COURT OF APPEAL FOR ONTARIO
Simmons, Copeland and Pomerance JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Joseph Kovacs
Appellant
David Butt, for the appellant
Emily Marrocco, for the respondent
Heard: November 18, 2024
On appeal from the conviction entered on August 4, 2023, by Justice Joan M. Barrett of the Superior Court of Justice, sitting with a jury.
POMERANCE J.A.:
OVERVIEW
1Following a trial by jury, the appellant was convicted of three counts of assault, one count of assault with a weapon and one count of unlawful confinement. He was acquitted of two counts of assault. The complainant was his former domestic partner with whom he lived. The convictions relate to four incidents between 2016 and 2020.
2The appellant raises four issues on appeal:
the trial judge erred in dismissing the appellant’s s. 11(b) Charter application;
the trial judge erred in failing to ask a juror who had experienced intimate partner violence whether she could be impartial;
the trial judge erred in failing to grant a mistrial after the complainant testified about the appellant going to jail; and
the trial judge failed to adequately instruct the jury on evidence of other discreditable conduct.
3I would dismiss the appeal for the reasons that follow.
A. SECTION 11(B) OF THE CHARTER
4The appellant argues that the trial judge erred in dismissing his application to stay the charges under s. 11(b) of the Charter. The central question is whether the trial judge correctly reduced the delay to account for the impact of the COVID-19 pandemic.
(1) THE BACKDROP
5The appellant was arrested on December 31, 2020. His trial was completed on August 4, 2023, 31 months and 3 days after his arrest.
6The trial judge subtracted 35 days from the total period of delay because the appellant's original trial date of June 26, 2023 was set during a third jury blackout period that ended on February 28, 2022, 35 days after his trial date was set. This deduction brought the total period of delay just under the 30-month ceiling established in R. v. Jordan, 2016 SCC 27, 398 D.L.R. (4th) 381.
7The appellant's trial could not proceed as originally scheduled on June 26, 2023, due to a judicial conference. It could not proceed the following day either. The scheduling judge explained that “we are still dealing with the backlog from COVID and we just don’t have enough people to assign this week, in spite of our best efforts”. The appellant was offered a new trial date of July 10, 2023, which his counsel declined. Instead, the parties agreed on July 24, 2023.
(2) THE TRIAL JUDGE’S RULING
8The trial judge concluded that, at a minimum, the period from January 24, 2022 to February 28, 2022 should be deducted from the total delay. Relying on R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, she held that the jury blackout period was a discrete event falling within the exceptional circumstances category of permissible deduction established in Jordan.
9The trial judge made various findings that place this case squarely within the ambit of pandemic-related delay. She correctly observed that, when the trial was scheduled, no one knew how long the jury blackout would last, or whether other blackouts would be imposed. That made it reasonable to schedule the trial to start toward the end of the 30-month period prescribed in Jordan. The hope was that, by then, the jury blackouts would be over and the trial could proceed.
10The case did not proceed on the scheduled first day of trial because no judge was available. However, the trial judge noted that the Superior Court of Justice had just “emerged from the wreckage of the pandemic”, and was grappling with how to deal with a significant COVID-19 backlog. The trial judge concluded that “there can be no doubt that the scheduling of Mr. Kovacs’ matter was impacted by limited access to courts”.
(3) ANALYSIS
11The appellant submits that the trial judge misinterpreted Agpoon. He says that the delay in this case exceeded the Jordan ceiling because no judge was available to hear it on the trial date that was initially set, not because of pandemic‑related issues.
12It is true that no judge was available to preside over the appellant’s trial on June 26, 2023. But it would be wrong to view that event in isolation, divorced from a broader consideration of pandemic-related factors. Instead, the pandemic’s delaying effect must be viewed from a systemic perspective: Agpoon, at para. 21. Section 11(b) requires a case-specific analysis, but systemic pressures and exigencies flowing from COVID-19 cannot be ignored.
