ONTARIO COURT OF JUSTICE DATE: 2022.08.10 COURT FILE No.: Toronto 19-21017
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— AND —
ALEX YIZHAK Applicant
Before Justice Patrice F. Band
Ruling on Application for a Mistrial
Counsel: Ms. L. Kromm........................................................................................... counsel for the Crown Mr. G. Lafontaine & Ms. J. Kushnir..................................................... counsel for Mr. Yizhak
BAND J.:
I. The Issue
[1] The issue I must resolve in this application is this:
After trial, a judge reserves their decision. Approximately five months later, the judge declares the accused person guilty and delivers oral Reasons for Judgment. Then, the accused raises a concern about delay and seeks a brief adjournment to decide whether to bring a s. 11(b) application. During that brief adjournment, the judge decides to tell the parties the reason for the delay in delivering the verdict (a health-related leave) and provides an explanation for doing so.
Did the judge give rise to a reasonable apprehension of bias in relation to the accused’s potential s. 11(b) application because the reason provided may favour the Crown regarding that particular time period in the application of the Jordan framework?
[2] On behalf of Mr. Yizhak, Mr. Lafontaine says yes. In oral submissions, he indicated that the answer would be the same if the judge were to have informed the parties before delivering their verdict, even as a courtesy, or later, during argument on a s. 11(b) application. In his view, the only time it is safe to do so is when the delay is ongoing or anticipated. On behalf of the Crown, Ms. Kromm says no. In what follows, I will explain why I agree with Crown Counsel.
[3] Before doing so, I acknowledge that it might seem odd to Mr. Yizhak that I am the one who is tasked with resolving this issue, since it puts into question not only the integrity of the administration of justice, but also my own: see R. v. R.D.S., [1997] 3 S.C.R. 484 at paras. 111-113. I also acknowledge that once such an allegation is made, an accused person may have difficulty accepting the judge’s decision, which may seem self-serving in parts, and any other decisions that same judge may be called upon to make in the proceedings. But that is how our system works and if I am in error, Mr. Yizhak can seek a remedy from a higher court composed of different judges.
II. The Facts
[4] Mr. Yizhak was charged with firearm-related offences in September 2019. His trial, which was interrupted for a number of reasons, was heard over six days between January and September 2021. It took place by Zoom. He was represented by Mr. Lafontaine and Ms. Kushnir, who is junior counsel.
[5] Here is how the present issue came about.
[6] In September 2021, I heard the parties’ final submissions and adjourned the matter to October 15 for judgment. On October 8, counsel were advised that the court would be unavailable on October 15, and suggested that the matter return some time after November 22 for judgment. The matter was adjourned to November 26. On November 24, my judicial secretary at the time wrote to the parties that “His Honour is unavailable due to personal reasons,” and that the matter should be scheduled to a date subsequent to January 24, 2022. The matter was adjourned to February 17, 2022.
[7] On that date, I delivered oral Reasons for Judgment explaining that I had found Mr. Yizhak guilty, and why. I then asked the parties to address me with respect to sentencing and the Kienapple principle. Mr. Lafontaine indicated that he wished to seek instructions regarding a potential motion. I asked him “what kind of motion?” and he replied “11(b)…. Since September of [ indiscernible ].” He then asked “that this matter go for a week for us to receive final instructions with respect to that [ indiscernible ], concerning Your Honour’s judgment” and the matter was adjourned to February 24, to be addressed in a set-date by the presiding justice of the peace: see Transcript of Proceedings, February 17, 2022. That was a date on which I was not scheduled to preside.
[8] On February 23, the Trial Coordinator wrote to the parties the following:
Please be advised Justice Band was on a health-related leave from October 1, 2021 to January 31, 2022.
[9] Mr. Lafontaine responded with five emails to the Trial Coordinator in the space of approximately 2 ½ hours. In those emails, he asked why that information had been provided and at whose behest. He also indicated that he may wish to cross-examine the “source” of that information and expressed his concern about “Having the Court pretty much expressly ally itself with the Crown on a section 11(b) application.” He wrote that he was “still waiting for an answer,” and asked the Trial Coordinator for a response “forthwith – without any further delay.”
