SCC 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)

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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 FOR ONTARIO and ATTORNEY GENERAL OF BRITISH COLUMBIA INTERVENERS

FACTUM OF THE INTERVENOR, AD IDEM/ CANADIAN MEDIA LAWYERS ASSOCIATION (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

Tess Layton REYNOLDS MIRTH RICHARDS & FARMER LLP 3200 Manulife Place 10180 – 101 Street Edmonton, AB T5J 3W8 T:780.425.9510 F: 780.429.3044 E: [email protected]

Iain A.C. MacKinnon LINDEN & ASSOCIATES P.C. 200 Bay St., Suite 2010 RBC Plaza, North Tower Toronto ON M4J 2J1 Tel: (416) 861-9338 x231 Fax: (416) 861-9778 Email: [email protected]

Counsel for the Intervener, Ad IDEM/Canadian Media Lawyers Association

Jonathan B. Kroft / Alexa N. Cantor / Jeffrey Beedell Jennifer A. Sokal GOWLING WLG (Canada) LLP MLT AIKINS LLP 160 Elgin Street, Suite 2600 30th Floor – 360 Main Street Ottawa, ON K1P 1C3 Winnipeg, MB R3C 4G1 T :204.957.0050 T: 613.786.0171 F: 204.957.0840 F:613.788.3587 E: [email protected] / [email protected] / E:[email protected] [email protected] Ottawa Agents for the Appellant Counsel for the Appellant

Sean A. Moreman CANADIAN BROADCASTING CORPORATION/SOCIÉTÉ RADIO-CANADA 250 Front Street W Toronto, ON M5V 3G5 T: 416.205.6494 Counsel for the Appellant

Denis G. Guenette D. Lynne Watt DEPARTMENT OF JUSTICE MANITOBA GOWLING WLG (Canada) LLP 730-405 Broadway 160 Elgin Street, Suite 2600 Winnipeg, MB R3C 3L6 Ottawa, ON K1P 1C3 T: 204.945.5183 T: 613.786.8695 F: 204.948.2041 F: 613.788.3509 E: [email protected] E: [email protected]

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

James Lockyer MICHAEL J. SOBKIN LOCKYER CAMPBELL POSNER 331 Somerset Street West 30 St. Clair Ave. West, Suite 103 Ottawa, ON K2P 0J8 Toronto, ON M4V 3A1 Tel: 613.282.1712 T: 416.847.2560 Ext: 222 Fax: 613.288.2896 F: 416.847.2564 Email: [email protected] E: [email protected] Agent for the Counsel for the Respondent, Stanley Frank Ostrowski Counsel for the Respondent, Stanley Frank Ostrowksi

Harvey T. Strosberg, Q.C., LSO# 12640O David Robins, LSO# 42332R STROSBERG SASSO SUTTS LLP 1561 Ouellette Avenue Windsor, ON N8K 1X5 Tel: 519.561.6228 Email: [email protected] Tel: 519.561.6215 Fax: 866.316.5308 Email: [email protected] Counsel for the Respondent, Stanley Frank Ostrowski

Roberg Gosman Thomas Slade ROBERT GOSMAN LAW CORPORATION SUPREME ADVOCACY LLP P.O. Box 29035 City Place 100-340 Gilmour Street Winnipeg, MB R3C 4L1 Ottawa, ON K2P 0R3 T: 204.298.8049 T: 613.695.8855 F: 204.949.0891 F: 613.695.8580 E: [email protected] E: [email protected]

Counsel for the Respondents, Ottawa Agent for the Respondents, B.B., spouse of the late M.D., and B.B., spouse of the late M.D., and J.D., in his capacity as executor of the J.D., in his capacity as executor of the estate of the late M.D. estate of the late M.D.

