S.C.C. File No. 38992 IN THE (ON APPEAL FROM THE COURT OF APPEAL OF )

BETWEEN:

CANADIAN BROADCASTING CORPORATION / SOCIÉTÉ RADIO-CANADA Appellant (Moving Party) -and-

HER MAJESTY THE QUEEN Respondent (Respondent) -and-

STANLEY FRANK OSTROWSKI Respondent (Appellant) -and-

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 (Interested Parties) -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

FACTUM OF THE RESPONDENT, STANLEY FRANK OSTROWSKI - REDACTED

(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) LOCKYER CAMPBELL POSNER MICHAEL J. SOBKIN 30 St. Clair Ave. West, Suite 103 331 Somerset Street West Toronto, ON M4V 3A1 Ottawa, ON K2P 0J8 Tel: 613.282.1712 James Lockyer, LSO# 16359A Fax: 613.288.2896 Jessica Zita, LSO# 72449R Email: [email protected] Tel: 416.847.2560, ext. 222 Fax: 416.847.2564 Agent for the Counsel for the Respondent, Email: [email protected]; Stanley Frank Ostrowski [email protected]

STROSBERG SASSO SUTTS LLP 1561 Ouellette Avenue Windsor, ON N8K 1X5

Harvey T. Strosberg, Q.C., LSO# 12640O Tel: 519.561.6228 Email: [email protected]

David Robins, LSO# 42332R Tel: 519.561.6215 Fax: 866.316.5308 Email: [email protected]

Counsel for the Respondent, Stanley Frank Ostrowski

MLT AIKINS LLP GOWLING WLG (CANADA) LLP 360 Main Street, 30th Floor 160 Elgin Street, Suite 2600 Winnipeg, MB R3C 4G1 Ottawa, ON K1P 1C3

Jonathan B. Kroft Jeffrey W. Beedell, LSO# 24711B Tel: 204.957.4671 Tel: 613.786.0171 [email protected] Fax: 613.788.3587 Email: [email protected] Alexa N. Cantor Tel: 204.957.4657 Agent for the Counsel for the Appellant [email protected]

Jennifer A. Sokal Tel: 204.957.4870 Fax: 204.957.4253

Counsel for the Appellant DEPARTMENT OF JUSTICE MANITOBA GOWLING WLG (CANADA) LLP 405 Broadway, Suite 730 160 Elgin Street, Suite 2600 Winnipeg, MB R3C 3L6 Ottawa, ON K1P 1C3

Dennis Guenette D. Lynne Watt, LSO# 35328C Tel: 204.945.5183 Tel: 613.786.8695 Fax: 204.948.2041 Fax: 613.788.3509 Email: [email protected] Email: [email protected]

Counsel for the Respondent, Her Majesty the Agent for the Counsel for the Respondent, Queen Her Majesty the Queen

ROBERT GOSMAN LAW CORPORATION SUPREME ADVOCACY LLP P.O. Box 29035 City Place 340 Gilmour Street, Suite 100 Winnipeg, MB R3C 4L1 Ottawa, ON K2P OR3 Robert Gosman Tel: 204.298.8049 Thomas Slade, LSO# 60851U Fax: 204.949.0891 Tel: 613.695.8855 [email protected] Fax: 613.695.8580 [email protected] Counsel for the Respondents, B.B., spouse of the late M.D., and J.D., in his capacity as executor Agent for the Counsel for the Respondents, of the estate of the late M.D. B.B., spouse of the late M.D., and J.D., in his capacity as executor of the estate of the late M.D.

ATTORNEY GENERAL OF ONTARIO BORDEN LADNER GERVAIS LLP Ministry of the Attorney General th World Exchange Plaza 720 Bay Street, 10 Floor 100 Queen Street, Suite 1300 Toronto, ON M7A 2S9 Ottawa, ON K1P 1J9 Michael Bernstein, LSO# 20508B Tel: 416.326.4600 Nadia Effendi, LSO# 49004T Fax: 416.326.4656 Tel: 613.787.3562 Email: [email protected] Fax: 613.230.8842 Email: [email protected] CONSTITUTIONAL LAW BRANCH Ministry of the Attorney General 720 Bay Street, 4th Floor Agent for the Intervener, Attorney General Toronto, ON M7A 2S9 of Ontario

Yashoda Ranganathan, LSO# 57236E Tel: 647.637.0883 Fax: 416.326.4015 Email: [email protected] Counsel for the Intervener, Attorney General of Ontario ATTORNEY GENERAL OF BRITISH GIB VAN ERT LAW COLUMBIA rd 148 Third Avenue 940 Blanshard Street, 3 Floor Ottawa, ON K1S 2K1 Victoria, BC V8W 3E6 Lesley A. Ruzicka Gib van Ert, LSO# 75786I Chantelle Rajotte Tel: 613.408.4297 Jacqueline Hughes Fax: 613.651.0304 Tel: 778.974.5156 Email: [email protected] Fax: 250.387.4262 Email: [email protected]; Agent for Counsel for the Intervener, [email protected]; [email protected] Attorney General of British Columbia

Counsel for the Intervener, Attorney General of British Columbia

STOCKWOODS LLP KHALID M. ELGAZZAR, LSO# 51924U TD North Tower, Suite 4130 440 Laurier Avenue West, Suite 200 77 King Street West, PO Box 140 Ottawa, ON K1R 7X6 Toronto, ON M5K 1H1 Tel: 613.663.9991 Justin Safayeni, LSO# 58427U Fax: 613.663.5552 Tel: 416.593.7200 Email: [email protected] Email: [email protected] Agent for Counsel for the Interveners, the Zachary Al-Khatib, LSO# 74081S Centre for Free Expression at Ryerson Tel: 416.593.3494 University, Canadian Association of Fax: 416.593.9345 Email: [email protected] Journalists, News Media Canada and Communication Workers of America / Counsel for the Interveners, the Centre for Canada Free Expression at Ryerson University, Canadian Association of Journalists, News Media Canada and Communication Workers of America / Canada

REYNOLDS, MIRTH, RICHARDS & FARMER LLP 3200 Manulife Place 10180-101 Street Edmonton, Alberta T5J 3W8

Tess Layton Tel: 780.425.9510 Fax: 780.429.3044 Email: [email protected] Counsel for the Interveners, Ad Idem / Canadian Media Lawyers Association

ii

E. The Practice of Appeal Courts across Canada of Imposing Publication Bans and/or Sealing Orders where Fresh Evidence is Presented on Appeal Pursuant to s. 683 of the Criminal Code ...... 29

F. Conclusion ...... 34

PART IV: SUBMISSIONS ON COST ...... 35

PART V: ORDER REQUESTED ...... 35

PART VI: SUBMISSIONS ON CONFIDENTIALITY ...... 35

PART VII: TABLE OF AUTHORITIES ...... 36

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4. On November 27, 2018, the Comi of Appeal released its decision on the admission of the - fresh evidence and on the appeal itself. It allowed the conviction appeal but dismissed the - application and ordered that the sealing order and the publication ban continue as pe1manent Orders. SeeR. v. Ostrowski., 2018 MBCA 125 at paras. 81-82

5. On this appeal, the Canadian Broadcasting Co1poration/Societe Radio-Canada ("the CBC"), now seeks to set aside these Orders. fu seeking such relief, the CBC argues that this appeal raises issues fundamental to our democratic society: that comts must be open to public scrntinyto maintain faith in the administration of justice. Ostrowski adopts and relies upon CBC's position in this regard.

6. fu addition, Ostrowski submits that his own personal and detennined interest in the outcome of this appeal gives fmiher cause for the Orders to be set aside. Since his conviction in 1987 for the first degree murder of Robe1i Nieman, Ostrowski has maintained, and continues to maintain, his innocence and was wrongly convicted of a crime he did not commit. Ostrowski spent more than 23 years in prison2 before his release on bail on December 18, 2009 while he awaited the Minister's decision on his application for ministerial relief. Following a reference by the Minister of Justice in 2014, Ostrowski asked the Court of Appeal to quash his conviction and enter an acquittal. On November 27, 2018, the Comi of Appeal quashed his conviction but denied him his acquittal after finding, per Truscott, that it was "not clearly more probable than not that the accused would be acquitted at a hypothetical new trial." fustead, the Comi of Appeal ordered a new trial and thereupon ordered a judicial stay of proceedings. R. v. Ostrowski., 2018 MBCA 125 at paras. 79 and 83

7. Ostrowski asse1is that there was official misfeasance that led to his wrongful conviction, and he wants the public to know this. It is in this context that he suppo1is CBC's application to lift the Manitoba Comi of Appeal's Orders on the- fresh evidence application. fu dismissing the - application, the Comi of Appeal found that the Lovelace deal was made by federal

2 After his murder conviction, Ostrowski was convicted of cocaine traffickingand received a concurrent sentence of 15 years imprisonment.