13This case traversed the system during the height of the pandemic. It, like many others, was impacted by the stark realities of COVID-19. The pandemic had very real consequences for the administration of justice. The need to protect public health – itself a state obligation – took precedence as the threat of the virus, and its various mutations, increased the danger of physical interaction. This had implications for all court proceedings, but posed particular obstacles for jury trials, since they require multiple individuals to gather in groups, often in close proximity.
14There is no per se rule that all delay coincident with the pandemic must be subtracted for purposes of s. 11(b): R. v. Kirkopoulos, 2024 ONCA 596, at para. 45. To be subtracted as exceptional, delay must be attributable to the pandemic in some articulable sense: Agpoon, at para. 33. That requirement was met in this case. The trial judge articulated a link between the pandemic and the scheduling of the trial. She found that the appellant’s trial date was pushed back because the pandemic made it impossible to predict when jury trials would resume. She was entitled to make that finding, and this court must defer to it, given her “on-the-ground local expertise on the needs, practices, and culture” of her own court: R. v. Coates, 2023 ONCA 856, at para. 44; Kirkopoulos, at para. 43.
15It was therefore open to the trial judge to find that some delay was “attributable”, for purposes of Agpoon, to pandemic-related limitations. It follows that the pandemic is an “exceptional circumstance” that properly mitigated some of the delay in getting the matter to trial. If anything, the trial judge adopted a conservative approach in discounting for pandemic-related delay. A more substantial reduction was arguably available on the record, though we need not decide that issue. The 35-day reduction brought the case below the Jordan ceiling and was all that was required for the constitutional analysis.
16I would therefore reject this ground of appeal.
B. JURY SELECTION
17The appellant argues that the trial judge erred in failing to ask a prospective juror whether her personal connection with intimate partner violence would prevent her from being impartial.
(1) BACKDROP
(1) The Questionnaire
18At the outset of jury selection, the trial judge instructed the panel about the procedure to be used to select the jury, and the eligibility requirements for serving as a juror. She also instructed the jury about a questionnaire that panel members had been asked to fill out. One of the questions – #14 – asked about prior exposure to offences involving intimate partner violence. It asked whether they, someone they are related to, or someone they are closely connected to had ever been accused of, or been a victim of, intimate partner violence. Prospective jurors were asked to check off either “yes” or “no”.
(2) Instructions to the panel
19In her opening instructions, the trial judge told the panel that:
If you or someone close to you has ever been accused of an offence involving intimate partner violence, or has been a victim of such an offence, or has otherwise been involved in similar offences or experiences, it may make it too difficult for you to perform jury duty in this case. We do not wish to embarrass anyone by asking questions about personal matters. But at the same time, we need to know about these things because it may make it too difficult for you to perform jury duty. So if you or someone close to you has ever been accused of an offence of this nature, or has been a victim of such an offence, or has otherwise been involved in similar offences or experiences, please note this in your questionnaire and I will determine what, if anything, should be done.
20The trial judge then instructed the panel about the need to be impartial, to set aside any prejudices or stereotypes that might affect their decision, and to make a conscious effort to resist, and help other jurors to resist, jumping to conclusions based on negative feelings or assumptions about any personal trait. As part of her anti-bias instruction, the trial judge told the panel:
[jury service] requires that you be aware of your own personal beliefs and experiences, and that you be equally open to the views of others. As a – as members of society, each one of us brings a variety of beliefs, assumptions, and perceptions to the courtroom. Sometimes those beliefs, assumptions, and perceptions may be based on characteristics such as race, ethnicity, age, socioeconomic status. And no matter how unbiased we think we are we look at others and filter what they say through the lens of our own personal backgrounds and experiences. We may be aware of some of these biases, but unaware of others. Unconscious biases may be based on stereotypes or feelings that one has about a particular group. Whether or not we are aware of them, such biases can affect how we believe or disbelieve things we see or are told or how we react to those things.
