , 47 O.R. (3d) 761; R. v. Smith , 2004 SCC 14 , [2004] 1 S.C.R. 385 ; R. v. Cunningham , 2010 SCC 10 , [2010] 1 S.C.R. 331 ; Lochner v. Ontario Civilian Police Commission , 2020 ONCA 720 ; A.B. v. Bragg Communications Inc. , 2012 SCC 46 , [2012] 2 S.C.R. 567; Canadian Broadcasting Corp. v. New Brunswick (Attorney General) , [1996] 3 S.C.R. 480; Lavigne v. Canada (Office of the Commissioner of Official Languages) , 2002 SCC 53 , [2002] 2 S.C.R. 773; Edmonton Journal v. Alberta (Attorney General) , [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. R. , 2010 ONCA 726 , 102 O.R. (3d) 673; Aboriginal Peoples Television Network v. Alberta (Attorney General) , 2018 ABCA 133 , 70 Alta. L.R. (6th) 246; R. v. Regan , 2002 SCC 12 , [2002] 1 S.C.R. 297; Galambos v. Perez , 2009 SCC 48 , [2009] 3 S.C.R. 247; Saadati v. Moorhead , 2017 SCC 28 , [2017] 1 S.C.R. 543; Wells v. Newfoundland , [1999] 3 S.C.R. 199; Secure 2013 Group Inc. v. Tiger Calcium Services Inc. , 2017 ABCA 316 , 58 Alta. L.R. (6th) 209; Canadian Planning and Design Consultants Inc. v. Libya (State) , 2015 ONCA 661 , 340 O.A.C. 98; Gray v. Gray , 2017 ONCA 100 , 137 O.R. (3d) 65; MK Engineering Inc. v. Assn. of Professional Engineers and Geoscientists of Alberta Appeal Board , 2014 ABCA 58 , 68 Admin. L.R. (5th) 135; Aleong v. Aleong , 2013 BCCA 299 , 340 B.C.A.C. 44; Canadian Cablesystems (Ontario) Ltd. v. Consumers' Association of Canada , [1977] 2 S.C.R. 740.
By Abella J. (dissenting)
Dagenais v. Canadian Broadcasting Corp. , [1994] 3 S.C.R. 835; R. v. Adams , [1995] 4 S.C.R. 707; Nova Scotia Government and General Employees Union v. Capital District Health Authority , 2006 NSCA 85 , 246 N.S.R. (2d) 104; Tsaoussis (Litigation Guardian of) v. Baetz (1998) , 41 O.R. (3d) 257; Doucet‑Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3; R. v. Henry , 2012 BCCA 374 , 327 B.C.A.C. 190; British Columbia v. BCTF , 2015 BCCA 185 , 75 B.C.L.R. (5th) 257; R. v. Khela , [1995] 4 S.C.R. 201 ; Hollinger Inc. v. Ravelston Corp. , 2008 ONCA 207 , 89 O.R. (3d) 721; R. v. Mentuck , 2001 SCC 76 , [2001] 3 S.C.R. 442; Sherman Estate v. Donovan , 2021 SCC 25 , [2021] 2 S.C.R. 521; Canadian Cablesystems (Ontario) Ltd. v. Consumersʼ Association of Canada , [1977] 2 S.C.R. 740 .
Statutes and Regulations Cited
Alberta Rules of Court , Alta. Reg. 124/2010, r. 9.15.
Canadian Charter of Rights and Freedoms , s. 2(b).
Code of Civil Procedure , CQLR, c. C‑25.01, art. 349.
Court of Appeal Rules , Man. Reg. 555/88R, r. 21(4), 33(4) , 46.2(1) , (2) , (4) , (12) .
Court of Queen's Bench Rules , Man. Reg. 553/88R, r. 37.11.
Criminal Code , R.S.C. 1985, c. C‑46, ss. 696.1, 696.3(3) (a)(ii).
Manitoba Criminal Appeal Rules , SI/92‑106, r. 45.
Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 37.14.
Supreme Court Act , R.S.C. 1985, c. S‑26, ss. 40(1), 46.1 .
Authors Cited
Barbeau, François‑Olivier. "Rétractation du jugement", dans JurisClasseur Québec — Collection droit civil — Procédure civile I , par Pierre‑Claude Lafond, dir. Montréal: Lexis Nexis, 2015, fascicule 31 (feuilles mobiles mises à jour novembre 2020, envoi nº 11).
Mayrand, Albert. Dictionnaire de maximes et locutions latines utilisées en droit , 4e ed. Montréal: Yvon Blais, 2007.
Rossiter, James. Law of Publication Bans, Private Hearings and Sealing Orders . Toronto: Thomson Reuters, 2006 (loose‑leaf updated 2020, release 2).
Wong, Anna S. P. "Doctrine of Functus Officio : The Changing Face of Finality's Old Guard" (2020), 98 Can. Bar Rev. 543.
APPEAL from a judgment of the Manitoba Court of Appeal (Beard, Burnett and Pfuetzner JJ.A.), 2019 MBCA 122 ( sub nom. R. v. Ostrowski ), [2019] M.J. No. 334 (QL), 2019 CarswellMan 923 (WL Can.), dismissing a motion to set aside a publication ban. Appeal allowed, Abella J. dissenting.
APPEAL from a judgment of the Manitoba Court of Appeal (Beard, Burnett and Pfuetzner JJ.A.), 2018 MBCA 125 , 369 C.C.C. (3d) 139 ( sub nom. R. v. Ostrowski ), [2018] M.J. No. 306 (QL), 2018 CarswellMan 550 (WL Can.), ordering inter alia that a publication ban remain in effect. Appeal adjourned sine die , Abella J. dissenting.
Jonathan B. Kroft and Sean A. Moreman , for the appellant.
Michael Bodner and Denis Guénette , for the respondent Her Majesty The Queen .
Harvey T. Strosberg , Q.C. , and James Lockyer , for the respondent Stanley Frank Ostrowski .
Robert Gosman , for the respondents B.B., spouse of the late M.D., and J.D., in his capacity as executor of the estate of the late M.D .
Michael Bernstein , for the intervener the Attorney General of Ontario.
Lesley A. Ruzicka , for the intervener the Attorney General of British Columbia.
Fredrick Schumann , for the interveners the Centre for Free Expression, the Canadian Association of Journalists, News Media Canada and Communications Workers of America/Canada.
Tess Layton , for the intervener Ad Idem/Canadian Media Lawyers Association.
The judgment of Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. was delivered by
Kasirer J. —
I. Overview
[ 1 ] The principal issue in these appeals concerns a court's jurisdiction to render, vary or vacate orders — sealing orders, publication bans and the like — that limit the open court principle. The question is whether a court retains jurisdiction over these ancillary matters after it has decided the merits of the case and has entered its formal judgment. Does the doctrine of functus officio — the notion that once a court has performed its function, it has exhausted its authority — preclude that court from revisiting a publication ban that it had ordered or a sealing order put in place in the course of criminal proceedings?