4

recanted his statements and on May 13, 1987, Luzny was acquitted after an application for a directed verdict. On May 23, 1987, Ostrowski and Correia were convicted of first degree murder.

11. Ostrowski and Correia appealed their convictions. On February 24, 1989, the Manitoba Court of Appeal, Hall, O’Sullivan and Philp JJ.A. presiding, dismissed Ostrowski’s appeal with O’Sullivan J.A. dissenting. O’Sullivan J.A. would have allowed Ostrowski’s appeal and ordered a new trial, his dissent being primarily based on errors in the trial judge’s instructions to the jury. Correia’s appeal was unanimously dismissed. Ostrowski appealed his conviction as of right to the Supreme Court of Canada. On June 20, 1990, his appeal, LaForest, L’Heureux-Dubé, Gonthier, Cory and McLachlin JJ. presiding, was dismissed with brief oral reasons given by Cory J. R. v. Ostrowski and Correia, 1989 CanLII 7367 (M.B.C.A.); R. v. Ostrowski, [1990] 2 S.C.R. 82

12. In 2001, Ostrowski approached the Association in Defence of the Wrongly Convicted (AIDWYC) which agreed to review his case. Commencing in 2003, AIDWYC discovered new evidence that was previously undisclosed. It consisted of what has become known as the “Lovelace deal” and the “Jacobson Report”. Commissioner LeSage’s Report from the Driskell Inquiry in 2007 was an important milestone for Ostrowski’s case: it thoroughly reviewed the practices and conduct of and Mr. Dangerfield in the prosecution of James Driskell for murder. Mr. Dangerfield was also the senior prosecutor at Ostrowski’s trial and Ostrowski’s case was raised in the testimony and addressed in the Commissioner’s Report. Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (Winnipeg: Manitoba Justice, 2007). Chs. III and IV, at pp. 101-102, 105-106, 117-118, http://www.driskellinquiry.ca/pdf/final_report_jan2007.pdf

13. On July 30, 2009, Ostrowski applied for ministerial review of his conviction pursuant to Part XXI.1 of the Criminal Code on the grounds that, pursuant to s. 696.4(a), new matters of significance established that his conviction constituted a miscarriage of justice. On December 18, 2009, Madam Justice Suché of the Manitoba Court of Queen’s Bench ordered his release pending the Minister’s decision. On November 18, 2014, then Minister of Justice Peter MacKay referred his case to the Manitoba Court of Appeal pursuant to s. 696.3(3)(a)(ii) of the Criminal Code with the following acknowledgments: 5

AND WHEREAS the Minister of Justice determined, upon investigation, that a significant amount of relevant and reliable information was not disclosed to Stanley Frank Ostrowski during any of his criminal proceedings;

AND WHEREAS as a result of the investigation, the Minister of Justice is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred; ….

The Minister directed the Court of Appeal “to hear and determine this appeal from conviction as if it were an appeal by the convicted person.” R. v. Ostrowski (2010), 250 C.C.C. (3d) 123 (Man.Q.B.)

(ii) The Matthew Lovelace Deal and Marley Dash’s Role in It (a) Lovelace’s importance to the Crown’s case at Ostrowski’s trial

S. On September 13, 1986, Matthew Lovelace was arrested for possession of four ounces of cocaine and charged with its possession for the purpose of trafficking. The next day, Ostrowski was arrested at his home. Sixteen ounces of cocaine were seized and he was charged with possession for the purpose of trafficking.

T. The Crown theory at the murder trial was that Ostrowski, along with Luzny who had been arrested on September 9 for cocaine and LSD trafficking offences, thought Nieman had informed on them to the police and so decided to have him killed. Ostrowski’s position was that he never believed Nieman informed on him and had no reason to arrange his murder.

U. In fact, Lovelace was the one who had informed on Ostrowski and continued to do so up to Nieman’s shooting on September 29, 1986. Hours before the shooting, Lovelace left a phone message for Csts. DeGroot and McCormick with a WPD officer who was not identified at trial but subsequently confirmed to have been Sgt. Niels Jacobson. Jacobson left a note for DeGroot on the message board that read: Sonny called. He will be at his farm. Apparently Frankie wants to do a hit on his friend. 6

17. Sonny was the police codename for Lovelace. Nieman was shot in his home around midnight by Dunkley and Correia.

18. In the morning, DeGroot saw the note on the message board. He and McCormick, who knew of Nieman’s shooting hours earlier, met with Lovelace. As the day proceeded, Lovelace told them that Nieman was the “friend” whom Ostrowski had told him he wanted to kill3 when according to the officers, Lovelace remained unaware that Nieman had already been shot that night. Lovelace’s statement led to Ostrowski’s arrest later that morning. For the jury, who never heard Jacobson’s version of Lovelace’s telephone call the night before, Lovelace had predicted Nieman’s shooting before it occurred. R. v. Ostrowski, 2018 MBCA 125 at paras. 5 to 17 Appellant’s Factum in Court of Appeal, Record of Respondent Ostrowski (Ostrowski’s Record), Vol. 1, Tab 11, paras. 1-10

(b) The presentation of Lovelace to the jury

S. O’Sullivan J.A., in his dissent in the Court of Appeal, called Lovelace “the principal witness against Ostrowski” and noted that “Crown counsel on the appeal agreed it would be unsafe to apply the proviso unless we are satisfied with the evidence of Lovelace.” R. v. Ostrowski and Correia, 1989 CanLII 7367 (MB CA) at para. 69

20. At Ostrowski’s trial in 1987, Lovelace presented himself as a reformed criminal with no personal interest in giving his testimony. He insisted that he received no consideration on his outstanding cocaine trafficking charge in exchange for his testimony against Ostrowski. In direct examination, cross-examination and re-examination, Lovelace repeatedly denied that any arrangement had been made, or any consideration given, for his cooperation. Ostrowski’s trial counsel, Mr. Brodsky, and Luzny’s counsel, Mr. Wolch, went at him “hammer and tongs” over

3 The Jacobson Report and Jacobson’s contemporaneous notes which were not disclosed to trial counsel undermined Lovelace’s claim that Ostrowski had told him that he planned to kill Nieman. In fact, Lovelace had told Jacobson that Ostrowski was planning to kill an entirely different person. This is dealt with in the Court of Appeal judgment and there is no publication ban in this regard. Consequently, the Jacobson Report also undermined the testimony of his two handling officers, DeGroot and McCormick. 7

this. Lovelace told Mr. Wolch that he had “no hope … none whatsoever” that “somewhere down the road” he was going to get a break, testifying: “I never tried to make any deal. Any information I gave to the police was voluntarily given without asking for anything.” In re-examination, Mr. Dangerfield asked Lovelace: Q. When you are tried for the cocaine charge that you now face, have you any doubt in your mind that the conversations you gave police about your activities in Montreal and your selling activities in Winnipeg will come out at trial? A. No sir. Mr. Dangerfield: Thank you.

