R v Kozma, 2017 ABQB 723

Court of Queen’s Bench of Alberta Citation: R v Kozma, 2017 ABQB 723 Date: 20171127 Docket: 150080695Q3 Registry: Edmonton Between: Her Majesty the Queen - and - Stefan Hadrian Kozma Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] Stefan Hadrian Kozma was charged on January 21, 2015 with a number of offences including assault causing bodily harm and unlawful confinement in relation to an incident on November 1, 2014.

His jury trial is set to be heard in March 2018. He is self- represented at this time. [ 2 ] Mr. Kozma applies for a judicial stay pursuant to s 24(1) of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982, being

Schedule B to the Canada Act , 1982 (UK), 1982, c 11 on the ground that his s 11(

b) Charter right to be tried within a reasonable time has been violated. II. Evidence

[ 3 ] The following was the evidence on this voir dire : 1. The transcripts from the Preliminary Hearing conducted on February 16, 17 and 18, 2016; 2. Exhibit VD-1 being two binders containing transcripts of various proceedings in this matter; 3. Exhibit VD-2 being an email string between S. Smith, counsel for Mr. Kozma, and counsel for the Crown; 4. Exhibit VD-3 being the transcript of pre-trial proceedings on September 15, 2017; 5. Exhibit VD-4 being the transcripts of proceedings in Queen’s Bench Appearance Court on August 4 and August 18, 2017; and 6. Mr. Kozma’s testimony in the voir dire as to the reason he terminated his retainer with Mr. Smith. III. Law A. The Charter [ 4 ]

Section 11(

b) of the Charter provides: 11. Any person charged with an offence has the right … (

b) to be tried within a reasonable time. B. The Jordan Framework [ 5 ] The Supreme Court of Canada in its decision in R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631 changed the framework for the analysis pursuant to s 11(

b) of the Charter .

It considered the matter further in R v Cody , 2017 SCC 31 , [2017] SCJ No 31. [ 6 ] The analysis under the Jordan framework requires the Court to: 1. calculate total delay from charges to the end of trial 2. subtract defence delay due to waiver or due solely to the conduct of defence 3. calculate net delay. [ 7 ] In relation to trials in superior courts, if the net delay falls below 30 months, defence must show that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and that the case took markedly longer than it reasonably should have. [ 8 ] If the net delay exceeds 30 months, the Crown must establish the presence of exceptional circumstances failing which the delay is unreasonable and a stay will follow. [ 9 ] Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay.

IV. Chronology and Litigation History [ 10 ] The following is a chronology of what has occurred in this case: Date Event November 1, 2014 Alleged Offence January 21, 2015 Information – Charge Laid January 21, 2015 Arrest January 23, 2015 First Appearance March 6, 2015 Adjournment • Disclosure Request • Defence counsel (P. Shipanoff) confirmed withdrawal on the record; he was retained solely to address bail March 20, 2015 Adjournment • Disclosure request • Disclosure continued to be vetted

April 17, 2015 Election • Election deemed by court • Preliminary hearing dates set • Accused opposed setting dates claiming inadequate disclosure August 19, 2015 Disclosure Hearing (Cancelled) • Accused did not file notice of motion as directed at previous Pre-trial Conference • Hearing did not occur October 26, 2015 Pre-Trial Conference • Accused raised more disclosure issues February 16 - February 18, 2016 Preliminary Hearing • Proceeded as scheduled on April 17, 2015 • Accused committed to stand trial • Arraignment date set April 8, 2016 Adjournment • Scheduled arraignment date • Adjourned for accused to decide whether he wanted to retain the Legal Aid appointed lawyer • Accused claimed he was unaware Legal Aid had assigned him a lawyer • Accused stated for the record he did not want this viewed as a delay April 22, 2016 Adjournment • Accused terminated Legal Aid lawyer • Legal Aid lawyer got off the record • Accused requested adjournment for time to retain new counsel May 20, 2016 Adjournment • Accused retains new counsel (S.

Smith) • New counsel requests adjournment to review disclosure and obtain instructions June 3, 2016 Adjournment • Defence counsel claimed Crown was away prior week and was unable to communicate • Defence wanted to speak to Crown before setting matter down for trial • Defence requested 3 week adjournment June 24, 2016 Arraignment • Trial dates set for June 2017 December 2, 2016 Defence Counsel Gets Off Record • Counsel indicated that accused wanted to make a number of applications • S. Smith got off the record

December 9, 2016 Adjournment • Accused present, complained about representation of previous counsel • Court gave accused until February 3 to find new counsel • Court gave direction that any Charter notices the accused intended to bring relating to the appointment of counsel to cross-examine witness be filed by January 27, 2017 • Pre-trial conference date of December 12 maintained December 12, 2016 Pre-Trial Conference • Status of certiorari application discussed • Accused claimed counsel (S.