Michael Bernstein Nadia Effendi ATTORNEY GENERAL FOR ONTARIO BORDEN LADNER GERVAIS Crown Law Office – Criminal World Exchange Plaza Ministry of the Attorney General 1300 – 100 Queen Street McMurtry-Scott Building, 10th Floor Ottawa, ON K1P 1J9 720 Bay Street T: 613.787.3562 Toronto, ON M7A 2S9 F: 613.230.8842 T: 416.326.2302 E: [email protected] F: 416.326.4656 Ottawa Agent for the Intervener, E: [email protected] Attorney General for Ontario Yashoda Ranganathan CONSTITUTIONAL LAW BRANCH Ministry of the Attorney General MCMurty-Scott Building, 4th Floor 720 Bay Street Toronto, ON M7A 2S9 T: 647.637.0883 F: 416.326.4015 E: [email protected]

Counsel for the Intervener, Attorney General for Ontario

Lesley Ruzicka / Chantelle Rajotte / Gib van Ert Jacqueline Hughes GIB VAN ERT LAW THE ATTORNEY GENERAL OF BRITISH 148 Third Avenue COLUMBIA Ottawa, ON K1S 2K1 BC Prosecution Service T: 613.408.4297 940 Blanshard Street F: 613.651.0304 Victoria, BC v8W 3E6 E: [email protected] T: 778.974.5156 Ottawa Agent for the Intervener, F: 250.387.4262 Attorney General of British Columbia E: [email protected] / [email protected] / [email protected]

Counsel for the Intervener, Attorney General of British Columbia

Fredrick Schumann Khalid M. Elgazzar STOCKWOODS LLP 440 Laurier Avenue West Tel: 416-593-2490 Suite 200 Fax: 416-593-9345 Ottawa, ON K1R 7Z6 Email: [email protected] Counsel for the T: 613.663.9991 Intervener, Centre for free Expression and F: 613.663.5552 Canadian Association of Journalists, News E: [email protected] Media Canada and Communications Workers of America / Canada Ottawa Agent for the Intervener, Centre for free Expression and Canadian Association of Journalists, News Media Canada and Communications Workers of America / Canada

TABLE OF CONTENTS

I. OVERVIEW AND STATEMENT OF FACTS ...... 1

II. ISSUES ...... 2

III. ARGUMENT ...... 2

A. NOTICE TO AN AFFECTED PARTY IS A FUNDAMENTAL LEGAL PRINCIPAL ...... 2 i. The importance of open courts ...... 2 ii. The importance of notice is already embedded in the law ...... 3 iii. Constructive notice is not notice ...... 5 iv. Requiring notice to the media is not antithetical to the exercise of discretion ...... 5

B. NOTICE TO THE MEDIA IS PRACTICALLY DESIRABLE ...... 7 i. Notice and standing are inextricably linked ...... 7 ii. Inadequate mechanism for reconsideration and appeal ...... 7 iii. Notice to the media leads to practical efficiencies ...... 9 iv. Where issuing notice is not possible at the time a publication ban is sought ...... 10

IV. ORAL ARGUMENT ...... 10

V. AUTHORITIES ...... 11

I. OVERVIEW AND STATEMENT OF FACTS 1. This appeal arises out of a proceeding concerning a miscarriage of justice referred to the , pursuant to the Criminal Code, R.S.C 1985, c C-49. In the course of the proceeding, the Court of Appeal heard two motions to admit fresh evidence. The first, which was allowed, resulted in the admission of viva voce testimony of 12 witnesses. The second motion concerned affidavit evidence outlining events that unfolded with respect to one of the witnesses who testified. Arguments on the admissibility of the latter were heard along with closing submissions of counsel. At that time, the Court of Appeal issued a publication ban – on its own motion – in the absence of any request made by either party and without giving notice to the media. Upon issuing its final reasons (in which it ruled the affidavit evidence inadmissible), the Court of Appeal also ordered that the publication ban was to remain in effect.1

2. Issuing a discretionary publication ban without notice to the media or inviting submissions is not anomalous. Despite the affirmation of this Court of the importance of notice to the media,2 restrictions on access or publication continue to be sought and ordered without notice to the media. Although this appeal raises a number of important issues, it also presents this Court with the opportunity to reaffirm the importance of providing notice to the media, an interested party whose constitutionally-guaranteed rights and freedoms are at stake.