Appellant’s Factum in Court of Appeal, Ostrowski’s Record, Vol. 1, Tab 11, para. 10

21. Lovelace’s Winnipeg Police Department handlers also testified that Lovelace neither sought nor received any consideration from the authorities. In his closing address, Mr. Dangerfield suggested that Lovelace’s arrest had put his life “in ruins”. He continued:

Remember at this stage he didn’t make any sort of deal. He didn’t ask for one and the police didn’t give him one. He’d had it. He said, “I’m finished. Here’s the man that did it to me. Do what you want.” Those charges that he faced then he faces now. He never made a deal to give them Frank Ostrowski. … Here is Lovelace, a young man with no prospects in life. The only hope he has is that he’s going to serve a term of imprisonment. (emphasis added)

In his jury charge, Darichuk J. reminded the jury of Lovelace’s outstanding cocaine charge and noted that Lovelace had testified that he did not expect “any favours whatsoever” on the charge. Appellant’s Factum in Court of Appeal, Ostrowski’s Record, Vol. 1, Tab 11, paras. 11 and 12

(c) Lovelace’s acquittal after he gave his testimony

22. On November 16, 1988, eighteen months after Ostrowski’s murder conviction, Lovelace appeared for his trial on his cocaine trafficking charge in the Manitoba Provincial Court before Justice Dubienski. He was represented by counsel Hymie Weinstein. The proceedings only took a minute or two. The federal Crown, Pamela Clarke, without explanation, announced, “The Crown will be proceeding to trial at this point, has no evidence to call”, whereupon the court entered an acquittal. Transcript of Proceedings in Provincial Court, Ostrowski’s Record, Vol. 1, Tab 16 8

(d) The Lovelace deal and those involved in its making

23. In May, 2004, AIDWYC obtained the Federal Prosecution Service’s file on Lovelace’s cocaine charge through the Department of Justice in Ottawa. The contents of the file established that a deal had been made for his cocaine charge to be withdrawn if he testified against Ostrowski. The file contained a page of paper with notes on it in the handwriting of Judith Webster, a federal prosecutor. The notes were dated December 12, 1986 and can fairly be described as the smoking gun for Ostrowski’s appeal. Ms. Webster’s handwritten memo said (some abbreviations are bracketed in full):

“Call Weinstein. s/t [stated] by word that we are going to do s/t [something] about drug charge eventually T/c Weinstein Do we get a stay 86-12-12

Discussed w [with] J. Haasbeek4 who confirmed Tony Cherniak5 earlier discussions. Told Hymie if Lovelace “comes thru with the goodies” we’ll stay. Subject to confirmation with provincial Crown. Hymie doesn’t want anything in writing so as not to taint his client. PNK [Peter Kremer]6”

The deal was not memorialized elsewhere in the file although references were made to it in correspondence and memos. This included subsequent correspondence between then federal Crown Mr. Dash and counsel Mr. Weinstein as to what had actually been agreed upon. There was no reference to the deal in the provincial Crown’s homicide file. The deal was never disclosed to Ostrowski’s trial counsel, Greg Brodsky, so he knew nothing of it. The Lovelace Deal, Ostrowski’s Record, Vol. 1, Tab 1 Appellant’s Factum in Court of Appeal, Ostrowski’s Record, Vol. 1, Tab 11, paras. 13-27 R. v. Ostrowski, 2018 MBCA 125 at paras. 14-16

4 Sgt. Haasebeek of the Winnipeg Police Department – he was one of the investigators of the homicide and arrested the Respondent for it. 5 Staff Insp. Cherniak of the Winnipeg Police Department 6 Peter Kremer was a prosecutor for the Federal Prosecution Services in Winnipeg. 9

24. According to Ms. Webster’s handwritten memo, at least four federal Crowns, Judith Webster herself, Marley Dash, Peter Kremer and Pamela Clarke, and two senior investigators, Sgt. Haasbeek and Staff Sgt. Cherniak, knew of the deal. Likely, Sgt. Paulishyn, whose name appears at the top of Ms. Webster’s handwritten document and was part of the investigation of Nieman’s murder, knew of it too.7 Since the document said that the deal was “subject to confirmation with provincial Crown”, Ostrowski argued at his appeal in 2018 that this and other circumstantial evidence proved that the provincial Crown was consulted and confirmed the deal. However, the Court of Appeal found there was “no evidence” of this. R. v. Ostrowski, 2018 MBCA 125 at para. 47

25. In summary, the eventual disclosure of Lovelace’s drug file to Ostrowski revealed the following chronology of key events: • On November 3, 1986, Mr. Weinstein, Lovelace’s counsel on his drug trafficking charge, spoke to Staff Insp. Cherniak who told him that there was a “full statement to arrange” for Lovelace.

• By November 20, 1986, Ms. Webster and Mr. Dash had assigned a “special status” to Lovelace’s drug trafficking file, as referenced in their internal correspondence.

• On December 10, 1986, Mr. Dangerfield, the provincial Crown prosecuting Ostrowski, recorded that a preferred indictment had been obtained against those charged with Nieman’s murder.

• On December 12, 1986, Ms. Webster handwrote her summary of the negotiations of the Lovelace deal including her “goodies” remark. The only thing remaining to be done to complete the deal was to seek the provincial Crown’s confirmation of it. Sometime in the ensuing days, the deal was cemented, whether with or without the provincial Crown’s agreement.

• On March 13, 1987, Ostrowski’s trial began. On April 13 and 14, 1987, Lovelace testified at Ostrowski’s trial. On May 23, 1987, the jury returned with its verdict.

7 Paulishyn denied this in his testimony in the Court of Appeal in 2016. 10

• Following Ostrowski’s conviction, correspondence was exchanged and memoranda were written by Mr. Dash suggesting that Lovelace would have to wait until argument of Ostrowski’s appeal in the Court of Appeal before his cocaine charge was disposed of.

• On September 23, 1988, Ostrowski’s appeal in the Court of Appeal was argued and judgment was reserved.

• On November 16, 1988, the Crown offered no evidence on Lovelace’s cocaine charge in the Provincial Court and he was acquitted.

• On February 24, 1989, Ostrowski’s appeal was dismissed by the Court of Appeal.

• On June 20, 1990, Ostrowski’s further appeal was dismissed by the Supreme Court of Canada.

Appellant’s Factum in Court of Appeal, Ostrowski’s Record, Vol. 1, Tab 11, paras. 17

(iii) The Appeal Hearing after the Minister’s Reference

26. The Lovelace deal was before the Minister of Justice when he conducted his ministerial review. On November 18, 2014, Justice Minister MacKay referred the case to the Manitoba Court of Appeal. The Court of Appeal decided to hear a number of witnesses viva voce, including federal Crowns, provincial Crowns and police officers involved in Ostrowski’s prosecution in 1986-87. Respondent’s counsel, supported by the Crown, asked that the proceedings pertaining to the witness examinations be sealed until further order to preserve the integrity of the continuing proceedings. Appellant’s Factum in Court of Appeal, Ostrowski’s Record, Vol. 1, Tab 11, paras. 18-39

27. On September 23, 2016, the Court of Appeal, Chartier C.J.M. and Hamilton and MacInnes JJ.A. presiding, made an order pursuant to s. 683(1)(b) of the Criminal Code that a total of twelve witnesses attend and be examined before the panel of the Court of Appeal that was to hear the appeal, and that subpoenas be issued accordingly. The Order concluded as follows:

AND IT IS FURTHER ORDERED that Joint Motion Brief, draft Order and final Order relating to this application are to be sealed, and shall remain sealed, subject to further Order of this Court. 11

This was understood by the Court and the parties to be a temporary sealing order until the witness examinations had been completed. Notice of Motion, Joint Motion Brief, Consent of the Parties, all dated Aug. 22/16, Ostrowski’s Record, Vol. 1, Tabs, 2-4; Order of Court of Appeal, Sept. 23/16, Ostrowski’s Record, Vol. 1, Tab 5

28. On November 2, 2016, witness cross-examinations commenced before Beard, Burnett and Pfuetzner JJ.A. At the outset, the Court addressed the existing sealing Order with counsel. The Court was advised that media had not been advised of the existing Order, and no media was present in the courtroom. After hearing submissions, the Court made a publication ban stating:

There will be a publication ban on the publication of firstly the names of the witnesses called, and secondly any testimony given, or the contents of any documents that are filed in the course of the taking of the evidence which will remain in effect until the commencement of the appeal, provided that the publication ban will be re-considered in the event that an application for reconsideration is brought. So if it comes to the attention of the media and they want to challenge the ban, then I think that it would be appropriate that, that we would revisit it at that time, so hopefully that won’t happen because time is an issue, but (sic).

Counsel had no comments on the Order. The Court further said:

I think that probably I would ask the clerk then to, when you’ve got the order, to have it posted on the door and I think that they actually have a protocol in the Queen’s Bench, at least, for notifying the media, so that someone doesn’t inadvertently publish something, so maybe the clerk can just check with the Court of Queen’s Bench to find out what their, or with, I guess Amy (phonetic) Fortaine, would be the one who deals with the media, so maybe you could just speak to her, and she can let you know what their protocol is on that.

