COURT FILE NO.: CR-21-70000675-0000 DATE: 20231006

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His MAJESTY THE king Respondent - and - JOSEPH KOVACS Accused/Applicant

Counsel: Elizabeth Jackson, for the Respondent Crown Benjamin Moss, for the Accused/Applicant Joseph Kovacs

HEARD: September 21, 2023

J.M. Barrett J.:

Ruling Re: S. 11(b) CHARTER Application

A. Overview

[1] On August 4, 2023, at the end of his two-week jury trial, Mr. Kovacs was convicted of five of the seven counts on the Indictment. All five offences involved violence against his former intimate partner: the mother of his son.

[2] Mr. Kovacs’ jury trial was originally scheduled to commence on June 26, 2023. However, due to a lack of judicial resources, it did not proceed. At that time, Mr. Kovacs expressed an intent to seek a stay of proceedings as a remedy for a violation of his right under s. 11(b) of the Charter of Rights and Freedoms to be tried within a reasonable time. Defence counsel concedes that but for this adjournment, there would be no s. 11(b) concern.

[3] On his new trial start date of July 24, 2023, Mr. Kovacs sought an adjournment to permit him time to file his s. 11(b) motion record. In the interests of avoiding any further delay of his trial, I denied his adjournment request but granted leave to permit him to argue his s. 11(b) application post-conviction should he be convicted. A post-conviction s. 11(b) application is a departure from the normal practice under the Rules of Court.

[4] For the reasons that follow, the application is dismissed. In this case, the delay minimally exceeds the presumptive 30-month ceiling set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. As I will explain, I am satisfied that the Crown has established that some delay is attributable to a discrete event, namely, the COVID pandemic. Once this time is deducted, the remaining delay falls below the presumptive Jordan ceiling. Further, the defence has not established that the time taken violates Mr. Kovacs’ right to a trial within a reasonable time.

B. Background Facts

[5] Mr. Kovacs was arrested on December 31, 2020. Consequently, using Jordan’s presumptive 30-month ceiling, his trial ought to have been completed on or before June 30, 2023.

[6] Had Mr. Kovacs’ trial started as scheduled on June 26, 2023, the defence agrees that there would be no s. 11(b) concern. Consequently, a key issue is whether the adjournment of his trial from June 26, 2023 to July 24, 2023 pushed this case over the presumptive reasonableness ceiling. In arguing that it does, defence counsel relies on what he says were unreasonable delays in the Ontario Court of Justice that were caused by Crown counsel taking an inordinate amount of time to: (i) provide disclosure; and (ii) decide whether to proceed by indictment given that some of the charges were laid outside of the limitation period governing summary conviction proceedings. [^1]

[7] With regard to the delay in providing disclosure, defence counsel argues that, although this was a one witness case, disclosure was not received until May 28, 2021, five months after Mr. Kovacs’ arrest. The Crown then took until November 12, 2021, to advise of its intent to proceed by indictment on the charges laid outside of the limitation period. [^2]

[8] Once the decision was made to proceed by indictment, the matter proceeded expeditiously. The indictment was filed December 8, 2021. On December 13, 2021, Mr. Kovacs had his first appearance in the Superior Court of Justice. On his second court appearance of January 24, 2022, his trial date of June 26, 2023 was set. At a judicial pre-trial held on January 18, 2022, no concern was raised regarding s. 11(b).

[9] On June 26, 2023, no judges were available. Consequently, Mr. Kovacs was directed to re-attend the next day: June 27, 2023. Again, his trial did not commence. Although not reflected in the transcripts filed, the parties agree that there was a judicial conference that week. In adjourning the matter, Goldstein J. noted “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 defence declined a new trial date of July 10, 2023. Instead, Mr. Kovacs’ rescheduled trial commenced on July 24, 2023. It concluded on August 4, 2023, when he was found guilty of five of the seven counts in the Indictment.

[10] Post-conviction, the defence was offered the date of September 5, 2023 for this motion. This date was declined. Instead, the motion was argued on September 21, 2023.