[10] Naturally, the Trial Coordinator brought Mr. Lafontaine’s emails to my attention. She could not be expected to respond to Mr. Lafontaine’s emails without my input, so I instructed her to ask the parties if they could attend before me that afternoon, as I was presiding over a different matter. Ms. Kromm and Ms. Kushnir agreed to attend. When the three of us were present on the record, I told them that my intention was to explain why the Trial Coordinator had sent the email concerning my health-related leave and that I had been its “source”. Mr. Yizhak was not present, but Ms. Kushnir indicated that she was content to proceed in his absence. The Crown took the same position. Ms. Kushnir did not indicate that she was appearing without instructions. [^1] But not long after, Mr. Lafontaine emailed to intervene, stating that Mr. Yizhak’s absence deprived the court of jurisdiction and that the appearance should be discontinued immediately. [^2] As a result, the matter was put over to the following day (February 24).
[11] On that date, all counsel attended, but Mr. Yizhak did not. Mr. Lafontaine consented to me presenting my explanation in his absence, stating “Well, we’re here, we’re this far” and indicated that he, too, would have remarks but “…at this point, you know, the email’s been sent”: see Transcript of Proceedings, February 24, 2022.
[12] In a nutshell, my explanation was as follows. On February 17, when Mr. Lafontaine mentioned s. 11(b), I was taken “off-guard” as it is “not the norm” for such applications to be brought after trial (ibid). At the time, when Mr. Lafontaine mentioned the month of September, I understood him to be referring to September 2021 – the date on which the parties had made their final submissions. This brought to my mind concerns about judgment-related delay. As I thought about it in the ensuing days, I asked myself what counsel would want or need to know when seeking informed instructions from their client with respect to whether to bring a s. 11(b) application, particularly when all they had been told was that the trial judge had been “unavailable due to personal reasons” several months before. That communication was vague and did not connote an ongoing issue, much less one related to health. (The same can be said of the October communication.)
[13] I told the parties that I thought they should know the nature of my leave as it “may go to the merits” (ibid). I acknowledged that such information is subject to “a certain black box factor when a judge is on reserve” (ibid) and that I could not imagine how else they would find out. [^3] In this instance, I also felt that there was some urgency, given that the matter had been adjourned to February 24 – a date on which it had been agreed that the parties would attend before a justice of the peace in set-date court and on which I was not scheduled to be presiding – for Mr. Lafontaine to obtain instructions. The alternative, “to spring it on” counsel during submissions, or in my reasons for judgment regarding s. 11(b), did not appear to me to be “useful” to the parties “or a good use of resources.” (ibid).
[14] Mr. Lafontaine then explained his concerns regarding the need for justice to be seen to be done and having received an email that “felt a lot like receiving a characterization of [apportionment of] delays being exceptional circumstances for the court … which puts the court in a position of looking as though it has an interest in how the matter is resolved, certainly with respect to that, that period of time.” He also characterized it as “the court shaping the record” (ibid).
[15] It is in these circumstances that Mr. Yizhak alleges a reasonable apprehension of bias on my part and requests that I declare a mistrial. There is no allegation that Mr. Yizhak did not receive a fair trial on the merits.
III. The Law
[16] The parties agree that the relevant test for bias was as set out by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. “[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.” The question is, “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude[?]” It must be approached through the eyes of a reasonable person. Such a person “must be an informed person, with knowledge of all the relevant circumstances”: see R. v. R.D.S., supra, per Cory J.; see also R. v. Dowholis, 2016 ONCA 801 at para. 20.
