Canadian Broadcasting Corporation v Ontario, 2011 ON CA
624 (Released October 5, 2011)
The CBC applied to the Superior Court for an order granting it
access to a video that was an exhibit in the appellant's bail
hearing. The application judge granted the order and released the
video to the CBC on the condition the appellant's face would be
obscured. The appellant appealed the order.
The CBC brought a motion seeking to quash the appeal on the
basis that the correct avenue to appeal was to the Supreme Court,
with leave. The determinative issue was whether the appeal was a
"criminal appeal" or a "civil appeal". The
Court of Appeal would only have jurisdiction over a civil
The Court rejected the CBC's arguments, which were supported
by the Crown, that this was a criminal appeal. The Court noted that
the criminal proceedings had concluded (the appellant was
ultimately acquitted). Therefore, the appellant's trial rights
were not in play, the application would not impact a criminal
proceeding, and the application was not made in the course of a
criminal proceeding. Given these circumstances, the Court held the
proceeding should not be characterized as criminal.
The Court noted that this motion appeared to be the first time
an appellate court had expressly considered the characterization of
this sort of appeal. The Court's holding appears to turn in
part on two policy reasons:
1. There is a functional benefit of enhanced access to appellate
review allowed by characterizing this as a civil appeal. If it were
characterized as a criminal appeal, an appeal would be available
only to the Supreme Court with leave; and
2. The characterization of the appeal as a civil appeal enhances
the overall effectiveness of the administration of justice as it
enables appeals to go through the entire judicial hierarchy,
allowing these intermediate appeal courts to serve their function
as well as the development of effective and cohesive
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Amato v. Welsh, 2013 ONCA 258 marks an interesting development in the law – it suggests the previously inviolable doctrine of absolute privilege which protects lawyers from suit may admit an exception.
As the current trend to self-representation increases, regardless the reason, one must ask if the tradition of lawyers appearing before Courts, above the Ontario Court of Justice, ought to continue the traditional legal wearing of robes.