(3) The request for a follow-up question
21After three groups of 20 prospective jurors were selected, the trial judge heard from counsel on whether she should pose a follow-up question to panel members who answered question #14 affirmatively. Both Crown and defence acknowledged that there was no basis for a challenge for cause in this case. But the defence proposed that the court ask those who answered #14 affirmatively whether their experience with intimate partner violence would “affect [their] ability to be unbiased in these proceedings”.
22The trial judge denied this request, on the basis that “any follow-up questions that are directed towards the issue of partiality in the absence of a challenge for cause is going beyond the ambit of section 632”. The trial judge reasoned that asking the proposed question would amount to conducting an offence-based challenge for cause, which the Supreme Court had ruled is impermissible in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863. She therefore restricted follow-up questions to issues of hardship, as distinct from partiality.
(4) Dialogues with Prospective Jurors
23When juror #2 came forward, the following exchange took place:
THE COURT: So in response to number 14, you say that your, your cousin as well as your brother and yourself have all been impacted by intimate partner violence?
JURY PANEL MEMBER 56814: Correct.
THE COURT: Okay. So based on that prior connection to intimate partner violence, would you find it a hardship to – for you to serve as a juror in this case? So that would be listening to evidence and allegations about intimate partner violence?
JURY PANEL MEMBER 56814: No. It wouldn't affect it.
THE COURT: You don't think it would...
JURY PANEL MEMBER 56814: No.
THE COURT: ... Impact you and cause a hardship?
JURY PANEL MEMBER 56814: Yes. Correct.
THE COURT: Okay. You say with regards to number 15, that there is some financial concern because you're a single mother?
JURY PANEL MEMBER 56814: Correct. That would be my only problem, yeah. It's not too hard. It's just a little bit. It's just not – can you not hear me? Oh.
THE COURT: Okay. So you heard me explain to the group that if anyone who's chosen as a juror would be here for the balance...
JURY PANEL MEMBER 56814: Mm-hmm.
THE COURT: ... of this week, most likely, all of next week. You – so you would be here every day. You wouldn't be working.
JURY PANEL MEMBER 56814: Mm-hmm. I'm pretty sure my work would actually cover it. I was just being honest 'cause you said to just to be honest.
THE COURT: Yeah.
JURY PANEL MEMBER 56814: So I was just – like just being honest, that that would be, if anything, the only thing that'd be the problem. But it's not like a big, big deal because I know my work would help me out, as well.
THE COURT: Okay. What about, given that you're a single mother, in the event that the deliberations went over into a, a second day, you would be sequestered and would have to stay overnight. Which would mean...
JURY PANEL MEMBER 56814: Yeah.
THE COURT: ... that you're not having any...
JURY PANEL MEMBER 56814: Mm-hmm.
THE COURT: ... contact with the outside world in including your, your child. Does – would that pose a hardship to you?
JURY PANEL MEMBER 56814: I don't, I don't think so 'cause I had my mother who's really good at helping me watch my children if I really do need it.
THE COURT: Okay. Excellent. And any other hardship concerns?
JURY PANEL MEMBER 56814: No.
THE COURT: Okay. If you could just step outside for a moment.
JURY PANEL MEMBER 56814: Yeah.
THE COURT: Mr. Hamm?
MR. HAMM: No concerns.
THE COURT: Mr. Moss?
MR. MOSS: Given, given the limitations, Your Honour, no.
THE COURT: Okay. Thank you for answering those questions, and you will be sworn in or affirmed as Juror Number 2.
JURY PANEL MEMBER 56814: Oh, okay. Thank you.
24After juror #2 was sworn in, jury selection continued. Four members of the jury panel spontaneously offered that, because of their experience with intimate partner violence, they felt that they could not be impartial. They were excused.