3. The jurisprudence of this Court is clear: open access to the courts and the public’s ability to express views and understand the functioning of public institutions is vital to democracy and the rule of law.3 The public’s right to know what occurs in courts and put forward opinions about their functioning is not only protected by s 2(b) but is its very raison d’être.4 A restriction on access or publication ban results in the curtailment of these rights. While the media’s entitlement to have an opportunity to be heard on such an application has been well recognized, in the absence of notice of any such proceeding, it is impossible for the media to exercise its s 2(b) rights.

1 R v Ostrowski, 2018 MBCA 125 at paras 81-82 2 Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835, [1994] SCJ No 104, [1994] CarswellOnt 112 (SCC) [Dagenais] 3 Edmonton Journal v Alberta (Attorney General), [1989] SCR 1326 at 1336, 1339 4 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 SCR 480 at 496- 497 - 2 -

4. Notice to the media of applications to restrict publication or access is consistent with s 2(b) jurisprudence, the requirement of notice common in many other areas of law, and certain provincial rules of practice that have adopted an electronic notification system for notifying the media of publication ban and sealing order requests. A heightened notice requirement where Charter rights are at issue is justified as a matter of both principle and practicality.

II. ISSUES 5. CMLA will consider the sole issue of whether the media ought to be given notice of an application for a restriction on publication or access.

III. ARGUMENT A. Notice to an affected party is a fundamental legal principle i. The importance of open courts 6. This Court has repeatedly recognized the importance of s.2(b) of the Charter of Rights and Freedoms and the media’s role as both a rightsholder and a facilitator of this right for the benefit of the public. Freedom of expression and freedom of the press maintain the public’s ability to express views and understand the functioning of public institutions, which is necessary for democracy.5 Of these institutions, the courts play a critical role and it is vital to the rule of law that they are seen to operate openly.6 Accordingly, “[t]he press must thus be free to comment and report upon court proceedings to ensure that the courts are in fact seen by all to operate openly in the penetrating light of public scrutiny”.7 The right therefore, belongs to the media, but also to the public; it is latter who have a right to such information, but for practical purposes cannot attend.8

7. In Dagenais, this Court recognized the media is an interested third party entitled to the opportunity to be heard at an application that would restrict reporting.9 These applications engage the s2(b) Charter guarantees of freedom of expression and freedom of the press contained enjoyed by the media and the public. The test places a heavy onus on any party seeking to displace it.10

5 Edmonton Journal v. Alberta (AG), 1989 CanLII 20 (SCC), [1989] 2 SCR at page 1336. 6 Ibid at page 1339. 7 Ibid. 8 Ibid at para 1340; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 SCR 480 at 496-497; Vancouver Sun (Re), [2004] 2 S.C.R. 332 at para. 26 9 Dagenais v. Canadian Broadcasting Corp.[1994] 3 SCR 835, [1994] SCJ No 104, [1994] CarswellOnt 112 (SCC) at paras 58, 60, 102 [Dagenais]. 10 Ibid at para 81. - 3 -

8. The Dagenais/Mentuck test requires that the court account for the competing interests to be balanced, including those of the media. This raises an important question central to this appeal: How can the court ensure that important, competing Charter protected interests are fairly and constitutionally weighed without providing an opportunity for a Charter rights holder to be heard?

9. An important principle emerged from Dagenais: the media should have notice of an application that has the effect of restricting s 2(b) rights, and without such notice, the media cannot exercise its right of participation. Lower courts in Canada have had occasion to comment on the importance of notice. In CBC v Her Majesty the Queen et al. Clackson J held:

In any event, it seems clear to me that when a Court moves to infringe upon the openness of its process and limit freedom of expression, there must be an obligation to notify interested persons and the media of the application. Were it otherwise that fundamental Charter protected rights could be routinely emasculated and [no one] would be the wiser unless someone happen[ed] to fluke upon the knowledge that the right had been infringed. Therefore, whatever the content of the practice note, it seems to me that the Supreme Court of Canada in Dagenais, Mentuck and Toronto Star Newspapers Ltd. implicitly recognized that notice is essential.11 10. Similarly, the Supreme Court of Nova Scotia has held that notice to the media of an application for a sealing order of income tax information sought from the Canada Revenue Agency in aid of a criminal investigation is a constitutional requirement,12 and in Canadian Broadcasting Corporation v Rae, Thomas J held that an applicant for a discretionary publication ban had an obligation to give notice to the media.13

ii. The importance of notice is already embedded in the law 11. The law recognizes situations of sufficient importance in which notice to affected parties is not merely recommended but is mandatory. Notice of an application or application for judicial review must be served on the parties and those affected by the decision.14 The commencement or continuation of activities that may have environmental impacts requiring approval necessitates that