[17] The burden of demonstrating a reasonable apprehension of bias lies on the party who raises it. Judicial decisions benefit from the presumption of impartiality: R.D.S., supra at para. 32; see also Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357 at para. 20. That is one of the reasons why the threshold for such a finding is high; “a real likelihood or probability of bias must be demonstrated … a mere suspicion is not enough” (R.D.S., supra at para. 112). Whether a reasonable apprehension of bias arises depends entirely on the facts of the case (ibid at para. 114).
[18] The parties also agree that if Mr. Yizhak has discharged his burden, the only remedy would be the declaration of a mistrial in this case.
IV. The Arguments of the Parties
A. The Applicant’s Written Submissions
[19] In his factum, Mr. Yizhak argued that “by injecting itself in the creation of the evidentiary record, this Honourable Court dictated the factual conclusions respecting a significant period of delay” (para. 22). He argued that the email “could be viewed as an attempt to insulate the time period between trial and judgment from apportionment on a Jordan analysis.”
[20] He also took issue with my decision to “require counsel to attend so that the same period of time could be explained on the record” (para. 23). He argued that because the explanation had not been requested by either party, it gave “the appearance that the Court was trying to justify, explain away, or neutralize a period of delay that was a consequence of this Honourable Court’s circumstance” (para. 25). In his “respectful submission, the Court ought not be concerned about upholding their personal image with respect to the diligence with which they preside over a criminal proceeding, particularly where to do so would potentially prejudice the legal interests of an accused person” (para. 25).
[21] The factum argues that, had the email not been sent, the parties “may well have come to an agreement with respect to how that particular portion of delay would be treated in the record” (para. 22).
[22] Mr. Yizhak is concerned that the appearance of February 24, sets “a very dangerous precedent, whereby judges may feel it appropriate (and possibly compelled) to provide explanations on the record. Whereas trial judges ought to have the ability to decide whether or not to respond to an inquiry by counsel, the Honourable Court must not take the initiative in shaping the evidentiary record.” A further problem, he argued, “is the inability of the parties to explore issues or credibility or to examine, or cross-examine, the source of the evidence on further, potentially important details. The Court’s assertions will stand without potential for challenge or additional information. The Court effectively asks the parties to take their word for it. Where an inevitable inference against the interests of the parties will flow from the judicial assertion, there will be an equally inevitable sense of injustice to that party.”
B. The Applicant’s Oral Submissions
[23] Mr. Lafontaine’s oral submissions focused on the presumption of integrity, and the fact that judges cannot be cross-examined or become witnesses in the proceedings over which they preside, as discussed in K.G.K., supra at paras. 48. He characterized this as the core of his submissions.
[24] During oral argument, Mr. Lafontaine answered a number of questions that I asked him. It is important to refer to some of those answers.
[25] First, he abandoned the part of his written argument stating that the parties “may well have come to an agreement with respect to how that particular portion of delay would be treated on the record” (para. 22). This was in response to my concern that their agreement could be entirely divorced from reality and thus inconsistent with the pursuit of the truth. However, Mr. Lafontaine maintained that it would be appropriate to argue that the delay was “unexplained” and that it was markedly too long. In the face of such an argument, the trial judge’s options are to quietly go along with it or recuse themself if they feel that it renders them unable to decide impartially.
[26] Second, he made it clear that a trial judge should never give such unsolicited information about a period of delay that has come and gone. Parties make applications based on the record. If a judge adds an unsolicited fact, it distorts the record. This submission is linked to the one made at para. 27, about the parties’ inability to challenge a judge’s assertion: “The Court effectively asks the parties to take their word for it.” By contrast, it is permissible for a judge to do so when the matter is unfolding, even if, by doing so, the trial judge is fashioning the evidence.
[27] Third, Mr. Lafontaine clarified that Mr. Yizhak does not allege that I had been motivated by a concern “about upholding [my] personal image with regard to the diligence with which [I] preside over a criminal proceeding” (para. 25). However, a member of the public might think so.
