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Immunity - Judicial. 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.
Here the court considered a request to question the retired judge as to the reasons for their decision:(2) The request to communicate with the trial judge
[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] 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, 1979 CanLII 8 (SCC), [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] 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] 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] 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[2] judicial immunity and choose to testify about their involvement in judicial proceedings. In R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.), at p. 244, leave to appeal refused, [1988] S.C.C.A. No. 213,[3] 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] In our view, the purposes underlying judicial immunity and the weight of authority support the conclusion that individual judges cannot waive judicial immunity.
[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 CanLII 26 (SCC), [1985] 2 S.C.R. 716, at p. 737.
[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] 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] 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] Also of assistance on this issue is the trial level holding of Glube C.J.T.D. in MacKeigan (1988), 1988 CanLII 7124 (NS SC), 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), 1988 CanLII 7144 (NS CA), 46 C.C.C. (3d) 191. The Supreme Court affirmed the result, but did not address the issue of competence to testify. [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] 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] Counsel are directed not to communicate with the trial judge about this trial or appeal. . 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". Here the court considers an unusual motion request for "a will-say statement from the Executive Legal Officer of the Superior Court (the “ELO”) about any communications with the trial Crowns [SS: later limited to the ELO's “outward-looking communications”] in this matter and that the ELO submit to cross-examination about any such communications".
Here the court considers 'judicial immunity':[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. . Fiederer v. Canada (Attorney General)
In Fiederer v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered the civil legal immunity of the Canadian Judicial Council (CJC):[9] In the decision under appeal, the Federal Court set out the correct legal principle that the CJC and its employees, acting in the scope of their duties, benefit from immunity from suit in tort or for extra-contractual liability, unless they act in bad faith when dealing with a complaint (Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3 at paras. 50-51, 115-120, 171; Taylor v. Canada (Attorney General), 2000 CanLII 17120 (FCA), [2000] 3 FC 298 at paras. 30-39 and 41; Sirros v. Moore, [1974] 3 All ER 776 (C.A) at p. 785; and Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716 at p. 737-45; Edwards v. Law Society of Upper Canada, 2001 SCC 80 at para. 6). Therefore, the Federal Court’s decision does not contain any error of law. . The Ontario Mission for the Deaf v. Buchan
In The Ontario Mission for the Deaf v. Buchan (Div Ct, 2021) the Divisional Court considers the judicial immunity of justices of the peace from human rights code proceedings:[23] In any event, Justices of the Peace benefit from judicial immunity, including in the context of applications before the Tribunal: see Justices of the Peace Act, RSO 1990, s.20; Persaud v. Ontario (Attorney General), 2008 CanLII 37215 (On. Sup. Ct.), at para. 46; and Belso v. York Region Police, 2009 HRTO 757, at para. 9. Any issues related to the conduct of Justices of the Peace can be raised on an appeal in the context of the prosecution or by way of a complaint to the Justices of the Peace Review Council. However, Justices of the Peace cannot be the subject of an application to the Tribunal under the Code for the manner in which they conducted a proceeding.
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