On October 19, 2023, the Supreme Court of Canada dismissed the appeal with reasons to follow in the following appeal. Below are those reasons.
Criminal Law: Wrongful Convictions; Publication Bans
Canadian Broadcasting Corp. v. Manitoba, 2018 MBCA 125, 2023 SCC 27 (38992)
“During wrongful conviction proceedings before the Court of Appeal, an accused sought to introduce as new evidence an affidavit concerning the death of a witness involved in those proceedings. The Court of Appeal issued a publication ban over the affidavit and, in its reasons for judgment, ordered that the publication ban remain in effect. The CBC now calls upon the Court to set aside the publication ban.”
The S.C.C. (7:0) dismissed the appeal.
The Court wrote as follows (at paras. 8-12):
“Under Sherman, “the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects” (para. 38). Each branch of the test is deserving of comment.
We agree with the view that, under the first branch of the Sherman test, there is a strong public interest in protecting the privacy of the witness’s spouse with respect to the witness’s death in order to prevent an affront to the spouse’s dignity (see Judgment on Remand, at para. 77). We agree that personal information in the affidavit is a direct affront to the dignity of the spouse in her own right. In the words of the Court of Appeal, the information “goes to the core of both the witness and the spouse as human beings at their most vulnerable” (para. 77). In this case, disclosure of the affidavit would reveal highly sensitive and acutely personal information that would directly engage the spouse’s dignity interest.
For the purposes of measuring the relevant dignity interest, it is sufficient to observe that the dignity of the witness’s spouse is compromised. It is not necessary to decide the question of whether there is a dignity interest for the deceased witness to justify the publication ban here. The first branch of the Sherman test is satisfied because court openness would pose a serious risk to the spouse’s dignity as an important public interest.
We also agree that the publication ban is necessary to prevent a serious risk to the important public interest of protecting the dignity of the witness’s spouse (see Judgment on Remand, at para. 78); that the ban was not overbroad or vague, and should be permanent (para. 80); and that there was no reasonable alternative to the terms of the publication ban (para. 83). In particular, as the Court of Appeal noted in 2023, it would be easy to identify the witness if parts of the affidavit were to be disclosed. In the circumstances, the Court of Appeal was entitled to conclude in 2018 that publishing details of the affidavit without the witness’s name would risk associating the information with the witness and making the publication ban moot (see Judgment on Remand, at para. 81). The second branch of the test is therefore satisfied. Finally, as to the third branch, we agree with the Court of Appeal in the Judgment on Remand that the benefits of the 2018 publication ban significantly outweigh its minimal deleterious effect on the right of free expression and, by extension, the principle of open and accessible court proceedings. The benefit of the publication ban is to protect the dignity of the witness’s spouse as already explained, whereas the publication ban has a minimal negative effect on the right of free expression and the open court principle (paras. 92‑93). The affidavit did not relate to the wrongful conviction or the legitimacy of the accused’s appeal before the Court of Appeal in 2018. As the Court of Appeal observed in the Judgment on Remand, the affidavit was “capable of proving nothing” (para. 91). Here, the affidavit was not admitted as evidence in the wrongful conviction proceedings and, therefore, did not play a role in determining that a wrongful conviction had occurred.”