COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Swaine, 2025 ONCA 117

DATE: 20250218

DOCKET: M55730 (COA-24-CR-0394)

Fairburn A.C.J.O., Trotter and Copeland JJ.A.

BETWEEN

His Majesty the King

Respondent (Appellant on Appeal)

and

David Swaine

Applicant (Respondent on Appeal)

Alan D. Gold and Ellen C. Williams, for the applicant

Andreea Baiasu and Jeremy Streeter, for the respondent

Heard: February 13, 2025

REASONS FOR DECISION

A. Introduction

[1] This is an application brought pursuant to ss. 683(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant seeks four orders: (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”); (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.

B. Factual Backdrop

[2] The applicant is a police officer who was charged with failing to provide the necessaries of life to a detainee who died while in police custody, pursuant to s. 215(2)(b) of the Criminal Code. The judge-alone trial ended on October 20, 2023. It was put over numerous times for judgment. On March 19, 2024, the trial judge acquitted the accused and said that reasons would follow. Those reasons were never delivered.

[3] The Crown has brought an appeal against the acquittal, predicated on a singular issue: a claim of insufficiency of reasons.

[4] This application arises from circumstances that came to light only after the parties had been informed by the Regional Senior Justice that the trial judge was unwell and that no reasons would be delivered. The trial judge later retired.

[5] A few months after his retirement, and many months after the final date when reasons were supposed to have been delivered, the trial judge sent the parties an email. In this email, the trial judge expressed the belief that one of the parties to the proceeding had made a complaint to the ELO. He inferred that this complaint triggered what he said was a direction, given to him by the Regional Senior Justice on April 2, 2024, that he not sit on any matter. In a series of emails that followed, the trial judge suggested that the fact that he was prohibited from sitting interfered with his ability to deliver a draft set of reasons that he had prepared.

[6] The respondent on this application, the Crown, has provided two will-say statements from the prosecuting Crowns. At this stage, there is no need to conduct a detailed review of those statements. The most relevant statement is from the senior prosecuting Crown who acknowledges that he was concerned about the length of time it was taking to receive judgment and the multiple adjournments, up to five at that point, that the parties had faced while awaiting judgment. On March 14, 2024, he first contacted the ELO by way of text message. In his will-say, he says that they then communicated by text message, email and telephone. The text messages and email are included in the respondent’s motion record. The junior Crown had no personal contact with the ELO but was present with the senior Crown on one occasion when the senior Crown spoke with the ELO on the phone. The senior Crown also updated her as to various conversations that had taken place.

[7] The will-say of the senior Crown, combined with the email and text messages, make clear that he expressed to the ELO his concerns about the frequent adjournments and his perception of some concerning conduct on the part of the trial judge. The defence did not receive notice of these communications. As noted above, the defence was first made aware of this when the trial judge (now retired) sent an email to the parties on October 25, 2024.

C. Analysis

[8] This is an application for the following forms of relief:

(i) that both Crowns be cross-examined on will-says that have already been provided to the applicant;

(ii) that the ELO of the Superior Court of Justice provide a will-say statement, along with emails, text messages and correspondence relating to this matter and submit to cross-examination;

(iii) that the now retired trial judge forward all work product in relation to his reasons for acqu