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In the Supreme Court of Canada (On Appeal from the Court of Appeal of Manitoba)

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In the Supreme Court of Canada (On Appeal from the Court of Appeal of Manitoba) SCC File No. 38992 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF MANITOBA) 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 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 Manitoba Court of Appeal, 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,
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