(2) ANALYSIS
(1) SCOPE OF SECTION 632 OF THE CODE
25I agree with the appellant that the trial judge’s view of s. 632 of the Code was too narrow. Section 632 permits trial judges to screen the panel not only for hardship, but also for obvious partiality. Obvious partiality may arise from knowing a party or witness to the proceedings, or it may arise from a life experience that predisposes an individual to hold opinions about the offence to be tried.
26Moldaver and Brown JJ. addressed the breadth of s. 632(c) in R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136. They expressly held that the power to excuse jurors under s. 632(c) includes the power to screen for reasonable apprehensions of bias. As they put it, “[w]hile the power to excuse jurors is not a substitute for a challenge for cause, trial judges routinely excuse jurors at the outset of jury selection for a number of reasons”, including “jurors who are obviously partial because they know a party in the trial or a witness who will testify”: para. 35 (internal citations and quotation marks omitted). They described these procedures as an important mechanism “for removing jurors whose impartiality is or may be in question, for any number of reasons”, thereby “ensur[ing] that each accused receives a fair trial before an independent and impartial jury”: para. 36.
27This is consistent with the Supreme Court’s view that s. 632 empowers judges to ask prospective jurors general questions to uncover “manifest bias or personal hardship”: Find, at paras. 22-23. It follows that s. 632 is not exclusively concerned with hardship. It is also a tool for screening manifest or obvious partiality.
28Hardship and bias are related but distinct concepts. They may or may not co-exist. A person may not be able to serve as a juror due to childcare responsibilities, a scheduled surgery, or a pre-paid planned vacation. In such instances, jury service might pose a hardship. It would not, however, carry with it a concern about bias or partiality.
29In other instances, hardship and bias may operate in tandem. If a prospective juror has been accused of the offence at issue, the victim of such an offence, or is close to someone who has been one or the other, it might be psychologically difficult for them to sit through the trial evidence. Serving as a juror could pose a hardship because they might be forced to relive or remember a painful experience. But this same circumstance may also spark a concern about bias.
30Prior experience with the charged offence may or may not prevent a prospective juror from approaching the evidence with an open mind. He or she may have formed opinions about the subject matter of the trial. Where those opinions are difficult to resist or set aside, the prospective juror can and should be excused for obvious partiality. If, on the other hand, the individual can set aside any pre-conceived opinions, and decide the case based solely on the evidence and the instructions of the trial judge, the prior experience does not detract from impartiality: R. v. Zhou, 2024 ONCA 658,at para 51.
31Against this backdrop, the follow-up question proposed by counsel in this case could have been asked as part of the pre-screening process authorized by s. 632. That would not have amounted to an offence-based challenge for cause. Screening for obvious partiality under s. 632 is distinct from the challenge for cause power under s. 638. Section 632 provides a separate mechanism for evaluating individuals’ suitability for jury service. It does not require a showing of widespread prejudice within the community. It does not involve an inquiry into every member of the jury panel. And it is not designed to resolve controversial allegations of partiality: R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at p. 534. But it does empower the trial judge to excuse a prospective juror when there is obvious reason to do so, regardless of any co-existing challenge for cause.1
32The trial judge applied an overly narrow interpretation of s. 632 by concluding that it could only authorize screening for hardship. The question is whether, and to what extent, this interpretation led to error in the jury selection process. I will turn to that now.
(2) Did this result in error?
33While erroneous, the trial judge’s interpretation of s. 632 did not affect the trial or the composition of the jury. It could be said that, because there was no impact on the case, the interpretation did not rise to the level of reversible error. It was an error in perception that did not translate into an act or omission affecting the trial. Alternatively, if one characterizes the interpretation as a legal error, the absence of any impact renders it harmless, resulting in no prejudice to the appellant. In that case, the curative proviso in s. 686(1)(b)(iv) of the Code applies. Because this case is close to the line as to the proper characterization, the following will explore both approaches. Both lead to the rejection of this ground of appeal.