Smith) ignored instructions to bring application forward • Accused directed that he must provide information about what applications he wished to bring before next Pre-trial Conference – filing deadline set of January 16, 2017 January 30, 2017 Pre-trial Conference • Pre-trial Conference cancelled – Pre-trial Conference judge was in another jurisdiction dealing with an urgent matter February 3, 2017 Adjournment • Accused failed to provide Crown and Court with completed Pre-trial Conference Form • Court had not been given any notice of the applications accused intended to make • Pre-trial Judge recognized some uncertainty arising from the cancelled Pre-trial Conference on January 30, 2017 • Accused continued to seek disclosure (SIM card, clothing); Crown had not yet supplied the disclosure or an explanation of why not available • Pre-trial Judge directed accused that he must identify by February 10, 2017 all the applications he wished to make and complete and serve same by that date March 24, 2017 Pre-Trial Conference • Trial dates of June 19-30, 2017 directed to be used to hear pre-trial applications • Trial moved to November 20, 2017 to December 8, 2017 • Judge set deadlines to receive pre-trial applications of April 28, 2017 and response materials of May 19, 2017 June 19 – June 30, 2017 (First Trial Date) Pre-Trial Applications • Certiorari application successful • Matter remitted to Provincial Court for continuation of preliminary hearing

August 4, 2018 Queen’s Bench Appearance Court • Accused brings Prohibition and Mandamus applications • Mandamus application adjourned sine die • Matter adjourned to August 18, 2017 August 18, 2018 Queen’s Bench Appearance Court • Prohibition application adjourned sine die August 22, August 25, 2017 & September 5, 2017 Preliminary Hearing Continuation • Accused called multiple witnesses • Committed to stand trial again September 15, 2017 Arraignment • November 2017 trial dates confirmed October 4, 2017 Pre-trial Conference • Amendment of name of Accused on Indictment • Order for amicus curiae • Trial Dates of November 20, 2017 to December 8, 2017 directed to be used for pre-trial applications to ensure enough time • Deadline of October 18, 2017 set for filing applications • Deadline of November l, 2017 set for filing response materials • New Trial dates set - March 5-23, 2018 November 4, 2017 Pre-trial Conference • Accused and counsel P.

Shipanoff present on phone, Crown and Justice present in person • Discussed P. Shipanoff becoming amicus curiae • Pre-trial motions deadline missed by the Accused — no applications filed • New deadline set of November 10, 2017 for Accused to file applications November 20 – December 8, 2017 Pre-Trial Applications (Second Trial Date) March 5-23, 2018 (Third Trial Date) Queen’s Bench Judge and Jury anticipated Trial Dates Total Delay 38 months, 3 days [ 11 ] On or about February 1, 2017, I was assigned as the trial judge to hear the Judge and Jury trial which was then scheduled for June 19 to June 30, 2017.

Upon a review of the file, I determined that it was appropriate that I hear all pre-trial applications by both the Crown and the Accused. Given the number of applications in question and the information which was available, I was concerned that there was insufficient trial time (even if a further week were added to the trial which was a possibility) to permit all of the applications as well as the Judge and Jury trial to be completed within 14 days.

I therefore asked the pre-trial judge to canvass at the Pre-trial Conference on March 24, 2017 that the dates scheduled in June be used for pre-trial applications and the Judge and Jury trial be set for 15 days commencing November 20, 2017.

[12] As noted in the above timeline, I granted Mr. Kozma’s certiorari application and remitted the matter to the Provincial Court.At that time, Crown requested that the November 20, 2017 to December 8, 2017 trial dates be maintained during the continuation of thePreliminary Hearing in Provincial Court. The trial dates were administratively retained in the Court of Queen’s Bench trial schedule. Iwas already familiar with the file. Given that the trial dates had been retained and that there was a possibility that the PreliminaryHearing could be completed and that Mr.

