Court of Appeal for Ontario

Date: 2025-06-27
Docket: M55730 (COA-24-CR-0394)
Coram: Fairburn A.C.J.O., Trotter and Copeland JJ.A.

Between

His Majesty the King
Respondent (Appellant/Responding Party)

and

David Swaine
Applicant (Respondent/Moving Party)

Appearances:

• Alan D. Gold and Ellen C. Williams, for the moving party
• Andreea Baiasu and Jeremy Streeter, for the responding party
• Brian Gover and Myles Goodman-Vincent, for the Office of the Chief Justice of the Superior Court of Justice

Heard: 2025-06-20

Reasons for Decision

Background

[1] The Crown appeals from an acquittal entered on March 19, 2024, on the basis that the trial judge failed to provide sufficient reasons.

[2] While limited oral reasons were given at the time of verdict, the parties were promised written reasons to follow. Ultimately, on May 27, 2024, the Regional Senior Judge informed the parties that there would be no further extensions of time for the reasons to be produced, the justice was “unwell” and that: “Whatever the reasons were on the record [when the acquittal was entered] will effectively become the reasons. There will not be any written reasons provided.”

[3] On September 20, 2024, the trial judge resigned. His resignation was accepted by the Governor General in Council: P.C. 2024-1038. The reason for the trial judge’s resignation is set out in paragraph 42(1.1)(b) of the Judges Act, R.S.C., 1985, c. J-1, which states that the Governor General in Council shall grant to a judge an annuity at the time of his resignation if the judge “has become afflicted with a permanent infirmity disabling him or her from the due execution of the office of judge and resigns his or her office or by reason of that infirmity is removed from office.”

[4] On both October 25 and November 2, 2024, following his resignation, the trial judge reached out to the parties by email three times. He informed them that he was retired and provided them with some information around his failure to deliver the promised reasons. He suggested that he was told by the Regional Senior Judge that he could no longer sit. He also suggested that this direction not to sit was as a result of concerns relayed to the Executive Legal Officer (ELO) of the Superior Court of Justice by counsel in this matter, whom the trial judge believed to be Crown counsel.

[5] The respondent on appeal, who we refer to as Mr. Swaine, then asked the Crown for disclosure of any communications that may have occurred between the ELO and the Crown. That disclosure was given, including a will-say from each of the prosecuting Crowns, along with copies of the electronic communications between the ELO and Crown (both emails and text messages).

Procedural History

[6] Mr. Swaine then sought relief from this court, asking for, among other things, the opportunity to cross-examine Crown counsel. That relief was granted: R. v. Swaine, 2025 ONCA 117.

[7] In light of the potential for serious privilege issues to be at work, all other forms of relief (i.e., those directed at disclosures by the now retired trial judge and the ELO) were placed in abeyance until such time as the court received proper submissions about the “potential privilege claims that might arise in connection with the information sought under the other three heads of relief”: R. v. Swaine, 2025 ONCA 117, at para. 17.

[8] Subsequent to that ruling, the Office of the Chief Justice of the Superior Court of Justice (OCJSCJ), along with the Ontario Superior Court Judges’ Association (OSCJA) sought leave to intervene in this matter. The OCJSCJ focussed on Mr. Swaine’s outstanding request that the ELO provide a will-say and submit to cross-examination. The OSCJA focussed on Mr. Swaine’s outstanding request that the trial judge’s work product be provided, along with a trial judge’s report. We granted both the OCJSCJ and the OSCJA the right to intervene: R. v. Swaine, 2025 ONCA 313.

[9] Mr. Swaine was asked to file a Notice of Motion to Resume the original motion, which he did. The new Notice of Motion dropped the heads of relief relating to the trial judge.

[10] On May 16, 2025, the OCJSCJ filed a motion to provide the panel, for “judicial inspection only”, the “unredacted communications in possession of the ELO of the Superior Court of Justice relating to this matter”, which includes communications over which privilege is asserted. The communications would include those up until February 18, 2025, which is the date that this court released its first ruling in this matter: R. v. Swaine, 2025 ONCA 117. Included in this sealed packet, should it be received, will be the unredacted communications of the ELO relating to this matter, an index of communications in the possession of the ELO relating to this matter, the position of the OCJSCJ in relation to the nature of the privilege involved as it pertains to each communication and a “high-level summary of the communications for the benefit of the Panel, given the number of communications.”

