Canadian Broadcasting Corp. v. Ontario, (2011) 285 O.A.C. 160 (CA)

• Judge: Doherty, Weiler and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 22, 2011
• Jurisdiction: Ontario
• Citations: (2011), 285 O.A.C. 160 (CA);2011 ONCA 624

CBC v. Ont. (2011), 285 O.A.C. 160 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. OC.006

Canadian Broadcasting Corporation (applicant/respondent in appeal/moving party) v. Her Majesty the Queen (respondent/respondent in appeal/responding party) and Isahaq Omar (respondent/appellant in appeal/responding party)

(M40042 (C52813); 2011 ONCA 624)

Indexed As: Canadian Broadcasting Corp. v. Ontario

Ontario Court of Appeal

Doherty, Weiler and Laskin, JJ.A.

October 5, 2011.

Summary:

The Canadian Broadcasting Corporation (CBC) applied to the Superior Court for an order granting it access to a video in the custody of the Ontario Court of Justice. The video had been entered as an exhibit at the appellant Omar's bail hearing. Omar had been acquitted on all charges and there was no appeal by the Crown. Omar and the Crown opposed the application.

The Ontario Superior Court, with reasons at 2010 ONSC 4221, unreported, granted CBC access, provided that Omar's identity would be obscured in any subsequent use of the video by the CBC. Omar appealed to the Court of Appeal. The CBC moved to quash the appeal on the basis that Omar's appeal was to the Supreme Court of Canada with leave from that court. The Crown supported the motion.

The Ontario Court of Appeal dismissed the motion to quash. Omar's appeal was properly brought to the court pursuant to s. 6(1) of the Courts of Justice Act. The appeal should proceed.

Courts - Topic 2101

Jurisdiction - Appellate jurisdiction - General - [See Courts - Topic 7446 ].

Courts - Topic 2105

Jurisdiction - Appellate jurisdiction - Court of Appeal - Civil appeals - [See Courts - Topic 7446 ].

Courts - Topic 7446

Provincial courts - Ontario - Court of Appeal - Jurisdiction - General - The CBC applied to the Superior Court for an order granting it access to a video in the custody of the Ontario Court of Justice - The video had been entered as an exhibit at the appellant Omar's bail hearing - Omar and the Crown opposed the application - The application judge granted CBC access, provided that it obscure Omar's face if it used the video in a broadcast - Omar appealed to the Court of Appeal - The CBC moved to quash the appeal on the basis that Omar's appeal was to the Supreme Court of Canada with leave from that court - The Ontario Court of Appeal dismissed the motion - The court's jurisdiction to hear the appeal turned on the characterization of the proceedings before the application judge - The court saw no reason to characterize an application for access to an exhibit exclusively by regard to the nature of the proceedings in which the exhibit was filed when those proceedings were no longer in existence, as in the case at bar - The court also rejected the submission that the nature of the issues raised on the application for access should dictate whether the proceeding was criminal or civil - Access to appellate review was enhanced if the proceeding was a civil one - Characterizing the proceeding as civil also enhanced the overall effectiveness of the administration of justice by allowing the matter to proceed through all stages of the judicial hierarchy - Further, where there was no ongoing criminal proceeding, a right of appeal to an intermediate court "does not raise the spectre of delays in an ongoing criminal proceeding while a third party appeal works its way through the civil appellate process" - See paragraphs 28 to 36.

Cases Noticed:

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, dist. [para. 11].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, dist. [para. 11].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 16].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 16].

Canadian Broadcasting Corp. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 65; 411 N.R. 75, refd to. [para. 17].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161, dist. [para. 17].

French Estate et al. v. Ontario (Attorney General) et al. - see R. v. Bernardo (P.K.).

R. v. Bernardo (P.K.) (1998), 108 O.A.C. 93; 122 C.C.C.(3d) 475 (C.A.), refd to. [para. 17].

Hollinger Inc. et al. v. Ravelston Corp. et al. (2008), 235 O.A.C. 136; 89 O.R.(3d) 721 (C.A.), leave to appeal refused (2008), 391 N.R. 384; 256 O.A.C. 393 (S.C.C.), refd to. [para. 29].

Vickery v. Prothonotary Supreme Court (N.S.) (1989), 91 N.S.R.(2d) 126; 233 A.P.R. 126 (C.A.), affd. [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181, refd to. [para. 33].

CTV Television Inc. v. Toronto Police Service et al. (2002), 157 O.A.C. 238; 59 O.R.(3d) 18 (C.A.), refd to. [para. 33].

CTV Television Inc. v. Ontario Superior Court of Justice - see CTV Television Inc. v. Toronto Police Service et al.

R. v. Hogg - see CTV Television Inc. v. R. et al.

CTV Television Inc. v. R. et al. (2006), 208 Man.R.(2d) 244; 383 W.A.C. 244 (C.A.), refd to. [para. 33].

R. v. Fry (N.R.) - see Global BC et al. v. British Columbia et al.

Global BC et al. v. British Columbia et al. (2010), 286 B.C.A.C. 86; 484 W.A.C. 86; 254 C.C.C.(3d) 394 (C.A.), refd to. [para. 33].

Counsel:

Iain A.C. MacKinnon, for the moving party;

Gail Glickman, for the responding party, Her Majesty the Queen;

Dirk Derstine, for the responding party, Isahaq Omar.

This motion to quash was heard on September 22, 2011, before Doherty, Weiler and Laskin, JJ.A., of the Ontario Court of Appeal. In reasons written by Doherty, J.A., the Court delivered the following judgment and reasons for judgment, released on October 5, 2011.