Court of Appeal for Ontario

Date: September 5, 2025

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

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

Parties

Between

His Majesty the King Responding Party (Appellant)

and

David Swaine Applicant (Respondent)

Counsel

For the Applicant: Alan D. Gold and Ellen C. Williams

For the Responding Party: Andreea Baiasu

For the Office of the Chief Justice of the Superior Court of Justice: Brian Gover and Sarah Fooks

For the Ontario Superior Court Judges' Association: Tom Curry and Derek Knoke

Heard: August 7, 2025

Decision

By the Court:

[1] Introduction

[1] These reasons address the outstanding issues in the motion brought by the respondent, Mr. Swaine, seeking various orders pursuant to ss. 683(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, in support of an anticipated fresh evidence application. The factual background to the motion is set out in the court's previous decisions of February 18, 2025 and June 27, 2025: R. v. Swaine, 2025 ONCA 117, at paras. 2-7; R. v. Swaine, 2025 ONCA 471. Because of the issues raised in relation to judicial immunity/privilege, the court granted leave to intervene to the Office of the Chief Justice of the Superior Court of Justice (the "Office of the Chief Justice") and the Ontario Superior Court Judges' Association (the "OSCJA"): R. v. Swaine, 2025 ONCA 313.

[2] Two issues remain to be decided. First, Mr. Swaine requests a will-say statement from the Executive Legal Officer of the Superior Court (the "ELO") about any communications with the trial Crowns in this matter and that the ELO submit to cross-examination about any such communications. As noted at para. 11 of our June 27, 2025 decision, Mr. Swaine limits this request to the ELO's "outward-looking communications" – i.e., any communications with the trial Crowns. He has abandoned his request for the ELO's communications with the Regional Senior Judge (the "RSJ") or any other communications within the Superior Court about this case. Second, although not contained in Mr. Swaine's Notice of Motion or Amended Notice of Motion to Resume, Mr. Swaine seeks direction on whether his counsel may communicate with the now retired trial judge to inquire about issues raised in the trial judge's emails of October 25 and November 2, 2024, "to fill in any necessary details".

(1) The Request for a Will-Say from the ELO of the Superior Court and to Cross-Examine on Her Communications with Either of the Trial Crowns

[3] Mr. Swaine's Position

[3] Mr. Swaine seeks a will-say from the ELO, along with any texts, emails, and correspondence about any communications she had with the trial Crowns in this matter and to cross-examine the ELO about any such communications. Mr. Swaine submits that the ELO's version of the same communications about which this court directed cross-examination of the trial Crowns is relevant for the same reasons that the trial Crowns' evidence about the communications is relevant. In particular, Mr. Swaine anticipates challenging the credibility of the version of events provided by the trial Crown who communicated with the ELO, and argues that the ELO's version of events will assist him in that endeavour. Mr. Swaine argues that his abandonment of the request for information about the ELO's communications about this case within the Superior Court obviates any concerns about judicial immunity. He further submits that any risk that cross-examination would lead to disclosure of matters subject to judicial immunity can be managed by the supervision of the examination by a retired judge, as has been ordered for the examinations of the trial Crowns, as well as the presence of counsel for the Office of the Chief Justice to raise objections as necessary.

[4] The Crown's Position

[4] The Crown initially took the position that evidence about any communications between the trial Crowns and the ELO was not relevant to the only issue in the appeal – the adequacy of the trial judge's reasons – and therefore could not meet the admissibility test for fresh evidence and ground an order for production and cross-examination. However, in light of this court's decision of February 18, 2025 regarding the relevance of the trial Crowns' accounts of these communications, the Crown concedes that the ELO's account is relevant. The Crown submits that the ELO's communications with trial Crown counsel (i.e., outward-facing only) are not privileged and do not engage judicial immunity. However, the Crown maintains that judicial immunity and solicitor-client privilege protect inward-facing communications between the ELO and the Chief Justice and the RSJ. In the event the court orders a will-say and cross-examination of the ELO about any communications with the trial Crowns, the Crown seeks permission to cross-examine the ELO on whether she was aware of any other issues or concerns about the trial judge at the time of, or after, her communications with trial Crown counsel. The Crown limits this request to information that is not subject to judicial immunity or other privilege and also does not seek to elicit specific details regarding any other issues or concerns about the trial judge that the ELO was aware of.

