Court of Appeal for Ontario

Date: 2025-04-23
Docket: M55867, M55875 & M55878 (COA-24-CR-0394)
Panel: Fairburn A.C.J.O., Trotter and Copeland JJ.A.

Between:

His Majesty the King
Respondent/Applicant (Appellant/Moving Party)

and

David Swaine
Applicant/Respondent (Respondent/Responding Party)

Appearances:

• Andreea Baiasu and Jeremy Streeter, for the moving party
• Alan D. Gold, Ellen C. Williams and Joanne Mulcahy, for the responding party
• Brian Gover and Myles Goodman-Vincent, for the proposed intervener the Office of the Chief Justice of the Superior Court of Justice
• J. Thomas Curry and Derek Knoke, for the proposed intervener the Ontario Superior Court Judges’ Association

Heard: 2025-04-14

Reasons for Decision

A. Introduction

[1] There are three applications before the court. They relate to a previous application, in which the respondent on this Crown appeal, David Swaine, sought the following orders pursuant to s. 683(1)(a) and (b) of the Criminal Code, RSC 1985, c C-46:

1. to cross-examine the two prosecuting Crowns;
2. to produce a will-say and documents from the Executive Legal Officer of the Superior Court of Justice (“ELO”) and to cross-examine her;
3. to obtain the retired trial judge’s work product; and
4. to obtain a trial judge’s report pursuant to s. 682 of the Criminal Code.

[2] In an earlier decision, after setting out the factual foundation for the application, we ordered the relief requested under the first heading – to cross-examine the prosecuting Crowns: see R. v. Swaine, 2025 ONCA 117. However, we declined to order the balance of relief sought at that time, noting, at paras. 17 and 19:

With respect to the balance of the requested relief, we are not prepared to make an order at this time. During the hearing of this application, we raised what can only be described as serious concerns regarding potential privilege claims that might arise in connection with the information sought under the other three heads of relief. These are significant matters to the administration of justice. As such, they require proper submissions. We are not prepared to proceed with the balance of this application until we have those submissions.

In light of our concerns over privilege, we direct that the matter return before us in four weeks from now. The date will be determined in consultation with counsel. If there is any other interested third party who wishes to seek status at the hearing when it returns, that request will be made through this court’s Executive Legal Officer and determined by the panel. [Emphasis added.]

B. The New Applications

[3] The court has received two applications to intervene on Mr. Swaine’s application (but not the appeal proper) from: (1) the Office of the Chief Justice of the Superior Court of Justice; and (2) the Ontario Superior Court Judges’ Association. The Crown applies for a sealing order, pursuant to r. 27(10) of the Court of Appeal for Ontario’s Criminal Appeal Rules, in relation to materials to be filed in relation to Mr. Swaine’s application. In the meantime, the cross-examinations of the Crowns that we previously ordered are on hold, awaiting the determination of the new applications.

(1) The Intervention Applications

[4] The intervention applications may be addressed together. Both applicants apply pursuant to r. 30 of the Criminal Appeal Rules.

[5] The Office of the Chief Justice of the Superior Court of Justice submits that the applications under ss. 682 and 683 of the Criminal Code raise serious issues for the administration of justice. If granted leave to intervene, it would make submissions on the impact of Mr. Swaine’s applications on the administration of justice and judicial independence, all from the unique perspective of the Office of the Chief Justice of the Superior Court. This proposed intervener also submits that the relief sought by Mr. Swaine gives rise to serious issues of solicitor-client privilege, as well as administrative privilege. It says that it could provide specialized assistance on these issues, input that might not otherwise be available to the court.

[6] The Office of the Chief Justice of the Superior Court of Justice therefore seeks to be added as a party or a third party to participate and provide submissions on the resolution of any asserted claims of privilege that might arise. Although there is jurisdiction to grant an order to be added as a party or a third party in the civil context, r. 30 of the Criminal Appeal Rules is restricted to granting intervener status alone. Nevertheless, r. 30(1) provides flexibility in terms of the extent to which an intervener may participate in a criminal proceeding before this court:

Leave to intervene in an appeal may be granted by the Chief Justice of Ontario, the Associate Chief Justice of Ontario, or a judge designated by either of them, upon such terms and conditions and with such rights and privileges as the judge determines. [Emphasis added.]

[7] The Ontario Superior Court Judges’ Association joins in the submission that Mr. Swaine’s applications raise serious issues for the administration of justice. If granted leave to intervene, it proposes to make submissions on how the relief sought may impact on judicial independence and judicial immunity. This proposed intervener could offer the unique perspective of the judges of Superior Court of Justice as a whole, not just the trial judge in this case. It could also offer submissions on how the orders sought might impact the professional and ethical obligations of retired judges.