11 (September 9, 2005) Edmonton Action No. 0503-08820 at 5, lines 14-18 12 Canada (AG) v Canada Revenue Agency, 2018 NSSC 51, 146 WCB (2d) 294 at paras 33, 55. See also CTV v Stonne, 2016 SKQB 300, [2016] SJ NO 511. 13 2010 ABQB 148, [2010] AWLD 2330 at paras 25-26. 14 Alberta Rules of Court, Alta. Reg. 124/2010, R. 9.15, 3.15; British Columbia Supreme Court Civil Rules, B.C. Reg. 168/2009, R. 8-5(8); Manitoba Court of Queen's Bench Rules, Man. Reg. 553/88, R. 37.11(1) & 38.10; Saskatchewan Queen's Bench Rules, R. 6-3(4). - 4 - notice be given to affected parties15. Labour arbitration proceedings, which are between a union and the employer, require that third parties who may be affected by the outcome must be given notice.16 By-laws touching on development plans must be debated in a public council meeting, for which affected parties must be given notice.17 Each of these examples of mandatory notice involves rights conferred on an affected party by operation of statute, and in each of these examples, notice is mandatory.

12. In the context of by-laws, the Supreme Court of British Columbia explained that the purpose of notice is to allow affected parties to arrive at “an informed conclusion as to whether to attend or take part” in a decision that affects their rights.18

13. The effect of the Court of Appeal’s decision in the case at bar, however, is that the media, an affected party and a Charter rightsholder, is afforded no notice, despite this Court’s recognition that “freedom of the press to report on judicial proceedings is a core value.”19

14. As the Appellant points out, some provinces have put in place practice directions that require the media to be notified when a restriction on access or publication is sought.20 Such practice directions merely codify a fundamental obligation that is already embedded in the law: affected parties ought to be made aware when their rights are at risk of being infringed and must be able to make a meaningful decision as to how or whether to challenge the proposed infringement. This principle is of particular importance where Charter rights are engaged.

15. The Alberta Court of Appeal has recognized that the obligation of notice to the media of an application to restrict media access or publication arises by operation of the Charter, and not by operation of the Rules of Court: “[w]hen freedom of expression is at stake, the media is entitled to

15 Environmental Protection and Enhancement Act, RSA 2000, c E-12 ss. 1, 60, 61, 66; Environmental Protection and Enhancement (Miscellaneous) Regulation, Alta Reg 118/1993 s 2 (see also Normteck Radiation Services Ltd v Alberta Environmental Appeals Board, 2020 ABCA 456 at para 10) 16 Hoogendoorn v. Greening Metal Products and Screening Equipment Co. et al., 1967 CanLII 20 (SCC), [1968] SCR 30. This rule was crafted by the Supreme Court. See also Brown and Beattie in Canadian Labour Arbitration, 5th Ed, vol 1 at 3:1200 17 Municipal Government Act, RSA 2000, c M-26, ss. 606 and 692. BC has similar 18 Peterson v. Whistler (Resort Municipality), 1982 CanLII 710 (BCSC) at para 42. 19 Vancouver Sun, at para. 26 20 Factum of the Appellant at para 116 - 5 - an opportunity to be heard and notice is fundamental to that process: Dagenais v Canadian Broadcasting Corp and R v Mentuck, (Dagenais/Mentuck framework) [citations omitted].”21

iii. Constructive notice is not notice 16. The Respondent argues that CBC suffered no prejudice in the case of this publication ban order because it happened to be covering the case and could have sought standing.22 This cannot be accepted. Notice is a positive act of communication and when one’s Charter rights may be at risk , such notice should not be haphazard. The practical reality is that not every media outlet can be expected to be at every court proceeding in anticipation that a publication ban may be sought. Media resources are limited, and Canadian media can no longer assign a dedicated court reporter to every judicial centre, let alone to every proceeding where a ban may be sought.

