





CITATION:
Canadian Broadcasting
          Corporation v. Ontario, 2011 ONCA 624



DATE: 20111005



DOCKET: M40042 (C52813)



COURT OF APPEAL FOR ONTARIO



Doherty, Weiler and Laskin JJ.A.



BETWEEN



Canadian Broadcasting Corporation



Applicant

(Respondent in appeal/Moving party)



and



Her Majesty the Queen



Respondent

(Respondent in appeal/Responding party)

and

Isahaq
          Omar

Respondent

(Appellant in appeal/Responding party)



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








Heard:  September 22, 2011

On a motion to quash the appeal
          from the order of Justice Mary Lou Benotto of the Superior Court of Justice
          dated July 28, 2010, with reasons at 2010 ONSC 4221 (unreported).

Doherty J.A.:







I

[1]

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 Mr.
    Omars bail hearing.

[2]

Mr. Omar and the Crown opposed the CBCs application.  The application
    judge granted CBC access provided that the appellants identity would be
    obscured in any subsequent use of the video by the CBC.  Mr. Omar appeals from
    that order.

[3]

The CBC moved to quash the appeal on the basis that this court has no
    jurisdiction and that Mr. Omars appeal is to the Supreme Court of Canada with
    leave from that court pursuant to the
Supreme Court Act
, R.S.C. 1985, c.
    S-26, s. 40(1).  The Crown supported the CBCs motion.  Mr. Omar resisted the
    motion and submitted that the appeal lies to this court under s. 6(1) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43.

[4]

Counsel agreed that the outcome of the motion turned on the proper characterization
    of the application before the Superior Court judge.  If that application was a
    civil proceeding, an appeal could be taken to this court under the
Courts of
    Justice Act
.  If, however, the proceeding was properly characterized as
    criminal, there was no appeal to this court under the
Criminal Code
,
    R.S.C. 1985, c. C-46 or any other statute.

[5]

At the end of oral submissions, we advised counsel that the motion to
    quash failed.  These are our reasons for dismissing the motion.

II

[6]

The video was seized from Mr. Omar on August 11, 2005 at the time of his
    arrest on weapon charges.  It shows Mr. Omar and other young Somali-Canadians
    displaying gang symbols, making threatening gestures and showing off various
    weapons.

[7]

The video remained in the possession of the police until 2008, when Mr.
    Omar and two others were charged with various weapons-related offences.  These
    charges were unrelated to the 2005 charges.

[8]

At Mr. Omars bail hearing on the 2008 charges, the Crown introduced
    excerpts from the video and the video itself was filed as an exhibit.  Mr. Omar
    was ultimately detained in custody.  The justice of the peace indicated,
    however, that he did not rely on the video in deciding the application for bail.

[9]

Mr. Omar was ultimately acquitted on all the charges in July 2009.  There
    was no appeal by the Crown.

[10]

Sometime after Mr. Omars acquittal, the CBC approached the Crown prosecutor
    and requested access to the video filed on the bail hearing.  The CBC planned
    to use all or part of the video in a program examining the disproportionately
    high number of murders of young male Somali-Canadians and the connection of
    those murders to gang-related activity.  The Crown prosecutor advised the CBC that
    a copy of the video was in the Ontario Court of Justice court file but that, in
    keeping with the policy of the court, the CBC would require a court order to obtain
    access to that copy of the video.  The CBC launched this application in March
    2010.

[11]

In allowing the CBC application, the application judge applied the
    controlling authorities in
Dagenais v. Canadian Broadcasting Corp.
,
    [1994] 3 S.C.R. 835 and
R. v. Mentuck
, [2001] 3 S.C.R. 442.  She
    concluded that the CBC was entitled to access the video, but that it must
    obscure Mr. Omars face if it used the video in a broadcast.

