Court won’t disclose Ontario judge’s location
Defence lawyer claims justice is presiding remotely from Barbados
The Ontario Court of Justice is refusing to confirm if one of its judges is hearing cases remotely from the Caribbean after advising its judicial officers to avoid travel due to COVID-19 and not to conduct proceedings from outside the province.
Last week, a Newmarket lawyer told an Oshawa virtual court that Judge Bruce Frazer is spending the winter in Barbados, from where he could potentially send his client to jail via a remote Zoom hearing.
“To sentence somebody while you’re on vacation is completely and totally offensive to the administration of justice,” Leo Kinahan told a different judge Thursday.
The defence lawyer added that Frazer’s decision to conduct a remote sentencing hearing next month doesn’t comply with the Criminal Code, which states the judge can elect to preside by audio or video conference if he or she has regard to “all the circumstances,” including “the suitability of the location from where the judge or justice will preside.”
Kinahan added: “Unless the jurist is a long-distance Olympic swimmer or has amazing core abilities to take a paddleboard back from Barbados in a day, it doesn’t comply,” with the Criminal Code.
He further noted that Canada’s airlines have agreed to suspend all flights to and from Mexico and the Caribbean countries until April 30.
Sentencing in Kinahan’s case was set for April 9, via Zoom, when submissions will be held, with sentencing scheduled April 28.
Last month, the Superior Court of Justice advised one of its judges to stop presiding on cases from the Caribbean, which it called “an oversight. “She will not be scheduled to hear further matters while out of the country,” the Superior Court Chief Justice’s office said in an email to the Star and other media outlets. The CBC reported the judge was in the Turks and Caicos.
Kinahan had no problem with his client’s sex assault trial being held remotely by video conference last fall, when the judge was still in Ontario. Frazer convicted his client in December. A year ago, remote hearings were rare in Ontario but they have become commonplace since the COVID-19 pandemic hit.
Late last month, an Ontario Court of Justice spokesman told the Star that in January, all judicial officers were “reminded of the government’s public health advice to avoid non-essential travel,” and that “the court also specifically stated that judges and justices of the peace should not sit on proceedings while out of the province of Ontario unless within another province in such close proximity that they remained available to preside in person in their home region.”
Asked to clarify the Ontario Court of Justice’s pandemic policies, and asked specifically about Frazer’s location, spokesperson James Schneider declined to answer any questions about the judge.
“While the majority of judicial officials at the OCJ continue to be expected and available to preside either remotely or in person, and the court has advised that non-essential out-ofcountry travel should be avoided, the Court has also acknowledged that individual circumstances may vary,” he said.
Frazer did not respond to two emailed request from the Star for comment.
According to a community monthly newsletter from Baden, Ont., Frazer retired from the bench in 2011 after joining the judiciary in 1996, based in Kitchener. While he collects a pension, he is allowed to work to a maximum of 96 days each year.
The Star attempted to observe the Oshawa hearing last Thursday but was not granted access. Asked why, a Ministry of the Attorney General employee wrote in email: “Courtroom 107 is a busy courtroom — it could be that the waiting room was full at the time.” The Star is relying on an official court transcript to report what happened in the Thursday hearing.
Frazer had requested the sentencing take place via Zoom, citing COVID-19 concerns.
Last month, Kinahan told a different judge he believed the real reason for the request was that Frazer was on a fourmonth vacation, though he wasn’t sure where. In court Thursday, Kinahan said he has since learned he’s in Barbados. He quoted the judge saying his objection to a Zoom sentencing hearing was “borderline frivolous.” Frazer invited Kinahan to bring an application forward opposing the Zoom hearing.
But Kinahan said in court there was no point, since Frazer — who was not presiding over Thursday’s hearing to set the sentencing date — had already “ordered” the Zoom hearing without hearing submissions, “akin to closing the barn door after the horse is discovered three counties away.”
According to Kinahan, the Durham courthouse protocol is that counsel can make submissions on the suitability of remote hearings, but that didn’t happen in this case.
The prosecutor in the case told the court Thursday she doesn’t think “necessarily the defence has a right to know where the Judge is presiding if the ruling is that he’s presiding by Zoom.”