17. Moreover, one media outlet does not represent all media. In fact, the media are often competitors for the same information. It must not be assumed that the media will, or should, share information with each other about what transpires in court. It ought not to be the responsibility of one media representative who learns of a restriction on access or publication to notify his/her colleagues and competitors. The obligation to ensure that all media have the opportunity to meaningfully consider whether and how to challenge a proposed restriction on Charter rights must lie with the court considering, or party bringing, the application..

iv. Requiring notice to the media is not antithetical to the exercise of discretion 18. In Dagenais, Lamer J stated that the judge hearing an application for a publication ban has the discretion to direct that third parties be given notice.23 That does not mean that in some cases the media need not be notified of such an application..

19. A discretionary decision is not an arbitrary decision. There is a difference and it is significant. As explained by Lord Halsburry24: “discretion” means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Case; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to

21 R v Vader, 2018 ABCA 389 at para 10. 22 Factum of the Respondent at paras. 122-126. 23 Dagenais at 868 24 Sharpe v Wakefield, [1891] A.C. 173 at 179. - 6 -

which an honest man competent to the discharge of his office ought to confine himself. 20. Consistent with that notion, Nordheimer J.A. of the Divisional Court of Ontario (as he then was) stated the following with respect to the “discretion” referred to in Dagenais: Even though that discretion exists, there is, in my view, a presumption that the media will be given notice of any motion where relief is sought that will have the effect of restricting the public’s, and thus the media’s, right to access court proceedings. That presumption flows from a combination of the open court principle and the salient fact that the media is the mechanism by which members of the public are informed of the activities that take place in the courts. In that regard, I repeat the observation made in Ottawa Citizen Group Inc. v. Canada (Attorney General) (2005), 2005 CanLII 93777 (ON CA), 75 O.R. (3d) 590 (C.A.) where MacPherson J.A. said, at para. 65: Because of the centrality of a free press and open courts in Canadian society and in the Canadian constitution, there is almost a presumption against any form of secrecy in all aspects of court proceedings in Canada.25 21. Secondly, in Dagenais, Lamer J discussed some of the practical issues that arise in giving notice to affected parties, such as how notice is to be given, which media outlets to include, what counts as service of notice.26 These issues go to the modalities of notice, and are distinct from the obligation itself, which is rooted in the media’s s 2(b) Charter right. This case presents an opportunity for this Court to emphasize that the media must be afforded some form of notice when its Charter rights are at issue, but the mechanism of notice is left to the discretion of the issuing judge, having regard to the provincial rules of court and practice directions.

22. Finally, while Lamer noted that an issuing judge should exercise his or her discretion in ordering how and to whom notice is to be given, it is important to consider the context and timeframe in which Dagenais was decided. This Court’s decision in Dagenais represented a significant recognition of s 2(b) rights and an overhaul of the framework within which to consider that right. Express reference to notice to media was one small, albeit important, aspect of the Court’s decision. Now, 27 years after Dagenais, the application of the Dangenais/Mentuck test is commonplace in civil and criminal proceedings across Canada. As a result, many Canadian jurisdictions have adopted simple, practical and effective media notice systems to ensure that the media are given notice of proposed infringements to their s 2(b) rights, while also recognizing the

25 A.M. v Toronto Police Service, 2015 ONSC 5684 (CanLII), at para.6 26 Dagenais at pages 868-867 - 7 - immense value that media participation brings to the Canadian justice system. It can no longer be said that providing notice to the media in an efficient and timely manner involves an onerous process for an applicant or an issuing court.

