R v Ostrowski, 2019 MBCA 122

Citation: R v Ostrowski, 2019 MBCA 122 Date: 20191211 Docket: AR14-30-08288 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN: ) J. B. Kroft and ) A. N. Cantor ) for the Moving Party ) Canadian Broadcasting ) Corporation ) her majesty the queen ) D. G. Guénette and ) C. G. Nazar ) for the Respondent Respondent ) The Attorney General of ) Manitoba ) - and - ) R. M.

Gosman ) for the Interested Parties ) B.B., spouse of the latestanley frank ostrowski ) M.D., and J.D., in his ) capacity as executor of the ) estate of the late M.D. (Accused) Appellant ) ) Appeal heard and ) Decision pronounced: ) October 28, 2019 ) ) Written reasons: ) December 11, 2019 pfuetzner JA (for the Court): [1] The Canadian Broadcasting Corporation (CBC) moves to set aside a publication ban relating to fresh evidence thatwas not admitted in the accused’s appeal (see 2018 MBCA 125 at paras 81-82 (the Ostrowski appeal)). [2] At the hearing, we denied the motion with reasons to follow.

These are those reasons. Background [3] The accused was convicted of first degree murder in 1987. His appeals to this Court and to the Supreme Court ofCanada were dismissed (see 1989 CarswellMan 105; and (SCC), [1990] 2 SCR 82). [4] In 2014, the Minister of Justice referred the matter to this Court under sections 696.1 and 696.3(3)(a)(ii) of theCriminal Code as the Minister was satisfied that there was a reasonable basis to conclude that there had been a miscarriage of justice. [5] This Court heard testimony from several witnesses, including a former federal Crown attorney (the former Crown).

At the hearing of the appeal, the testimony of these witnesses, together with other evidence, was jointly introduced by the accused andthe Crown as fresh evidence (the first fresh evidence). [6] The Crown conceded, and we agreed, that the first fresh evidence proved that a miscarriage of justice had occurredand that the accused’s conviction for first degree murder should be overturned. As a result, the only issue on the appeal was theappropriate remedy—the entering of an acquittal or the ordering of a new trial and a judicial stay of proceedings.

[7] The accused also sought to introduce, as fresh evidence on the appeal, an affidavit detailing events involving theformer Crown that occurred after the former Crown testified before us (the second fresh evidence). [8] On November 27, 2018, this Court issued its reasons, disposing of the appeal, in which we admitted the first freshevidence; found a miscarriage of justice based on that evidence and as agreed by the parties; declined to admit the second fresh evidenceon the basis that it was irrelevant to the determination of remedy, the only remaining issue before the Court; ordered that a publicationban regarding the second fresh evidence should remain in effect; and quashed the accused’s conviction for first degree murder, ordered anew trial and entered a judicial stay of any further proceedings (see the Ostrowski appeal at paras 82-83). [9] CBC contacted the registrar as early as December 2018, seeking information about the publication ban on the secondfresh evidence. [10] The certificate of decision was entered on January 24, 2019.

It states, in part: [T]his Court did Order: 1. The appellant’s first motion to admit fresh evidence is granted, and the evidence referred to in that motion is admitted. Theappellant’s second motion to admit fresh evidence is dismissed. 2. The appeal is allowed, the appellant’s conviction for first degree murder is quashed, a new trial is ordered, and any furtherproceedings in this matter are judicially stayed. [11] CBC filed a notice of motion on May 10, 2019, seeking, in essence, an order setting aside all publication bans andsealing orders that continue to apply in respect of these proceedings.

Issue—Jurisdiction [12] The respondent raises a threshold issue of whether this Court has jurisdiction to hear the motion. [13] The respondent and the interested parties argue that CBC is asking us to rehear the publication ban. As a result of theoperation of r 46.2 of the Manitoba, Court of Appeal Rules, Man Reg 555/88R, and the entering of the certificate of decision, therespondent maintains that we have no jurisdiction to do so. It says that we are, effectively, functus officio. [14] CBC argues that this Court has jurisdiction to review or reconsider any order until it is signed and entered.

CBC assertsthat, while a certificate of decision was entered in respect of the disposition of the accused’s appeal, no formal order has been entered inconnection with the publication ban. Alternatively, CBC argues that we should interpret the publication ban as being subject to furtherorder of the Court, with the result that we have reserved to ourselves the ability to revisit it. Analysis [15] Appellate courts are creatures of statute.

As such, they have no inherent jurisdiction to entertain appeals or to reopen anappeal once it has been heard and decided unless that power is granted by statute (see R v H (EF); R v Rhingo (1997), (ON CA), 115 CCC (3d) 89 at 95-96 (Ont CA); and R v Ross, 2017 MBCA 77 at para 21). [16] In our view, CBC is seeking a rehearing of an order made as part of the final disposition of the accused’s appeal. Rule46.2 prescribes the circumstances in which a rehearing of an appeal may occur.

The relevant provisions state: Rehearing 46.2(1) There shall be no rehearing of an appeal except by order of the court or at the instance of the court. 46.2(2) A rehearing of an appeal may be ordered before the certificate of decision has been entered. . . . 46.2(4) If the reasons for judgment have been delivered, the motion requesting a rehearing under subrule (3) shall be made within 30days after the reasons for judgment have been delivered, or such further time as the court may order, but in any event before thecertificate of decision has been entered. . . . 46.2(12) There shall be no rehearing on an application for leave or a motion.

[emphasis added] [17] The effect of r 46.2 is that no rehearing of an appeal, or any issue dealt with on an appeal, can occur once the certificateof decision has been entered.

This is consistent with the common law doctrine of functus officio which was described in Ayangma vFrench School Board, 2011 PECA 3 as follows (at para 11): It is long and well-established that once formal judgment has been entered, the court pronouncing it is functus officio, and has no powerto amend it; subject only to exceptions pursuant to a power to amend provided by legislation, or pursuant to the court’s inherent power tocorrect an accidental slip in drawing it up or correcting an error in expressing the manifest intention of the court. (See also Lantin et al v Seven Oaks General Hospital, 2019 MBCA 115 at paras 22-23.) [18] In the present case, the certificate of decision was entered well before CBC brought its motion.

While the publicationban was not specifically mentioned in the certificate of decision, this is not determinative. The publication ban is subsidiary to both theCourt’s ruling on the second fresh evidence motion and the final disposition of the appeal. [19] We are of the view that this Court does not have jurisdiction to rehear the appeal or any motion disposed of on theappeal. Rules 46.2(2) and 46.2(4) are clear that a rehearing cannot be ordered once the certificate of decision has been entered.

Moreover, r 46.2(12) provides that a motion cannot be reheard. [20] We also are not persuaded that it is appropriate in the circumstances for this Court to engage in an

interpretation of theterms of the publication ban. [21] The proper route for a third party, such as a member of the media, to challenge a publication ban issued by a superiorcourt (including one issued by an appellate court) is to seek leave to appeal to the Supreme Court of Canada under

section 40 of theSupreme Court Act, RSC 1985, c S-26 (see Dagenais v Canadian Broadcasting Corp, (SCC), [1994] 3 SCR 835 at 857-58, 872; French Estate v Ontario (Attorney General) (1998), (ON CA), 122 CCC (3d) 475 at para 15 (Ont CA); and Rv Mentuck, 2001 SCC 76 at para 21). Decision [22] For all of these reasons, we are satisfied that this Court does not have jurisdiction to hear CBC’s motion to rehear orinterpret the publication ban. [23] Accordingly, the motion was denied. There will be no order as to costs. JA JA JA