[ 2 ] An affidavit filed in a criminal matter before the Court of Appeal of Manitoba had been held under seal and subject to a publication ban pending a decision as to its admissibility as new evidence. In its reasons allowing the appeal on the merits, the court dismissed the motion for new evidence because it was not relevant to the issue at hand. It nevertheless ordered that the publication ban remain in place indefinitely.
[ 3 ] Relying on the open court principle and the constitutionally‑protected right of freedom of the press with which it is bound up, the appellant Canadian Broadcasting Corporation ("CBC") brought a motion in which it sought access to the affidavit and asked to have the publication ban set aside. It had been covering the proceedings as a representative of the media. Lifting the publication ban, said the CBC, would shed light on the principal matter before the Court of Appeal and its conclusion on the merits that a miscarriage of justice had occurred at trial. The Crown opposed the motion to disturb the ban, however, arguing that the affidavit was not relevant and the Court of Appeal had no continuing authority over the matter. Family members of a deceased person mentioned in the affidavit under seal also opposed lifting the ban since, they said, doing so would result in an unjustifiable violation of their privacy.
[ 4 ] The Court of Appeal declined to consider the CBC's motion, citing its rule of practice against rehearings and the doctrine of functus officio . The court reasoned that its jurisdiction was exhausted once it had decided the merits of the case and entered its formal judgment disposing of the appeal. It concluded that it had no authority to hear the motion and said the CBC should turn to this Court, on appeal, to seek redress.
[ 5 ] In point of fact, this Court is seized of two appeals. In the first, leave was granted from the Court of Appeal's refusal to hear the motion in which it was asked to reconsider its own publication ban and, in addition, to grant the CBC access to the affidavit. This first appeal raises preliminary issues about the Court of Appeal's powers to reconsider such decisions after it had entered the formal order on the merits of the miscarriage of justice case, including consideration of the doctrine of functus officio . In the second appeal for which leave was also granted, the CBC challenges the publication ban directly. This second appeal is taken directly from the publication ban itself, and unlike the first appeal, it does not concern the order granting access to the affidavit also sought in the CBC's motion. It raises the sole issue of whether the Court of Appeal was correct to order the final, indefinite publication ban made in the judgment which disposed of the merits of the appeal.
[ 6 ] As to the first appeal, and so said with great respect, I do not share the Court of Appeal's view that it was without jurisdiction to consider the motion brought by the CBC. It is true that, in the exercise of its appellate authority, the Court of Appeal could not rehear the appeal on the merits and that the doctrine of functus officio precludes it from reconsidering the substance of the appeal. But after a court loses jurisdiction over the merits, it generally retains the authority to supervise access to the record of its own proceedings. Even after the formal judgment on the merits is filed, this ongoing authority allows the court to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed. Indeed, it is critical to upholding the responsibility all courts have to manage their records in accordance with the Canadian Charter of Rights and Freedoms and the proper administration of justice. As ancillary court openness issues have no bearing on the judgments on the merits, there was no reason for the Court of Appeal to tie its own hands in service of the finality of the underlying judgment that was not at risk.
[ 7 ] Moreover, the Court of Appeal had ordered the continuing publication ban in its judgment on the merits without a hearing to determine whether the open court principle should be limited in the circumstances. The Court of Appeal ought to have considered whether it was appropriate to set aside its publication ban on motion by the CBC in these circumstances.
[ 8 ] For the reasons that follow, to dispose of the first appeal I propose that the matter should be remanded to the Court of Appeal to decide the CBC's motion. That court is best placed to decide the discretionary and fact‑specific issues raised, including whether the CBC should be granted standing to challenge the publication ban, whether the motion was unreasonably delayed such that it is not in the interests of justice to hear it and whether the lifting of the publication ban is justified here taking into account this Court's decision in Sherman Estate v. Donovan , 2021 SCC 25 , [2021] 2 S.C.R. 521
[ 9 ] Given that I propose to dispose of the first appeal by returning the matter to the Court of Appeal to decide the CBC's motion, in my respectful view it would be inappropriate for this Court to decide the second appeal challenging the ban directly now, before the Court of Appeal has had a chance to reconsider the matter. Accordingly, I would adjourn the second appeal sine die .
II. Background and Proceedings Below
A. The Miscarriage of Justice Reference
[ 10 ] Following a jury trial in 1987, Stanley Ostrowski was convicted of first degree murder. He appealed the conviction unsuccessfully to the Court of Appeal and later this Court ( R. v. Ostrowski and Correia (1989) , 57 Man. R. (2d) 255, aff'd R. v. Ostrowski , [1990] 2 S.C.R. 82).
[ 11 ] In 2014, the Minister of Justice referred the matter to the Court of Appeal pursuant to ss. 696.1 and 696.3(3) (a)(ii) of the Criminal Code , R.S.C. 1985, c. C‑46. These provisions allow matters to be referred back to the Court of Appeal in circumstances where, in the Minister's view, there is a reasonable basis to conclude that a miscarriage of justice has likely occurred.
[ 12 ] Certain new evidence relating to the conviction at trial in 1987 was proposed for consideration by the Court of Appeal upon joint motion of the Crown and Mr. Ostrowski. Unusually, this included the live testimony of 12 witnesses heard before a panel of appellate justices. The Crown conceded this evidence was admissible, that it proved a miscarriage of justice had occurred and, accordingly, that the 1987 conviction should be set aside. The concession was based on evidence pointing to the existence of a deal made between prosecutors and a witness whose testimony had linked Mr. Ostrowski to the murder. The evidence had not been disclosed to Mr. Ostrowski at trial, violating his right to make full answer and defence.
[ 13 ] The parties did not agree on the appropriate remedy for the miscarriage of justice. The Crown sought a new trial order and a judicial stay of those proceedings, while Mr. Ostrowski asked that an acquittal be entered by the Court of Appeal.
[ 14 ] Mr. Ostrowski also sought to introduce further new evidence, specifically an affidavit sworn by his lawyer, Richard Posner ("Posner affidavit"). The affidavit contained details of certain events that had occurred after one of the 12 witnesses, M.D., had testified before the Court of Appeal in this matter. Unlike the material relating to the other motion for new evidence, the Crown did not consent to the Posner affidavit being admitted into evidence.
[ 15 ] The Court of Appeal heard oral argument from the parties on May 28, 2018, including submissions regarding the admissibility of the Posner affidavit. The affidavit was sealed, pursuant to the Court of Appeal Rules , Man. Reg. 555/88R, relating to motions for new evidence, but the Court of Appeal nevertheless reviewed it on the consent of the parties ( r. 21(4) ). It also ordered a publication ban respecting this material at the outset of the May 28 hearing:
THE COURT: . . . [I]n our view, unless counsel feel otherwise, there must be a publication ban. There's no point in having the sealed material to the extent that it's referred to in argument without a publication ban. So there will be a publication ban as well unless counsel wish to address that?
Ban on Publication
(R.R. (Crown), at p. 137)
[ 16 ] As it would later concede before the Court of Appeal, the CBC was reporting on the proceedings, and its journalists could have attended any of the hearings, including the May 28 hearing.