C. The Crown’s Written Submissions
[28] In her responding materials, the Crown argued that the email was a simple statement of fact that was not sent until the issue of delay was raised (paras. 15-17). Until then, it bore no relevance to the proceedings. It was not a conclusion but a simple statement of fact. It did not contain an opinion on the legal implications of the period of delay, or the overall merits of any potential application. It is protected by the presumptions of impartiality and integrity, and no apprehension of bias can arise from it.
[29] The Crown argued that my request that the parties attend logically followed a series of emails from Mr. Lafontaine repeatedly requesting information from the Trial Coordinator.
[30] The Crown also disagreed with Mr. Yizhak’s assertion that the parties could have come to their own agreement as to how to treat the period of delay in question. In her view, the parties “would have had to seek additional information at some point” (her emphasis).
[31] She further submitted that there is no material difference between the parties making inquiries of the court when faced with a delay of this sort, as described in K.G.K., supra at paras. 71 and 74-75, and a trial judge anticipating the parties’ need for a certain piece of information, as was the case here. Either way, the evidentiary record would have been the same.
D. The Crown’s Oral Submissions
[32] In her oral submissions, Ms. Kromm pointed to the fact that the Court in K.G.K. foresaw this type of issue, and contemplated “communications from the judge to the parties (e.g. respecting a judge’s illness).” The Court added that ‘[a]nything on the record from the judge or the court could also be relevant.”: supra para. 71.
[33] K.G.K. says nothing about the timing of such communications, and there is nothing wrong with a judge being proactive in these circumstances – particularly when nothing was said or done earlier to “twig” the judge to the issue.
[34] She added that leaving the issue as an “unexplained delay” would be inconsistent with the truth-seeking function of criminal trials.
E. Some Corrections
[35] In order to ensure that the record is accurate, I feel obligated to make a number of corrections to the Applicant’s materials. Para. 2 of Mr. Yizhak’s factum introduces the issue as follows:
Following the Applicant’s conviction and the scheduling of an application for a stay of proceedings for a breach of the Applicant’s right to be tried within a reasonable time…. (My emphasis.)
This is inaccurate. The email was sent on February 23, during the adjournment that Mr. Lafontaine had requested in order to seek instructions about a potential s. 11(b) application. The application was not scheduled until March.
[36] While little may turn on it, the transcript portions that are excerpted at para. 9 of the Applicant’s factum fail to indicate that a portion is excised between the first and second sentences. (In what followed, I explained why I had instructed the Trial Coordinator to send the email rather than my Judicial Secretary, who was recently deceased). In that same transcript, in the second paragraph that is presented at para. 9, there is a transcription error. It indicates “… you mentioned the 9th of September …”. I listened to the digital recording. I said “… you mentioned the month of September …”. There is another transcription error in the passage excerpted at para. 10, which states “ …the September I was speaking of was... ”. Again, I listened to the digital recording. I said “… the September I was thinking of …”.
V. Additional Information that a Reasonable Person Should Have
[37] In addition to what I have discussed above, a reasonable and right-minded person would also have to know the following before arriving at an informed conclusion.
a) Judges benefit from the presumptions of impartiality and integrity. These are “key to our judicial process” (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 57; see also R.D.S., supra, at para. 76). They are bedrock principles.
The presumption of integrity “acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold”: K.G.K., supra, at para. 50.
b) In the Ontario Court of Justice, trial judges do not oversee criminal proceedings before trials begin, as they wend their way through the system. As such, unless parties advert to delay, trial judges do not usually know why matters took the time they did to become trial ready.
c) The case of R. v. Jordan, 2016 SCC 27, was a seismic event in the criminal and constitutional law of this country. Motivated by a need to address a “culture of complacency” that had taken root in Canadian criminal proceedings, the Supreme Court of Canada placed a responsibility on “all participants to be more proactive” (at para. 117; see also R. v. K.G.K., 2020 SCC 7 at para 36 and R. v. J.F., 2022 SCC 17 at paras. 1, 30, 31, 36, 56 and 73 – my emphasis). This includes the courts and, by extension, judges, who “are important players in changing courtroom culture” and who must be “more accountable” (at para. 114). In that regard, “[t]rial judges should make reasonable efforts to control and manage the conduct of trials” (at para. 139; see also K.G.K., supra, at para. 37 and 39).
