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Criminal - Executive Legal Officer (ELO). R. v. Swaine
In R. v. Swaine (Ont CA, 2025) the Ontario Court of Appeal considered some criminal defendant appellate motions [under CCC 683(1)(a-b) 'Powers of court of appeal' (ordering production of document and witnesses)] "in support of an anticipated fresh evidence application". The context of these motions was unusual: the trial judge, having completed the trial and acquitted the defendant, then repeatedly failed to deliver promised reserved reasons, and then resigned - leaving an issue about the adequacy of reasons.
These quotes illustrate the novel role of ELO communications, here as evidence:[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] 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 made no submissions on this issue.
[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[1] 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 CanLII 40 (SCC), [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 CanLII 25 (SCC), [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] 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.
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[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] 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] 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] 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 (2004), 2004 CanLII 60014 (ON CA), 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] 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] 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] 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] 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 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 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 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] 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] 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] 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] 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 (CanLII), [2005] 3 S.C.R. 343.
[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] 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] 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] 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. . R. v. Swaine
In R. v. Swaine (Ont CA, 2025) the Ontario Court of Appeal considered a CCC s.683(1)(a,b) ['Powers of court of appeal'] application seeking several interlocutory fresh evidence-related orders, here in the context of unusual procedural facts and a Crown appeal from an acquittal:[9] Pursuant to s. 683(1)(a) and (b) of the Criminal Code, the Court of Appeal may order the production of “any writing, exhibit or other thing connected to the proceedings” and order a witness to be examined where the court “considers it in the interests of justice” to do so. In accordance with R. v. Trotta (2004), 2004 CanLII 60014 (ON CA), 23 C.R. (6th) 261 (Ont. C.A.), at para. 25, seeking the production of records and testimonial evidence in aid of a fresh evidence application engages with a two-part test. The applicant must demonstrate:. 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. See R. v. Jaser, 2023 ONCA 24, at para. 16. These reasons are brief (21 paras) and may be of interest to court-observers as it involves a now-retired sitting judge, no issued reasons and the involvement of the Executive Legal Officer (ELO).
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