B. The 2018 Publication Ban Judgment ( 2018 MBCA 125 , 369 C.C.C. (3d) 139 — Beard, Burnett and Pfuetzner JJ.A.)
[ 17 ] The Court of Appeal found a miscarriage of justice as a result of the non‑disclosure based on material revealed by the first motion for new evidence, accepting the concession of the Crown noted above. This was sufficient to conclude the conviction should be set aside. The Court of Appeal ultimately quashed the conviction, ordered a new trial and entered a stay of any further proceedings, and continued the publication ban indefinitely ("2018 Publication Ban Judgment").
[ 18 ] The court declined to admit the Posner affidavit as further new evidence, because it concluded that it was not relevant to the determination of the only live issue of the appropriate remedy for Mr. Ostrowski. Instead, the evidence went to "the issue of whether there was Crown misbehaviour, which was relevant to whether there had been a miscarriage of justice" (para. 82). Beard J.A. wrote the following in concluding: "I am of the view that the evidence is not relevant to the issues to be determined and the motion should be dismissed. I would order that the publication ban regarding this evidence should remain in effect" ( ibid. ).
[ 19 ] For our purposes, it bears emphasizing that the publication ban that the Court of Appeal had ordered at the hearing was made without hearing any submissions from the media or other interested parties. In its reasons, the court continued the ban indefinitely, similarly without hearing submissions on the matter from interested parties.
[ 20 ] A formal certificate of decision of this judgment was entered in January 2019, recording the orders on the appeal.
C. The 2019 Jurisdiction Judgment ( 2019 MBCA 122 — Beard, Burnett and Pfuetzner JJ.A.)
[ 21 ] Following the disposition of the appeal on the miscarriage of justice, the CBC petitioned the Court of Appeal to set aside the publication ban on the Posner affidavit and to grant access to the affidavit. It filed a motion on May 10, 2019.
[ 22 ] The CBC had contacted the Registrar at the Court of Appeal seeking access to the Posner affidavit. Evidence suggests that, by late January 2019, the CBC's lawyers had received sufficient information to know what was and was not subject to the publication ban.
[ 23 ] The CBC relied on s. 2(b) of the Charter and alleged that the evidence did not support "any continued restriction on accessing, publishing or broadcasting the content of the [affidavit]". It did not raise the argument that the publication ban had been issued without notice.
[ 24 ] M.D.'s spouse, B.B., and the executor of his estate, J.D. (collectively"interested parties") opposed the CBC's motion, seeking to protect M.D.'s privacy and dignity. The Crown also opposed the motion.
[ 25 ] The Court of Appeal dismissed the motion, citing a lack of jurisdiction ("2019 Jurisdiction Judgment"). It explained that its jurisdiction over the matter had been exhausted when it entered the formal order on the appeal. It invoked r. 46.2 of the Court of Appeal Rules, which prohibits rehearings, as well as the doctrine of functus officio . The Court of Appeal said it had no jurisdiction as the matter was "at an end" once the formal certificate of decision was entered.
III. Issues
[ 26 ] As is plain from the CBC's two applications seeking leave, the terms of the leave judgment and the arguments of the parties, two distinct questions are raised in this Court.
[ 27 ] In these two appeals, the CBC seeks three orders from this Court. First, the CBC asks for an order setting aside the 2019 Jurisdiction Judgment and remanding the matter to the Court of Appeal to hear the merits of its motion to set aside the publication ban and for access to the Posner affidavit.
[ 28 ] The CBC also asks this Court for a second order setting aside the continuing publication ban in the 2018 Publication Ban Judgment. This is the direct appeal from the 2018 Publication Ban Judgment.
[ 29 ] The Crown takes the position that the Court of Appeal was right to conclude that it had no jurisdiction to consider the CBC's motion and that the first appeal should be dismissed. In the alternative, if this Court finds that the Court of Appeal did have jurisdiction, the Crown asks that the CBC's motion be dismissed on its merits. In the Crown's submission, the second appeal from the 2018 Publication Ban Judgment should also be dismissed on the merits.
[ 30 ] The parties raise a broad series of questions before this Court bearing on jurisdiction over and the appropriate disposition of the two appeals:
Did the Court of Appeal err in concluding it had no jurisdiction to consider the CBC's motion to reconsider the publication ban and gain access to the Posner affidavit?
Should the matter be remanded to the Court of Appeal to hear the merits of that motion?
[ 31 ] For the reasons that follow I am respectfully of the view, in the first appeal from the 2019 Jurisdiction Judgment, that the Court of Appeal had jurisdiction to consider the CBC's motion and that the matter should be remanded to the Court of Appeal. The second appeal from the 2018 Publication Ban Judgment should be adjourned sine die .
IV. Analysis
A. Jurisdiction to Make, Vary and Set Aside Orders Concerning Court Openness
(1) Supervisory Jurisdiction Over the Court Record Survives Entering a Judgment on the Merits
[ 32 ] In concluding that it lacked jurisdiction to vary or set aside the relevant orders concerning court openness, the Court of Appeal relied on r. 46.2 of the Court of Appeal Rules as well as the doctrine of functus officio . I will deal with each in turn.
[ 33 ] In its contemporary guise, functus officio indicates that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision. A court loses jurisdiction once the formal judgment has been entered. In Chandler v. Alberta Association of Architects , [1989] 2 S.C.R. 848, at p. 860, Sopinka J. wrote: "the principle of functus officio applies . . . [and] the adjudicator is functus and has no right to reopen the matter."
[ 34 ] This rule serves goals of finality and, by stabilizing judgments subject to review, of an orderly appellate procedure. If lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court (see Reekie v. Messervey , [1990] 1 S.C.R. 219, at p. 222). The principle of finality promotes the economic and psychological necessity of having a definite end to litigation.
[ 35 ] That said, functus officio is only one of several legal principles designed to promote the goal of finality. Indeed, it is necessary to approach the doctrine with care and not to over-extend it, as doing so may undermine other important goals of the justice system.
[ 36 ] It is useful to distinguish between jurisdiction over the merits lost by operation of the doctrine of functus officio and jurisdiction that exists to supervise the court record. Even when a court has lost jurisdiction over the merits of a matter as a result of having entered its formal judgment, it generally retains jurisdiction to control its court record with respect to proceedings generally understood to be an ancillary but independent matter. This power is part of a court's authority to control its own process and arises by necessary implication from the legislative grant of a court's adjudicative authority.
[ 37 ] Supervisory authority over the court record has long been recognized as a feature of the jurisdiction of all courts. It is anchored in the vital public policy favouring public access to the workings of the courts, which itself is grounded in the constitutional guarantee of freedom of expression in s. 2(b) of the Charter (see Sherman Estate v. Donovan , 2021 SCC 25 , [2021] 2 S.C.R. 521, at paras. 1-2; Attorney General of Nova Scotia v. MacIntyre , [1982] 1 S.C.R. 175, at pp. 183-84). This authority allows the court to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed.
[ 38 ] The need to attend to the appropriate balance between these fundamental public interests does not disappear merely because the court has rendered its final judgment on the merits. Important decisions about the openness of the court record, such as rendering, varying or vacating publication bans and sealing orders, may need to be taken after the proceeding on the merits is over.