Kozma would again be committed to trial, I remained the assigned trial judge and any furtherpre-trial applications were to be heard by me. V. Analysis A. Total Delay [13] Mr. Kozma submits that delay prior to the laying of the Information should be taken into account in calculating the total delayto the anticipated end of trial. He submits that notwithstanding that all of the information necessary to lay the Information was availableto the authorities by November 9, 2014, the Information was not laid until January 21, 2015.

His concerns in this regard include prejudicedue to destruction or loss of potentially exculpatory evidence. [14] The Supreme Court has consistently rejected the proposition that pre-charge delay should be taken into account in assessingthe right to be tried within a reasonable time: R v Kalanja, (SCC), [1989] 1 SCR 1594, 48 CCC (3d) 459, Jordan,Cody. The calculation of delay for s. 11(

b) purposes starts from the date of the charge. [15] As set out in the chronology, the charge was laid on January 21, 2015. As matters stand, it is anticipated that the Judge andJury trial in this matter will be concluded on March 23, 2018. This is a period of 38 months and 3 days from charge to the anticipated endof trial. The presumptive ceiling for cases tried in superior courts is, therefore, exceeded by just over 8 months. B. Defence Delay 1. Waiver [16] In this case, it is undisputed that Mr.

Kozma expressed words amounting to waiver of the period of time from December 8,2017 to March 23, 2018, a period of three months and 15 days. [17] However, the Crown fairly acknowledged that Mr. Kozma had stated shortly before waiving that period that he did not knowmuch about Jordan. Further, the November/December 2017 trial dates were discussed in Queen’s Bench Appearance Court onSeptember 15, 2017 shortly following Mr. Kozma’s second committal for trial by a Provincial Court judge.

I was unavailable due toscheduling to hear the applications before the November/December 2017 dates set for trial, so it was suggested that the first trial weekcould be used for that purpose. [18] Mr. Kozma points out that he objected to shortening the time allotted for trial so that pre-trial applications could be heard thefirst week of the three weeks set aside for his jury trial. He submits that he always intended to call multiple witnesses. He also questionedat that time how his Third Party Records applications could be heard so close in time to trial.

He submits that it was inevitable that hewould have to consent to the trial being put over to March 2018 in order for his applications to be properly heard. [19] Indeed, when I was able to meet with the parties on October 4, 2017 for pre-trial management, it was clear that the number ofapplications Mr.

Kozma wished to bring could not be heard in one week and the November/December 2017 trial dates were converted topre-trial application dates. [20] A waiver of delay by the defence may be explicit or implicit, but it must be informed, clear and unequivocal: Jordan at para61, Cody at para 27. [21] Having considered all of the circumstances, in my view Mr. Kozma did not fully understand the import of his waiver and theramifications of it in the context of a Jordan application. He expressed concerns about the practicality of converting the first week oftrial in November 2017 to hear pre-trial applications.

The Court had no jurisdiction to proceed to hear further pre-trial applications untilthe second committal for trial. It was appropriate and necessary that I hear the pre-trial applications, but court scheduling constraints didnot allow for those applications to be heard prior to November 20, 2017. The resulting delay was inevitable. [22] Consequently, I decline to deduct the three months and 15 days from December 8, 2017 to March 23, 2018 from the totaldelay. 2. Defence Conduct [23] The defence is not to benefit from its own delay-causing action or inaction.

Therefore, delay is deducted where defenceconduct has solely or directly caused the delay, and where the conduct was not legitimately taken to respond to the charges: Jordan atparas 65, 113, Cody at paras 28-29. [24] The Crown does not submit that any of Mr. Kozma’s actions have been deliberate or calculated delay tactics. However, itsubmits that some of his actions were the sole and direct cause of delay relating to the setting and adjournment of the first trial date. [25] Mr. Kozma terminated his Legal Aid counsel April 22, 2016. Mr. Smith first appeared on Mr. Kozma’s behalf on June 3,2016. Mr.

Smith adjourned for three weeks to speak with Crown counsel, who was away for one of those weeks. The trial dates were seton June 24, 2016. Crown submits that the period from April 22, 2016 to June 3, 2016 should be deducted as defence delay. This is a

period of one month and 12 days. Crown cites R v Pelletier , 2016 BCSC 2496 , [2016] BCJ No 2809 at para 39 , R v Regan , 2016 ABQB 561 , [2016] AJ No 1050 at para 66 and R v Ghandi , 2016 ONSC 5612 , [2016] OJ No 4638 at para 42 in support of the argument that time due to changes in defence counsel should be deducted from the total delay. [ 26 ] I note that Mr. Shipanoff was retained at the outset solely to address bail. On April 8, 2016, Mr. Kozma apparently became aware that a Legal Aid lawyer had been appointed and the matter was adjourned. There is nothing before the Court to suggest that Mr.

