Frank Ostrowski talks to reporters in Winnipeg on Friday, Dec. 18, 2009. THE CANADIAN PRESS/Steve Lambert

Top court kicks back question of sealed docs in quashed murder case to lower court

OTTAWA — The Supreme Court of Canada has kept alive the CBC’s efforts to unseal evidence pertaining to a now-quashed murder conviction from more than 30 years ago.

The top court ruled Friday that the Manitoba Court of Appeal has jurisdiction to reconsider a publication ban on an affidavit in the case of a Manitoba man who spent 23 years in prison for first-degree murder before the decision was overturned.

The question of access to records remains open for the appeal court to weigh, even though the merits of the murder case have been decided, Justice Nicholas Kasirer wrote on behalf of the top court in an 8-1 decision.

In 2018, the Manitoba Court of Appeal ruled that Frank Ostrowski was denied important information that could have helped his defence when he was convicted in 1987.

Ostrowski, now in his early 70s, had been found guilty of ordering the fatal shooting of a drug dealer based largely on the testimony of a key witness — Matthew Lovelace — who had separate charges of cocaine possession stayed in exchange.

Ostrowski’s lawyers and the jury were never told about the deal and Lovelace had told the trial he did not receive any favours in exchange for his testimony.

Ostrowski maintained his innocence throughout his incarceration. In 2009, a Court of Queen’s Bench judge cited serious concerns with the conviction and released him on bail.

In 2014, then-federal justice minister Peter MacKay ruled the case a likely miscarriage of justice and ordered the Manitoba Court of Appeal to review it, with live testimony from 12 witnesses entered as fresh evidence.

Six months before the appeal court’s ruling in 2018, Ostrowski unsuccessfully sought to introduce more new evidence in the form of an affidavit sworn by his lawyer, Richard Posner, containing details of events that occurred after one of the witnesses had testified before the judicial panel.

The appeal court dismissed the motion in November 2018 and ordered that the publication ban on it remain in effect indefinitely.

In May 2019, the CBC asked the court to lift the ban, arguing that access to the affidavit would shed light on the criminal matter and the judges’ conclusion that a miscarriage of justice had occurred.

James Lockyer, a lawyer for Ostrowski, said Friday he’d hoped along with CBC that the Supreme Court would set aside the publication ban, calling the punt back down to an appellate court “unfortunate.”

“The reason we want it out in the public domain is because we think it will help the public decide on whether Mr. Ostrowski is innocent or not. And we think it will tend to show that he is,” Lockyer said in an interview.

“It’s a wrongful conviction. We don’t think that potential evidence in the case of a man who was imprisoned for 23 years should be kept from the public.”

The court had decided in 2018 it had no authority to hear the motion under the legal doctrine of “functus officio,” which holds that a court loses jurisdiction once it has ruled on the substance of the case — Ostrowski’s conviction, in this instance.

“This rule serves goals of finality and of an orderly appellate procedure. If lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court,” Kasirer wrote Friday.

However, courts retain control over their records on proceedings that are “ancillary but independent” from the ruling itself. That authority is “anchored in the vital public policy favouring public access to the workings of the courts,” he stated.

The Manitoba appeal court will now have to determine whether the CBC has standing to challenge the publication ban and whether its motion was “timely.” Any continuation of the sealing order would also be justified only if unlocking it poses a “serious risk to an important public interest,” Kasirer wrote.

Weighing the punctuality of the public broadcaster’s request could hinge on whether the sealing order was made “without notice to an affected party.”

The court heard no requests to keep the affidavit sealed and “provided no prior notice to anyone, including the media, notably the CBC who learned of the impugned ban shortly after the reasons were released,” Kasirer noted.

“The media should generally have standing to challenge an order that threatens the open court principle where they are able to show they will make submissions that were not considered and that could have affected the result,” he added.

Justice Rosalie Abella was the sole dissenting voice, saying the CBC’s appeal should be dismissed.

She agreed with her colleagues that the appeal court had jurisdiction to reconsider the ban, but said the public broadcaster was too late in its request and that dragging out proceedings “causes acute harm to the family.”

“Finality matters. The parties are entitled to move on with their lives and to be protected from the psychological and financial costs of being dragged back into the justice system when a case is over,” Abella wrote.

Abella retired from the Supreme Court earlier this year but for another few months she still has a say on rulings in cases on which she sat.

In its November 2018 ruling, the Manitoba appeal court decided to quash the murder conviction, order a new trial and enter a judicial stay of proceedings — which halted any potential re-trial.

Ostrowski’s lawyer had wanted the court to go a step further and formally acquit Ostrowski.

This report by The Canadian Press was first published Sept. 24, 2021.

Christopher Reynolds, The Canadian Press