III

[12]

We agree with counsel that this courts jurisdiction to hear the appeal
    turns on the characterization of the proceedings before the application judge. 
    If the proceeding is civil, the appeal is properly brought in this court under
    the
Courts of Justice Act
.  If the proceeding is criminal, there is no
    appeal to this court and the appellants only appeal route is to the Supreme
    Court of Canada with leave of that court under s. 40(1) of the
Supreme Court
    Act
.

[13]

Counsel for the CBC argues that the proceedings are criminal for two
    reasons.  First, the video came into the possession of the court in the course
    of a criminal proceeding.  Second, the effect of the order sought by the CBC is
    to deny to the Crown and Mr. Omar what would be tantamount to a sealing order
    in respect of the video.  Counsel submits that applications that engage the s.
    2(b) rights of third parties in connection with access to materials filed in a
    criminal proceeding are criminal in nature.  Counsel also observes that to the
    extent that the form and venue of the application are relevant to the
    characterization of the proceeding, this application was treated as a criminal
    matter in the Superior Court.

[14]

Crown counsel supports the CBCs position and goes somewhat further. 
    She submits that any application for the return of, or access to, an exhibit
    filed in a criminal proceeding is itself a criminal proceeding no matter when,
    where, why, or by whom that application is brought.

[15]

Counsel for Mr. Omar begins with the observation that the criminal
    proceedings against his client are long over and that the non-publication order
    made on the bail hearing terminated with his acquittal.  He further submits
    that the application brought by the CBC does not in any way engage any order
    that was made in his criminal proceedings.  Counsel submits that the CBC
    mischaracterizes the application as one in which the Crown and Mr. Omar seeks
    to continue the publication ban.  Counsel argues that by its application, the
    CBC sought access to Mr. Omars property which, as it happens, continues to be
    held by the Ontario Court of Justice.  As counsel succinctly put it, this case
    is about property.

IV

[16]

It is important for the administration of justice that litigants be able
    to readily determine the appropriate forum in which to bring a proceeding,
    including an appeal.  Appeals are purely creatures of statute:  see
R. v.
    Meltzer
, [1989] 1 S.C.R. 1764, at p. 1773.  Appeals in civil matters are
    governed by provincial legislation, most notably the
Courts of Justice Act
. 
    Appeals in criminal matters are governed by federal legislation, most notably
    the
Criminal Code
:  see
Kourtessis v. Canada (Minister of National
    Revenue  M.N.R.)
, [1993] 2 S.C.R. 53, at pp. 69-75.  The characterization
    of a proceeding as civil or criminal is, therefore, a crucial first step in
    determining the appropriate forum, if any, in which to launch an appeal.

[17]

Usually, it will not be difficult to distinguish a criminal proceeding
    from a civil proceeding.  An application for an order made in the course of a
    criminal proceeding, an application for an order directly impacting on an
    ongoing or pending criminal proceeding, or an application for an order
    rescinding or varying an order made in a criminal proceeding will all be criminal
    proceedings:  see
Canadian Broadcasting Corp. v. The Queen
, [2011] 1 S.C.R.
    65;
R. v. Adams
, [1995] 4 S.C.R. 707;
Dagenais
;
French Estate
    v. Ontario (Attorney General)
(1998), 122 C.C.C. (3d) 475 (Ont. C.A.),
    leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 139.

[18]

The order under appeal does not fit into any of the categories set out
    above.  It was not made in the course of a criminal proceeding and has no
    effect on any ongoing criminal proceeding.  Indeed, there is no ongoing
    criminal proceeding.  Nor does the order obtained by the CBC rescind or vary
    any order made in a criminal proceeding.  The only order made in the criminal
    proceeding that could potentially be affected is the non-publication order made
    at the bail hearing.  However, all counsel agree that the non-publication order
    ended with the acquittal.

[19]

Counsel for the CBC relies heavily on
Dagenais
.  In that case,
    four accused sought injunctions prohibiting the broadcast of a television
    program that they claimed would prejudice their right to a fair trial.  The
    trial of one of the accused was underway, pre-trial proceedings were ongoing
    for the second, and the trials of the other two were scheduled to begin in the
    immediate future.

