Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In Canadian Broadcasting Corporation v. Canada (Border Services Agency), 2021 NSPC 48, Judge Halfpenny MacQuarrie, in considering an application to set aside a sealing order, noted that “[t]here is no provision within the Criminal Code or otherwise, to permit victims to express the impact disclosure of their identify and/or personal information would have on a situation such as before the Court” (at paragraph 86).  However, she held that if the granting of such an application would reveal the identity of a “victim”, then the court has “a positive duty” to “notify ascertainable victims of their rights, both substantive and procedurally, under the Canadian Victim Bill of Rights” (at paragraph 84).  She dismissed an application by the CBC to lift a sealing order.

In a subsequent ruling (Canadian Broadcasting Corporation v. Canada (Border Services Agency), 2022 NSPC 5), Judge Halfpenny MacQuarrie considered whether the Supreme Court of Canada’s ruling in Sherman Estate v. Donovan, 2021 SCC 25, constituted “a material change in circumstances” of such a nature that it should cause her to reconsider her initial decision (the “Merits decision”).  

Judge Halfpenny MacQuarrie noted that Sherman Estate “reiterated that application judges are to continue to analyse applications for sealing orders and publication bans with the open court principle as the rule, and any limitation to it, the exception”, but that unlike in Sherman Estate, in “this matter, the unsealing application is in relation to a statutorily-based order.  Sherman Estate was grounded in the common law.  It is such that distinguishes these two cases.  The Court cannot apply the analysis and reasoning in an unsealing application under the Criminal Code holus-bolus to a probate matter without regard to the contextual framework within which each exists” (at paragraphs 42 and 64).

In rejecting CBC’s application, Judge Halfpenny MacQuarrie concluded as follows (at paragraphs 70 to 73):

A legal or factual change does not by necessity create a material change in circumstances without regard to the contextual underpinnings.   

The Merits decision focused on the privacy of individual names within the context of the Wortman mass murders.  The judicial authorizations that were issued, sealing of the same, and the documentation upon which they were granted, were made pursuant to a statutory regime. This Court cannot, in law, apply the Sherman Estate reasoning on privacy to that circumstance as a material change in circumstances.  The two are not legally, factually or contextually the same. 

Ostrowski, supra made it clear there is a stringent burden on the applicant to establish a material change in circumstances.  It is a high bar and there is a need for finality of court decisions.  Only in limited circumstances will reconsideration be permitted, and that has not been met in this case.

The application for reconsideration of the Merits decision is dismissed.