(1) No error: The discretionary nature of jury selection
34Trial judges enjoy a broad discretion to determine how prospective jurors should be screened under s. 632. It would have been open to the trial judge in this case to ask juror #2 whether her experiences with intimate partner violence affected her ability to be impartial. But it would also have been open to the trial judge, in the exercise of her discretion, to conclude that the inquiry was unnecessary. That is, it would have been reasonable for the trial judge to conclude that, given her instructions to the panel, prospective jurors would have understood the importance of impartiality and the need for each of them to search their conscience and identify any perceived impediments to jury service.
35Juror #2 raised no concerns about impartiality during her dialogue with the court, but she did speak about other issues. While the trial judge was focused on hardship, she asked juror #2, more generally, whether the experience with intimate partner violence “would impact you and cause a hardship”. Juror #2 responded that it would not affect “it”. One can presume that in referring to “it”, juror #2 was referring, in general terms, to her ability to serve as a juror. Juror #2 explained that financial issues were her “only concern” and that she was being honest because the trial judge told her to. Juror #2 was confident that her prior experience had no impact on her ability to serve as a juror. The inference to be drawn is that this response covered all manner of impact, including bias.
36This inference makes particular sense given the trial judge’s instructions to the panel. The anti-bias instructions emphasized the need for jurors to self-interrogate for both conscious and unconscious bias. The trial judge did not expressly ask about bias, but she told prospective jurors about bias, and stressed the need for them to set aside pre-conceived assumptions and opinions.
37That inference finds further support in the trial judge’s interactions with other prospective jurors who heard the same instructions as juror #2. Four others perceived that they were biased and spontaneously offered that information to the court. They evidently understood that if they perceived any concern about jury service, including the potential for bias, they were to bring that to the court’s attention. One can presume that juror #2, having heard the same instructions, came to the same understanding.
38Just as the law presumes that jurors are capable of understanding and applying judicial instructions during trial, so too must it accept that prospective jurors are capable of understanding judicial instructions before trial. That includes the instructions that define eligibility for jury service. The trial judge used a jury questionnaire in this case. Questionnaires are not used in every jurisdiction, nor, within any jurisdiction, by all trial judges. But nothing turns on its use in this case. Whether or not a jury questionnaire is used, the process trusts prospective jurors to listen to the eligibility requirements and to identify any reason why they cannot or should not serve.
39That process worked here. The message was clear. If someone had a bias or had formed opinions about the case, they were to disclose that to the court. Four jurors did just that and were excused. Juror #2 raised no concern about partiality, and nothing in the record suggests that she was incapable of acting impartially.
40The Charter does not promise a favourable or partial jury: R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at p. 720; Sherratt, at p. 532; R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777, at para. 71; Chouhan, at para. 20. It does not guarantee the fairest procedures imaginable: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362. It guarantees the right to a fair trial, before an independent and impartial jury. There is no basis for concluding that the participation of juror #2 affected the fairness of the appellant’s trial or his right to an independent and impartial jury. Therefore, the trial judge’s interpretation of s. 632 did not affect the integrity of the jury selection process, or the impartiality of the jury chosen to hear the case. On this analysis, there was no reversible error calling for the intervention of this court.
(2) Error: Application of the proviso
41Alternatively, if the failure to ask the follow-up question is more properly characterized as reversible error, then the curative proviso in s. 686(1)(b)(iv) of the Code applies because the error resulted in no prejudice.
42It is well-settled that the curative proviso in s. 686(1)(b)(iv) can apply to procedural irregularities in the jury selection process: R. v. Esseghaier, 2021 SCC 9, [2023] 1 S.C.R. 101, at para. 10; Zhou, at para. 61. A procedural irregularity may arise out of non-compliance with a mandatory provision governing jury selection. Under the old statutory regime, this could arise when, for example, static rather than rotating triers were used on a challenge for cause. A procedural irregularity of this type will not warrant appellate intervention if, consistent with the language of s. 686(1)(b)(iv), it resulted in no prejudice.
