Appeal court should hear CBC application on publication ban in Frank Ostrowski case: Supreme Court

The Canadian Broadcasting Corporation’s fight to report details about what led to Frank Ostrowski’s murder conviction being overturned is headed back to the Manitoba Court of Appeal.

In a decision released Friday, the Supreme Court of Canada said an application by the CBC to lift a publication ban in the Ostrowski miscarriage of justice case can and should be reconsidered by the Court of Appeal.

“This decision is an important victory as it removes some very technical barriers that would otherwise get in the way of knowing what goes on in Canadian courts,” said Chuck Thompson, CBC’s head of public affairs.

CBC has been fighting to report on an affidavit in the Ostrowski case that has never been publicly released.

Ostrowski, a high-level cocaine trafficker in Winnipeg in the 1980s, was found guilty in 1987 of first-degree murder in the death of Robert Nieman. At the trial, the Crown said Ostrowski believed Nieman had ratted him out to police, which led to his arrest for drug trafficking. Court heard Ostrowski arranged for two men to kill Nieman and provided them with the gun.

He was released on bail in 2009 following two decades behind bars, after the federal Justice Department began reviewing Ostrowski’s case as a possible wrongful conviction.

Ostrowski speaks to reporters outside the Winnipeg Law Courts building in 2009 after being let out on bail. He was convicted of first-degree murder in 1987 and spent 23 years behind bars. He maintains he is innocent. (Steve Lambert/Canadian Press)

In 2014, Canada’s justice minister referred the case to Manitoba’s Court of Appeal. In 2018, his conviction was overturned, but Ostrowski was not acquitted.

The affidavit CBC wants released relates to information given by a federal Crown prosecutor at Ostrowski’s appeal in 2018. The Crown testified about a deal that was made with Matthew Lovelace, a witness in Ostrowski’s 1987 murder trial. The Crown prosecutor died shortly after giving his evidence. 

Family, AG oppose application

Ostrowski subsequently filed an affidavit called the Posner affidavit, which contains additional information related to the Crown’s evidence to support his claim there had been a miscarriage of justice in his case.

That’s the affidavit the CBC wants access to and asked the Supreme Court to unseal.

The Crown prosecutor’s family opposes the application. In its submission to the Supreme Court, it says the affidavit contains highly personal information that is irrelevant to this case. The family argues the details should not be made public because they would do nothing to provide insight into what transpired in court.

“Were it otherwise, all manner of highly personal and hurtful information as well as sensational claptrap and gossip can become the lead story on the evening news,” the family said in a heavily redacted factum to the court.

The attorney general of Canada is also fighting against CBC’s application. In its factum to the court, it argued the publication ban “was necessary to protect the privacy of a family grieving a tragic loss and to avoid them being traumatized by media coverage.” 

The public broadcaster first filed its application in the Manitoba Court of Appeal, which issued the ban, but the court said it didn’t have jurisdiction to hear it.

The Supreme Court of Canada now says the Court of Appeal should hear the case.

Ostrowski supports application

Ostrowski supports the CBC’s application.

In his factum to the Supreme Court, Ostrowski’s lawyers write “there was official misfeasance that led to his wrongful conviction, and he wants the public to know this.”

He says the publication ban directly affects the rights of the public and the media to learn about the circumstances that led to his wrongful conviction and ultimate release after 23 years in prison.

At the 1987 murder trial, Lovelace, a known drug dealer who had been working for Ostrowski, testified against him. In return for his testimony, charges against Lovelace were stayed. 

Details of that agreement were never shared with Ostrowski or his lawyers. 

In 2018, the Manitoba Court of Appeal found that it would be unfair to order a second trial since it had been 32 years since the shooting. It entered a judicial stay of proceedings.

However, it nonetheless found the conviction should be overturned due to a miscarriage of justice.

In the summer of 2020, Ostrowski filed a lawsuit against the attorney general of Canada, the Winnipeg Police Service and its current chief, Danny Smyth, former police chief Herbert Stephen and lawyers involved in his original conviction, including the senior federal Crown prosecutor at the time.

Ostrowski is seeking $16 million in damages.

None of the allegations in the civil lawsuit have been proven in court.

It’s not yet clear when the CBC’s application will be heard by the Manitoba Court of Appeal.

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