The trial judge, now retired, suggested he could not deliver reasons in acquittal due to complaint
The Ontario Court of Appeal ordered two prosecutors to make themselves available for cross examination, stating that evidence about their conduct could be relevant to their claim that a trial judge gave insufficient reasons for an acquittal.
The defendant in the case is a police officer who was charged with failing to provide the necessities of life to a detainee. The detainee died while in custody.
In 2024, a trial judge acquitted the police officer but never delivered reasons for his decision because he was unwell. The judge later retired.
The Crown appealed the acquittal based on an insufficiency of reason.
A few months after his retirement, the judge emailed the parties, stating that he had prepared a set of reasons but could not deliver them because a senior justice had instructed him not to sit on any matters. The judge said he believed these instructions were triggered by a complaint one of the parties had filed with an executive legal officer.
The two prosecutors provided will-stay statements, which acknowledged that the more senior of the lawyers had contacted the ELO days before the acquittal, expressing concern about how long it was taking to receive a judgment.
According to the OCA, the statement, along with emails and text messages between the senior prosecutor and the judge, clearly indicate that the prosecutor expressed concerns “about the frequent adjournments and his perception of some concerning conduct on the part of the trial judge.”
The defendant found out about the correspondence and filed an application to cross-examine the prosecutors and produce other evidence. The Crown argued that the information the defendant sought was irrelevant to the appeal at large, but the OCA disagreed.
“Considering the whole premise of the Crown appeal – that the acquittal should be set aside because of an insufficiency of reasons – it cannot be said that the conduct of the prosecuting Crown, which the trial judge believes triggered this state of affairs, would be irrelevant in the context of an admissibility hearing relating to fresh evidence on appeal,” the OCA wrote.
The appellate court added, “In these circumstances, we find that there is a reasonable possibility that cross-examining both Crowns could assist on the motion to adduce fresh evidence and that the fresh evidence may well be received on appeal.”
However, the court declined to rule on the defendant’s other requests, citing “serious concerns regarding potential privilege claims.” The court said it could not proceed with those requests until proper submissions on them have been made.
Alan Gold, who runs his own firm and represented the defendant, declined to comment on the OCA’s decision but said there was “much still to come.”
The Ontario Ministry of the Attorney General declined to comment.