[ 39 ] Recognizing that this jurisdiction survives the end of the underlying proceeding is not inconsistent with the purposes of finality and stability of judgments as the doctrine of functus officio was never intended to restrict the ability of lower courts to control their own files. The doctrine of functus officio is a bar to a court reconsidering the substance of its judgment on the merits after the formal judgment has been entered. It protects the formal judgment on the merits from being reopened. It has no bearing on the ability of a court to control its court record, as that is an ancillary but independent matter that is distinct from the substance of the judgment on the merits.
[ 40 ] To be clear, this does not mean that functus officio never applies to publication bans or sealing orders. The point is that when a publication ban or sealing order is ordered as part of a judgment on the merits, and the merits are then decided, the determination on the merits, not the publication ban, is what is covered by functus officio. The publication ban or sealing order is an ancillary matter distinct from the merits.
(2) Decisions Regarding Court Openness May Be Reconsidered in Limited Circumstances
[ 41 ] That courts retain supervisory jurisdiction over their court records is not to say that once decisions concerning court openness have been made they are open to reconsideration at any time or for any reason. A publication ban or sealing order is susceptible of reconsideration by the issuing court on two narrow grounds and regardless of whether formalized in an order or not.
[ 42 ] Therefore, regardless of whether a court is deprived of jurisdiction by the doctrine of functus officio , the impugned order was made without notice to an affected party, or there has been a material change of circumstances, or both, the court issuing the impugned order will generally retain jurisdiction to hear a motion to reconsider the order.
[ 43 ] Central to the CBC's claim that the Court of Appeal had jurisdiction to vary the 2018 publication ban is that it was issued without notice. It argues that the media was not given advance notice of the order, and that the CBC should have had the opportunity to make submissions at the time the ban was originally ordered.
[ 44 ] One basis for revisiting a publication ban or sealing order may indeed arise when an affected person who was not given notice of the making of the order brings a motion on a timely basis and to whom it is appropriate to grant standing. A court may vary or set aside such an order on this basis.
[ 45 ] To challenge an existing order concerning court openness, the moving party must qualify as an affected person to whom it is appropriate to give standing. Courts have generally seen fit to grant standing to the media to challenge orders that threaten court openness.
[ 46 ] First, it is important to recognize that applying this principle to publication bans or sealing orders requires adjustment for the criminal law context, since the parties to the underlying proceedings have a significant and legitimate interest in the court's decision regarding publication bans that restrict access to the record. Accordingly, regarding publication bans in criminal matters, standing should be thought of as a matter of a court's discretion rather than as a matter of right.
[ 47 ] In respect of standing, an order limiting court openness engages the constitutionally‑protected right of a free press and the open court principle. The media should generally have standing to challenge an order that threatens the open court principle where they are able to show that their submissions were not considered and that those submissions could have affected the result. A court does retain residual discretion to deny standing where hearing the motion would not be in the interests of justice, such as where it would unduly harm the parties or duplicate argument already before the court.
[ 48 ] Second, as to delay, courts may decline to hear a motion to vary or set aside an order dealing with court openness where the motion is not brought promptly. Courts considering such motions will have to be vigilant about assessing whether the delay was reasonable in the circumstances.
[ 49 ] In some instances, the legislature will provide indications of the appropriate period of delay. In the absence of legislative direction, a court must be guided by the purpose of the rule and the circumstances of each case. The task is a contextual balancing of finality and timely justice against the importance of the matter being heard on the merits. This determination is inherently tied to the facts of each particular case and the nature of the issue raised.
[ 50 ] On the basis of these principles, then, and in the absence of explicit legislation to the contrary, a court may vary or set aside a publication ban or sealing order on timely motion by an affected person such as a representative of the media who was not given notice of the making of the order. The media will generally have standing where it can show that its submissions could affect the result and that they were not previously considered.
[ 51 ] To be clear, limits on court openness, such as a publication ban, can be made without prior notice to the media. When a publication ban is applied without notice, the media may bring a motion to vary or set aside the ban, provided that it does so on a timely basis. This creates no general duty on courts to give notice to the media before making publication bans or sealing orders. A discretion to do so may exist, and when a court exercises this discretion it provides an opportunity for the media to make submissions.
[ 52 ] Indeed this Court has explicitly recognized the discretion of courts to decide when notice to the media is required: "notice to [media] is within the discretion of the judge to be exercised in accordance with the provincial rules of criminal procedure and the relevant case law" (Dagenais , at p. 869).
[ 53 ] I also agree with the CBC that courts may exercise discretion to vary or set aside a publication ban or sealing order where there has been a material change of circumstances. This is the second ground for reconsideration. As Sopinka J. recognized in Adams , a publication ban or sealing order "can be varied or revoked if the circumstances that were present at the time the order was made have materially changed" (para. 30). The change must "relate to a matter that justified the making of the order in the first place" (para. 30, citing Khela , at pp. 210-11). The moving party must establish both that a change of circumstances has occurred and that the change, if known at the time of the initial order, would likely have resulted in an order on different terms. The correctness of the initial order is presumed and is not relevant to the existence of a material change of circumstances.
[ 54 ] I hasten to say, however, that I do not read Adams to bear the meaning the CBC attributes to it in their factum. The CBC's submission is that Adams stands for the proposition that publication bans can be varied at any time by any affected party, for any reason. With respect, this reading of Adams is too broad. As I read Adams , and subsequent cases that apply it, publication bans are subject to reconsideration only in defined circumstances.
[ 55 ] In deciding whether this rule from Adams applies, I do agree that a first question for the court will be whether there has been a material change of circumstances. Another question is whether the motion is timely. These are factors for the courts to weigh in the exercise of their discretion.
[ 56 ] Instances in which a court may reconsider a decision respecting its court record are distinct from an appeal or application for certiorari made to a higher court from such decisions, as the original court is not being asked to reconsider its decision because it is wrongly decided. A motion to reconsider and an appeal serve different purposes and are governed by different principles.
[ 57 ] Finally, I note that the general principles considered here can, of course, be displaced by legislation, such as applicable rules of court. Where legislation specifically addresses the circumstances under which a court can reconsider a publication ban, these provisions govern.
B. Application to the Facts of This Case
(1) The Court of Appeal Erred in Concluding It Had No Jurisdiction to Consider the CBC's Motion
[ 58 ] In answer to the preliminary question raised by the first appeal from the 2019 Jurisdiction Judgment, I turn now to examine whether the Court of Appeal erred in declining to consider the CBC's motion.
[ 59 ] The CBC submits that the Court of Appeal was mistaken when it declined jurisdiction on the basis of the doctrine of functus officio and r. 46.2 of the Court of Appeal Rules. The CBC argues that it was entitled to bring the motion concerning the publication ban and to be heard on the matter.
[ 60 ] The Crown answers that the Court of Appeal rightly held it was without jurisdiction given that the formal judgment on the merits had been made and the certificate of decision had been entered. In the Crown's view, the prohibition on rehearings in the Court of Appeal Rules , coupled with the doctrine of functus officio , meant the court was without jurisdiction.
[ 61 ] I agree with the CBC that the Court of Appeal did have the authority to uphold, vary or vacate the 2018 publication ban on motion. The Court of Appeal erred when it held otherwise.