B. Notice to the media is practically desirable i. Notice and standing are inextricably linked 23. The corollary of notice is standing. The very reason that one is made aware that his or her rights are at risk is to enable action. As succinctly set out by Martin JA (as she then was) speaking about an order granted without notice to an affected party, ‘[t]he notice and service rules are designed to ensure that affected parties have the opportunity to be heard so that justice may be done”.27 Where s 2(b) rights are concerned, notice of a proposed restriction on access or publication also allows justice to be seen to be done. Notice to the media, as the eyes and ears of the public, ensures that the public’s interest in transparent justice is capable of being considered where something less than an open court is contemplated.28

24. Dagenais recognized the importance of the media’s right to be heard and to seek standing. In setting out general guidelines for publication ban motions, Lamer C.J. noted that if the media wish to oppose a motion, the media should first attend at the hearing. However, it is impossible to exercise this step without knowledge that such a motion will occur.

25. Providing notice alerts the media to the fact that its s. 2(b) rights risk being limited. Such notice affords the media the opportunity to decide whether they will participate in the decision- making process and to decide whether to seek standing. And, it is notice that give the public confidence that the court is upholding an open and transparent justice system. The guidance outlined in Dagenais simply cannot be implemented without notice to the media.

ii. Inadequate mechanism for reconsideration and appeal 26. The only recourse available to the media when notice is not provided and a restriction on publication or access is ordered, is to ask the issuing judge to reconsider his or her decision with the participation of the media, or to appeal that order. Both of these options are fraught with significant legal and practical challenges for the media.

27 Bretin v Ross, 2017 ABCA 389 at para 39 28 Hollinger Inc. v. The Ravelston Corporation Limited, 2008 ONCA 207 (CanLII), at paras. 37 and 43 - 8 -

27. The Court of Appeal’s refusal to reconsider a publication ban issued without notice to the media in the present case, and its refusal to provide reasons which would indicate whether the media’s Charter protected interests had been considered, illustrates the type of barriers the media may face when asserting its rights before an issuing court.

28. The avenues of appeal are both legally and practically insufficient. The media do not have the option of initiating a direct, statutory appeal through the Criminal Code.29 Where the motion for a publication ban was heard by a provincial court, members of the media must proceed by way of a writ of certiorari to a superior court.30 Where the publication ban was issued by a superior court, the only appeal mechanism available is to seek leave directly to the Supreme Court of Canada under s. 40 of the Supreme Court of Canada Act.31

29. In Dagenais, this Court considered an appeal to the Supreme Court of Canada to be the best of “unsatisfactory” avenues of appeal32, and, later in Mentuck described the lack of a direct, statutory appeal available to third parties as “deplorable.”33 Aside from the enormous practical and financial barriers to pursuing an appeal to this Court, the lack of a direct appeal mechanism available to third parties has been subject to such harsh criticism because “it does not provide optimal protection for important rights, e.g. freedom of expression”34.

30. Despite this Court’s expressions of hope in Dagenais and Mentuck “that Parliament will soon fill this unnecessary and troublesome gap in the law,” the gap still remains 27 years later. Such failure to address the infringement of Charter rights of freedom of expression and freedom of the press is clearly unacceptable.

31. The options to the media to challenge a restriction on access or publication made without notice are also incongruous to the way in which affected third parties are treated in other contexts. For example, under the Alberta Rules of Court, an order granted without notice to an affected party can be set aside.35An application for judicial review can be struck against an affected party who

29 Dagenais at page 858 30 Dagenais page 866 31 R.S.C., 1985, c. S-26, Dagenais page 861, 32 Daganais at page 862 33 Mentuck at 17 34 Dagenais at 861; Mentuck at para 17 35 Bretin v Ross, 2017 ABCA 389, Brisson v. Gagnier, 2011 ONSC 6340, Lavitch v. Lavich Estate, 2002 MBCA 156, Schneider v. Royal Crown Gold Reserve. 2016 SKQB 278 at para 12. - 9 - was not given notice.36 Failure to give public notice of a public hearing may render a by-law void.37 Yet, where a third party’s Charter protected right is at stake, the law, in its current form, provides a flawed and far less robust method to seek recourse.