[8] Both proposed interveners wish to make submissions on whether the relief sought by Mr. Swaine is in the “interests of justice”, the overarching consideration in s. 683 of the Criminal Code. If granted leave to intervene, they seek permission to rely on the materials filed on these applications when the ss. 682 and 683 applications are addressed on their merits.

[9] The Crown does not oppose either application to intervene.

[10] Counsel for Mr. Swaine does not oppose the intervention applications, but submits that they may be premature. Mr. Gold submits that, in relation to the ELO of the Superior Court of Justice, all he presently seeks is a statement and documents relating to her communications with the trial Crowns. As he submitted, he cannot meaningfully cross-examine the Crowns without knowing the ELO’s side of the story. At this time, he does not seek access to any “advice” that she may have provided to the judges of the Superior Court of Justice. Mr. Gold submits that, depending upon what the ELO produces and says during her cross-examination, he may not pursue items (3) and (4) of his requested relief.

[11] We are of the view that it is preferable to deal with the intervention applications now. If an order is made in respect of the ELO of the Superior Court of Justice, it will engage the interests of the Office of the Chief Justice.

[12] In R. v. McCullough, 24 O.R. (3d) 239 (C.A.), Dubin C.J.O. addressed the propriety of granting leave to intervene in criminal appeals. Noting that leave to intervene is seldom granted in such cases, he said at p. 243: “What is normally required is material which discloses that the proposed intervenor would be able to make a useful contribution beyond that which would be offered by the parties and without causing an injustice to the immediate parties.” See also R. v. Doering, 2021 ONCA 924, para 10.

[13] Both proposed interveners have established that it is appropriate that they be granted leave to intervene. Accordingly, we grant leave to intervene to the Office of the Chief Justice of the Superior Court of Justice and to the Ontario Superior Court Judges’ Association on Mr. Swaine’s ss. 682 and 683 applications, on the following terms:

1. both may file a factum of up to 30 pages;
2. both may file the materials filed in support of their applications for leave to intervene;
3. each may make oral submissions for a length of time to be determined by the court;
4. should the need arise, the Office of the Chief Justice of the Superior Court of Justice may make submissions on any asserted claims of privilege, on terms to be determined by the court; and
5. neither intervener will be entitled to costs, nor will they be liable to pay costs.

(2) The Application for a Sealing Order

[14] The Crown applies for a sealing order on all future materials filed in relation to Mr. Swaine’s original application under ss. 682 and 683 of the Criminal Code. It is the Crown’s position that these applications have been brought in aid of an application to adduce fresh evidence when the appeal is ultimately argued. Consequently, the Crown says that the protocol for filing fresh evidence applications under r. 27 of the Criminal Appeal Rules should apply. Rule 27(10) provides:

(10) Unless otherwise directed or ordered by a judge, the completed record compiled in support of a motion for leave to introduce fresh evidence, including any factums filed in connection with the motion, shall be sealed when filed with the court. [Emphasis added.]

[15] Some further background is required. Mr. Swaine’s materials on his applications under ss. 682 and 683 of the Criminal Code were not filed under seal, nor were the materials filed by the Crown. The Crown did not make a request for a sealing order at the previous hearing. It was only after our earlier decision that the Crown advised counsel for Mr. Swaine and the court that it would apply for a sealing order. In the meantime, materials filed on that application have been provided, on request, to certain media outlets. The Crown does not seek the return of those materials; it merely requests a sealing order in respect of all future filings related to the original application.

[16] Prior to the hearing of the present applications, the Office of the Executive Legal Officer of this court advised the parties to be prepared to make submissions on whether the media should receive notice of the Crown’s application for a sealing order. At the hearing, the Crown took the position that notice to the media is not required because r. 27(10) is a statutory instrument that makes a sealing order mandatory.

[17] Counsel for Mr. Swaine does not resist a sealing order. However, he submits that, if the court were inclined to make a sealing order, the media should be put on notice.

[18] This is not an appropriate case for a sealing order. On its own terms, r. 27(10) protects “the completed record compiled in support of a motion for leave to introduce fresh evidence”. It does not apply to the materials filed on Mr. Swaine’s applications under ss. 682 and 683 of the Criminal Code. Consequently, we do not require submissions from the media on the propriety of a sealing order.

[19] The Crown’s application for a sealing order is dismissed.

C. Conclusion

[20] The applications for leave to intervene are allowed, on the terms specified above. The application for a sealing order is dismissed.

[21] The appeal will be returned to appeal management before Trotter J.A. to set timelines for the exchange of factums and other materials related to the applications under ss. 682 and 683 of the Criminal Code. In the meantime, counsel for Mr. Swaine has undertaken to clarify the precise relief that he seeks in relation to the ELO of the Superior Court of Justice, as referenced in paragraph 10, above. This may be in the form of an amended Notice of Application.

“Fairburn A.C.J.O.”
“Gary Trotter J.A.”
“J. Copeland J.A.”