43This case is different. The putative error is not a failure to comply with a mandatory requirement of jury selection. It consists of the failure to ask a question which, in the trial judge’s discretion, she was free not to ask. On the other hand, the trial judge interpreted s. 632 as offering no discretion to ask about impartiality. It could be said that the trial judge could not exercise a discretion that she thought she did not have. If, in that way, the failure to ask is considered an error, it is an error that resulted in no prejudice, because juror #2 would inevitably have served in any event. As an error that did not affect the fairness of trial or the composition of the jury, it occasioned no prejudice, and the curative proviso in s. 686(1)(b)(iv) applies.
C. THE MISTRIAL APPLICATION
44The third ground of appeal alleges that the trial judge erred in failing to grant a mistrial after the complainant testified that the appellant went to jail shortly after the first alleged incident of domestic violence.
(1) BACKDROP
45At the start of her examination-in-chief, Crown counsel asked the complainant about the conduct that formed the basis of count 1. The Crown recounted the incident and asked what happened to the relationship between the complainant and the appellant as a result of it. The complainant replied, "… I remember thinking that I had to figure something out because … this was just a really bad situation”. The Crown asked if she was able to do so, and she responded, “I think shortly after that, shortly after that [the appellant] went to jail”.
46The jury was excused. During the ensuing discussion between counsel and the court, the parties agreed that the trial judge would provide a strong and timely mid-trial instruction. The trial judge said the following:
I instruct you now to completely ignore Ms. Albieru’s answer, and she ought not to have said this. Whether or not [the appellant] had previously been to jail is entirely irrelevant to the issue that you must determine which is whether the Crown has proven [the appellant’s] guilt beyond a reasonable doubt of any of the seven alleged charges.
47The trial judge also cautioned the complainant not to volunteer information that was not responsive to the questions asked by counsel, “particularly if it’s to cast [the appellant] in a bad light”. Counsel for the appellant (not Mr. Butt) brought a mistrial application the next day, which the trial judge dismissed. During his submissions, counsel for the appellant expressed his approval of the trial judge’s mid-trial instruction, commenting that it was “a strong instruction and it addressed the issue that was raised”. But he maintained on the mistrial application – as did appellate counsel before this panel – that the instruction did not suffice to cure the prejudice flowing from the complainant’s remark.
48In dismissing the request for a mistrial, the trial judge stated, in part:
In this case, the firm midtrial instruction was given within minutes of the jury hearing the prejudicial evidence. It was given before the complainant’s examination in-chief continued. The jury was told quite emphatically that they were to ignore the evidence completely as it had no relevance to Mr. Kovacs' guilt or innocence. A draft of the midtrial instruction was shared with counsel, and submissions on its adequacy were invited. No concerns were raised. Further, during the hearing of the mistrial application, counsel agreed that the corrective instruction was strong, timely, and complete. No deficiency in its contents was identified. Another full and stern direction will be given in the final instructions. I will again invite counsel's input as to how best to instruct the jury concerning the inappropriateness of Ms. Albieru's remark and their obligation to completely ignore it.
(2) ANALYSIS
49I would not interfere with the trial judge’s analysis. She was well-positioned to assess whether the prejudice flowing from the single jail reference could be rectified. It was open to her to find that the instruction did so, and that the drastic remedy of a mistrial was neither necessary nor desirable. The trial judge reinforced her instruction to disregard the jail reference by repeating it in her final instructions to the jury.
50The jury should not have heard the reference to the appellant being in jail, but it was not so prejudicial as to resist a limiting instruction. The impugned reference did not engage the Shakespearean peril contemplated in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 40, that “once dropped like poison in the juror’s ear, ‘swift as quicksilver it courses through the natural gates and alleys of the body’”: Hamlet, Act I, Scene v, ll. 66-67. The mid-trial and final instructions to the jury were effective antidotes that halted the migration of any poisonous effect.