[ 62 ] It is best to note at the outset that appellate jurisdiction, such as that being exercised by the Court of Appeal in this context, is conferred by statute. Subject to constitutional constraints, courts can only exercise such jurisdiction as is conferred on them.
[ 63 ] The legislative foundation for the Court of Appeal's jurisdiction over the motion on court openness is plain here. The CBC's motion concerned a publication ban issued in the context of the Court of Appeal's own proceedings. The Court of Appeal's supervisory authority over its court record, and thus over the publication ban, is an inherent jurisdiction that exists to allow the court to control its own process.
[ 64 ] The Court of Appeal Rules do prohibit a "rehearing of an appeal" (in French" appel . . . entendu de nouveau "). Rule 46.2 of those rules provides:
46.2(1) There shall be no rehearing of an appeal except by order of the court or at the instance of the court.
46.2(2) A rehearing of an appeal may be ordered before the certificate of decision has been entered.
46.2(12) There shall be no rehearing on an application for leave or a motion.
[ 65 ] It is true that the certificate of decision referred to in r. 46.2(2) has been entered here in respect of the appeal on the merits. The Court of Appeal held that it was therefore prohibited from conducting a rehearing of the appeal.
[ 66 ] But these rules did not deprive the Court of Appeal of the ability to hear the CBC's motion concerning court openness. The prohibition on rehearings does not extend to a motion directed to an ancillary matter related to the court record, such as the publication ban here. A rehearing of an appeal is an altogether different proceeding from a motion to vary an existing publication ban.
[ 67 ] Similarly, the prohibition on the rehearing of motions in r. 46.2(12) cannot be interpreted to prohibit the CBC from bringing a new motion to vary the publication ban. The CBC's motion was not a rehearing of the motion for new evidence that was dismissed in the Court of Appeal's 2018 judgment.
[ 68 ] Instead, the CBC brought an altogether new motion to set aside the 2018 publication ban made in its absence. This motion was anchored in the open court principle and the constitutionally‑protected right of freedom of the press. It was directed at an ancillary matter — court openness — that is distinct from the appeal on the merits.
[ 69 ] The CBC also argued that the Court of Appeal should have taken up its rightful jurisdiction to vary the publication ban pursuant to an alleged material change of circumstances.
[ 70 ] I disagree. I think it should be recorded that the CBC did not, in the proceedings below, establish a material change of circumstances sufficient to found a motion to vary the ban.
[ 71 ] While it may be the case that the finding of a miscarriage of justice by the Court of Appeal increased the public interest in accessing the contents of the affidavit, this does not constitute a material change of circumstances for the purposes of varying the publication ban. The publication ban existed prior to the finding of a miscarriage of justice, and it would be circular reasoning to use the finding of a miscarriage of justice to demonstrate a material change of circumstances that would override the publication ban. As Sopinka J. noted in Adams , the change of circumstances must "relate to a matter that justified the making of the order in the first place" (para. 30).
[ 72 ] Equally, the subsequent appearance of the CBC in the proceedings as a party did not constitute, in itself, a material change of circumstances. The CBC's interest in court openness existed prior to its formal participation in the proceedings.
[ 73 ] In sum, the Court of Appeal erred in concluding that r. 46.2 or the doctrine of functus officio deprived it of jurisdiction to consider the CBC's motion. The Court of Appeal retained jurisdiction to oversee its record even after the certificate of decision in the underlying proceeding on the merits was entered.
(2) The Matter Should Be Remanded to the Court of Appeal
[ 74 ] That the Court of Appeal had jurisdiction to consider the CBC's motion and its request for access to the Posner affidavit does not mean that the CBC is entitled to the relief it sought. The availability of relief turns on the proper application of the law to the facts, a determination that should be made by the Court of Appeal.
[ 75 ] In respect of the publication ban, the CBC will rely on the Court of Appeal's power to rescind an order on the basis that it was made without notice to an affected party. As I noted earlier, since the CBC has not established a material change of circumstances, it will therefore have to rely on this basis.
[ 76 ] The CBC will also be required to show that the delay from the time it became aware of the impugned order to the time it brought its motion was not unreasonable. It will have to show it moved with "due dispatch" or "prompt action" (see Hollinger , at para. 43). This question of delay is a matter for the Court of Appeal to determine in the first instance.
[ 77 ] Turning to the substance of the CBC's motion, any discretionary limits on access to and publication of the contents of the court record must be understood in reference to the test for discretionary limits on court openness. A court can order discretionary limits on openness only where (1) openness poses a serious risk to an important public interest, (2) the order sought is necessary to prevent that risk and (3) the benefits of the order outweigh its negative effects ( Sherman , at para. 38; Dagenais , at pp. 876-77; Mentuck , at para. 32). The Court of Appeal will have to apply this test to the facts of the case in considering the CBC's motion.
[ 78 ] Before this Court, both the Crown and M.D.'s family invoke the privacy and dignity of the interested parties as justifications for the publication ban. These interests are important, but it is for the Court of Appeal to weigh them against the open court principle taking into account this Court's recent decision in Sherman .
[ 79 ] The Court of Appeal did not have the advantage of considering the judgment of this Court in Sherman where it was held that privacy and dignity can, in some circumstances, be weighty enough to justify limits on court openness. The Court of Appeal should therefore consider Sherman in its deliberations.
[ 80 ] The parties disagree about the extent to which the test for discretionary limits on court openness applies to decisions about access to the court record as opposed to decisions about publication of information concerning a court proceeding. I do not think it is appropriate to definitively resolve this debate for the purposes of this appeal.
[ 81 ] For two reasons, I conclude that any limits on access to or publication of the Posner affidavit in this case must be assessed by reference to the Dagenais / Mentuck / Sherman test for discretionary limits on court openness.
[ 82 ] Second, the fact that the Posner affidavit was not admitted as new evidence for the purposes of the miscarriage of justice reference does not mean that the public's access to the affidavit should be treated any differently than access to any other court document. The affidavit was submitted to the court and considered by the court in the course of a public proceeding.
[ 83 ] Consistent with this purpose, all materials that are made available to the court for the purposes of deciding the matter before it are presumptively open to the public. Materials that are made available to the court are presumed to be accessible to the public unless there is a specific reason to close them.
[ 84 ] In sum, to the extent the requested relief required it to reconsider its publication ban, the Court of Appeal should have considered the CBC's motion, and I would remand the matter to the Court of Appeal for that purpose.
[ 85 ] The remaining question is which court should decide these issues raised in the context of the first appeal from the 2019 Jurisdiction Judgment. The Crown argues, in the alternative, that this Court should resolve them.
[ 86 ] I disagree. The Court of Appeal's reconsideration of its publication ban is not, as we have seen, an appeal of the 2018 judgment on the merits. It is a reconsideration of an ancillary order for court openness. For this reason, returning the matter to the Court of Appeal to decide the CBC's motion is not the same as having the Court of Appeal reconsider its own judgment on the merits.