The actual Order for the publication ban was entered on February 7, 2017. Proceedings in Court of Appeal, Nov. 2/16, Ostrowski’s Record, Vol. 1, Tab 6, p. 18/10-19/10; Order of Court of Appeal, Nov. 2/16, Ostrowski’s Record, Vol. 1, Tab 7

(iv) The Testimony of Marley Dash before the Panel

29. On November 3, 2016, Marley Dash testified before the panel of the Court of Appeal. Called to the Manitoba bar in 1979, he testified that he worked as a Crown for the Federal Department of Justice from 1985 until 2010. In the 1986-1988 period, there were approximately 12 five Crowns in the criminal prosecution group of whom Mr. Dash was one. Judith Webster was the senior prosecutor. Mr. Dash himself reported directly to Peter Kremer. Ms. Pamela Clarke, who appeared for the Crown at Lovelace’s trial, was his junior. After leaving the Department in 2010, Mr. Dash spent his retirement with his wife on a small farm. Evidence of M. Dash in Court of Appeal, Nov. 3/16, Ostrowski’s Record, Vol. 1, Tab 17, pp. 250/30-254/1

30. On October 1, 1986, Mr. Dash was the “docket” Crown at one of Lovelace’s early appearances in Provincial Court on his cocaine trafficking charge. Mr. Weinstein called him sometime thereafter requesting that the proceedings against Mr. Lovelace be stayed. Mr. Dash took the request to Ms. Webster. Evidence of M. Dash in Court of Appeal, Nov. 3/16, Ostrowski’s Record, Vol. 1, Tab 17, pp. 255/5- 256/25

31. On November 21, 1986, Ms. Webster wrote a memo that referenced her discussions with Mr. Dash as follows:

Pursuant to discussions with Hymie Weinstein on November 20th, 1986, and bearing in mind my discussions with Marley Dash concerning the “special status” of this file, it was agreed that a preliminary inquiry date would be set some time in May when we are setting dates in any event.

In cross-examination, it was suggested to Mr. Dash several times that this memo showed that he had much more to do with Lovelace’s prosecution than he was letting on. He resisted these suggestions. Memo by Webster, Documents in Lovelace’s Cocaine File, Ostrowski’s Record, Vol. 1, Tab 15, p. 226; Evidence of M. Dash in Court of Appeal, Nov. 3/16, Ostrowski’s Record, Vol. 1, Tab 17, pp. 279/35-289/10

32. Mr. Dash was asked in cross-examination about Ms. Webster’s December 12, 1986 handwritten notes describing the Lovelace deal. He denied ever having seen the document stating: “I don’t recall ever seeing this before, so either it wasn’t in the file, or I didn’t come across it.”8 Mr. Dash was subsequently assigned to conduct the preliminary hearing on the case and on May 19, 1987, Mr. Weinstein suggested in a letter to Mr. Dash that he speak to Ms. Webster as to the

8 Ms. Webster left the federal Crown’s office a month or so after writing the December 12 memo. 13 discussions that had been held with the police, Ms. Webster and himself. On May 26, Mr. Dash and Mr. Weinstein spoke on the phone and Mr. Weinstein again asked that he discuss the case with Ms. Webster. Nevertheless, Mr. Dash stated in his testimony before the Court of Appeal: I did not speak to Ms. Webster about the Lovelace matter, even though Mr. Weinstein invited me to. That’s my recollection. I just didn’t want to get involved. I note that there was the unique request for a stay of proceedings. It was in the hands of my superiors, I didn’t think I should stick my nose into it.

Letter from Dash to Weinstein, May 12/87; Letter from Weinstein to Dash, May 19/87; Dash memo to file, June 1/87; Documents in Lovelace’s Cocaine File, Ostrowski’s Record, Vol. 1, Tab 15, pp. 231-233 Evidence of M. Dash in Court of Appeal, Nov. 3/16, Ostrowski’s Record, Vol. 1, Tab 17, pp. 256/25-258/35, 289/30-299/20

33. The preliminary hearing was re-scheduled for June 30, 1988. On June 17, 1988, Mr. Dash wrote a memo to Pamela Clarke, who was now handling the prosecution. He told her that he had been advised that Ostrowski’s appeal from his murder conviction was to be heard in October, 1988. He wanted Ostrowski’s appeal heard “before the final determination of the Lovelace matter”, and advised that he had discussed this with Mr. Weinstein. He further wrote:

When the Ostrowski appeal is heard we will then determine the appropriate course of action on the Lovelace matter. Please speak to me and I will advise you what the appropriate action will be at that time. Memo by Dash, June 17/88, Documents in Lovelace’s Cocaine File, Ostrowski’s Record, Vol. 1, Tab 15, p. 238

34. Ms. Clarke wrote her own memo to the file on the same day (June 17, 1988). She wrote:

It appears through discussions with Hymie Weinstein, Peter Kremer and Judith Webster, that Mr. Weinstein is definitely of the impression that he was given an undertaking that charges will be stayed against Mr. Lovelace once the Ostrowski appeal has been heard. Accordingly, this matter has been scheduled for preliminary inquiry on June 30, 1988, which is approximately one month past the targeted date for the Ostrowski appeal. This matter should be discussed early in June of 1988 to let Hymie know when we’ll be staying proceedings.

Mr. Dash testified about this at the Court of Appeal, stating: That was the first time that it came to my attention, to my knowledge, that they had some time, some type of agreement in place between the three of them, that’s 14

Webster, Kremer and Weinstein, relating to Mr. Lovelace testifying.

Mr. Dash testified that he knew “that everybody wanted the Court of Appeal hearing at least completed before [the timing of the stay of proceedings] could be worked out.” He testified that this brought an end to his dealings on the file.

Memo by Clarke, Nov. 16/87, Documents in Lovelace’s Cocaine File, Ostrowski’s Record, Vol. 1, Tab 15, p. 237 Evidence of M. Dash in Court of Appeal, Nov. 3/16, Ostrowski’s Record, Vol. 1, Tab 17, pp. 259/25-266/20

35. Mr. Dash agreed that the federal Crown would have involved the provincial Crown in making the Lovelace deal, but he himself had not done this. As for whose obligation it was to disclose the Lovelace deal to Ostrowski, Mr. Dash testified:

Well, I think the disclosure obligation would be the Federal Crown would have to disclose it, certainly to the Provincial Crown, and the Provincial Crown should be disclosing whatever’s lawfully required to counsel for Mr. Ostrowski.

Evidence of M. Dash in Court of Appeal, Nov. 3/16, Ostrowski’s Record, Vol. 1, Tab 17, pp. 289/20-307/10

36. According to Mr. Dash, the Lovelace deal would have been predicated on Lovelace having to testify truthfully at Ostrowski’s trial. He said:

A. I think I would have contacted the Provincial Crown to get their opinion on it. I think I would have contacted the City Police to get their opinion on it. And I would have waited until the judgments of the courts are complete, to see if they had an opinion on it. Q, All right. A. Because, as I say, I can’t believe there should be an agreement to testify, and that’s it. It has to be truthful testimony and you need to acquire that kind of information in order to make the decision that he’s entitled to the stay. Evidence of M. Dash in Court of Appeal, Nov. 3/16, Ostrowski’s Record, Vol. 1, Tab 17, pp. 314/10-316/30 15

37. In cross-examination, Mr. Dash kept denying that he was ever in charge of Lovelace's prosecution. He acknowledged that Ms. Clarke who was counsel at Lovelace's "trial" on November 16, 1988 "would have sought some advice" as to how to proceed but if she did, it was not from him. He did not know why the Crown offered no evidence after a not guilty plea, rather than entering a stay of proceedings set out in Ms. Webster's December 12 memo. He would have expected the provincial Crown to have been fmiherconsulted on this. Evidence ofM Dash in Court of Appeal, Nov. 3/16, Ostrowski's Record,Vol. 1,Tab 17,pp. 317/5- 321/20, 324/30-330/10

38. It is fairto say that Mr. Dash was challenged in his cross-examination beforethe panel but there was nothing abusive about it. His direct and cross-examination were completed in the . . mommg sess10n.