In Jordan, the Court was particularly concerned that “those accused of crimes, the police, Crown counsel, defence counsel and judges both at trial and on appeal” should “make the most of the limited resources at our disposal” (at para. 116). This is due to s. 11(b)’s concern not only with the accused’s rights, but those of society as a whole and the need to maintain the public’s confidence in the administration of justice (paras. 19 and 25; see also J.F., supra, at para. 22).
d) K.G.K., supra, contemplates communication from the judge or the court to the parties concerning deliberation time.
e) Generally speaking, “an accused who raises the unreasonableness of delay after trial (R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. C.A.)) and particularly after conviction (R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391, at para. 11; R. v. C.D., 2014 ABCA 392, 588 A.R. 82) is not acting in a timely manner”: J.F., supra, at para. 35. To be clear, there is no legal obligation on an accused person to make hue and cry at every opportunity: see Rabba, supra, at para. 6. Also, “exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun”: J.F., supra, at para. 36.
Mr. Yizhak did not raise s. 11(b) concerns during the course of the trial proper, which involved a number of adjournments.
I mention it here because it puts my reaction to Mr. Lafontaine’s mention of s. 11(b) on February 17, 2022 and my interpretation of his reference to the month of September in their proper legal context.
f) Given the arrest date at play in this case (September 2019) and the framework set out in Jordan, it is reasonable to presume that there will be other relevant time periods at issue in Mr. Yizhak’s s. 11(b) application.
g) The presumption of integrity operates “…to create a presumption” that a trial judge “took no longer than reasonably necessary to arrive at [a] verdict.” Stays in this context “are likely to be rare and limited to clear cases”: see K.G.K., supra, at para. 56 and 65.
h) At para. 76 of K.G.K., supra, Justice Moldaver wrote that
some jurisdictions may find it useful to set out a standardized procedure through which counsel can inquire as to the status of a verdict. This may involve a practice guideline contemplating a joint communication from the parties to the trial judge themselves, or to the regional senior judge or another appropriate person, after a certain amount of time has passed. Ultimately, instituting these procedures could serve to attenuate the anxiety and concern that accompanies the inherent unknowability of a verdict date and delay more generally. Additionally, where the communication is with the court administration or regional senior judge, it may provide information that assists the court in managing judicial workloads. It may also assist in developing the record for s. 11(b) purposes. (Internal citations omitted.)
There are no such standardized procedures or practice guidelines at Old City Hall.
i) During the pandemic, court time has been limited at Old City Hall, as it has in other courthouses around the province, and courtrooms often had to close unexpectedly due to staff shortages and other challenges. As a result, it has been difficult for judges not assigned to preside on a given day to be provided with a courtroom and staff on little notice.
j) When counsel attend in court in relation to an ongoing matter, it is reasonable for the Court to understand that they do so with instructions unless they say otherwise. That is true whether or not they are junior counsel, particularly when they have been present throughout the proceedings.
k) A statement of fact, even if it is described as a “conclusion”, and even if it points to a particular outcome, is not a legal conclusion.
[38] Informed of the foregoing, a reasonable person would not conclude that the email that was sent at my request is a conclusion that dictates particular legal result. In light of the presumption that judges take no longer than necessary to deliver a verdict, it could be argued that the fact that I shared with the parties will add nothing to the final analysis. How it is to be characterized and what role it will play remains to be determined.
[39] While a cynical person might view my actions as efforts to insulate, justify, explain away, or neutralize a period of delay, or the communications of a judge concerned about upholding their personal image, a reasonable and informed person who understands the presumptions of impartiality and integrity would not. Nor would a reasonable person conclude that there was an apprehension that I harboured an interest in a particular outcome.