[20]

Chief Justice Lamer, for the majority, described the issue before the
    court in these terms at p. 856:

This case turns in part on the issue of jurisdiction
    
what court(s) have jurisdiction to hear a third party challenge to a
    publication ban order sought by the Crown and/or the defendant(s) in a criminal
    proceeding
and made by a provincial or superior court judge under his or
    her common law or legislated discretionary authority?  [Emphasis added.]

[21]

Lamer C.J.C. characterized the application in that case as a publication
    ban sought in a criminal proceeding even though the applicants had styled the
    application as a request for an injunction, a civil remedy.

[22]

In rejecting the contention that the proceedings were civil in nature
    and gave rise to a right of appeal under the
Courts of Justice Act
, the
    Chief Justice said at p. 864:

Second, we are dealing here with media challenges to
    publication bans ordered by judges under their common law or legislated
    discretionary authority in
response to a request for a ban made by the Crown
    and/or by individuals charged (or at risk of being charged) with criminal
    offences.
Such challenges are criminal matters, not civil ones.  [Emphasis
    added.]

[23]

At p. 879, the Chief Justices characterization of the orders as being
    made in a criminal proceeding flowed directly from what he saw to be the purpose
    underlying the orders made at first instance:

The objective of the ban ordered in the case at bar
    was the diminution of the risk that the trial of the four accused persons might
    be rendered unfair by adverse pre-trial publicity.  This objective reflects the
    interest that the accused persons shared with both the public and the courts in
    ensuring both that a trial be held and that it be fair.

[24]

On the Chief Justices analysis, the orders requested in
Dagenais
,
    while styled as applications for injunctions, were in reality applications to
    prohibit publication of certain information that was seen as posing an
    immediate threat to the fair trial rights of several accused who were engaged in
    criminal proceedings that were either underway or were scheduled to begin in
    the immediate future.  The orders were seen as protective of the administration
    of criminal justice and, in particular, the accuseds right to a fair trial.  Viewed
    in that light, it is hardly surprising that the Chief justice characterized the
    proceedings as criminal.

[25]

In
Mentuck
, a second authority relied on by the CBC, the impugned
    order was made by the trial judge during the criminal trial.  The proceedings
    could not be characterized as anything but criminal.

[26]

Similarly, in
Adams
, the third authority relied on by the CBC,
    the order lifting a publication ban on the name of the complainant was made by
    the criminal trial judge at the same time that he acquitted the accused.  Once
    again, the order was clearly made during the criminal trial by the trial
    judge.

[27]

The present case is readily distinguishable from the cases relied on by
    the CBC.  Here, the criminal proceedings are over.  Mr. Omars fair trial
    rights are no longer at play.  Nor does the order under appeal rescind or vary
    any order made in the criminal proceedings.  In short, it has nothing to do
    with any criminal proceeding other than that it provides access to an exhibit
    tendered in a criminal proceeding.

[28]

I would characterize the order sought as simply a request that the
    Superior Court exercise its authority over exhibits in the possession of the
    Ontario Court of Justice.  This motion is, of course, not concerned with the
    existence or extent of that authority.
[1]
However, the exercise of that authority is neither inherently criminal nor
    civil.  I see 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 are no longer in existence.

[29]

I also cannot accept the CBCs submission that the nature of the issues
    raised on the application for access should dictate whether the proceeding is
    criminal or civil.  Why should a dispute between two parties over ownership of
    an exhibit in the possession of the court be characterized as civil, but a
    dispute over CBCs access to the exhibit for its journalistic purposes be
    characterized as criminal?  Constitutional concerns that arise on an
    application like that brought by the CBC can and do arise in both criminal and civil
    proceedings:  see
Hollinger Inc. v. The Ravelston Corp.
(2008), 89 O.R.
    (3d) 721 (C.A.), leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 260.