(v) � Testified

39. testified are catalogued in the and the annexed Book of Materials. This material was filed in a sealed envelope pursuant to s. 21(4) of the Court of AppealRules and remains sealed to this day by Order of the Comi of Appeal. Ostrowski, having prepared and filed the materials, has them in his possession but cannot make use of them as such.

40. However, the Applicant'sBrief Regarding The Witness ("Ostrnwski's- Brief') and the Respondent's Motion Brief Admissibility of Fresh Evidence Respecting the Witness ("Crown's - Brief'), both filed exclusively on the fresh evidence were filed with the Comi but not sealed. The Comi of Appeal's mies do not require that fresh evidence briefs must be filed in sealed envelopes. However, the briefs remain subject to the Comi of Appeal's publication ban (see paragraph 82 of R. v. Ostrowski 2018 MBCA 125). The CBC has obtained the two briefs and references them in its Appellant's Factum on this appeal. These references include that

See Appellant's (CBC) F actum at paras. 24, 25

19

The Application continued:

AND TAKE NOTICE that the materials in support of the application will be filed under seal until such times as this Court orders otherwise.

was not identified by name in the Notice of Application. The materials filed under seal were the Posner affidavit and the Book of Materials. Notice of Application, Ostrowski’s Record, Vol. 1, Tab 8 51. These materials were filed under seal pursuant to the provisions of the Court of Appeal Rules. Rule 21 sets out the rules for the filing of fresh evidence:

FURTHER EVIDENCE

21(1) A party who intends to apply to the court to introduce further evidence under subsection 26(3) of the Act shall indicate that intention and the nature of the proposed further evidence in a separate notice of motion.

21(2) The motion to introduce further evidence shall be heard on the day scheduled for hearing the appeal.

21(3) The motion shall be accompanied by an affidavit which sets out the following:

(a) the general nature of the further evidence sought to be introduced; (b) the way in which the further evidence is likely to be determinative of the appeal; (c) why the further evidence was not introduced at the proceeding from which the appeal lies. 9

21(4) A second affidavit shall be completed with the further evidence sought to be introduced attached or identified in specific terms. The second affidavit shall be placed in a sealed envelope and kept separate by the registrar until the motion is decided. (emphasis added) Manitoba Court of Appeal Rules, 555/88 R, r. 21, Ostrowski’s Record, Vol. 2, Tab 2

9 A supporting affidavit pursuant to this subsection was not filed because it would have identified

21

THE COURT: Just to be absolutely clear, just because I - - this is just my look, it’s lifted, but there’s no lifting at this point whatsoever with respect to the application concerning, what I will call the new material.

MR. SCHWARTZ: That is absolutely correct.

THE COURT: Everybody’s nodding in the affirmative. I just wanted to be clear. And, partly, I wanted to be clear for any member of the media who may be present in the courtroom.

MR. SCHWARTZ: That - - that’s right. And, Justice Burnett, just to follow up on that, it’s my understanding that Mr. Lockyer intends to commence his submissions today dealing with that issue.

THE COURT: That’s fine.

MR. SCHWARTZ: So his submissions would be subject to that publication ban.

THE COURT: Thank you. (emphasis added)

It is unknown whether any member of the media was in the courtroom at the time. The media was given no notice of the Court’s intent. Oral Proceedings in Court of Appeal, May 28/18, Ostrowski’s Record, Vol. 1, Tab 12, pp. T1/40- T5/25

54. During these discussions, the Court advised that it was of the view that the only issue to be focussed on in oral argument of the motion was remedy:

The panel members have reviewed the evidence, the facts, the jurisprudence, the facta of the counsel have filed, and we are in agreement with your positions in that regard. The panel is therefore of the view that it’s not necessary for counsel to spend time arguing those issues on this appeal. As we see it, and I think as counsel are of the view, the main issue is, what is the appropriate remedy? The defence, as I said, is arguing for an acquittal. The Crown is suggesting that a judicial stay is the appropriate remedy. So that’s the issue that we should be focusing on this morning.

So then in relation to the new evidence hearing. The new evidence, if it is to be admitted, has to be relevant and material to that issue. That is, what is the appropriate remedy?

22

The Court then said:

So what we’ll do is hear your argument on the - - the new evidence. We’ll take a short break, and - - and see if we can come to a decision. If we can, we’ll let you know. If we can’t, then we’ll reserve on that and proceed with the appeal.

Oral Proceedings in Court of Appeal, May 28/18, Ostrowski’s Record, Vol. 1, Tab 12, pp. T2/40 – T3/10)

55. At the outset of his oral argument on the motion, Ostrowski made submissions that the fresh evidence was relevant to the issues on the appeal:

… the fact that this appeal is now solely dealing with the issue of the appropriate disposition after the conviction has been quashed, does not take away from the issues surrounding the non-disclosure of both the Lovelace deal and the Jacobson report. That depending on the finding of this Court as to who was involved in the non-disclosure of the two items of evidence, who was involved in setting up the deal with Mr. Lovelace and how it all came to pass, and indeed, the credibility of the evidence that you have heard in this Court over the last year or more, is still a relevant factor to the disposition of the appeal. ….. The more egregious the -- the conduct of the authorities, which includes two Crown officers and -- and police officers, senior police officers as well, the more the equities favour the appellant being granted an acquittal as opposed to a judicial stay of proceedings. If only because that conduct, or misconduct, denied the appellant the right to a fair trial then, back in 1987, and I will argue as well, prevents the ability to retry him now, 2018 -- post-2018.

Ostrowski’s counsel continued:

And as well, as I’ve suggested in cross-examinations, the existence of the deal and the failure to disclose it and the Jacobson report, it’s my submission, would reflect, depending on findings of fact by a jury, on the credibility of individual witnesses, particularly police officers at a retrial, and more so, on the integrity of the prosecution as a whole. And what I mean by the integrity of the prosecution as a whole is the integrity of the officers in charge of this investigation and the Crowns involved in prosecuting the case. Oral Proceedings in Court of Appeal, May 28/18, Ostrowski’s Record, Vol. 1, Tab 12, pp. T6/1 – T8/10 23

56. Ostrowski's counsel related the evidence smTounding that it suppo1ied an inference that - . Counsel continued:

fu reply submissions, Ostrowski elaborated on the relevance of the- fresh evidence: That -- that if the authorities' conduct has both undennined the fairness of the trial that happened and, in effect, prevents the conducting of a retrial 32 years later -- or 31 years later since the trial, that that must be relevant to the appropriate remedy. Which, ce1iainly, there is good authority for, is under -- under 686(2) is one of, amongst other things, one of discretion on the paii of this Comi. fudeed, that's set out in Truscott, that it's a matter of -- of discretion amongst other things. They also talk about other ways of -- of aITiving at an acquittal in -- in an appeal case. At the conclusion of the argument on the motion, the Court reserved on the admission of the. fresh evidence. Oral Proceedings in Court ofAppeal, May 28/18, Ostrowski's Record, Vol. 1, Tab 12, pp. T8/20 - Tl0/1, T14/15-35

(viii) The Court of Appeal Decision on the- Fresh Evidence Application

57. On November 27, 2018, the Comi of Appeal released its judgment quashing Ostrowski's firstdegree murder conviction, ordering a new trial and entering a stay of proceedings. At the end of its judgment, Beai·d J.A. addressed the admission of the-fresh evidence and the sealing orders and publication bans. She first addressed the September 23, 2016 Order: There were two motions to present fresh evidence in this appeal. The first motion proceeded by consent and the testimony of a number of witnesses was presented to this panel. Several testified and were cross-examined, while the testimony of others was filed by way of affidavit or transcripts from other proceedings. There was a publication ban in place during the evidentia1y po1iion of the proceeding, to prevent the publication of details of the testimony and the possible containination of witnesses. With the consent of the parties, that publication ban was liftedas of May 18, 2018. R. v. Ostrowski, 2018 MBCA 125 at para. 80 24

58. The Comt then addressed the-fresh evidence application: There was a second motion for fresh evidence related to fmther info1mation regarding one of the witnesses who had testified before this panel. That fresh evidence was sealed pursuant to the Manitoba, Court of Appeal Rules, Man Reg 555/88 R, r 21(4), and there was also a publication ban in place at the beginning of the hearing to prevent the publication of any of the details of that evidence. With the consent of the paities, this Court has reviewed that evidence.