[40] At para. 25 of the Applicant’s factum, it is said that the explanation I attempted to provide on February 23 and was able to provide on February 24 had not been “requested” by either party. With respect, it is difficult to see it that way given the number, content and tenor of Mr. Lafontaine’s emails, which the Trial Coordinator could not possibly have answered without my input, much less “forthwith – without any further delay.”
[41] In any event, there is nothing wrong with a judge providing information of this sort to an accused person who is considering making a s. 11(b) application in these circumstances, where it might otherwise remain in a “black box.” Such applications necessarily delay the proceedings and consume resources – the public’s and the accused’s. I see no material difference between a judge doing so proactively or pursuant to an inquiry from one or both parties. In either case, that judge will be the true “source” of the information, and the information will be the same regardless of what prompted its disclosure.
[42] I also reject the argument that a trial judge is allowed to fashion the evidence during a period of delay but never after. In K.G.K., the Supreme Court drew no such temporal lines. While judges are public servants who are accountable in their function and about whom a certain amount of transparency is demanded, they nonetheless have a right to privacy regarding their health. Until Mr. Lafontaine’s mention of s. 11(b) on February 17, 2022, citing September and “Your Honour’s judgment,” my health-related leave was not relevant and there was no reason for me to bring it to the attention of the parties.
[43] Judges of course need to be careful not to trench on what is the province of the parties. But they also have an overarching responsibility to manage trials and act proactively to uphold all of the interests that s. 11(b) seeks to protect. The fact that judges cannot be cross-examined is as true during a delay as it is after. The Applicant’s complaint – that parties must “take the Court’s word for it” – is a quarrel with the presumption of integrity, a fundamental principle upon which our system rests. Moreover, that principle does not operate as a gag.
[44] At para. 75 of K.G.K., the Supreme Court said that “counsel should expect judges to be sufficiently resolute to consider a request for information without consequences to counsel, the accused or the trial.” I do not see why concerns about a judge’s ability to be resolute should arise simply because he or she gives the parties the kind of information at issue here when it first becomes relevant.
[45] I doubt that what I did in the particular circumstances of this case, sitting as a judge of the Ontario Court of Justice, will create a precedent. If it does, I do not see it as a “dangerous” one.
[46] Lastly, for empirical and normative reasons, I also reject the argument that the parties could have argued the s. 11(b) application on the basis that the delay in question was “unexplained”. First, that argument presupposes that the parties would have agreed to do so. Given the stakes and the Applicant’s silence about delay during the trial, it is hard to imagine that they would have. Second, such an approach could lead to perverse results that would distort reality and undermine the truth-seeking function of criminal trials.
[47] For these reasons, the conduct complained of in this case does not give rise to a reasonable apprehension of bias or affect my ability to hear and decide Mr. Yizhak’s s. 11(b) application fairly and impartially. Much remains to be argued, and the result has not been predetermined.
[48] If I am wrong, and the email could give rise to any apprehension of unfairness, it seems to me that the steps I took almost immediately to respond to Mr. Lafontaine’s concerns – whether or not that took place at his request – addressed them. R. v. M.M., 2022 ONCA 63 involved a trial judge who had an unsolicited encounter with an interested third-party. Certainly, that case is different from what took place here. Nonetheless, it is instructive. As the Court of Appeal explained, the trial judge did not do nothing; rather, “he took deliberate steps to mitigate the appearance of unfairness,” including putting his recollection of events on the record, hearing and considering submissions and explaining why he could remain impartial (at para. 33).
VI. Conclusion
[49] Mr. Yizhak has not displaced the presumption of impartiality or demonstrated a reasonable apprehension of bias. The application for a mistrial is dismissed.
Released: August 10, 2022
Justice Patrice F. Band
[^1]: I say more about this below. [^2]: As it turns out, Mr. Lafontaine was traveling by air at the time, and had only sporadic access to email. This was unknown to me. [^3]: As I will discuss below, there are no systems in place at Old City Hall akin to those described by Justice Moldaver in R. v. K.G.K., 2020 SCC 7 at para. 76.