[5] The Office of the Chief Justice's Position

[5] Mr. Gover, on behalf of the Office of the Chief Justice, acknowledges the potential relevance of the ELO's account of any communications with the trial Crowns in this matter. He also acknowledges that the narrow area of any communications by the ELO with the trial Crowns is not itself subject to judicial immunity or any other privilege. However, he argues that it would be contrary to the interests of justice to order the ELO to provide a will-say and be cross-examined in light of the broader constitutional and institutional values at stake. In particular, ordering the ELO to provide evidence risks undermining the institutional independence afforded to courts over administrative matters – an essential component of judicial independence with constitutional dimensions. He also raises the concern that if the court orders the ELO to provide evidence, even if limited to the narrow area of her communications with trial Crown counsel, cross-examination can be difficult to control and raises the risk of unintentional disclosure of matters subject to judicial immunity.

[6] The OSCJA's Position

[6] The OSCJA made no submissions on this issue.

[7] The Court's Review of Sealed Materials

[7] In the court's decision of June 27, 2025, we granted the motion of the Office of the Chief Justice to file for "judicial inspection only" the unredacted communications in possession of the ELO relating to this matter, communications over which judicial immunity or other privilege is asserted. These records were filed in sealed format, along with an index to the communications and the position of the Office of the Chief Justice on the nature of privilege applicable to each communication and a summary of the communications for the benefit of the panel. Those materials were delivered to the court as directed and the panel has reviewed them. As we explain below, we have come to the view that there is no need to rely on the content of the sealed records and do not take them into account in reaching our decision.

[8] Judicial Immunity: Foundational Principles

[8] Judicial immunity is central to both issues the court must decide in this motion. Thus, we begin by summarizing the key aspects of judicial immunity. Judicial immunity is grounded in the principle of judicial independence. Judicial immunity prevents the compulsion of judges to testify about judicial proceedings in which they have played a role: MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at pp. 828-33. The purpose of judicial immunity is not to protect the interests of individual judges, but rather is to ensure public confidence in an impartial and independent judicial system: Kosko c. Bijimine, 2006 QCCA 671, [2006] R.J.Q. 1539, at paras. 39-41. Judicial immunity has constitutional dimensions because it is an essential attribute of an independent and impartial judiciary: MacKeigan, at pp. 826, 830-32; Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 708-9; and Commission scolaire de Laval v. Syndicat de l'enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 57.

[9] Types of Judicial Immunity

[9] Without attempting a comprehensive definition of judicial immunity, it includes both deliberative immunity, which prevents a judge from being compelled to testify about their deliberations or to justify their judgment (outside of reasons for judgment), and judicial administrative immunity, which protects the administrative or institutional aspect of judicial independence: MacKeigan, at pp. 830-33. Judicial administrative immunity protects the need for courts to control administrative matters without interference from the other branches of government. Judicial administrative immunity encompasses "judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function": Valente, at p. 712. These include the "assignment of judges, sittings of the court, and court lists – as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions": Valente, at p. 709; MacKeigan, at pp. 832-33; and Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 40. Judicial immunity prevents compulsion to answer questions about how these judicial administrative functions have been exercised: MacKeigan, at p. 833.

[10] Application to This Case

[10] Relying only on the public record on this motion, in particular, the comments of the RSJ in court on April 10 and May 27, 2024, there can be no question that the decisions made within the Superior Court in relation to whether, when, and why the trial judge in this case was or was not assigned to sit and was on medical leave in the spring of 2024 are within the scope of judicial administrative privilege. They involve the authority of the court over the assignment of judges.

[11] The Trial Judge's Reasons for Judgment

[11] The trial judge reserved judgment in this trial, and on October 25, 2023, put the matter over to January 24, 2024 for reasons. On January 24, 2024, his reasons were not ready and the trial judge put the matter over to February 21, 2024. This happened several more times, with the reasons not being ready on February 21, March 1, and March 15, 2024. We note that this pattern of the reasons for judgment not being ready on multiple occasions is, on its face, unusual. On March 19, 2024, the trial judge advised that he would provide the verdict, but provide reasons at a later date. He acquitted the respondent, giving very brief reasons, and put the matter over to April 10, 2024 to "read [his] reasons into the record".

[12] The RSJ's First Intervention

[12] On April 10, 2024, the RSJ appeared in place of the trial judge. The RSJ noted on the record that April 25, 2024 would be six months from when the trial decision was taken under reserve, the deadline to provide reasons, pursuant to s. 123(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The RSJ advised that due to "medical reasons" he was exercising his discretion as the Chief Justice's designate to grant a 30-day extension for the trial judge to provide his reasons. The matter was put over to be spoken to on May 27, 2024.