32. While it is outside of this Court’s jurisdiction to address this “legislative lacuna,” it can easily mitigate that legislative shortcoming. Many courts have systems in place to facilitate notice, when a restriction on access or publication is requested. 38 Thus, the practical considerations of providing notice to the media illustrated in Dagenais are capable of being addressed in a systemic way. What’s missing, however, is this Court’s clear expression that notice to the media of a proceeding that may limit its s. 2(b) rights is a fundamental and necessary constitutional principle, and does not arise solely because of the rules or systems of provincial practice.

iii. Notice to the media leads to practical efficiencies 33. In Dagenais, this Court noted that there are benefits in declining to order publication bans. In addition to those benefits, CMLA submits that providing notice of applications that seek to restrict public and media access has a positive impact on the judicial process. When notice to the media is provided in advance of a proposed motion to restrict publication or access, motions can be scheduled in a manner that does not disrupt trial or appeal scheduling, and prevents duplicative proceedings caused by adjourning applications or re-hearing motions when the media is present, thereby reducing costs to the court and parties. This ensures that scarce judicial resources are used effectively in adjudicating important issues in a timely manner.

36 Hazkar Developments Inc v. Cochran (Town), 2019 ABQB 552 37 Janzen v. Mountain View (County) No. 17, [1997] 9 W.W.R 540 (Alta. Q.B) 38 Canadian Broadcasting Corporation v Rae, 2010 ABQB 148; Ontario, Consolidated Provincial Practice Direction, Section F: Publication Bans, Effective July 1, 2016; Court of Queen’s Bench Criminal Practice Note “4” – Publication Bans for the Court of Queen’s Bench of Alberta; Alberta Rules of Court, Alta Reg 124/2010, s 6.28-6.23; Nova Scotia Provincial Court Practice Direction – Applications for Discretionary Publication Bans (PC Rule 2); Civil Procedure Rules, N.S. Civ. Pro. Rules 2009, s. 85.05; Nova Scotia Court of Appeal Practice Directive – Orders Restricting Media Reporting or Public Access, 8 November 2005; Supreme Court of British Columbia Practice Direction: Notice of Publication Ban Applications, effective 2019/10/28; Court of Queen’s Bench for Saskatchewan General Application Practice Directive No. 3: Discretionary Orders Restricting Media Reporting or Public Access, Effective January 1, 2014; Saskatchewan Court of Appeal Civil Practice Directive No. 6: Applications for Discretionary Orders Restricting Media Reporting or Public Access, Effective January 1, 2014; Court of Justice Practice Directive No. 3: Discretionary Publication Bans, January 8, 2016. - 10 -

34. In addition, notice to the media ensures that the media’s Charter rights are considered by a court when applying the Dagenais/Mentuck test. Though the issuing court is required to consider these interests in the absence of the media pursuant to this Court’s decision in Mentuck,39 the absence of the media creates a heavy burden on the court to ensure that competing Charter rights are fully considered amidst an often complex and lengthy proceeding, where expediency in deciding motions is often demanded of the court. Indeed, a court attempting to consider an unrepresented interest is not desirable, and is contrary to the adversarial system of justice in Canada. This concern can undoubtedly be alleviated if the media is present to argue relevant jurisprudence regarding its 2(b) rights.

iv. Where issuing notice is not possible at the time a publication ban is sought 35. CMLA recognizes that it may not always be possible to give notice to the media in advance of a proposed application for a publication ban. For instance, where there are urgent or emergent circumstances, advance notice may simply not be feasible.

36. CMLA submits that retroactive notice of an order limiting a s2(b) right must only be done when absolutely necessary. Notice should be given as a matter of course prior to the commencement of a motion for a restriction on access or publication and the practice of retroactive notice should be limited to instances of necessity. If a publication ban is ordered in the absence of notice to the media, notice of the fact that a ban was ordered should be made immediately so that the media can consider its recourse.

IV. ORAL ARGUMENT 37. CMLA will present oral argument not exceeding five (5) minutes.

ALL OF WHICH IS RESPECTIFULLY SUBMITTED.

DATED AT EDMONTON, ALBERTA, THIS 17TH DAY OF FEBRUARY, 2020.

