CANADIAN BROADCASTING CORP. v. MANITOBA, 2023 SCC 27, NOVEMBER 9, 2023.
FACTS: During a proceeding before the Manitoba Court of Appeal, “an accused sought to introduce as new evidence an affidavit sworn by his lawyer concerning the death of a witness involved in those proceedings”. The Court of Appeal issued a publication ban in relation to the affidavit.
After the appeal was completed, the Court of Appeal ordered that the publication ban was to remain in effect The Canadian Broadcasting Corporation (the “CBC”) filed a motion to set aside the publication ban. The Court of Appeal held that it did not have jurisdiction to hear the motion to set aside the publication because it was functus officio (2019 MBCA 122). The CBC sought and obtained leave to appeal both judgments to this Court.
HELD: the appeals were dismissed. The Supreme Court of Canada concluded that The Court of Appeal “did not commit a reversible error in issuing the publication ban and ordering that it remain in effect” (at paragraph 7).
The Supreme Court, quoting from an eatery decision, indicated that a person asking a court to exercise discretion in a way that limits the open court presumption must establish that: “(1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects” (at paragraph 8).
The Supreme Court concluded that the “benefits” of the “publication ban significantly outweigh its minimal deleterious effect on the right of free expression and, by extension, the principle of open and accessible court proceedings” (at paragraph 12):
Finally, as to the third branch, we agree with the Court of Appeal in the Judgment on Remand that the benefits of the 2018 publication ban significantly outweigh its minimal deleterious effect on the right of free expression and, by extension, the principle of open and accessible court proceedings. The benefit of the publication ban is to protect the dignity of the witness’s spouse as already explained, whereas the publication ban has a minimal negative effect on the right of free expression and the open court principle (paras. 92‑93). The affidavit did not relate to the wrongful conviction or the legitimacy of the accused’s appeal before the Court of Appeal in 2018. As the Court of Appeal observed in the Judgment on Remand, the affidavit was “capable of proving nothing” (para. 91). Here, the affidavit was not admitted as evidence in the wrongful conviction proceedings and, therefore, did not play a role in determining that a wrongful conviction had occurred.