Kozma had been properly advised that the Legal Aid lawyer had been appointed for him. He terminated that lawyer on or by April 22, 2016. Mr. Smith came on the file on June 3, 2016. However, the arraignment date was scheduled prior to Mr. Smith’s involvement in the file. Mr. Kozma terminated Mr. Smith in December 2016, over his refusal to advance a certiorari application. While changes in defence counsel may in some cases be properly deducted from the total delay, it appears that Mr.

Kozma’s changes of counsel did not result in any significant delay, given the record of the proceedings since the charges were laid. [ 27 ] Crown submits that the Court might deduct the delay resulting from Mr. Kozma’s certiorari application which was heard in June 2017. The Crown submits that Mr. Kozma is responsible for the adjournment of the original trial date in June 30, 2017 to November 2017. The first date offered by the Court was October 23, 2017 but the Crown was not available until November 20, 2017.

Crown submits that the period from June 30, 2017 to October 23, 2017 should be deducted as defence delay. This is a period of three months and 23 days. [ 28 ] Mr. Kozma has been self-represented, as is his right, for the majority of the time that his matter has been before the Courts. Mr. Kozma has been thorough in exercising his right to ensure a fair trial. He has filed numerous applications. [ 29 ] Mr.

Kozma filed a certiorari application after his committal for trial on February 18, 2016 following a Preliminary Hearing, on the ground that the committal on the count of uttering threats was made without or in excess of jurisdiction and was contrary to the principles of natural justice. Mr. Kozma testified that he ultimately terminated Mr. Smith’s retainer because he declined to advance the certiorari application. [ 30 ] At the Preliminary Hearing, Crown did not ask for committal on an uttering threats charge, but the Preliminary Hearing judge nevertheless committed Mr.

Kozma on all counts, including such a charge. There were discussions on the record in April/May 2016 about Mr. Kozma’s certiorari application and Crown’s acknowledgement and willingness to set a date for hearing that application. Crown advised Mr. Kozma that it would not proceed on the uttering threats count. When Mr. Smith came on as defence counsel, he did not set the application, but rather set trial dates. Crown submits that Mr. Smith led Crown to understand the certiorari application would be abandoned if Crown withdrew the uttering threats count and that is why the application was never set.

Crown indicated, during the pre-trial conference on December 12, 2016, that it was prepared to withdraw the count. [ 31 ] Mr. Kozma notes that he always intended to challenge his committal on all counts in his certiorari application, and in fact, the uttering threats charge was not withdrawn on the record until June 2017, the first date set for trial. [ 32 ] On April 28, 2017, Mr. Kozma filed a further certiorari application. In that application he stated: “I am asking to amend my previously filed certiorari application to include all the charges upon which I was committed to stand trial”.

The grounds upon which this application was made were that the Preliminary Hearing Judge acted in excess of her jurisdiction by failing to accord him a fair hearing and opportunity to properly cross-examine the complainant and in failing to extend the time of the Preliminary Hearing. [ 33 ] Mr. Kozma’s certiorari application met with success on June 22, 2017, although on a different, or a more particular, ground than any advanced in either of his application documents. The matter was remitted to the Preliminary Hearing judge for compliance with s. 541(4) of the Criminal Code . Mr.

Kozma was again committed for trial on September 5, 2017 but, as a result of the continuation of the Preliminary Hearing, he was able to pursue the “discovery” afforded to him under s. 541(4) through the calling of several witnesses. [ 34 ] Although Mr. Kozma’s second Preliminary Hearing was expedited by the Crown and Provincial Court, the result in terms of scheduling in this Court was that the June 2017 trial dates could not be used for the trial or to complete the hearing of all pre-trial applications. Mr.

Kozma submits that it was clear on the record that s. 541(4) had not been complied with and that he should not be penalized for a delay when this should have been obvious to the Crown and two levels of court. He notes that he never instructed Mr. Smith to abandon the certiorari application and that after Mr. Smith was off the file he made it clear at all pre-trial management conferences that it was his intention to pursue the certiorari application.