C. Governing Legal Principles

[11] The governing legal framework for determining whether delay is unreasonable and in violation of s. 11(b) of the Charter is set out in Jordan. In that case, the court established a presumptive ceiling of 30 months for trials in the Superior Court of Justice. Any further delay is presumptively unreasonable: see Jordan, at para. 5. The Supreme Court has reaffirmed this 30-month presumptive ceiling in subsequent cases: see R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 20; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 5; R. v. Ste-Marie, 2022 SCC 3, 412 C.C.C. (3d) 1, at para. 13.

[12] If the delay exceeds the ceiling, the onus shifts to the Crown to rebut the presumption of unreasonableness based on “exceptional circumstances”: Jordan, at para. 47. The “presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling” (emphasis in original): Jordan, at para. 81. If the Crown fails to discharge this burden, a stay of proceedings “must be imposed”: Jordan, at para. 114.

[13] Exceptional circumstances fall into two categories: discrete events and particularly complex cases. Events under either category, however, must be beyond the Crown’s control in the sense that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original): Jordan, at para. 69.

[14] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40, the Court of Appeal for Ontario, citing Jordan, set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights have been breached:

i. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. ii. Subtract defence delay from the total delay, which results in the “Net Delay.” iii. Compare the Net Delay to the presumptive ceiling. iv. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. v. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached. vi. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. vii. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[Emphasis in original; citations omitted.]

[15] I have adopted this four-step framework for purposes of my analysis of the delay in this case.

D. Analysis

Step One – Calculating the Total Delay

[16] The Applicant was arrested and charged on December 31, 2020. His trial in the Superior Court of Justice commenced on July 24, 2023. It concluded on August 4, 2023.

Using the approach set out in R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, I calculated the total delay from his arrest to when the jury returned its verdict to be 946.91 days, or 31 months and 3 days. The parties agree with this calculation. The total delay exceeds Jordan’s presumptive 30-month ceiling.

Step Two – Subtracting the Defence Delay and Comparing the Net Delay to the Presumptive Ceiling

[17] The responsibility for ensuring a case moves forward without delay is a shared one: see Jordan, at para. 137; Cody, at para. 36. “Defence delay is divided into two components: (1) ‘delay waived by the defence’; and (2) ‘delay that is caused solely by the conduct of the defence’”: Cody, at para. 26, citing Jordan, at paras. 61, 63.

[18] The parties agree that there is no defence delay in this case. The record clearly establishes that the defence did not waive any period of delay. Nor can it be said that conduct of the defence was the sole cause of any period of delay. [^3]

[19] As the net delay exceeds Jordan’s 30-month presumptive ceiling, the Crown bears the onus of establishing exceptional circumstances.

Step Three – Establishing Exceptional Circumstances

[20] Exceptional circumstances fall into two categories: discrete events and particularly complex cases: see Jordan, at para. 71. The Crown does not suggest that this is a particularly complex case. I agree. Accordingly, the only issue is whether the Crown has established the existence of any discrete event that qualifies as an exceptional circumstance.

[21] The Crown argues that the COVID pandemic is such a discrete event. Relying on the Court of Appeal for Ontario’s recent decision in R. v. Agpoon, 2023 ONCA 449, 427 C.C.C. (3d) 417, the Crown argues that six months ought to be deducted on account of the COVID pandemic in recognition of: (i) a one-month deduction for a jury blackout period in January and February 2022; and (ii) a five-month deduction in recognition of the fact that the original trial date of June 26, 2023 was set five months beyond the typical twelve months in which trials are set in the Superior Court of Justice. [^4]

[22] In Agpoon, the court addressed the issue of delay caused by limited “access to courts” due to COVID related court closures and capacity restrictions: at para. 33. The court recognized the following five different ways the pandemic impacted court access: (i) province-wide court closures; (ii) jury blackout periods; (iii) local court closures and restrictions; (iv) local availability of court facilities; and (v) priorities in addressing the backlog.

[23] At para. 33 of Agpoon, the court held that “[g]oing forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes.” In other words, delay falling within one of the five categories set out in Agpoon is deemed to be a discrete event. The court in Agpoon left open the ability of the defence to “argue that the delay is unacceptable nonetheless as set out in Jordan” but stated that “it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways [described] on a case-by-case basis”: at para. 34.

