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He promised to provide full written reasons for acquitting David Swaine at a later date.

But he retired before releasing them.

The circumstances surrounding O’Connell’s abrupt departure from the bench are now under a microscope as part of the prosecution’s appeal on the sole ground that the judge did not sufficiently explain his reasons for finding Swaine not guilty.

Swaine’s appeal lawyers have taken the unusual step of seeking to cross-examine Sam Walker, one of the prosecutors in the case, along with a key adviser in the Office of the Chief Justice of the Superior Court of Ontario about their communications related to O’Connell’s missing reasons. Their discussions were a form of back-channel interference that forced the judge’s retirement and ultimately caused the non-delivery of his written reasons, the defence alleges.

“We’re defending the presumption of innocence,� defence lawyer Alan Gold told a three-judge panel at the Ontario Court of Appeal on June 20th. “This man, Mr. Swaine, was acquitted, the Crown is trying to take away his acquittal.�

In a court filing, prosecutors involved in the appeal say “the only cause of the trial judge’s inability to produce reasons was a medical issue, not the conduct of Crown counsel.� They are asking to explore whether there were “other issues with the judge.�

The case is rife with “extremely sensitive matters that go to the heart of judicial independence, as well as administrative, adjudicative and solicitor-client privileges,� the appellate court panel wrote in its latest ruling, released late Friday afternoon.

Federally appointed judges can serve until a mandatory retirement age of 75. With the immense prestige of the job, and a salary of more than $300,000, it is unusual for any judge to suddenly step down. Friday’s decision indicates O’Connell resigned last September after coming afflicted “with a permanent infirmity� disabling him from executing his judicial duties.

The decision does not elaborate on O’Connell’s infirmity, nor does it settle what happens next in the Swaine case. 

‘There was nothing to do but wait’

O’Connell presided over the Swaine case in the fall of 2023; the officer pleaded not guilty to failing to provide the necessities of life.

The trial heard that on Nov. 5, 2019, Damon Webb, 32, died in police custody at the Durham Regional Police 17 Division. Swaine was the acting sergeant who booked Webb into the cells after telling him he had consumed “like 30 morphine, 100 milligrams, last night, tried to kill myself.� He displayed erratic behaviour and died later that night without receiving any medical attention.

Defence counsel Joanne Mulcahy, who is also co-counsel on the appeal, argued Swaine repeatedly made inquiries of Webb in the cellblock and ensured he was provided with food and water. Nor did other officers on duty see a need for medical attention, she argued at the trial before it ended in October 2023.

The case was then adjourned five times as both sides waited for the verdict and the judge missed multiple self-imposed deadlines.

The Canadian Judicial Counsel’s “� suggests a maximum of six months for the delivery of a judge’s reasons, except in special circumstances. “The preparation of judgments is frequently difficult and time-consuming,� the document explains, but “judges are expected to produce their decisions and reasons for judgment as soon as possible.�

By mid-March, five months after the trial ended, prosecutor Walker was “frustrated� and “concerned� about the repeated adjournments — and the possibility of the case being thrown out due to delay. So he sought guidance from Rosemarie Juginovic, the executive legal officer in the Office of the Chief Justice, and told her about the judge’s “unusual behaviour� during the trial, which included unexplained absences from the courtroom.

Juginovic mentioned that she was aware of “issues� with the judge in other cases, but didn’t elaborate. In a “will say� document filed at the Crown’s ongoing appeal, Walker wrote: “I had never encountered a similar set of circumstances since being called to the Bar in 2012.�

Juginovic, he said, told him: “There was nothing to do but wait.�

Mulcahy, Swaine’s trial lawyer, was not aware of these communications.

On March 19, 2024, hours before O’Connell was supposed to release his decision, he sent emails to counsel — at 1:50 a.m. and 5:12 a.m. — saying that he would be unable to deliver his reasons “yet again� because he was suffering from a “malady� and lacked the “fortitude.� The next day, Walker and co-counsel, Rebecca De Filippis, attended the Oshawa courthouse while O’Connell appeared by Zoom. The judge found Swaine not guilty and indicated he’d provide his full reasons the next month, on April 10.

