ONTARIO COURT OF JUSTICE

DATE: 2022.08.22 COURT FILE No.: Toronto 19-21017

BETWEEN:

HER MAJESTY THE QUEEN Respondent

— AND —

ALEX YIZHAK Applicant

ENDORSEMENT

Inquiries in relation to an Application Pursuant to s. 11(b)

Heard on August 10, 2022 Released on August 22, 2022

Counsel: Ms. L. Kromm........................................................................................... counsel for the Crown Mr. G. Lafontaine & Ms. J. Kushnir..................................................... counsel for Mr. Yizhak

BAND J.:

I. Introduction

[1] This Endorsement should be read in conjunction with my Reasons for Judgment dismissing Mr. Yizhak’s application for a mistrial: see R. v. Yizhak, [2022] O.J. No. 3590, 2022 ONCJ 360.

[2] In September 2021, I heard the parties’ final submissions. On February 17, 2022, I found Mr. Yizhak guilty on all counts and provided my Reasons for Judgment orally. After I delivered my reasons, Mr. Lafontaine raised s. 11(b) concerns, and requested a week’s adjournment to seek instructions. Accordingly, the matter was put over to February 24. On February 23, I instructed the Trial Coordinator to advise the parties that I had been on a health-related leave from October 1, 2021 to January 31, 2022. This prompted Mr. Lafontaine to send a series of emails to the Trial Coordinator asking a number of questions, including who the source of the information was, and indicating a potential desire to cross-examine them. I requested that the parties attend on the record so that I could provide an explanation for the email. This took place on February 24.

[3] Mr. Yizhak then applied for a mistrial. The basis for the application was that the email I had instructed the Trial Coordinator to send, and my explanation for doing so, gave rise to a reasonable apprehension of bias with respect to the s. 11(b) application that, at the time, Mr. Yizhak was considering but had not yet filed. On July 4, I heard the parties’ submissions on the mistrial application, and the matter was adjourned to August 12 for my decision. That was also the date that had been set for argument regarding Mr. Yizhak’s s. 11(b) application.

[4] On the afternoon of August 10, my Reasons for Judgment dismissing the application for a mistrial were sent to the parties. It was anticipated that the s. 11(b) argument would take place on August 12.

[5] On that date, Mr. Lafontaine sought an adjournment of Mr. Yizhak’s s. 11(b) application and advised that he wished to make some inquiries of me regarding my health-related leave in furtherance of that application. This was done without notice, and the questions were not yet placed before the Court. The argument was brief. Mr. Lafontaine submitted that my ruling left it open to him to make such inquiries. I asked him what he meant. He responded that I had not indicated in my reasons that I would not answer any questions. He acknowledged that this situation is unique and unprecedented. The Crown opposed the request, citing concerns about the timing of the request and the delay that it would cause. She also took the position that the information regarding my health-related leave that the Trial Coordinators had sent to the parties proactively is all that is required in the circumstances. Neither party pointed to any authorities that might assist me.

[6] As a matter of fairness, I agreed to receive the questions without committing to providing answers to any of them. Out of concern for efficiency, I asked the Crown if she, too, had any questions. She said that she did not, but that she might have some “follow-up questions” should I decide to answer any of Mr. Yizhak’s.

[7] The matter was adjourned to August 22 so that I could consider the request and provide answers, if any. I invited Mr. Lafontaine to serve and file his questions by email. This was done later that day in a document entitled “INQUIRIES - In relation to an Application Pursuant to s. 11(b).”

II. Mr. Yizhak’s Inquiries

[8] Mr. Yizhak seeks answers to the following questions:

i. What was the portion of the deliberative period that was attributable to the health concern? This includes not only the period of leave, but any other period during which the health concern impacted functionality. ii. Was the health issue that caused the medical leave something that could be attributable to, or be considered a function of, burnout? iii. Was there an impact on other matters or was it unique to this matter? If other matters, how many? iv. If the leave was attributable to or a function of burnout, in whole or in part, was the burnout attributable to a scarcity of judicial resources? v. Is the issue of burnout unique to this matter or is it akin to a systemic concern?

III. Ruling

[9] After giving this matter a great deal of thought, I have decided that the Court will not accede to Mr. Lafontaine’s request for the following reasons.

[10] First, in my view, the Trial Coordinator’s email of February 23 advising that I had been on a health-related leave conveyed all the information that Mr. Yizhak requires and is entitled to.

[11] Second, albeit open-ended, the questions amount to a cross-examination of me as though I were, or may be caused to become, a witness in the proceedings, contrary to R. v. K.G.K., 2020 SCC 7 at para. 48. This prohibition was at the core of Mr. Lafontaine’s submissions in the previous application: R. v. Yizhak, supra, at paras. 22-23.

[12] Certainly, K.G.K. allows for “communications from the court to the parties (e.g., respecting a judge's illness)” (para. 71) and permits parties, “in appropriate circumstances and through appropriate channels, [to] communicate with the trial judge,” including “meeting briefly in court,” without having to fear “consequences to counsel, the accused, or the trial” (para. 75). However, K.G.K. does not contemplate a request like Mr. Lafontaine’s, much less compel a trial judge to accede to it. In fact, by Mr. Lafontaine’s own admission, there is no authority to support it.

[13] I also have concerns that the request threatens to do indirectly what cannot be done directly – that is, to have a trial judge give evidence about matters relating to his or her deliberations: see MacKeigan v. Hickman, [1989] 2 S.C.R. 796.

[14] Third, the questions about judicial resources and other cases are so far-reaching as to resemble a public inquiry. That is not the function of a criminal trial or the s. 11(b) application that is before this Court.

[15] Fourth, the questions attempt to probe into my personal health information. While I have shared with the parties the fact of my medical leave of absence, I believe that I am entitled to privacy concerning its nature and etiology.

Released: August 22, 2022 Justice Patrice F. Band