[30]

On the application, the CBC relied on the open court principle and, more
    broadly, the principles underlying s. 2(b) of the
Charter
in seeking
    access to the exhibit.  Mr. Omar relied on his property rights and his privacy
    rights in resisting the CBCs request for access.  The Crown raised concerns
    about protecting innocent third parties, the effective investigation of other
    criminal activity and the maintenance of the integrity of the material in the
    possession of the criminal courts.  All of these interests can be fully vetted
    and assessed under the
Dagenais
/
Mentuck
principles regardless of
    the characterization of the proceedings as criminal or civil.  Those principles
    will apply regardless of the characterization.  The ability of each of the
    parties to present their issues and make the case for or against access is in
    no way prejudiced by the characterization of the proceeding as criminal or
    civil.

[31]

In characterizing the proceeding, however, it is important to emphasize
    what is not at stake.  Mr. Omars fair trial rights and any other right he has
    arising from his former status as an accused are not in any way engaged by this
    application.  Whatever order is made, it will not impact on his criminal trial
    rights or the criminal proceedings that were brought against him.  Those
    proceedings were fully and finally disposed of well before this application was
    brought.

[32]

Where the criminal proceedings in which the exhibit was tendered are
    complete and the order sought does not affect any order made in the criminal
    proceedings, or the criminal trial rights of any accused, there is no reason to
    characterize the proceedings as criminal.  Those proceedings should be subject
    to the generally applicable rights of appeal granted in civil proceedings.

[33]

The conclusion I reach is consistent with the assumption of jurisdiction
    by this and other courts in cases where appeals were taken from orders granting
    or denying access to exhibits after the criminal matters in which the exhibits
    were filed were completed.  None of those cases, however, addressed the
    jurisdictional question:  see
Vickery

v. Nova Scotia Supreme Court
    (Prothonotary)
(1989), 91 N.S.R. (2d) 126 (N.S.C.A.), affd [1991] 1 S.C.R.
    671;
CTV Television Inc. v. Ontario Superior Court of Justice (Toronto
    Region)
(2002), 59 O.R. (3d) 18 (C.A.);
R. v. Hogg
(2006), 208 Man.
    R. (2d) 244 (C.A.);
R. v. Fry
(2010), 254 C.C.C. (3d) 394 (B.C.C.A.).
[2]

[34]

The characterization of the proceedings as civil also has a functional
    benefit.  If the proceedings are characterized as civil, the losing party
    enjoys a right of appeal to this court.  If the proceedings are characterized
    as criminal, that party would have no right of appeal to any court, but would
    be required to seek leave to appeal to the Supreme Court of Canada and hope to
    secure one of the necessarily limited orders granting leave to appeal made by
    that court.  Access to appellate review is enhanced if the proceeding is a civil
    one.

[35]

Characterizing this proceeding as civil also enhances the overall
    effectiveness of the administration of justice by allowing the matter to
    proceed through all stages of the judicial hierarchy beginning with the initial
    hearing, through the intermediate court of appeal and, if necessary, to the
    Supreme Court of Canada.  Intermediate courts of appeal play a meaningful role
    in the resolution of individual cases and the development of a coherent and
    effective jurisprudence.  Appeal routes that pass through intermediate courts
    of appeal allow those courts to perform those functions.  Furthermore, in the
    circumstances of this case where there is 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.

[36]

For the reasons set out above, Mr. Omars appeal is properly brought to
    this court pursuant to s. 6(1) of the
Courts of Justice Act
.  The motion
    to quash is dismissed.  The appeal should proceed.

RELEASED:
DD  OCT 05 2011

Doherty J.A.

I agree K.M. Weiler J.A.

I agree J.I. Laskin J.A.





[1]
Nor is this motion concerned with the jurisdiction of the Ontario Court of Justice
    to order access to the video, or assuming that jurisdiction the proper
    characterization of that proceeding.



[2]
I note that in
Fry
, the criminal trial had been completed when the
    application was made for access, but an appeal was pending in the criminal
    proceeding.