[13] The RSJ's Second Intervention

[13] On May 27, 2024, the RSJ again appeared. He advised the parties that the trial judge was still "unwell". The RSJ further advised that he was not granting a further extension of time for the trial judge to prepare reasons for judgment because he was of the view that even if a further extension were granted, it "would not result in reasons being released." As a result, the RSJ advised the parties that: "[w]hatever the reasons were on the record [i.e., on March 19, 2024], will effectively become the reasons. There will not be any written reasons provided."

[14] The Trial Judge's Resignation

[14] Order-in-Council P.C. 2024-1038, dated September 20, 2024, documents the acceptance by the Governor General in Council of the trial judge's resignation. The Order-in-Council confirms the impact of medical issues on the trial judge's exercise of his judicial functions by providing for his retirement annuity pursuant to s. 42(1.1)(b) of the Judges Act, R.S.C. 1985, c. J-1. Section 42(1.1)(b) of the Judges Act provides for a retirement annuity to be provided to a judge who resigns from office because the judge "has become afflicted with a permanent infirmity disabling him or her from the due execution of the office of judge".

[15] The ELO's Role

[15] The nature of the ELO's role within the Office of the Chief Justice dictates that she would be involved in internal communications within the court – in particular with the Chief Justice and the RSJ – regarding medical issues of a judge that impact their ability to exercise their judicial functions. The Office of the Chief Justice filed evidence on the motion regarding the ELO's role within the Superior Court. The ELO is the direct reporting officer for all staff of the Office of the Chief Justice across the province and is the principal advisor to the Chief Justice. The ELO provides legal, strategic, and policy advice to the Chief Justice, and, among others, the Regional Senior Judges. The ELO operates as the "right hand" of the Chief Justice. A key aspect of her role is to protect judicial independence by acting as the principal liaison between the judicial and executive branches of government (both provincial and federal). Given these functions, the ELO's responsibilities form an integral part of the Superior Court's management of its own affairs.

[16] The ELO's Advice on Judicial Issues

[16] Of particular relevance to this motion, the ELO provides the Chief Justice and the Regional Senior Judges with privileged advice regarding issues brought to her attention, including issues that engage the obligation of judges to provide timely decisions, as required by the Courts of Justice Act and the Ethical Principles for Judges (Ottawa: Canadian Judicial Council, 2021). The advice the ELO provides on these types of issues involves not only privileged advice, but also confidential information relating to judges including about complaints to the Canadian Judicial Council and medical information related to medical leave requests.

[17] Judicial Immunity Concerns

[17] As noted above, Mr. Swaine has abandoned his request for evidence from the ELO about her communications with the RSJ or anyone else inside the Superior Court about this matter. Thus, his request does not directly implicate information subject to judicial immunity. However, given the ELO's role within the Office of the Chief Justice, concerns about judicial immunity are important considerations in whether ordering her to provide a will-say about any communications with the trial Crowns and submit to cross-examination about the same is in the interests of justice.

[18] The Legal Test

[18] Pursuant to ss. 683(1)(a) and (b) of the Criminal Code, this court may order the production of "any writing, exhibit or other thing connected with the proceedings" and order a witness to be examined where the court "considers it in the interests of justice" to do so. In R. v. Trotta, 23 C.R. (6th) 261 (Ont. C.A.), at para. 25, this court held that a two-part test is to be applied where a party seeks production of records and testimonial evidence in aid of a fresh evidence motion. The applicant must demonstrate that:

• There is a reasonable possibility that the order for production or testimony could assist on the motion to produce fresh evidence; and
• There is a reasonable possibility that the order for production or testimony may be received as fresh evidence on appeal.

[19] The Modified Test

[19] In R. v. Jaser, 2023 ONCA 24, at para. 17, this court modified the test enunciated in Trotta to account for the privacy interests of a third party in records for which production was sought, incorporating the factors relevant to a third-party records application.

[20] Application of the Modified Test

[20] Mr. Swaine does not seek privileged material but, as we explain below, the material he does seek creates a risk of exposing matters subject to judicial immunity. Pursuant to Trotta as modified in Jaser, this risk must be weighed with the potential probative value of the evidence sought in assessing whether it is in the interests of justice to order the ELO to provide evidence about her communications with trial Crown counsel in this matter.

[21] Constitutional Principles

[21] We have outlined above well-established principles that judicial administrative immunity is an essential aspect of judicial independence with constitutional dimensions. These principles protect the vital public interest in an independent and impartial judiciary.