At the March 24, 2017 pre-trial management conference, it was decided that the pre-trial applications would be heard during the period from June 19 to 30, 2017. [ 35 ] Crown cites R v Brezden , 2017 ONSC 6376 , [2017] OJ No 5876 as support for its argument that Crown can rely on counsel’s statements on the record in assessing chronologies in the context of Jordan applications. [ 36 ] Crown also provided case law reflecting that the post- Jordan law is not settled regarding the proper treatment of certiorari proceedings.

Prior to Jordan , some courts often treated certiorari like an appeal and attributed the related delay to defence. However, the Court in R v Richards , 2016 ONSC 6372 , [2016] OJ No 5694 held that delay due to certiorari proceedings should not be held against defence. In R v Tsega , 2017 ONSC 3090 , [2017] OJ No 2724, the certiorari decision was appealed. The Court deducted the time from the total, but in the alternative would have found it to be a discrete, exceptional event over which the Crown had no control.

In Brezden , the Court held that certiorari should be included in the total delay as it was a legitimate action by defence. [ 37 ] Mr. Kozma observes that in Richards at paras 8-10 , the Court rejected the argument that the Preliminary Hearing was needlessly extended. [ 38 ] In my view, it is unnecessary to decide in this case whether certiorari proceedings should, as a matter of principle, be included in the total delay. Mr. Kozma successfully challenged his committal for trial. It was clear on the record that s. 541(4) had not been complied with.

I do not fault Crown in the circumstances for not having considered all potential avenues of attack on the Preliminary Hearing proceedings, and I accept that Crown reasonably understood that Mr. Kozma’s application was related to the uttering threats charge or to the directions of the Preliminary Hearing judge with respect to Mr. Kozma’s cross-examination of the Complainant or the failure to extend the time for the Preliminary Hearing. However, it was clear throughout the various appearances that Mr. Kozma always

intended to have his certiorari application heard. [ 39 ] As for whether the certiorari proceedings are analogous to an appeal, unlike an appellant who has been convicted, Mr. Kozma is presumed innocent until convicted. In any event, the second Preliminary Hearing occurred in a remarkably timely fashion so that the available trial dates were not affected. The problem is that once the application for certiorari was granted in June 2017, the matter had to be remitted to the Provincial Court and there were, therefore, no applications that could properly be heard by this Court.

The effect of the delay in hearing that application should not be laid at the feet of Mr. Kozma in the circumstances. Therefore, I decline to deduct any time on that basis. [ 40 ] The Crown notes that the Court directed Mr. Kozma to identify, file and serve pre-trial applications on December 9 and 12, 2016 and February 3, March 24 and October 4, 2017. With the exception of the deadlines set on March 24, 2017, Mr. Kozma failed to comply with the deadlines.

Crown submits that the delay in advising the Court of the pre-trial applications resulted in the June 2017 and November/December 2017 trial dates being converted to pre-trial application dates. [ 41 ] The Crown cites R v Rice , 2016 QCCS 4659 for the proposition that delay due to late applications filed by defence would be subtracted. Further, the Supreme Court has stated that compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations: Cody at para 31 . [ 42 ] It is true that Mr. Kozma did not comply with most of the deadlines.

His status as a self-represented litigant does not excuse him from complying with deadlines. Nor do I accept his argument that he was not bound at the time by the deadlines as the Court of Queen’s Bench did not properly have jurisdiction due to an error in the conduct of the Preliminary Hearing. [ 43 ] However, again, Mr. Kozma consistently reiterated his intention to have the certiorari application heard. Had the application been scheduled for an earlier date, I am satisfied that Mr. Kozma would have produced his notice as he did for the June 2017 and November 2017 hearings.

In any event, even if it had been filed earlier, his notice on the certiorari application would not have alerted the Court and Crown to the problem in the Preliminary Hearing. In fact, any delay by Mr. Kozma in filing his application documents did not alter any dates. In the end, the delay in hearing this application had much more to do with the availability of the Court than with Mr. Kozma’s non-compliance with deadlines. Therefore, I do not find that Mr. Kozma solely caused the delay in question and I decline to deduct any time in this regard. C.

Net Delay [ 44 ] The net delay is 38 months and 3 days, which is above the ceiling established in Jordan . [ 45 ] Even if Mr. Kozma caused delay, the delay amounts to one month and 12 days in relation to retention of counsel and three months and 23 days in relation to the certiorari application. If I were to deduct these delays, which I do not, the net delay would still be above the 30 month ceiling. D.