I am of the view that this evidence goes to the issue of whether there was Crown misbehaviour, which was relevant to whether there had been a miscaiTiage of justice. This has been conceded by the Crown and is no longer at issue. The fresh evidence is not, in my view, of assistance in dete1mining the only issue on appeal, being whether there should be an order for a new trial with a judicial stay of proceedings or an acquittal. Therefore, I am of the view that the evidence is not relevant to the issues to be detennined and the motion should be dismissed. I would order that the publication ban regarding this evidence should remain in effect. (emphasis added)

This meant that the Posner affidavit and the Book ofMaterials remained under pe1manent seal, along with the facta filed on the motion, and the oral argmnent on the motion, which continue to be the subject of a pennanent publication ban. The Court of Appeal gave no reasons for the Orders other than its dismissal of the fresh evidence application. The Court did not engage in any Mentuck analysis. It is these Orders which underlie the CBC's appeal. R. v. Ostrowski, 2018 MBCA 125 at paras. 81-82

(ix) Ostrowski's Pending Civil Action

S. On June 15, 2020, Ostrowski commenced a civil suit for his wrongful conviction against a number of defendants including the Attorney General of Canada, Judith Webster, Peter Kremer, Pamela Clai·ke and Jack Haasbeek.

ofClaim (and presumably could not be) to the sealed- materials.

26

this simply to the vicissitudes of time. But it goes much further than that. The Appellant was tried without access to the evidence he needed to defend himself and he now deserves an acquittal. The Crown’s main witness, Matthew Lovelace, is proven irretrievably tainted, as are the integrity of the police investigation and the Crown prosecution of the case. Mr. Lerner acknowledged in his testimony that the Jacobson report was ripe grounds for cross-examination of Csts. McCormick and DeGroot. The Lovelace deal was ripe grounds for the cross- examination of them too, and for the cross-examination of the officers-in-charge. Asked about Mr. Dangerfield’s last question in Lovelace’s re-examination, Mr. Lerner testified:

A. If that was the deal, I don’t know what the deal was … I’m saying if that [was] the deal then, yes, that [question] would be a complete attempt to mislead.

Q. Awful, awful …right?

A. Yes. … It might fairly be asked how Lovelace knew he could testify falsely with such impunity. (emphasis added) Ostrowski further noted that a stay of proceedings would be “a hollow result” for him. Appellant’s Factum in Court of Appeal, Ostrowski’s Record, Vol. 1, Tab 11, at paras. 48, 50, 52

B. The Court of Appeal’s Decision on Ostrowski’s Appeal

64. In her reasons, Beard J.A. observed that Ostrowski argued that “the Crown’s main witness, Mr. Lovelace, is irretrievably tainted, as is the integrity of the police investigation and the Crown prosecution.” As noted (supra), the motion formed part of Ostrowski’s argument – that and therefore relevant to the formation and subsequent suppression of the Lovelace deal. R. v. Ostrowski, 2018 MBCA 125 at para. 37

65. Beard J.A. addressed the Lovelace deal and made findings of fact. She found that there was “no evidence” that anyone “actually” communicated the Lovelace deal to the provincial Crowns. She found that the existence of the Lovelace deal did not necessarily leave Lovelace’s credibility “in tatters” and that it would still be open to a jury to accept his evidence of Ostrowski’s involvement in the shooting. R. v. Ostrowski, 2018 MBCA 125 at paras. 45-70 27

66. In coming to these conclusions, Beard J.A. relied, in part, on Mr. Dash’s testimony. She said:

Two other federal Crowns were involved with the file, Marley Dash and Pamela Clarke. Mr. Dash testified that he had no substantive involvement with the file; rather, he dealt only with scheduling and adjournments. There was no evidence indicating otherwise. Ms. Clarke, who conducted the proceeding at which Mr. Lovelace was acquitted, was only involved much later and was a junior Crown who was following the directions of the senior federal Crown, Mr. Kremer. Both Mr. Dash and Ms. Clarke testified before this panel that they believed that there was a deal but had no involvement in the negotiations, and both testified that they did not have any discussions with the provincial Crowns about the Lovelace deal. There was no evidence to suggest otherwise. (emphasis added)

These findings, of course, were not the findings urged on the Court by Ostrowski. R. v. Ostrowski, 2018 MBCA 125 at para. 52

C. The Law of Sealing Orders and Publication Bans

67. Sealing orders and publication bans come in two forms, temporary or permanent. The orders challenged on this appeal are both permanent.

68. In R. v. Mentuck, 2001 SCC 76, Iacobucci J. observed that a person in Ostrowski’s position has a Charter right to a “fair and public hearing”, guaranteed by s. 11(d). Iacobucci J. provided what he called “the proper analytical approach” in cases of this kind, stating at para. 32:

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. 28

D. The Application of the Law to the Court of Appeal’s Orders

69. Over the years, there has been considerable media interest in, and commentary on, Ostrowski’s case. However, the outstanding Orders prevent the public from hearing the facts behind, and of, facts which are relevant to how Ostrowski came to be wrongly convicted. Ostrowski’s interest in exposing all the facts are compelling. In making the Orders, the Court of Appeal did not give any consideration to the well-established principles that apply to publication bans. If it had, it would have realized that there was no basis in law for the Orders.

70. The Court of Appeal was overly simplistic in its conclusion that the materials were irrelevant to the appeal. Notwithstanding the Crown’s concession that the non-disclosure resulted in a miscarriage of justice, it was for the Court of Appeal to conclude whether, on all the available evidence, there had been a miscarriage of justice and, if so, what remedy to grant. The available evidence includes As the CBC says in its Appellant’s Factum:

The MBCA specifically acknowledged that the Posner Affidavit was relevant to the issue of whether there had been a miscarriage of justice. It refused to admit the evidence because it said that the Crown conceded that there was a miscarriage of justice so the evidence did not pertain to an issue before the Court (para. 82 of R. v. Ostrowski, 2018 MBCA 125). However, the MBCA also made it clear elsewhere in its decision that it did not solely rely upon the Crown concession of a miscarriage of justice, but actually considered the evidence on the issue which included the oral evidence of the former Crown Attorney which was the subject of the Posner Affidavit. The sealing of the Posner Affidavit together with the Publication Ban therefore materially restricts the ability of the public to know about and discuss matters that the MBCA considered in coming to its conclusion on the issue of wrongful conviction and to critically evaluate the basis for the decision to exclude the Posner Affidavit. Ostrowski agrees. Appellant’s Factum (CBC) at para. 172(b)

71. Further, or in the alternative, Ostrowski submits that the materials were relevant to the exercise of the Court of Appeal’s discretion as to the proper remedy. There is abundant caselaw that the remedy granted by an appellate court once a conviction is quashed is discretionary. The more egregious the state misconduct, the more likely the court will enter an acquittal. For all these reasons, it is in the public interest that the Orders be overturned. See R. v. Truscott 2007 ONCA 575 at paras. 246-259 29

72. Ostrowski submits that the Crown has no viable interests or grounds for maintaining the sealing order or the publication ban. As the CBC argues: “courts in Canada have been particularly reluctant to prohibit public discussions about the identities and activities of government officials. This case should be no exception.” The two Orders only protect While it may be assumed that members of to stay out of the public domain, this does not justify the suppression of evidence from the public domain which forms part of Ostrowski’s lifetime campaign to prove his innocence. The Orders were not necessary to prevent a serious risk to the proper administration of justice. On the contrary, the Orders do serious harm to the administration of justice. There is no justification for the Orders in law and their existence has deleterious effects on the rights and interests of Ostrowski, including his right to a fair and public hearing. See Appellant CBC’s Factum at para. 230

73. Ostrowski has commenced a civil action for his wrongful conviction. The materials are of evidentiary value in his action. He should not be deprived of this evidence by the Court of Appeal’s Orders.

