Court of Appeal for Ontario

Date: 2017-11-24

Docket: M48509 (C61797)

Judges: Watt, Hourigan and Miller JJ.A.

Between

Her Majesty the Queen Respondent (Responding Party)

and

Alexsander Budimirovic Appellant (Applicant)

Counsel

Dana Achtemichuk, for the appellant

Tanit Gilliam, for the respondent

Heard and Released

Heard and released orally: November 21, 2017

Application for Release of Audio Recordings and Exhibits of In Camera Proceedings

Reasons for Decision

[1] The applicant seeks an order releasing audio recordings of portions of his trial that were held in camera and are subject to a sealing order made by the trial judge. He also seeks release of any exhibits filed during the in camera proceedings.

[2] The portions of the trial with which we are concerned relate to a pre-trial application. The nature of the application prompted the trial judge to conduct the proceedings in camera and to order that access to what he termed "the transcript … in an electronic form" be preserved by the court reporter and restricted to the trial judge and counsel conducting the trial.

[3] The trial judge also ordered that exhibits filed on the application and the indictment were to be retained by the registrar of the court and be kept under seal.

[4] The applicant has appealed his conviction and sentence. At issue on the appeal from conviction is the correctness of the trial judge's decision on the pre-trial application. It is self-evident that to assess the viability of this ground of appeal, not to mention to be able to pursue it if viable, counsel for the applicant requires a transcript of the in camera proceedings and any exhibits and other materials that formed part of the record before the trial judge. Transcript production cannot proceed without access to the recordings.

[5] We are satisfied under s. 683(1)(a) of the Criminal Code that it is in the interests of justice to order production of the audio recordings of the in camera proceedings, as well as any exhibits or materials filed for use in those proceedings, and, if necessary, the indictment.

[6] The production shall be subject to the terms contained in the draft order which accompanies the application.

"David Watt J.A." "C.W. Hourigan J.A." "B.W. Miller J.A."