[22] Evidence Already Provided

[22] Mr. Swaine has already been provided with will-says from both trial Crowns regarding any communications with the ELO about this matter. In addition, as outlined in our endorsement of June 27, 2025, during case management of this motion, the Office of the Chief Justice agreed to provide all electronic communications (texts and emails) between the ELO and trial Crown counsel in this matter. These were provided on May 30, 2025. The electronic communications provided by the Office of the Chief Justice and with the will-say of one of the trial Crowns confirm that on March 14, 15, and 19, 2024, one of the trial Crowns communicated with the ELO by text message and email to register concern about the delay in the trial judge providing reasons.

[23] The March 19, 2024 Conversation

[23] The will-says from the trial Crowns also reference two phone conversations, which could be potential subjects of evidence from the ELO – March 15 and March 19, 2024. The record does not support a reasonable possibility that the second conversation will assist Mr. Swaine with his fresh evidence application. In their will-says, both trial Crowns describe the March 19, 2024 conversation as one of the Crowns placing a call to the ELO during their drive back from court after the trial judge had acquitted Mr. Swaine. The ELO answered the phone, but as one of the trial Crowns began to describe what had happened in court that day, the ELO said she couldn't speak at the moment and would call him back. She never called back.

[24] The March 15, 2024 Conversation

[24] The March 15, 2024 conversation potentially has more substance. The one trial Crown who was a party to that conversation with the ELO describes it in his will-say as lasting approximately 15 minutes and describes the concerns he says he raised with the ELO about the trial judge's delay in providing judgment (recall, this was a few days before the trial judge acquitted Mr. Swaine).

[25] The Central Question

[25] The question we must grapple with is whether, given the risk of exposing matters subject to judicial immunity if the ELO is required to provide evidence, there is a basis to conclude that evidence from the ELO about her version of the telephone call is of such potential evidentiary value that it justifies the risk to judicial immunity and judicial independence?

[26] Absence of Dispute

[26] On the information provided to Mr. Swaine to date, there is no dispute that the communications took place between one of the trial Crowns and the ELO. There is no dispute about the dates of the communications. There is no dispute that the communications concerned the delay in the trial judge providing judgment. The parties have been provided with the full record of the electronically documented portions of the communications. Mr. Swaine has been provided will-says from both Crown counsel about the communications and the right, not yet exercised, to cross-examine the trial Crowns.

[27] Limited Scope of Potential Evidence

[27] Given the information already provided about the communications between one of the trial Crowns and the ELO, the limits imposed by judicial immunity, and the resulting decision of Mr. Swaine to limit his request for evidence from the ELO to her outward-facing communications with the trial Crowns, the potential evidence that Mr. Swaine could obtain from the ELO is narrow. In substance, all that she could provide is her version of the March 15, 2024 phone conversation with one of the trial Crowns.

[28] Risk of Disclosure of Privileged Matters

[28] But weighed against this is the risk that this narrow area of cross-examination could lead to disclosure of matters subject to judicial immunity or solicitor-client privilege. Anything apart from the actual words of the conversation inevitably leads into prohibited areas of judicial immunity – what steps did the ELO take as a result of the communication with Crown counsel? Privileged. What information, if any, did she pass on to the RSJ? Privileged. Was she aware of prior issues or concerns about the trial judge? Privileged.

[29] Analogy to R. v. Pires

[29] In light of the ELO's role within the Superior Court and her participation in and knowledge of internal communications and decisions of the Superior Court which are cloaked with judicial immunity, the request that she be required to produce a will-say about any communications with the trial Crowns and submit to cross-examination raises issues somewhat analogous to those considered in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343.

[30] The Pires Threshold Test

[30] Pires concerned the threshold to be met for leave to cross-examine the affiant on a wiretap authorization. The threshold test for cross-examination of an affiant is grounded not only in concerns about the relevance and materiality of anticipated evidence, but also about the need to protect the identity of informants (a public interest privilege) and concerns about the prolixity of proceedings: Pires, at para. 33. In particular, at para. 36, the court identified the concern that cross-examination may inadvertently risk identifying confidential informants as a factor justifying a threshold showing before leave to cross-examine is granted.

[31] The Court's Conclusion on the ELO Issue

[31] Balancing the very limited scope of potentially relevant evidence that the ELO could provide against the real risk of disclosure of matters subject to judicial administrative immunity if she is ordered to provide evidence, we are not satisfied that it is in the interests of justice to direct that she be ordered to provide a will-say or be cross-examined about any communication with the trial Crowns in this matter.

