According to a recent ruling by the Supreme Court of Canada, courts of appeal have the authority to lift their own publication bans after cases are closed. Although under the doctrine of functus officio a court cannot rehear a case after rendering its judgment, it does have the authority to control access to the court’s record afterward. Hence, the court can reconsider a publication ban that was made during a case after the case has closed.
Jonathan Kroft, a partner in MLT Aikins LLP in Winnipeg and lead counsel for the appellant Canadian Broadcasting Corporation, while talking about the matter, said,
“This decision confirms that people affected by publication bans and sealing orders … can go back to the issuing court, if they did not have the opportunity to make submissions in the first place, or if circumstances have changed to request access to documents.”
The Doctrine Of Functus Officio
Functus officio refers to an officer or agency whose mandate has expired. This happens either due to the arrival of an expiry date or an agency having accomplished the purpose for which it was created.
It holds once the arbitrator renders a decision regarding the issues submitted, he lacks any power to reexamine that decision. This principle is well established in international arbitration and is accepted in many national laws.
A publication ban is an order that a court makes to prevent anyone from publishing, broadcasting or transmitting information in a court file to protect either the evidence in the case or the identity of a victim, witness or other person involved.
However, as a general rule, court proceedings are open and public. This is known as the open court principle, which is protected by the constitutional right to freedom of expression. Given the importance of the open court principle, publication bans apply in limited circumstances only.
A court of appeal may reconsider a publication ban in two situations, the court found:
- If there was a change in circumstances, or
- If a party affected by the publication ban, such as the media, was not given notice at the time of the ban.
The ruling was a part of the Supreme Court allowing CBC to ask the Manitoba Court of Appeal again to lift its ban in a historic wrongful conviction case. The case goes back to 1987 when Stanley Frank Ostrowski was convicted in Manitoba’s Court of Queen’s Bench of first-degree murder in a drug-related shooting death and sentenced to life in prison.
Fast forward to 2009, Ostrowski asked Manitoba’s minister of justice to review his conviction and was released from prison later that year, pending the outcome of the review. After five years, the Manitoba Court of Appeal was asked by Manitoba’s minister of justice to decide if there had been a miscarriage of justice at trial. Ostrowski filed an affidavit before the appellate court that was made subject to a publication ban pending a decision as to its admissibility as new evidence.
After that, in 2018, the Court of Appeal dismissed the motion for new evidence but ordered that the publication ban remains in effect indefinitely. A year after, the CBC brought a motion before the Court of Appeal to have the publication ban set aside. However, the court declined, citing its rule of practice against rehearings and the doctrine of functus officio.
However, the CBC then applied for and was granted leave to appeal to the Supreme Court from the Court of Appeal’s 2019 decision refusing to reconsider the publication ban, and from its 2018 decision ordering the indefinite publication ban.
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