SIGNED:

______TESS LAYTON IAIN A.C. MACKINNON

Counsel for the Intervener Ad IDEM/Canadian Media Lawyers Association

39 Mentuck at 38. - 11 -

V. AUTHORITIES

JURISPRUDENCE PARAGRAPH REFERENCE A.M. v Toronto Police Service, 2015 ONSC 5684 (CanLII) 20 Bretin v Ross, 2017 ABCA 389 24 Brisson v. Gagnier, 2011 ONSC 6340 32 Canada (AG) v Canada Revenue Agency, 2018 NSSC 51, 146 WCB (2d) 294 11 Canadian Broadcasting Corp. v. New Brunswick (Attorney General)[1996] 3 4, 7 SCR 480 Canadian Broadcasting Corporation v Rae 2010 ABQB 148, [2010] AWLD 11 2330 CBC v Her Majesty the Queen et al (September 9, 2005) Edmonton Action 10 No. 0503-08820 CTV v Stonne, 2016 SKQB 300 11 Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835, [1994] SCJ No 2, 8, 9, 10, 16, 104, [1994] CarswellOnt 112 (SCC) 19, 21, 23, 25, 26, 30, 33, 34, 35 Edmonton Journal v Alberta (Attorney General), [1989] SCR 1326 3, 7 Hoogendoorn v. Greening Metal Products and Screening Equipment Co. et 12 al., 1967 CanLII 20 (SCC), [1968] SCR 30 Hollinger Inc. v. The Ravelston Corporation Limited, 2008 ONCA 207 23 (CanLII) Lavitch v. Lavich Estate, 2002 MBCA 156 32 Normteck Radiation Services Ltd v Alberta Environmental Appeals Board, 12 2020 ABCA 456 Peterson v. Whistler (Resort Municipality), 1982 CanLII 710 (BC SC) 13 R v Mentuk, 2001 SCC 76, [2001] 3 SCR 442 30, 35 R v Vader, 2018 ABCA 389 16 Royal Crown Gold Reserve Inc. 2016 SKQB 278 32 Sharpe v Wakefield, [1891] A.C. 173 20 Vancouver Sun (Re), [2004] 2 S.C.R. 332 6

SECONDARY SOURCES PARAGRAPH REFERENCE Brown and Beattie, Canadian Labour Arbitration, 5th Ed, 12

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STATUTORY PROVISIONS PARAGRAPH REFERENCE Civil Procedure Rules, N.S. Civ. Pro. Rules 2009, s. 85.05; 32 Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982 c 11, 4, 5,7, 8, 10, 14, s. 2b) 22, 23, 26, 27 Court of Queen's Bench Rules, Man. Reg. 553/88, R. 37.11(1) & 38.10; 12 Court of Queen’s Bench for Saskatchewan General Application Practice 32 Directive No. 3: Discretionary Orders Restricting Media Reporting or Public Access, Effective January 1, 2014; Court of Queen’s Bench Criminal Practice Note “4” – Publication Bans for 32 the Court of Queen’s Bench of Alberta; Environmental Protection and Enhancement Act, RSA 2000, c E-12 12 Environmental Protection and Enhancement (Miscellaneous) Regulation, Alta 12 Reg 118/1993 Municipal Government Act, RSA 2000, c M-26 12 Nova Scotia Provincial Court Practice Direction – Applications for 32 Discretionary Publication Bans (PC Rule 2); Nova Scotia Court of Appeal Practice Directive – Orders Restricting Media 32 Reporting or Public Access, 8 November 2005; Practice Directive No. 3: Discretionary Publication 32 Bans, January 8, 2016. Ontario, Consolidated Provincial Practice Direction, Section F: Publication 32 Bans, Effective July 1, 2016; Queen's Bench Rules, Sask Gaz December 27, 2014 2684 12 Saskatchewan Court of Appeal Civil Practice Directive No. 6: Applications 32 for Discretionary Orders Restricting Media Reporting or Public Access, Effective January 1, 2014; Supreme Court of British Columbia Practice Direction: Notice of Publication 32 Ban Applications, effective 2019/10/28; Supreme Court Civil Rules, B.C. Reg. 168/2009 Supreme Court of Canada Act, R.S.C., 1985, c. S-26 29 Rules of Court, Alta.Reg. 124/2010 12