[32] Dismissal of the Motion

[32] For these reasons, Mr. Swaine's motion for a will-say from the ELO about any communications with the trial Crowns and that she submit to cross-examination is dismissed. As a result, it is not necessary to consider the Crown's request that if cross-examination of the ELO were ordered, it be permitted to examine the ELO about any other issues or concerns she was aware of about the trial judge. We would add that, in any event, it is clear such questions would be barred by judicial immunity because they seek information within the scope of the judicial administrative immunity. The Crown's proposal not to ask for detail or specifics does not remove the judicial immunity concern.

[33] Sealed Records

[33] As mentioned above, we reach the conclusion that it is not in the interests of justice to order the ELO to provide a will-say and submit to cross-examination without reliance on the content of the sealed records filed by the Office of the Chief Justice. Because it was unnecessary for the panel to rely on the sealed materials, we deny the request that a summary of them be provided to the parties. The records remain under seal with the court.

(2) The Request to Communicate with the Trial Judge

[34] The Request

[34] During case management of this appeal, the case management judge directed that counsel not communicate with the trial judge. The Crown has raised issues about the admissibility of the trial judge's emails to trial counsel dated October 25 and November 2, 2024 in Mr. Swaine's anticipated fresh evidence application – in particular, hearsay concerns and whether they are inadmissible due to judicial immunity. Although Mr. Swaine maintains that the October 25 and November 2, 2024 emails from the trial judge are admissible, he requests that his counsel be permitted to communicate with the trial judge to flesh out the details in the trial judge's emails. While not expressly stated by Mr. Gold, it appears that the request to communicate with the trial judge is made with a view to inquiring whether he would be prepared to provide evidence in support of Mr. Swaine's fresh evidence application.

[35] Admissibility Not Before the Court

[35] The ultimate admissibility of the emails from the trial judge to trial counsel as part of Mr. Swaine's anticipated fresh evidence application on the appeal is not before the court on this motion. That issue properly forms part of the fresh evidence admissibility analysis: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775; R. v. Manasseri, 2016 ONCA 703, 344 C.C.C. (3d) 281, at paras. 198-225, leave to appeal refused, [2016] S.C.C.A. No. 513.

[36] Direction: No Communication with Trial Judge

[36] We direct that neither counsel for Mr. Swaine nor Crown counsel may communicate with the now retired trial judge about this trial and appeal. The subject matter that Mr. Swaine wishes to inquire about – what were the reasons for, and any direction given by the RSJ that led to, the trial judge not sitting and not providing reasons; and whether the trial judge had draft reasons for judgment prepared or would have been able to provide reasons for judgment – are the subject of judicial administrative immunity and deliberative privilege.

[37] Judges Cannot Waive Immunity

[37] Mr. Swaine's request to communicate directly with the trial judge about these issues presupposes that the trial judge would be permitted to waive these immunities. We do not accept that proposition.

[38] Judges Are Not Compellable to Testify

[38] The law is clear that judges are not compellable to testify about their involvement in judicial proceedings on matters within the scope of deliberative privilege and judicial administrative immunity: MacKeigan, at pp. 830-33. In Ontario, there is no binding authority on whether a judge can waive judicial immunity and choose to testify about their involvement in judicial proceedings. In R. v. Moran, 36 C.C.C. (3d) 225 (Ont. C.A.), at p. 244, leave to appeal refused, [1988] S.C.C.A. No. 213, Martin J.A. expressly declined to decide whether a justice of the peace was competent or compellable to testify as to their mental process in granting a warrant. In declining to decide this issue, Martin J.A. expressed doubt that a judicial official would be competent to testify about their involvement in an adjudicative matter:

I do not wish, however, to be thought in any way to accept the proposition that the justice of the peace was compellable, or even competent, to testify as to his mental processes in deciding to grant the warrant. [Emphasis added.]

[39] Judges Cannot Waive Judicial Immunity

[39] In our view, the purposes underlying judicial immunity and the weight of authority support the conclusion that individual judges cannot waive judicial immunity.

[40] Judicial Independence Exists for the Public Benefit

[40] The constitutional principle of judicial independence, from which judicial immunity derives, exists for the benefit of the public, not for individual judges: Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 33; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 29. Similarly, judicial immunity exists to protect the independence of the judiciary and the public's confidence in it. It is not for the benefit of individual judges: Kosko, at para. 40; Morier and Boily v. Rivard, [1985] 2 S.C.R. 716, at p. 737.