[ 87 ] That said, I am of the view that fairness to all the parties requires that we remand the motion that resulted in the 2019 Jurisdiction Judgment to the Court of Appeal, rather than deciding the substantive merits of the CBC's motion ourselves. The Court of Appeal is best placed to determine the merits of the CBC's motion and to make findings of fact.
[ 88 ] In my view, it is not in the interests of justice for this Court to step into the Court of Appeal's shoes and decide the CBC's motion on its merits. The Court of Appeal is best placed to assess the facts necessary for this determination, including the nature of the information contained in the Posner affidavit and the privacy and dignity interests at stake.
[ 89 ] I note as well that the issue of delay was not fully argued before this Court and we are therefore not well placed to resolve it ourselves. The Court of Appeal must first determine whether the CBC brought its motion with "due dispatch" or "prompt action" and, if not, whether it would be in the interests of justice to decline to hear the motion. This is a fact-specific and discretionary determination.
[ 90 ] Even if this Court were to exercise its jurisdiction to decide these issues, it does not have the benefit of submissions from the parties based on the full record before the Court of Appeal. The Court of Appeal would benefit from submissions of the parties on the various issues raised before it in the motion.
[ 91 ] Sherman provided an opportunity for this Court to confront this issue directly from a distinct perspective. The issue in Sherman was whether court openness has to yield to the privacy and dignity interests of private litigants in the civil litigation context. As the majority in Sherman noted at para. 53 , because privacy and dignity have been found to be pressing and substantial concerns in many contexts, there is no reason in principle to exclude the open court principle from cases where these interests are at play.
[ 92 ] Of course, it is not uncommon that this Court clarifies the law in an appeal, or series of appeals heard together, and then the matter returns to the Court of Appeal to be decided in accordance with the clarified law. As I explain below at paras. 98 to 104, the second appeal from the 2018 Publication Ban Judgment is distinct from the first appeal from the 2019 Jurisdiction Judgment in a way that justifies leaving it adjourned sine die rather than remanding it to the Court of Appeal.
[ 93 ] I recognize, as the Crown argued at the hearing, that remanding the matter will prolong the period of uncertainty for the parties. However, this Court is not in a position to resolve the matter on the merits at this stage.
[ 94 ] This is a completely different situation from cases such as Saadati v. Moorhead , 2017 SCC 28 , [2017] 1 S.C.R. 543, where the Court resolved the matter and sent it back to the lower court for application. In this case, the lower court declined to hear the matter at all. This Court is accordingly not in the same position as it is in the typical case where the merits were decided below. The Court cannot simply substitute its own determination for that of the Court of Appeal on the motion.
[ 95 ] In the circumstances, the value of shortening this period of uncertainty does not outweigh the importance of fairness to all parties and of permitting the Court of Appeal to hear a motion that lies within its jurisdiction. I would therefore remand the matter to the Court of Appeal.
[ 96 ] I would therefore allow the appeal from the 2019 Jurisdiction Judgment and remand the matter to the Court of Appeal to decide the CBC's motion in accordance with these reasons.
(3) The Appeal from the 2018 Publication Ban Judgment Should Be Adjourned Sine Die
[ 97 ] The second appeal from the 2018 Publication Ban Judgment itself presents a procedural complication. As I mentioned, this second appeal is a direct appeal of the publication ban, separate from the reconsideration motion in the first appeal. Given that I propose to remand the matter to the Court of Appeal, I must address what should be done about this second appeal.
[ 98 ] In light of my conclusion that the Court of Appeal did have jurisdiction to hear the CBC's motion, I would not decide the issues raised in the appeal from the 2018 Publication Ban Judgment before the Court of Appeal has decided the motion for reconsideration. I note that appellate courts in similar circumstances have generally insisted that recourse be sought at the original court before hearing an appeal (see, e.g., Secure 2013 Group Inc. v. Tiger Calcium Services Inc. , 2017 ABCA 316 , 58 Alta. L.R. (6th) 209, at paras. 54‑55 ; GEA Refrigeration , at para. 184). Similarly, in this case, it is not in the interests of justice to consider the appeal from the 2018 Publication Ban Judgment before the CBC's motion is decided, given this appeal could be rendered moot as a consequence of that proceeding. We are accordingly not in a useful or informed position to dismiss or allow the second appeal.
[ 99 ] Nor would it be appropriate to remand this appeal in whole to the Court of Appeal. Unlike remanding the 2019 Jurisdiction Judgment to the Court of Appeal to reconsider the publication ban following submissions from an affected party not given notice, which as I noted earlier is distinct from an appeal, returning the 2018 Publication Ban Judgment to the Court of Appeal would require it to sit in appeal of its own publication ban.
[ 100 ] It follows, in the unusual circumstances of this case, that the appeal from the 2018 Publication Ban Judgment should be adjourned sine die pending determination of the motion for reconsideration at the Court of Appeal (see, e.g., Canadian Planning and Design Consultants Inc. v. Libya (State) , 2015 ONCA 661 , 340 O.A.C. 98, at para. 61 ). I note that if the Court of Appeal engages with the merits of the publication ban and the 2018 Publication Ban Judgment appeal is then reopened, then those reasons will be before this Court and it will benefit from them as it decides this appeal.
[ 101 ] This Court heard appeals thus both directly from a judgment and, simultaneously, from the denial of reconsideration of that same judgment. Leave was granted from both judgments here, a fact that has created the procedural difficulty, but this difficulty is not insurmountable. Appellate courts have used the sine die adjournment to deal with appeals identified as premature due to ongoing proceedings below which ought to be completed before the appeal is heard ( Libya , at para. 83 ; Gray v. Gray , 2017 ONCA 100 , 137 O.R. (3d) 65, at para. 33 ; MK Engineering Inc. v. Assn. of Professional Engineers and Geoscientists of Alberta Appeal Board , 2014 ABCA 58 , 68 Admin. L.R. (5th) 135, at para. 22 ; Aleong v. Aleong , 2013 BCCA 299 , 340 B.C.A.C. 44, at para. 47 ). This is more than a procedural concern here: we cannot, in my respectful view, dismiss the second appeal now without conflating the issues at stake on reconsideration of the 2019 Jurisdiction Judgment and those at play in a direct appeal of the 2018 Publication Ban Judgment.
[ 102 ] Finally, even if it were appropriate for this Court to decide the reasonableness of the CBC's delay in bringing its motion, and even if its view was that the motion should have been dismissed on this basis, that conclusion alone would be insufficient to dismiss the appeal directly from the 2018 Publication Ban Judgment. This Court granted leave to appeal, and an extension of time to seek leave to appeal, directly from this separate judgment. I am of the respectful view that it would be inappropriate to effectively reverse these decisions or retroactively limit their scope. If this Court sought only to dispose of the reconsideration issues raised in the appeal from the 2019 Jurisdiction Judgment, it could have granted leave from that judgment alone. But it granted leave from both judgments.
[ 103 ] The CBC has not acquiesced in the 2018 Publication Ban Judgment from which it appeals directly to this Court and, with respect for other views, this second appeal has not "lost its raison d'être " ( Canadian Cablesystems (Ontario) Ltd. v. Consumers' Association of Canada , [1977] 2 S.C.R. 740, at pp. 744 and 747). The question it raises is whether the publication ban should be set aside, which is an ongoing issue of live controversy between the parties, and which is distinct from the appropriateness of the reconsideration raised in the appeal from the 2019 Jurisdiction Judgment. There is no basis to say this second appeal has become moot.