Exceptional Circumstances [ 46 ] Exceptional circumstances lie outside the Crown's control in the sense that they are reasonably unforeseen or reasonably unavoidable, and Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. They generally relate to discrete events or particularly complex cases: Jordan at para 69-80 , Cody at paras 45-48, 63-64 , R v Mamouni , 2017 ABCA 347 . [ 47 ] Crown submits that this is a complex case, not because of the charges, but because of Mr.

Kozma’s problems with counsel which were outside of the Crown’s control and the issues raised in this case. Crown ensured pre- trial filing deadlines were set, and asked for guidance from the Court when deadlines were not met. Mr. Kozma filed eight pre-trial applications for the June 2017 hearing and fourteen for the November 2017 hearing. [ 48 ] Mr.

Kozma submits that this is not a complex case as there is not voluminous disclosure. [ 49 ] While self-represented accused can create unique pre-trial and trial management issues, there is nothing in Jordan or Cody to suggest that this fact renders the case “complex”. Mr. Kozma has filed numerous applications. However, there is no basis upon which the Court can find at this stage that any of them are frivolous. As recounted, his certiorari application heard in June 2017 was successful. Further, as discussed above, his changes of counsel have not had any significant impact on the scheduled dates.

I find that this is not a complex case as contemplated in Jordan or Cody . [ 50 ] The Crown submits that the error by the Preliminary Hearing judge is an exceptional circumstance that was outside of Crown’s control, reasonably unforeseeable and unavoidable and Crown was unable to remedy the resulting delay. Crown notes that the ground which was successful on the certiorari application was not raised by Mr. Kozma. Rather, it came up during the course of discussions between the Court and Crown on that application.

Crown then conceded there had been an error and adjourned to determine the appropriate remedy. [ 51 ] As I have stated, the error was obvious on the face of the record. The Preliminary Hearing judge failed to comply with s. 541(4) of the Criminal Code and the Crown failed to raise it, in the face of Mr. Kozma’s assertion at the very outset of the Preliminary Hearing that he wished to call witnesses.

In deciding whether the event was unforeseeable or beyond the Crown’s control, the Crown must be attributed with the knowledge, or the ability to know, from the time of the Preliminary Hearing until the certiorari application, that Mr. Kozma had been denied the opportunity to call witnesses. One cannot assume that an application to quash a committal is absolutely destined to fail.

[ 52 ] In my view, this is not the type of circumstance that qualifies as an exceptional circumstance under Jordan and Cody . E. Transitional Exceptional Circumstances [ 53 ] The final step in the analysis in this case is to consider the transitional exceptional circumstance given that the charges against Mr. Kozma were in the system prior to the release of the decision in Jordan .

The Crown may rely on the transitional exceptional circumstance if it can show that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed: Jordan at paras 95-97 , Cody at paras 67-68 . [ 54 ] Crown notes that half of the delay in this case had occurred before the decision in Jordan was issued. The first part of the proceedings in Provincial Court took 13 months. Had the first trial date in June 2017 been used, the proceedings would have been finalized within 30 months. [ 55 ] Mr.

Kozma submits that triage was, or should have been, done following Jordan in order to move this matter along. [ 56 ] This matter would have been concluded in compliance with s. 11(

b) if the trial had been held in June 2017. I have found that Mr. Kozma cannot be faulted for the timing of the certiorari application. It was his successful application which resulted in unreasonable delay. Even if I did not take delay due to the certiorari application into account, Mr. Kozma’s waiver was uninformed. The Crown has not demonstrated that any reliance on the pre- Jordan framework lengthened the proceedings. I find no transitional exceptional circumstance. VI. Conclusion [ 57 ] Mr. Kozma’s s. 11(

b) right to be tried within a reasonable time has been breached. [ 58 ] The charges against him are stayed. [ 59 ] Despite the fact that I have found a stay to be warranted in this case due to delay, none of the foregoing should be construed as a criticism of Crown counsel. I commend Ms. Smith for being forthright and having presented extremely fair and balanced submissions in all of her appearances before this Court. Heard on the 21 st , 22 nd and 27 th days of November, 2017. Dated at the City of Edmonton, Alberta this 27 th day of November, 2017. K.G. Nielsen J.C.Q.B.A. Appearances: Breena Smith Crown Prosecutors' Office for the Crown Stefan Hadrian Kozma Self-Represented