51Canadian courts have consistently recognized that jurors carry out their duties diligently and conscientiously. As Dickson C.J. put it several decades ago, “it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense”: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 692 (emphasis in original). Decades later, Rothstein J. echoed the view that jurors are intelligent and reasonable fact-finders capable of properly evaluating evidence, once alerted to the risks of doing so improperly: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 56. There is every reason to believe that the jury in this case understood and followed the trial judge’s firm and timely instruction.
52A mistrial is reserved for situations in which the prejudice cannot be rectified by strong and timely judicial intervention. A trial judge’s decision to deny a mistrial is entitled to deference on appeal, as Roberts J.A. explained in R. v. Gager, 2020 ONCA 274, at para. 91, leave to appeal refused, [2014] S.C.C.A. No. 262:
Mistrials are a remedy of last resort only to be granted where necessary to prevent a miscarriage of justice: R. v. Chiasson, 2009 ONCA 789, 258 O.A.C. 50, at para. 14. Determining whether a mistrial is necessary to prevent a miscarriage of justice is a matter within the discretion of the trial judge because the trial judge is in the best position to determine whether the misconduct will affect the fair trial interests of an accused. Therefore, on appeal, deference will be shown to the trial judge’s decision absent an error in principle or a decision that is clearly wrong: see R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 58; R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at para. 82, leave to appeal refused, [2017] S.C.C.A. No. 101.
53The trial judge’s decision is neither clearly wrong nor marred by an error in principle. The trial judge understood the gravity of the potential prejudice, and responded to it swiftly and on more than one occasion. While other evidence of discreditable conduct was introduced before the mistrial application (see below), trial counsel only asked for a mistrial because of the jail reference. This is an appropriate case for deference. As an aside, it is worth noting that the jury acquitted the appellant on count #1, to which the jail reference related. This offers some circumstantial comfort that any prejudice arising from the jail reference was, indeed, averted. I would not accede to this ground of appeal.
D. OTHER DISCREDITABLE CONDUCT
54The appellant argues that the complainant testified to other discreditable conduct later in the trial. He says that the trial judge’s charge to the jury failed to address the prejudice arising from that testimony. In my view, much of the impugned testimony was elicited by the defence in cross-examination of the complainant. Moreover, the appellant’s trial counsel was satisfied with the trial judge’s instruction on this evidence. While failure to object is not determinative, it indicates that the defence perceived no prejudice.
(1) BACKDROP
55The appellant’s trial counsel sought to discredit the complainant by asking her about things that she did and did not do. He tried to cast doubt on her account by asking about times when she did not call the police, or did not tell the police everything. He focussed on other details for similar reasons, such as why she did not photograph certain injuries.
56The complainant’s answers were arguably responsive to defence counsel’s questions, though they tended to cast the appellant in a negative light. For example, the complainant responded that she did not call the police because the appellant threatened to kill her if she did. When asked why she did not tell her doctor about the abuse, she responded that the appellant forbade her from doing so.
57Defence counsel also asked the complainant about alleged misconduct outside the scope of the indictment. He asked about a police report she made concerning an assault at her mother’s house on November 10, 2017, and about seeking an emergency order in family law proceedings for police to retrieve her son from the appellant. He also cross-examined the complainant about a series of threatening charges that were laid in October 2020 and were the subject of separate proceedings.
58The defence theory at trial was that the complainant had fabricated the allegations, at least in part, to gain an advantage in family law litigation against the appellant. In his closing address to the jury, defence counsel offered the following submissions:
The witness’s allegations against Mr. Kovacs increased in severity over time and all of them found their way into the family law case. Contrary to what my friend suggests, the very allegations that are in issue in this case as the witness testified to, were relied upon in her family law case. … Additionally, this doesn't explain when she did contact the police initially, she only reported the recent threats and not these more serious allegations. She saved those allegations, in my submission, until they were useful to her in her family law proceedings.