[ 104 ] Unlike in the first appeal bearing on the reconsideration motion, in the direct appeal from the 2018 Publication Ban Judgment there is no preliminary issue about the delay in bringing the motion, a motion that was not even filed before this judgment was rendered. The only issue in this second appeal is the validity of the final and indefinite publication ban imposed in the 2018 Publication Ban Judgment, which requires the application of the test for discretionary limits on court openness. To resolve this issue now, this Court would have to advert to and apply this test, including, with proper submissions, the recent judgment of this Court in Sherman . In my respectful view, that task should not be undertaken until the motion for reconsideration is resolved by the Court of Appeal.
V. Conclusion
[ 105 ] I would allow the appeal from the 2019 Jurisdiction Judgment of the Court of Appeal, set aside that judgment, and remand the matter to that court to decide the CBC's motion in accordance with these reasons.
[ 106 ] I would adjourn the appeal from the 2018 Publication Ban Judgment of the Court of Appeal sine die . I would order that if no motion for directions is filed in this Court within 30 days after the date of the judgment of the Court of Appeal deciding the matter remanded to it in accordance with these reasons, the appeal will be dismissed as abandoned.
[ 107 ] The CBC does not request costs of these appeals and I would make no order as to costs.
The following are the reasons delivered by
[ 108 ] Abella J. (dissenting) — These appeals involve a request by a member of the media to reconsider a publication ban after the underlying proceedings have ended. While I generally agree with Justice Kasirer's analysis of the "notice" issues, I do not share his view that the appeal should be remanded to the Manitoba Court of Appeal for disposition.
[ 109 ] As this Court has repeatedly stressed, the media is a crucial voice in protecting and promoting the openness of courts. That is why the media's right to challenge orders like publication bans is undisputed and why the courts have the discretion to give them notice of publication ban hearings. In Dagenais v. Canadian Broadcasting Corp. , [1994] 3 S.C.R. 835, this Court clearly stated that members of the media are "third parties" and that notice remains "in the discretion of the judge to be exercised in accordance with the provincial rules of criminal procedure and the relevant case law" (p. 869).
[ 110 ] But once the underlying proceedings are over, the doctrine of functus officio means as a general rule that a final decision cannot be reconsidered by the court that rendered the decision. In R. v. Adams , [1995] 4 S.C.R. 707, Sopinka J. recognized that the application of functus officio is "less formalistic and more flexible" in respect of ancillary orders including publication bans (para. 29). It is therefore imperative to maintain circumscribed avenues through which the media can ask a court to reconsider a publication ban after the underlying proceedings are over.
[ 111 ] The rationales underlying the doctrine of functus officio show that it has a role to play in respect of publication ban orders, even when those orders are ancillary to the underlying proceedings. Functus officio is "commonly described as a 'rule about finality'" (A. S. P. Wong"Doctrine of Functus Officio : The Changing Face of Finality's Old Guard" (2020), 98 Can. Bar Rev. 543, at p. 549, citing Nova Scotia Government and General Employees Union v. Capital District Health Authority (2006), 2006 NSCA 85 , 246 N.S.R. (2d) 104 (C.A.), at para. 36 ). As Doherty J.A. observed in Tsaoussis (Litigation Guardian of) v. Baetz (1998) , 41 O.R. (3d) 257 (C.A.):
Finality is an important feature of our justice system, both to the parties involved in any specific litigation and on an institutional level to the community at large. For the parties, it is an economic and psychological necessity. For the community, it places some limitation on the economic burden each legal dispute imposes on the system and it gives decisions produced by the system an authority which they could not hope to have if they were subject to constant reassessment and variation . . . .
The parties and the community require that there be a definite and discernible end to legal disputes. There must be a point at which the parties can proceed on the basis that the matter has been decided and their respective rights and obligations have been finally determined. Without a discernible end point, the parties cannot get on with the rest of their lives secure in the knowledge that the issue has finally been determined, but must suffer the considerable economic and psychological burden of indeterminate proceedings in which their respective rights and obligations are revisited and reviewed as circumstances change. [pp. 264-65 ]
[ 112 ] Finality is important, in part, because it provides a stable basis for an appeal ( Doucet-Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3, at para. 79 ). But finality is also important because it provides economic and psychological security to parties who are dragged into the justice system, including those impacted by publication ban decisions.
[ 113 ] It has been settled since Adams that publication ban orders, which are ancillary to the underlying proceedings"can be varied or revoked if the circumstances that were present at the time the order was made have materially changed" (para. 30; R. v. Henry (2012), 2012 BCCA 374 , 327 B.C.A.C. 190, at para. 11 ; British Columbia v. BCTF (2015), 2015 BCCA 185 , 75 B.C.L.R. (5th) 257 (C.A.), at para. 22 ). The change must "relate to a matter that justified the making of the order in the first place" and the moving party must act "at the earliest opportunity" after the change in circumstances occurs ( Adams , at para. 30 , citing R. v. Khela , [1995] 4 S.C.R. 201 , at pp. 210-11) . I agree with the majority that a material change in circumstances cannot be established in this case.
[ 114 ] In the absence of a material change, trial and appellate courts have recognized that the media are "affected by" orders relating to court openness, meaning that they can generally apply for reconsideration when such an order is issued without notice (see e.g. Hollinger Inc. v. The Ravelston Corp. (2008), 2008 ONCA 207 , 89 O.R. (3d) 721 (C.A.), at para. 43 , and cases cited therein). As Justice Kasirer confirms, this approach applies if the media can show that their submissions are made with "due dispatch" and "prompt action", could make a material difference to the outcome and that the nature of those submissions was not originally considered by the court that issued the ban. The courts have discretion to decide whether it is in the interests of justice to reopen a publication ban under such circumstances.
[ 115 ] These two avenues for after-the-fact media challenges to publication bans reflect the fact that the media is indispensable to court openness. But the applicable tests also take the concept of finality seriously. At a certain point, the parties are entitled to move on with their lives and to be protected from the psychological and financial costs of being dragged back into the justice system when a case is over.
[ 116 ] That is why reconsideration of a publication ban must be sought in a timely manner, and why a publication ban should not generally be reconsidered after the main proceedings have ended unless there is a sound basis for believing the media's application is in the public interest and could reasonably lead to a different result. It is a balancing exercise, not a hierarchical grid, between the interests underlying finality and the interests in support of the open court principle.
[ 117 ] In balancing these principles, and with great respect, I come to a different conclusion from the majority on whether to remand the matter to the Manitoba Court of Appeal.
[ 118 ] As noted, the CBC is unable to establish a material change in circumstances under Adams . As a result, the only basis on which it could move for reconsideration once the proceedings are over is by showing that the publication ban was issued without notice, that its submissions could make a material difference to the outcome, and that it moved for reconsideration in a timely manner. None of these conditions has been met in this case.