[41] Immunity Cannot Be Waived

[41] In our view, because the purpose of judicial immunity is to protect the independence of the judiciary and public confidence in the administration of justice – for the benefit of the public – it follows that an individual judge is not permitted to waive judicial immunity. Because the purpose of judicial immunity is not to protect individual judges, the privilege is not theirs to waive.

[42] Appellate Authority from Other Provinces

[42] This conclusion is consistent with appellate authority from other provinces, as well as some trial level authority. We agree with the conclusion of the Court of Appeal of Quebec in Kosko, at paras. 43-44:

Judges may not voluntarily waive this immunity and agree to testify. Immunity belongs neither to judges nor to the parties before them. Rather, it exists to protect the institution of the judiciary and the public's confidence in it. Consequently, it may not be waived by either the judges or the parties. [Translation.]

[43] Recent Appellate Authority

[43] This holding in Kosko was recently followed by the Nova Scotia Court of Appeal in K.J.M.J., at para. 44. It has also been adopted by various trial courts: R. v. Hahn, 2013 SKQB 295, at para. 24, aff'd (but not specifically on this issue) 2018 SKCA 73; West Moberly First Nations v. British Columbia, 2018 BCSC 1835, 24 C.E.L.R. (4th) 214, at para. 158; and R. v. Baldovi et al., 2016 MBQB 90, 328 Man. R. (2d) 155, at para. 22.

[44] Trial Level Authority

[44] Also of assistance on this issue is the trial level holding of Glube C.J.T.D. in MacKeigan (1988), 43 C.C.C. (3d) 287 (N.S.S.C.), at pp. 336-337, where she held that judges are not competent to testify about judicial matters they were involved in, even if they want to testify:

A judge must not testify before a commission or court on matters which came before the judge in his or her judicial capacity, even if the judge would like to respond to one or more of the questions which have been publicly raised. It would be wrong to do so. One question could not be asked in isolation and there is an obligation to preserve the judicial immunity for the benefit of the public. For this immunity, in the performance of judicial duties, is not for a judge personally, it is for the benefit of the public "to protect the judicial system against interference or influence which might pervert the course of justice" (Morier, p. 737).

Glube C.J.T.D. was affirmed on the testimonial competence issue by the Nova Scotia Court of Appeal: (1988), 46 C.C.C. (3d) 191. The Supreme Court affirmed the result, but did not address the issue of competence to testify.

[45] Supreme Court Obiter

[45] Finally, we note the comments of Gascon J. in obiter in Commission scolaire de Laval. That case considered whether deliberative secrecy attached to discussions leading to a decision by a school board to dismiss a teacher. Ultimately, the court held that deliberative secrecy did not attach because the board was not performing a public adjudicative function; rather, its decision was of a private nature in the context of an employment relationship: at paras. 61, 65. In discussing deliberative secrecy, Gascon J., writing for the majority of the Supreme Court, stated, at para. 64: "Judges cannot of course choose to lift deliberative secrecy to explain the reasoning behind their conclusions whenever it suits them to do so."

[46] Conclusion on Waiver Issue

[46] Based on these authorities, we conclude that the trial judge cannot waive judicial immunity. Because the inquiries that Mr. Swaine wishes to pursue with the trial judge necessarily would disclose matters covered by judicial immunity they ought not to be permitted.

[47] Direction to Counsel

[47] Counsel are directed not to communicate with the trial judge about this trial or appeal.

(3) Next Steps

[48] This ruling disposes of all of the issues in Mr. Swaine's motion. The parties shall proceed with the cross-examinations of the trial Crowns as directed in the court's decision of February 18, 2025. As previously directed pursuant to s. 683 of the Criminal Code, the cross-examinations will be conducted before the Honourable Robert J. Sharpe. The parties are directed to confer and propose a schedule for the filing of Mr. Swaine's fresh evidence application and the Crown's responding materials, which should be provided to the court's Executive Legal Officer by September 22, 2025.

Disposition

Released: September 5, 2025

"J.M.F."

"Fairburn A.C.J.O."

"Gary Trotter J.A."

"J. Copeland J.A."

Footnotes

[1] Judicial immunity is sometimes referred to as "judicial privilege": R. v. K.J.M.J., 2023 NSCA 84, at paras. 43-44.

[2] Some of the jurisprudence characterizes this issue in terms of competence to testify.

[3] In R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at paras. 24-27, the Supreme Court overruled the s. 9 Charter analysis from Moran. However, this has no impact on the comments in Moran in relation to judicial immunity.