S.C.C. 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 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 2 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 Manitoba Justice 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.