[ 119 ] To start, the CBC's argument that the publication ban was issued without notice is difficult to accept in the circumstances. At the hearing before the Manitoba Court of Appeal, counsel for the CBC candidly admitted that the CBC was reporting on the Ostrowski case throughout the course of the proceedings. And before this Court, counsel confirmed that the CBC had a representative in the courtroom when the publication ban was originally ordered on May 28, 2018. At no point in the intervening period between the original publication ban order and its continuation in the Court of Appeal's reasons of November 27, 2018 did the CBC attempt to assert its interests.
[ 120 ] In any event, it is not clear to me what further "notice" would be required in such circumstances. Courts do not issue formal invitations to their hearings — the courtroom is, and should be, open to all, including and especially the media. If the media is present in the courtroom when a publication ban is issued, it follows that it knows of its existence. That is what notice is supposed to be for.
[ 121 ] Nor has the CBC discharged its burden of showing that its proposed submissions could make a material difference in the outcome. It is well-established that courts issuing publication bans are expected to consider the importance of the open court principle, even in the absence of a media representative making submissions ( R. v. Mentuck , 2001 SCC 76 , [2001] 3 S.C.R. 442, at para. 38 ). There is no reason to assume that did not happen in this case. The CBC does not propose to advance a new or unique position or to introduce evidence of which the Court of Appeal was unaware. It simply wishes to argue that the open court principle outweighs the interests supporting the ban, a foundational submission that the Court of Appeal is presumed to have already considered. Furthermore, having heard the CBC's complete argument on the propriety of the publication ban in this Court, I find it difficult to see how its submissions could make a difference in the result.
[ 122 ] More significantly, and relatedly, the CBC's failure to act in a timely manner is, in my respectful view, determinative. The publication ban was originally ordered on May 28, 2018 and was continued by the Court of Appeal in its reasons for judgment on November 27, 2018. But the CBC did not file its motion for reconsideration until May 10, 2019, over five months later. And it did not file its application to this Court for leave to appeal the original publication ban until January 27, 2020, nearly two years after the ban was first imposed and well over a year after it was continued in the November 2018 reasons for judgment.
[ 123 ] The CBC has suggested that its delay can be explained in part by its confusion as to the nature and scope of the publication ban, resulting in communications with the Court of Appeal to determine precisely what was prohibited.
[ 124 ] The correspondence between the CBC and the Manitoba Court of Appeal following the November 27, 2018 reasons demonstrates clearly that this is hardly a robust explanation. On November 30, 2018, the Executive Assistant to the Chief Justices and the Chief Judge informed the CBC that the media was entitled to review the material "protected by the ban on publication", but that the actual fresh evidence affidavit was not available for review because the fresh evidence was not filed with the court after the motion was dismissed. After some further clarifying correspondence, by January 21, 2019, the Registrar had spelled out in unmistakeable terms that "at the outset of proceedings on May 28, 2018, the [c]ourt imposed a publication ban preventing the publication of any of the details of the proposed fresh evidence. In paragraph 82 of the reasons, the [c]ourt ordered that the publication ban would remain in effect". Yet it took the CBC another four months to file a motion for reconsideration.
[ 125 ] It is useful to put this delay in perspective by reference to some timelines provided for by Manitoba's Court of Appeal Rules , Man. Reg. 555/88R. If a party to an appeal before the court of appeal wants a rehearing before the certificate of decision has been entered, they presumptively have 30 days to file a motion after reasons for judgment are delivered ( r. 46.2(4) ). If the appellant fails to file its factum in accordance with the timelines set out in the rules, its appeal will be deemed to be abandoned 30 days after the appellant receives notice from the registrar ( r. 33(4) ). These timelines are a legislated acknowledgement of the importance of timeliness in the resolution of court cases.
[ 126 ] An unexplained six month delay for filing a motion to have a publication ban reconsidered — even a four month delay, on a charitable interpretation of when the CBC had full and complete notice of the nature of the publication ban — is inordinate. Under no definition of "due dispatch" or "prompt action" can this delay be justified, particularly since the CBC was fully aware — and present — from the outset of the proceedings, the ban, and the ban's continuation. On the other hand, the delay in this case causes acute harm to the family, who reasonably expected that their privacy and dignity interests were protected by the finality of the proceedings and that they would not be brought back to court. I see no reason to prolong their distress further.
[ 127 ] While it is true that the CBC's appeal directly from the publication ban technically came to this Court on a separate application for leave to appeal from that of its appeal from the Court of Appeal's refusal to reconsider that ban, both appeals ultimately seek the same relief: that the publication ban be set aside. In the unique context of this case, it makes sense that leave was granted concurrently in both appeals since the ultimate relief sought in both was the same. Moreover, the legal question of when the media can reopen a publication ban order after the case is over raised an issue of "public importance" requiring this Court's guidance ( Supreme Court Act , R.S.C. 1985, c. S-26, s. 40(1)).
[ 128 ] Since, in my respectful view, the CBC was not entitled to reconsideration of the publication ban as a result of its undue and unjustified delay, it would be incongruous to conclude that the impact of the CBC's delay is different for its appeal from the ban itself and for the appeal from the reconsideration motion. The reconsideration appeal is an appeal of that same ban. It would be the triumph of procedural formalism over substantive reality to pretend that these are two different and unrelated legal issues requiring separate conceptual consideration. An undue delay in one is an undue delay in the other.
[ 129 ] As for how to deal with this Court's recently released decision in Sherman Estate v. Donovan , [2021] 2 S.C.R. 521 , it 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. In any event, with respect, I do not see anything in the Sherman decision of such determinative relevance to the CBC's interests that it justified ignoring the unjustified delay.
[ 130 ] This Court retains a narrow discretion to refuse to entertain the merits of an appeal even after leave has been granted. As Laskin C.J. wrote for the Court in Canadian Cablesystems (Ontario) Ltd. v. Consumers' Association of Canada , [1977] 2 S.C.R. 740,
Although it will be rarely that this Court, leave having been granted, will thereafter refuse to entertain the appeal on the merits, its power to do so is undoubted . . . . [p. 742]
This is one of those rare cases where the interests of justice warrant a refusal to entertain the appeal on the merits.
[ 131 ] I would dismiss the appeals.
Appeal from motion to set aside publication ban allowed. Appeal from publication ban adjourned sine die. Abella J . dissenting.
Solicitors for the appellant: MLT Aikins, Winnipeg; Canadian Broadcasting Corporation, Toronto.
Solicitor for the respondent Her Majesty The Queen: Attorney General of Manitoba, Winnipeg.
Solicitors for the respondent Stanley Frank Ostrowski: Strosberg Sasso Sutts, Windsor; Lockyer Campbell Posner, Toronto.
Solicitors for the respondents B.B., spouse of the late M.D., and J.D., in his capacity as executor of the estate of the late M.D.: Robert Gosman Law Corporation, Winnipeg.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitors for the interveners the Centre for Free Expression, the Canadian Association of Journalists, News Media Canada and the Communications Workers of America/Canada: Stockwoods, Toronto.
Solicitors for the intervener Ad Idem/Canadian Media Lawyers Association: Reynolds Mirth Richards & Farmer, Edmonton.
