Canadian Broadcasting Corporation v. His Majesty The King, et al.
(Manitoba) (Civil) (By Leave)
(Publication ban in case) (Sealing order)
Courts - Publication bans, Privacy - Courts — Open court principle — Publication Ban — Discretionary limits on court openness — Important public interest — Privacy — Dignity — Whether publication of the details subject to the publication ban would constitute a serious risk to the asserted dignity interest that could justify an exception to the Charter-protected open court principle as clarified in Sherman Estate v. Donovan, 2021 SCC 25.— Whether there are reasonable alternative measures to the publication ban — Whether the benefits of the publication ban outweigh its negative effects — Whether the Canadian Charter of Rights and Freedoms and the common law require a court issuing a discretionary publication ban to identify the important public interest at risk, to frame the ban in a manner that allows those affected to ascertain what expression is illegal and to ensure that the ban is documented in a manner that is accessible.
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(PUBLICATION BAN IN CASE) (SEALING ORDER)
An accused was convicted of first degree murder by a jury in 1987. In 2014, the conviction was referred by the federal minister of justice to the Manitoba Court of Appeal (“MBCA”) due to miscarriage of justice concerns. In the course of the ensuing miscarriage of justice proceedings, which commenced in 2018, the MBCA ordered a publication ban over details of an affidavit and book of materials (“Affidavit”) pending a decision as to its admissibility as new evidence. The Affidavit was proffered by the accused as new evidence on his appeal.
In its November 2018 reasons concluding there had been a miscarriage of justice, the MBCA dismissed the motion for new evidence but ordered that the publication ban over the Affidavit remain in effect indefinitely: 2018 MBCA 125. In May 2019, the appellant, the CBC, brought a motion before MBCA to have the publication ban set aside. The MBCA declined to consider the appellant’s motion, citing its rule of practice against rehearings and the doctrine of functus officio: The appellant was granted leave to appeal to the Supreme Court of Canada from both the MBCA’s 2018 decision ordering the indefinite publication ban over the details of the Affidavit (2018 MBCA 125) and its 2019 decision refusing to reconsider the publication ban (2019 MBCA 122).
In September 2021, the Supreme Court of Canada released its decision in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 43 (“CBC 2021”). Regarding the appeal from 2019 MBCA 122, the Court allowed the appeal and remanded the matter to the MBCA to reconsider the publication ban. Regarding the appeal from 2018 MBCA 125, the Court held that it be adjourned sine die and that the filing of a motion for directions be permitted within 30 days of the decision of the MBCA on the matter remanded to it.
On January 23, 2023, the MBCA dismissed the motion for reconsideration of the publication ban that the Supreme Court remanded to it in CBC 2021: 2023 MBCA 6.
In February 2023, the appellant brought a motion for directions before the Supreme Court in which it asked that the appeal from 2018 MBCA 125 be scheduled for a hearing. By order dated April 18, 2023, the Supreme Court set down the appeal for a hearing, limiting the issues to the implications of the decision in Sherman Estate v. Donovan, 2021 SCC 25, on the publication ban.
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