Pub Bans and Sealing Orders

HMTQ v CBC 2019 ONSC 1079

In October 2017, J.B. and C.C. were freed after being held in captivity i Afghanistan for five years. Their overseas capture and release were widely reported in international, national and local media. The couple granted numerous interviews to the media after their rescue and had a widely publicized meeting with Prime Minister Justin Trudeau in Ottawa.

On December 31, 2017, J.B. was charged with a number of serious offences, including sexual assault with a weapon and assault.

At J.B.’s first court appearance, in January 2018, publication bans were ordered by a Justice of the Peace under ss. 486.4 and 517 of the Criminal Code.

Prior to September 2018 both the PostMedia (Ottawa Citizen) and the CBC published numerous articles in relation to J.B.’s criminal charges.

In May, Family Court proceedings began. The proceedings were initialized such that neither party would be named, however the proceedings were held in open court and relied on affidavits that were publicly available in the court file, unsealed.

In July 2018 Justice Engelking granted a motion for custody, and on her own motion sealed Part B of her endorsement, which referenced affidavit evidence that had been filed in support of the motion. The affidavit and Part B of the endorsement contained information relevant to the criminal charges.

In September 2018, both PostMedia and the CBC published articles referencing both the criminal charges against J.B. and information contained in unsealed court documents filed in the family court proceedings.

On the issue of whether the Superior Court of Justice had the inherent jurisdiction to hear an application for civil contempt relating to s. 486.4 ordered publication bans, Beaudoin J. found that it does.

On the issue of whether an application is the appropriate way of bringing a civil contempt matter to the court, Beaudoin J. found that it is.

And, when asked to consider whether the court can consider the “mosaic effect” of a media organization’s overall coverage of court matters when deciding whether that organization has breached a publication ban, Beaudoin J. found that it can.

The CBC and PostMedia were found not to be in civil contempt of the publication bans issued in the criminal proceedings.