But when the parties arrived that day, Regional Senior Justice for the Central-East Region Mark Edwards was presiding — not O’Connell. Edwards advised that O’Connell was unable to attend due to “medical reasons,� and his reasons for acquitting Swaine would be delayed to a date in May. When that day arrived, Edwards once again said O’Connell was “unwell.�

He resigned in September. After stepping down, O’Connell sent a series of emails to counsel in the Swaine case advising that he was told not to sit as of April 2, 2024, and suggested that was as a result of concerns relayed to the executive legal officer, Juginovic.

Swaine’s lawyers characterize it as a “complaint�; Walker insists he made no complaint about the judge and did not interfere. 

O’Connell added in a different email that he suffers from depression and that he “finally did agree to retire early after reflection and medical advice.�

O’Connell, who was appointed in 2009 and is in his 60s, was on the bench for 16 years after a long career as a federal prosecutor.

The Swaine case is one of several involving O’Connell releasing untimely or insufficient reasons.

In 2018, the Court of Appeal found O’Connell, had taken 27 months to deliver his reasons for decision after the close of evidence in a family law case. The delay — more than four times the six-month deadline — “was extraordinary, and inconsistent with what the parties were entitled to expect,� , adding that the delay “resulted in prejudice to one of the parties ... was required to pay back support payments exceeding $80,000.�

And, in March 2022, Ontario appellate judges reviewing a dangerous offender sentencing case in Peterborough found O’Connell “erred in his identification of aggravating sentencing factors and failed to issue sufficient reasons for a number of the decisions he made during the sentencing hearing.� Those reasons came six months after he delivered his bottom line; .

ÎÚÑ»´«Ã½ defence lawyer Leora Shemesh waited months for O’Connell to explain why he convicted her client in a major drug trafficking case. She discovered, when looking at past cases, that he had an “habitual pattern of not releasing decisions on time,â€� and that “No one cared to do anything about it.â€�

In her case — a drug trial in Oshawa in 2023 — she tried to get her client’s conviction set aside because she argued O’Connell had taken too long to deliver a “skeletal� guilty verdict. O’Connell’s judgment was sparse and “clearly not an indication of a researched or, time-consuming, thought-provoking analysis of the facts of the case and the adoption of the law,� she said.

Edwards, the regional senior judge, heard her arguments and dismissed them.

While the delay exceeded the six-month target, Edwards wrote it wasn’t enough to breach her client’s constitutional rights to a timely trial. While delays are unavoidable in some cases, “everyone in the justice system needs to ... ensure more timely trials and, by implication, more timely delivery of reasons for judgment.�

O’Connell declined to comment for this story.

In one of his emails included in appeal court file, he wrote that “there was concern that I was behind on production of reasons in other cases as well.� 

If a federally appointed judge fails to comply with the Ethical Principles for Judges, including meeting “diligence� requirements, a formal process can be triggered, overseen by the Canadian Judicial Council.

Anyone, including members of the public, lawyers or other judges, can file a complaint with the CJC. A full hearing panel may decide that the judge’s removal from office is justified, or it may dismiss the complaint. Other measures include “an expression of concern, warning, or reprimand.�

In 2018, an Ontario judge was reviewed for a failure to give reasons “as well as an apparent pattern of inordinate delays.� The reviewing judge decided to close the matter primarily because a medical condition, “now resolved ... was at the root of her difficulties.� No remedial measures were taken and she retired in 2021.

What’s next for the case of David Swaine? 

The Crown’s appeal continues. The three-judge panel has directed that it receive three sealed envelopes containing unredacted communications in possession of the Superior Court’s Office of the Chief Justice.

If the Court of Appeal ultimately agrees with the Crown’s appeal, Swaine could face a new trial in the death of Damon Webb. If the appeal is dismissed, the officer’s acquittal will stand.

Swaine remains on active duty with Durham Regional Police.