[11] Following the filing of the OCJSCJ motion, a case management conference was held on May 30, 2025. At that case conference, Mr. Swaine clarified that he was not seeking access to any privileged communications. Specifically, he said that he was only seeking the “outward-looking communications” between Crown counsel and the ELO. On the basis of that position, the OCJSCJ agreed to provide all such electronic communications (copies of texts and emails) to the parties and to withdraw the motion to provide privileged communications to the panel for judicial inspection.

[12] Mr. Swaine also confirmed at the case management conference that he was not pursuing any of his heads of relief in relation to the trial judge. Accordingly, the OSCJA officially sought to abandon their intervention and on June 13, 2025, this court made an order granting that relief.

[13] In addition, the intervener OCJSCJ said at the case management that, in light of Mr. Swaine’s significantly narrowed request for relief, they would no longer be pursuing their motion in relation to the request that this panel review the sealed materials.

[14] Shortly after the case management conference, the OCJSCJ provided Mr. Swaine and the Crown with copies of the outward-looking electronic communications between the ELO and the Crowns. Mr. Swaine followed up with a number of questions. The answer to those questions would clearly go beyond the outward-facing communications. Accordingly, the OCJSCJ wrote to the court and noted that the grounds were continuing to “shift in this matter”, and out of concern for the court making a “properly informed determination of the issues remaining”, the OCJSCJ remained “prepared to proceed” with their motion to produce the sealed materials to the panel for judicial inspection only.

[15] There was a good deal of back and forth between the parties. Ultimately, the court informed them, through a letter from this court’s ELO, that we would be taking no further communications and that the matter would be argued in accordance with the schedule set and positions taken at the case management meeting.

The Hearing and Issues

[16] When court convened on June 20, 2025, Mr. Swaine took the position that there were several matters that needed to be determined by this court, including the outstanding motion to produce the sealed materials for judicial inspection. While it was not initially the intention of the court to do so, as matters unfolded, it became clear that the shifting grounds on this application, including the Crown’s position that they now want to explore whether there were “other issues with the judge” that extend beyond the failure to produce written reasons in this case, the OCJSCJ made clear it was renewing its original motion to produce the sealed materials.

[17] As noted by counsel for the OCJSCJ, this court ought to be concerned with the leap of faith the applicant is inviting us to take. Specifically, the applicant will be asking this court to find that, as a direct result of the communications between the ELO and the Crown, that the trial judge was not permitted to prepare or complete and deliver his reasons for judgment.

[18] It is against the backdrop of that contention, that this court is being asked to consider the sealed materials. It is the OCJSCJ’s position that it is critical for this court to fully appreciate the context of this matter before determining whether granting the extraordinary order sought – an order directed at the ELO, in essence, the right hand to the Chief Justice – is in the interests of justice pursuant to s. 683(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[19] In our view, and in light of the parties’ positions, we accede to the request by the OCJSCJ to review the unredacted communications in possession of the ELO of the Superior Court of Justice relating to this matter, including privileged communications, the proposed index and high-level summary. This matter has been continuing for some time. These are extremely sensitive matters that go to the heart of judicial independence, as well as administrative, adjudicative and solicitor-client privileges. In our view, it is the only sensible way to proceed to ensure the panel is equipped with the necessary context to make an informed determination as to what is in the interests of justice.

[20] Therefore, we will take the materials in sealed envelopes. Three sealed copies will be delivered to this court’s ELO. The envelopes will not be opened by anyone other than the judges who are presiding on this panel.

Further Requests and Directions

[21] Mr. Swaine has also asked that we permit him to reach out to the trial judge. On a previous occasion, some months ago, Mr. Swaine was directed by this court not to do so. He now wishes to communicate with the trial judge because the Crown is taking the position that the trial judge’s emails to counsel are not admissible as fresh evidence on appeal.

[22] While the trial judge is now retired, we find it difficult to understand how, what the trial judge did as a judge, is not cloaked in privilege. Prior to narrowing his request on this motion, the OSCJA was an intervener in this matter. They abandoned their intervention once it appeared that it was no longer necessary. In light of Mr. Swaine’s request that he be permitted to now contact the trial judge, it appears that the OSCJA may have a renewed interest. We would invite their input on this issue before making any final decision. To this end, they may wish to request that their intervention be restored.

[23] We also note that while the trial judge does not have counsel, we have been informed that he had counsel at an earlier point in time. We understand Mr. Scott Hutchison, who was counsel to the trial judge in 2024, has been kept informed of these proceedings and is prepared to communicate with the trial judge as necessary. We direct that a copy of these reasons be provided to Mr. Hutchison.

“Fairburn A.C.J.O.”
“G.T. Trotter J.A.”
“J. Copeland J.A.”