Canadian Broadcasting Corporation v. His Majesty the King, et al.

(Manitoba) (Civil) (By Leave)

(Publication ban in case) (Sealing order)


Courts - Jurisdiction, Publication bans, Appeals - Courts - Jurisdiction - Publication bans - Constitutional law - Charter of Rights - Open court principle - Criminal proceedings - Appeals - Legislation - Interpretation - Sealed evidence - Is a court issuing a discretionary publication ban required to: give prior notice to the public and media; set out the terms of the ban with sufficient certainty; record the ban in a manner accessible to the public; and provide reasons applying the Dagenais/Mentuck test - Does s. 2(b) of the Charter require a discretionary publication ban to be subject to being set aside, varied or clarified by further order of that Court - Does the MBCA have inherent jurisdiction to deal with a motion to set aside or vary the publication ban or does Rule 46.2 or the doctrine of functus officio deprive the MBCA of that jurisdiction - Does the MBCA have jurisdiction to provide a remedy under s. 24(1) of the Charter - Is the publication ban justified - Is evidence that is tendered and reviewed by a court but not admitted part of the record prima facie accessible to the public pursuant to the open court principle - Does Rule 21(4) seal evidence held inadmissible and, if so, does it violate s. 2(b) of the Charter - What is the appropriate standard of review for a determination of jurisdiction, the correct interpretation of Rule 21 and the application of the open court principle - Should access be granted to the Posner affidavit - Is a deceased person entitled to privacy and does the estate have standing to raise the deceased’s privacy interests - Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, ss. 2(b) and 7 - Court of Appeal Rules, Man Reg 555/88 R, rules 21(4) and 46.2 - Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76.


Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.


During the appeal of an accused’s conviction for first degree murder, the defence brought two motions to admit fresh evidence. On the basis of evidence from the first motion that was admitted and made publicly available, the parties agreed that the conviction should be set aside and that there should not be a new trial. The only issue remaining was whether there should be an acquittal or a new trial, but with a judicial stay of further proceedings.

The affidavit evidence that was the subject of the second motion to admit fresh evidence was sealed pursuant to Rule 21(4) of the Court of Appeal Rules, Man Reg 555/88 R. In the course of the hearing, the Manitoba Court of Appeal ordered a publication ban to protect the information prior to its discussion in argument. The Court determined that the evidence proposed under the second motion to admit fresh evidence was irrelevant to the remaining issue, and therefore denied the motion and ordered that the publication ban on it remain in effect. The Court set aside the conviction, ordered a new trial and stayed any further proceedings: 2018 MBCA 125.

The appellant brought a motion before the Manitoba Court of Appeal to set aside the publication ban protecting the fresh evidence. In 2019 MBCA 122, the Court denied the motion on the basis that it lacked jurisdiction to rehear or interpret the publication ban according to the Court of Appeal Rules. The appellant filed motions for an extension of time and applications for leave to appeal the 2018 MBCA 125 and 2019 MBCA 122 decisions.