[24] One of the five categories identified in Agpoon is of particular relevance in this case: jury blackout periods. There were three jury blackout periods that limited access to courts: (i) March 17 to September 14, 2020; (ii) November 21, 2020 to June 21, 2021; and (iii) December 20, 2021 to February 28, 2022. Mr. Kovacs’ charges were laid during the second blackout period. A date for his jury trial was set during the third blackout period.

[25] The defence argues that no periods of delay should be deducted because the pandemic did not cause any delays in this case. Rather, the cause of the delay is two-fold, namely: (i) unreasonable delays in the Ontario Court of Justice; and (ii) a lack of sufficient judicial resources in the Superior Court of Justice on the scheduled trial date. In support of this position, defence counsel relies on the fact that when Mr. Kovacs’ trial was adjourned, the court offered a new trial date a mere two weeks later. I disagree.

[26] I am satisfied that at a minimum, the period of January 24, 2022 to February 28, 2022 is a discrete event. [^5] This is a period of 35 days. It is unnecessary to consider whether any other periods might also qualify as a discrete event attributable to the pandemic because once these 35 days are deducted, the remaining delay falls below the Jordan ceiling.

[27] The Crown can avail itself of this jury blackout period. It is a presumptively discrete event. In arguing otherwise, the defence seeks to engage in a “micro-counting” of discrete periods of delay contrary to the principles set out in Agpoon, which calls on courts to adopt a “bird’s-eye view of the case”: at para. 22. As noted in Agpoon, quoting Jordan, “[t]he reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances”: Agpoon, at para. 21; Jordan, at para. 103. The surrounding circumstances here are all systemic and rooted firmly in the pandemic.

[28] Mr. Kovacs’ trial date of June 26, 2023 was set during the third jury blackout period. He was given a start date at the very end of the 30-month ceiling. In fact, even with this original start date, the trial was anticipated to finish one day after the Jordan threshold.

[29] I make two observations about the scheduling of Mr. Kovacs’ trial. First, when set, the end date of the third blackout period was unknown. Also unknown was whether access to courts would be impacted by any further jury blackout periods. Absent this knowledge and the failure of Mr. Kovacs to voice any concern over his s. 11(b) rights, it was entirely reasonable for his trial to be set at the very end of the Jordan threshold.

[30] Second, a trial date on the precipice of the Jordan 30-month threshold reflects the nature of this case. While not diminishing the seriousness of Mr. Kovacs’ offences, I note that Mr. Kovacs was out of custody, and the allegations were dated, having occurred between November 2013 and May 2020. As recognized, at para. 32 of Agpoon, in addressing the backlogs created by the pandemic, “courts were forced to triage and prioritize the order in which cases would be heard”, with priority given to “in-custody criminal matters over out-of-custody matters, and continuing trials over new trials.”

[31] Further, while Mr. Kovacs’ trial was not initially given priority, this changed after the trial did not proceed as scheduled in June 2023. Defence counsel was then offered a new trial date of July 10, 2023, a mere two weeks later. This is not indicative of the Superior Court of Justice having emerged from the wreckage of the pandemic. To suggest otherwise is to ignore Goldstein J.’s comment that the court was “still dealing with the backlog from COVID.” The expeditious rescheduling of Mr. Kovacs’ trial is reflective of the continued and on-going triaging and prioritizing of the backlog of cases “that have faltered due to unforeseen events” and that are in s. 11(b) jeopardy: Jordan, at para. 75, citing R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625. That is how it should be. Prior to Mr. Kovacs’ trial being adjourned, no s. 11(b) concerns were voiced. His trial was an out-of-custody jury trial. The priority of his matter changed significantly when it did not proceed.

[32] Defence counsel now seeks to second-guess the decisions made in this matter with the benefit of hindsight. As stated in Agpoon, “[i]t is easy to be critical of decisions made by the Crown, with the benefit of hindsight”: at para. 42. When Mr. Kovacs’ trial date was set in the Superior Court of Justice, it would have been impossible to predict with any degree of precision the number of other cases that required priority because they involved in-custody accused persons or were continuing matters. Prior to June 2023, Mr. Kovacs’ matter simply did not warrant priority status.