(2) ANALYSIS
59The complainant’s answers during cross-examination might well have been unfortunate for the appellant, but they were not unfair. The complainant was entitled to respond to the questions asked, and the questions ran the risk of eliciting the responses they did. The appellant cannot now complain about evidence that his counsel strategically elicited at trial.
60Nor is there any basis for concluding that this evidence resulted in actual prejudice. The trial judge gave the jury a clear and direct limiting instruction on the use of evidence of other discreditable conduct:
You have heard some evidence in this case, beyond the alleged involvement in the offences charged that may cast Mr. Kovacs in an unfavourable light.
You heard Ms. Albieru testify that after the incident that forms the basis of Count 1, Mr. Kovacs went to jail. That was entirely improper. It was not responsive to the question she was asked. Nor is it relevant to this trial. She ought not to have volunteered this information. As I instructed you earlier, I repeat now, whether or not Mr. Kovacs has been to jail is entirely irrelevant to your task of determining whether the Crown has proven his guilt beyond a reasonable doubt on any of the seven alleged charges. You must completely ignore this evidence. Whether and why Mr. Kovacs might have been in jail is not a subject that should form any part of your deliberations.
You must not seek to punish Mr. Kovacs for other perceived discreditable or morally questionable conduct by finding him guilty of the offences charged because of this other conduct.
You also heard evidence that Ms. Albieru called the police and reported an incident that allegedly occurred on November 10, 2017; that her mother also reported an incident involving Mr. Kovacs; and, that Ms. Albieru believed her brother in-law also feared of Mr. Kovacs.
Remember that you are not trying Mr. Kovacs for anything other than the seven charges in the indictment. You must not seek to punish Mr. Kovacs for any perceived discreditable or morally questionable conduct by finding him guilty of the offences charged, simply because of this other conduct. You must not use this evidence to conclude, or help you to conclude, that Mr. Kovacs is a person of bad character who is therefore more likely to have committed the alleged offences. Nor must it be used to help support Ms. Albieru's testimony. In other words, do not allow this evidence to distract you from your task which is solely to determine whether the Crown has proven the offences in the indictment beyond a reasonable doubt. Nothing more. Nothing less.
61The appellant’s trial counsel declined an invitation to have any further instruction given about this evidence. The trial judge, alive to the potential prejudice, asked defence counsel if there was anything arising out of his cross‑examination that warranted an instruction. The defence answered: “not specifically” and confirmed that the trial judge had “hit the highlights”. This, too, would seem a tactical decision aimed at ensuring that the defence theory would not be neutralized by a judicial caution.
62It was for the jury to assess the complainant’s credibility on the whole of the evidence. The history of the relationship was relevant to the issues at trial, and, given the defence strategy, offered important narrative to explain why the complainant did or did not take certain steps.
63Finally, the pattern of verdicts suggests that the jury was not overwhelmed by prejudicial evidence or diverted from a careful consideration of the issues as they related to each count. The trial judge instructed the jury that they were to consider the evidence on each count separately. She explained that they should not conclude that because the appellant was guilty of one count, he was guilty of any others. The jury acquitted the appellant on two counts. One must be cautious in extrapolating from jury verdicts, but the pattern signals that the jury followed these instructions, and that they examined each count and the evidence relating to it separately. It also suggests that the jury was neither swayed nor overwhelmed by potentially prejudicial evidence.
E. DISPOSITION
64For all of the above reasons, I would dismiss the appeal.
Released: January 24, 2025 “J.S.”
“R. Pomerance J.A.”
“I agree. Janet Simmons J.A.”
“I agree. J. Copeland J.A.”
Footnotes
- The appellant did not ask for a challenge for cause in this case. He acknowledged that there was no basis for one under s. 638 of the Code. I would therefore leave for another day the broader question of whether offence-based challenges are permissible in the wake of statutory amendments to the Criminal Code and the Supreme Court’s decision in Chouhan.