E. The Practice of Appeal Courts across Canada of Imposing Publication Bans and/or Sealing Orders where Fresh Evidence is Presented on Appeal Pursuant to s. 683 of the Criminal Code

74. Ostrowski has conducted a review of the rules of appeal courts and practice directions across Canada for when fresh evidence is filed on appeal. It has involved reviewing the rules of each court of appeal, and where the rules are lacking, through contacting the registrars of the courts of appeal. Practices vary from province to province, and the territories. The rules for each province and territory, and, in the case of some, email attachments from court officials, are filed in Volume 2 of Ostrowski’s Record.

75. The rules of the Courts of Appeal of Manitoba and Ontario are similar. Manitoba’s rule 21, which requires that fresh evidence be “placed in a sealed envelope and kept separate by the registrar until the motion is decided” has already been quoted (supra). In the Ontario Court of 30

Appeal’s Practice Directions Concerning Criminal Appeals, direction 7.3.5 sets out the procedure for fresh evidence applications. It states in direction 6:

Subject to the direction of the appeal management judge, the completed record compiled in support of the application for leave to introduce fresh evidence on appeal, including any factums filed in connection with the application, shall be sealed when filed with the court. The party seeking to adduce fresh evidence at the hearing of the appeal shall affix to the outside of the sealed packet a copy of the Notice of Application to Introduce Fresh Evidence that shall describe:

(i) the nature of the proposed fresh evidence; (ii) the ground or grounds of appeal to which the proposed fresh evidence relates; (iii) the person or persons from whom the evidence will be obtained; (iv) the basis upon which the evidence is said to be admissible; (v) where the opposing party consents to the receipt of the fresh evidence on appeal (if the opposing party’s position is known). (emphasis added)

The Practice Direction does not state whether the evidence remains sealed if it is not admitted on the appeal. In an email response to a query by Ostrowski’s counsel, Ms. Tanieka Swaby, the Assistant Records Management Coordinator for the Court of Appeal, has advised:

1. The fresh evidence is considered to be unsealed once the panel has had a chance to view it subject to any additional directions from the panel/Court.

2. If there is no publication ban and sealing order, or any further directions [of] the court, the fresh evidence can be accessed.

Ontario Court of Appeal, Practice Direction Concerning Criminal Appeals, s. 7.3.5; Ostrowski’s Record, Vol. 2, Tab 5; Ontario Court of Appeal, Electronic Correspondence from Tanieka Swaby, A/Records Management Coordinator, December 3, 2020, Ostrowski’s Record, Vol. 2, Tab 6

76. The ’s fresh evidence procedure is set out in an email from Mr. Mark Mossey, Executive Legal Officer of the Court. He advises:

… when a fresh evidence application is filed, the tendered fresh evidence is placed in an envelope in order to distinguish it from evidence that is otherwise on the appeal record. The fresh evidence, the fresh evidence application, and all of the other appeal materials are placed before the same panel of the Court: see McDonald v Brookfield Asset Management Inc., 2016 ABCA 419 at paras. 6-7. That panel will look at the tendered fresh evidence in order to decide whether it should be admitted. Counsel are allowed to refer to the fresh evidence during oral argument. 31

As a general rule, the “open court principle” provides that court records and court proceedings are open to the public. Unless there is a statutory or court ordered publication ban or sealing order in place, all materials on the court file are available for public inspection. As a general rule, once the fresh evidence package is filed, it would be available for inspection. Once documents are part of the court record, they remain so unless the court orders that they be struck. As a result, following the oral argument the fresh evidence package would likely remain available for public inspection.

If documents have been electronically filed, the documents are not put in an envelope, but rather are filed as a discrete electronic document, in a way that they can be distinguished from other parts of the court record.

Nunavut Court of Appeal: https://www.nunavutcourts.ca/index.php/rules-directives-notices/rules- appeals; Ostrowski’s Record, Vol. 2, Tab 7 Nunavut, Electronic Correspondence from Mark Mossey, Executive Legal Officer, Office of the , Judges’ Chambers, Department of Justice, December 3, 2020, Ostrowski’s Record, Vol. 2, Tab 9

77. The Alberta Court of Appeal provides that the materials for a fresh evidence application should be placed in envelopes when filed. The Court of Appeal of Alberta, Criminal Appeal Rules, provide:

Application to admit new evidence

16.26(1) An application to admit new evidence must be filed and served prior to the filing of, and prior to the deadline for filing, the applicant’s factum.

(2) in addition to the documents required by subrule 16.23(2), the applicant must file (a) 5 copies of the proposed new evidence, and (b) 5 envelopes large enough to contain a copy of the new evidence, marked “New Evidence” and with the appeal number and style of cause.

The Alberta Court of Appeal’s website elaborates on its rules. Under a heading Application for New Evidence – Frequently Asked Questions, a number of questions are posed and answers given. They include the following:

“4. What documents are required to file an application to admit new evidence?

[Answer] An application to admit new evidence requires: 32

(a) an application in Form AP-3 (civil) or Form CRA-F (criminal) (b) a memorandum of argument (maximum 5 pages), (c) copies of the proposed new evidence, and (d) envelopes large enough to contain the new evidence marked “New Evidence” and labelled with the appeal number and style of cause.

An affidavit in support of the application and authorities are optional.

The Court will keep 5 copies of all documents. This does not include the copies that you will require for yourself and for service. ….

6. What is the purpose of the envelope? Does that mean that the judges hearing the appeal will not look at what’s inside?

[Answer] New evidence does not become part of the court record until it is admitted. The envelope is a visual cue that what is inside has not yet been admitted. The judges hearing the appeal will open the envelope and read the new evidence before the appeal is heard. If the new evidence is admitted, it will be removed from the envelope and placed on the court file. …..

11. Is the new evidence accessible to the public?

[Answer] Before a ruling is made on the application to admit new evidence (or if the application is denied), the new evidence does not form part of the file and is therefore not accessible to the public without the court’s permission. In that case, the case management officer should be consulted for directions.

If the application to admit new evidence is granted, the new evidence is placed on the file and is accessible to the public in the usual course (i.e, upon payment of the requisite search and photocopy fees and subject to any access restriction or publication ban).” (italics added for emphasis)

The Court of Appeal for the Northwest Territories has an identical rule to that in the Alberta Court of Appeal but does not have a Frequently Asked Questions section on their website.

Alberta Court of Appeal Criminal Appeal Rules – Can. Reg. SI/2018-34, r. 16.26, Ostrowski’s Record, Vol. 2, Tab 3 Alberta Court of Appeal – Application for New Evidence Frequently Asked Questions, https://albertacourts.ca/docs/default-source/ca/applications-to-admit-new-evidence- faqs.pdf?sfvrsn=6085a180_2, Ostrowski’s Record, Vol. 2, Tab 4 33

Northwest Territories, Rules of the Court of Appeal Respecting Civil Appeals, R-091-2018, rr. 2, 33, Ostrowski’s Record, Vol. 2, Tab 8; Northwest Territories, Rules Respecting Criminal Appeals Under Sections 678-689 of the Criminal Code and Bail Rules on Appeals to the Court of Appeal, SOR/78-68, r. 2(3), Ostrowski’s Record, Vol. 2, Tab 7

78. The Courts of Appeal in the Provinces of Quebec, Nova Scotia, New Brunswick, Newfoundland and Labrador, Prince Edward Island, British Columbia, Saskatchewan, and the Yukon Territory Court of Appeal have no rule requiring that a fresh evidence application be filed in an envelope, sealed or otherwise.

