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Judges - Inability to Give Decisions. 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 illustrates procedural facts of this unusual situation:[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 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] 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] 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] 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”.
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