[33] There can be no doubt that the scheduling of Mr. Kovacs’ matter was impacted by limited access to courts. As noted by Dunphy J. in R. v. Wiseman, 2023 ONSC 4484, at para. 35, “[t]his and every case in the justice system has been profoundly impacted by Covid because its impact was systemic” (emphasis in original).

Step Four – Determining Whether the Remaining Delay is Unreasonable

[34] In circumstances like this case, where the remaining delay falls below the presumptive Jordan ceiling, the defence bears the onus of showing that the delay is unreasonable. This can be done by establishing that: (1) meaningful steps were taken which demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. “Absent these two factors, the s. 11(b) application must fail”: Jordan, at para. 82.

[35] When the delay falls below the Jordan ceiling, a stay is only warranted in “clear cases”: Jordan, at paras. 83, 105; see also Agpoon, at para. 24. The onus is on the defence to “show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously”: Jordan, at para. 85; see also Agpoon, at para. 25. Mr. Kovacs has not met this onus.

[36] Mr. Kovacs has not established that he took meaningful steps to expedite the proceedings. I accept that the defence proactively sought to move this case along when it was in the Ontario Court of Justice. That, however, is not enough.

[37] First, the defence only put the Crown and court on notice that s. 11(b) was in issue after the trial did not proceed on June 26, 2023. Second, when the trial had to be rescheduled, the defence declined the first date offered of July 10, 2023. Instead, the trial proceeded on July 24, 2023. However, on the first day of the trial, the defence applied for an adjournment to prepare a record for its s. 11(b) application. This request was denied in an effort to avoid any further delay. Post-conviction, the defence failed to conduct the s. 11(b) application expeditiously, again refusing an earlier date offered by the court.

[38] While I accept that defence counsel cannot be expected to have their calendar readily open and available for any date offered by the court, the defence cannot decline earlier dates and then seek to benefit from delay that arises from their unavailability.

[39] Finally, the defence has failed to establish that this case has taken markedly longer than it reasonably should have. It cannot be said that the time taken here “markedly exceeds the reasonable time requirements of the case”: Jordan, at para. 87, see also para. 82. The time taken in this case is informed by the surrounding circumstances: Agpoon, at para. 21; Jordan, at para. 103. The surrounding circumstances of Mr. Kovacs’ matter are all systemic and grounded in the pandemic.

E. Conclusion and Disposition

[40] For the foregoing reasons, I am satisfied that Mr. Kovacs’ right to a trial within a reasonable time has not been breached.

[41] Having found no s. 11(b) violation, Mr. Kovacs’ application for a stay of proceedings is denied.

J.M. Barrett J. Released: October 6, 2023

Footnotes

[^1]: On the set date appearance of August 27, 2021, defence counsel advised the Court that a judicial pre-trial was conducted earlier that week. The defence further noted that two of the four informations before the Court had charges that were laid within the “summary conviction time window”. The defence asked to hold off setting trial dates on those matters as the defence wanted to know if the Crown would withdraw the charges that had to proceed by indictment.

[^2]: On November 12, 2021, a trial date of August 15-16, 2022, was set in the Ontario Court of Justice for the charges laid within the statutory limitation period. These charges were ultimately stayed.

[^3]: The Crown initially argued that the period of July 10 to 24, 2023 was defence delay because the defence declined the first date offered after Mr. Kovacs’ trial was adjourned. During the hearing, the Crown agreed that because the adjournment was caused by inadequate judicial resources, it could not be said that the defence was “solely” responsible for the delay.

[^4]: The trial date of June 17, 2023 was approximately seventeen months from the date it was set: January 24, 2022. Under the Jordan framework, trials before the Ontario Court of Justice are expected to conclude within eighteen months, which leaves twelve months for matters before the Superior Court of Justice.

[^5]: January 24, 2022 is the set date appearance when Mr. Kovacs’ trial was scheduled. February 28, 2022 is the end of the third and final jury blackout period.