Quebec Court of Appeal, Rules of the Court of Appeal in Criminal Matters, SI/2018-96, r. 57; , Electronic Correspondence from Nicholas Thiffault, Lawyer, December 3, 2020; Nova Scotia – Rule 91 Criminal Appeal, SI/2009-3, r. 91.02; Nova Scotia, Civil Procedure Rules, N.S. Civ. Pro. Rules 2009, rr. 90.34, 90.36; Nova Scotia – Courts – The Court of Appeal – Material for Both Civil and Criminal Matters – Motion to introduce fresh evidence on the hearing of the appeal – Instruction Sheet, https://www.courts.ns.ca/Appeal_Court/documents/nsca_notice_motion_fresh- evidence_instructs_13_02.pdf; New Brunswick Criminal Appeal Rule 63 with Respect to Criminal Appeals to the Court of Appeal, SI/82-13; New Brunswick, Rules of Court, NB Reg. 82-73, rr. 1, 62; New Brunswick, Electronic Correspondence from Caroline Lafontaine, Registrar, Court of Appeal, December 4 and 7, 2020; Newfoundland and Labrador Supreme Court – Court of Appeal Criminal Appeal Rules (2002), SI/2002-96, r. 19; Prince Edward Island – Criminal Appeal Rules of Court, SI/2011-109, s. 82.17; British Columbia - Criminal Appeal Rules, 1986, B.C. Reg. 176/91, r. 2(1); British Columbia – Court of Appeal Rules, B.C. Reg. 297/2001, r. 31; Saskatchewan, Criminal Appeal Rules, SI/2011-9, r. 41; Yukon Territory, Criminal Appeal Rules, 1993, SI/93-53, s. 2; Yukon Territory, Court of Appeal Rules, 2005 (Civil), s. 31; Yukon Territory, Electronic Correspondence from Justin Gorczyca, Registrar, Court of Appeal, December 3-4, 2020 See Ostrowski’s Record, Vol. 2, Tabs 10 to 25

79. The Courts of Appeal that have rules that require that fresh evidence materials should be sealed when filed, do not make specific provision for whether and when the documents should be unsealed in the event that they are not admitted on appeal. However, as noted, the Alberta Court of Appeal’s website in its Frequently Asked Questions suggests that the materials will remain 34

sealed in this circumstance. In this regard, the Appellant CBC notes that Rule 21(4) of the Manitoba Rules requires that “the second affidavit shall be placed in a sealed envelope and kept separate by the Registrar “until the motion is decided.” The CBC argues that “until the motion is decided” should be interpreted to mean that the documents should be unsealed at the time the motion is decided, regardless of how the motion is decided. Ostrowski agrees with this analysis.10 See Appellant’s Factum (CBC) paras. 160-162

F. Conclusion

80. Ostrowski has a fundamental interest in the outcome of this appeal. Having vehemently claimed for more than three decades that he was wrongly convicted, the Manitoba Court of Appeal found him to be the victim of a miscarriage of justice because “important evidence was not disclosed” to him, and that the non-disclosure “violated his right to full answer and defence.” Beard J.A. avoided finding fault for the non-disclosure and only catalogued its occurrence in her reasons. She made no findings as to whether the integrity of the police investigation and the Crown prosecution were, as Ostrowski urged, “irretrievably tainted.” But the fresh evidence materials are relevant to whether or not this was so. R. v. Ostrowski, 2018 MBCA 125, at paras. 4, 37 and 82

81. The continued sealing order and publication ban deprive Ostrowski of important information pertaining to his miscarriage of justice, and shields the conduct of government and public officials from proper scrutiny and accountability. It is in Ostrowski’s interest and the public interest that both orders be set aside.

10 The CBC argues that if the rule is interpreted to mean that fresh evidence materials must remain sealed if not admitted on appeal, the rule violates s. 2(b) of the Charter. Notice of Constitutional Question advanced by the CBC, Question 7 35

PART IV: SUBMISSIONS ON COSTS

82. Ostrowski seeks no order as to costs and asks that no costs be awarded against him.

PART V: ORDER REQUESTED

83. Ostrowski respectfully requests that the Court of Appeal’s Sealing Order be set aside and the Publication Ban lifted.

PART VI: SUBMISSIONS ON CONFIDENTIALITY

84. The sealing order pertaining to the Posner affidavit and Book of Materials remains in effect. The publication ban on the facta filed and on oral submissions respecting the fresh evidence also remains in effect.

85. If these Orders are set aside by this Court, there will no impact on the Court’s reasons. If these Orders are upheld, the Court’s reasons will be impacted accordingly.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 11th day of January, 2021.

______James Lockyer Jessica Zita Lockyer Campbell Posner

______Harvey Strosberg, Q.C. David Robins Strosberg Sasso Sutts LLP

Counsel for the Respondent Ostrowski

. 36

PART VII: TABLE OF AUTHORITIES

Cases Paragraphs

R. v. Ostrowski, 2018 MBCA 125 4, 6, 18, 23, 24 40, 57, 58, 64, 65, 66, 70, 80

R. v. Ostrowski (2010), 250 C.C.C. (3d) 123 (Man.Q.B.) 13

R. v. Ostrowski, [1990] 2 S.C.R. 82 11

R. v. Ostrowski and Correia, 1989 CanLII 7367 (MB CA) 11, 19

R. v. Mentuck, 2001 SCC 76 68

R. v. Truscott, 2007 ONCA 575 71

Legislation

Alberta Court of Appeal Criminal Appeal Rules – Can. Reg. SI/2018-34, r. 16.26 77

British Columbia – Court of Appeal Rules, B.C. Reg. 297/2001, r. 31 78

British Columbia - Criminal Appeal Rules, 1986, B.C. Reg. 176/91, r. 2(1) 78

Criminal Code, RSC 1985, c C-46, ss. 696.3(3)(a)(ii) & 696.4(a) 13

Manitoba Court of Appeal Rules, 555/88 R, r. 21 3, 39, 51, 75, 79

New Brunswick Criminal Appeal Rule 63 with Respect to Criminal Appeals to the Court of Appeal, SI/82-13 78

New Brunswick, Rules of Court, NB Reg. 82-73, rr. 1, 62 78

Newfoundland and Labrador Supreme Court – Court of Appeal Criminal Appeal Rules (2002), SI/2002-96, r. 19 78 37

Northwest Territories, Rules of the Court of Appeal Respecting Civil Appeals, R-091-2018, rr. 2, 33 77

Northwest Territories, Rules Respecting Criminal Appeals Under Sections 678-689 of the Criminal Code and Bail Rules on Appeals to the Court of Appeal, SOR/78-68, r. 2(3) 77

Nova Scotia, Civil Procedure Rules, N.S. Civ. Pro. Rules 2009, rr. 90.34, 90.36 78

Nova Scotia – Rule 91 Criminal Appeal, SI/2009-3, r. 91.02 78

Ontario Court of Appeal, Practice Direction Concerning Criminal Appeals, s. 7.3.5 75

Prince Edward Island – Criminal Appeal Rules of Court, SI/2011-109, s. 82.17 78

Quebec Court of Appeal, Rules of the Court of Appeal in Criminal Matters, SI/2018-96, r. 57 78

Saskatchewan, Criminal Appeal Rules, SI/2011-9, r. 41 78

Yukon Territory, Criminal Appeal Rules, 1993, SI/93-53, s. 2 78

Yukon Territory, Court of Appeal Rules, 2005 (Civil), s. 31 78

Secondary Resources

Alberta Court of Appeal – Application for New Evidence 77, 79 Frequently Asked Questions, https://albertacourts.ca/docs/default-source/ca/applications-to-admit-new-evidence- faqs.pdf?sfvrsn=6085a180 2

New Brunswick, Electronic Correspondence from Caroline Lafontaine, Registrar, 78 Court of Appeal, December 4 and 7, 2020

Nova Scotia – Courts – The Court of Appeal – Material for Both Civil and 78 Criminal Matters – Motion to introduce fresh evidence on the hearing of the appeal – Instruction Sheet: https://www.courts.ns.ca/Appeal_Court/documents/nsca_notice_motion_fresh- evidence instructs 13 02.pdf

Nunavut, Electronic Correspondence from Mark Mossey, Executive Legal Officer, 76 Office of the Chief Justice, Judges’ Chambers, Department of Justice, December 3, 2020 38

Nunavut Court of Appeal: 76 https://www.nunavutcourts.ca/index.php/rules-directives-notices/rules-appeals

Ontario Court of Appeal, Electronic Correspondence from 75 Tanieka Swaby, A/Records Management Coordinator, December 3, 2020

Quebec Court of Appeal, Electronic Correspondence from Nicholas Thiffault, 78 Lawyer, December 3, 2020

Report of the Commission of Inquiry into Certain Aspects 12 of the Trial and Conviction of James Driskell (Winnipeg: Manitoba Justice, 2007). Chs. III and IV, at pp. 101-102, 105-106, 117-118, http://www.driskellinquiry.ca/pdf/final report jan2007.pdf

Yukon Territory, Electronic Correspondence from Justin Gorczyca, Registrar, 78 Court of Appeal, December 3-4, 2020