WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. S.K., 2022 ONCJ 616

DATE: 2022 02 22

COURT FILE No.: Brampton 3111 998 20 6980

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.K.

Before Justice G.P. Renwick

Heard on 11 February 2022

Reasons for Judgment released on 22 February 2022

S. Burton............................................................................................... counsel for the Crown

N. Hasan and C. Milne....................................................... counsel for the Defendant S.K.

RULING ON S. 11(b) CHARTER APPLICATION

RENWICK J.:

INTRODUCTION

[1] Before the court are two charges relating to an alleged hug and kiss of a young person by her high school principal. The trial of these matters is set for 14-18 March 2022, before me.

[2] The Defendant was arrested on 10 June 2020; he was released on an undertaking with a court date (24 August 2020). The Information was not sworn until 27 July 2020. The Defendant alleges that by the completion of his trial, the ceiling established in R. v. Jordan[^1] for matters in this level of court will have been exceeded by over three months.

[3] The Defendant argues that the coronavirus 2019 (“COVID-19”) pandemic cannot be used in the circumstances of this case as an excuse to prolong matters beyond the presumptive 18-month limit for trials in this court. The Defendant further submits that even if some delay is deducted from the total delay, resulting in a period which is below this ceiling, the case has taken markedly longer than it should have and it should be stayed.

[4] The prosecutor opposes the granting of the Application. The prosecutor takes issue with the Defendant’s starting point for the calculation of delay. Moreover, the exigencies of disclosure necessitated some delay, the Defendant is not blameless respecting the disclosure process and the management of delay in this case, and when the effects of the COVID-19 pandemic are considered, the case has not taken an unconstitutional or inordinate period of time to complete.

[5] Several issues arise on this Application

i. When does the Jordan clock begin to run;

ii. What role, if any, did disclosure of the prosecution’s case play in delay;

iii. Did the Defendant waive or solely cause any delay;

iv. If the net delay exceeds 18 months, should any delay be deducted for the exceptional circumstance of the current global pandemic; and

v. If the net delay does not exceed 18 months, was there an unacceptable delay in bringing this matter to trial.

GOVERNING JURISPRUDENCE

[6] The first step under the Jordan analysis is to determine the total length of time between the date when the Defendant was charged and the completion of his trial.[^2] The next step is to subtract from the total delay any time periods which are “attributable to the defence.”[^3]

[7] If the net delay remains above the appropriate ceiling:

…then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.[^4]

[8] If, after subtracting defence delay, the net delay is below the 18-month ceiling:

…then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. …stays beneath the ceiling [will] be rare, and limited to clear cases.[^5] [Emphasis in the original.]

[9] What is “defence delay?” Time periods that may be deducted from the total delay are those “where the defence conduct has “solely or directly” caused the delay.”[^6]

[10] That said, not all delay caused by the defence should be counted as defence delay. Our Supreme Court clarified the definition of “defence delay” in R. v. Cody:

In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138).[^7]

[11] In Mallozzi, our Court of Appeal has also interpreted defence delay as:

…including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, at para. 55.[^8]

However, the court noted that actions that are legitimately taken to respond to the charges will fall outside of defence delay and will not be subtracted from the total delay.

[12] Recently, courts have begun to grapple with the exceptional circumstance of the on-going pandemic, court limitations, the need to account for health considerations, and the re-scheduling of matters that have been adjourned or otherwise delayed over the past many months.[^9]

[13] Exceptional circumstances are those that “are reasonably unforeseen or reasonably unavoidable” and those where the prosecution “cannot reasonably remedy the delays emanating from those circumstances once they arise.”[^10]

CALCULATING THE DELAY IN THIS CASE

When the Delay Begins

[14] The parties disagree when the Jordan clock first begins to tick. In this matter, there was a delay of more than six weeks from the Defendant’s arrest (10 June 2020), until the Information was sworn (27 July 2020).

[15] The Defendant relies upon the common-sense inference that the Defendant was charged when he was arrested and given a release with a court date. Upon arrest, the Defendant temporarily lost his liberty while being processed by investigators, he was searched, his school video surveillance system was seized, and he was released with paperwork requiring him to notify any changes of address, to have no contact with the child complainant, to refrain from attending his school, and to appear for fingerprinting.

[16] This argument has merit. Indeed, it was accepted by my colleague Prutschi J. in R. v. Mikhailov[^11] and other courts cited therein.

[17] The prosecutor submits that the Supreme Court and other courts have been clear that the charge only exists once the charging document, an Information, has been sworn.[^12]

[18] This argument also has merit. If there is no Information sworn, despite the significant ancillary consequences of the arrest, there is no charge before the court. There can be no trial without an Information,[^13] and obviously, in the absence of an Information, the matter will never come before the court and there can be no right to be tried within a reasonable period of time.

[19] In the end, given the binding authority of the Supreme Court, I am persuaded that the operative time period begins with the date the Information is sworn. I do not read the Jordan case as an attempt to overturn the court’s decision in Kalanj.

[20] Thus, the total period of delay from the date the Information was sworn (27 July 2020) until the anticipated completion of the Defendant’s trial (18 March 2022) is 600 days (or 19 months and 20 days).

Subtracting Pandemic Delay

[21] Three months before the Defendant was arrested, the world had changed. COVID-19 was declared a global pandemic on 11 March 2020 by the World Health Organization.[^14] The effects of this pandemic were and continue to be international and far-reaching in scope.

[22] Shortly after the declaration of a global pandemic, the Ontario Court of Justice closed in-person hearings and scaled back operations limited to remote hearings and appearances. On 06 July 2020, some in-person hearings and appearances resumed. Since that time, the court has steadily increased its capacity utilizing technology and in-person hearings to increase operations.

[23] Though it is difficult to estimate the effect that the pandemic has had upon on the operation of the courts, I find that the world-wide health crisis is an exceptional event that must account for some of the delay in bringing the Defendant to trial.

[24] Although the Defendant accepts that the pandemic exists and it had an initial effect on the operation of the courts, the Defendant rhetorically asks how long it is appropriate to use the pandemic as an excuse to delay someone’s constitutional right to trial within a reasonable period of time. The Defendant correctly notes that the trial date was set more than 52 weeks after the Defendant’s arrest for a trial to complete over nine months later.

[25] With respect, the pandemic is not over. The full effect of the pandemic is yet to be seen. The delays and backlog began shortly after 11 March 2020, but the Defendant has failed to persuade me that court operations have completely resumed to pre-pandemic levels, that the pandemic has not affected court capacity, or that this exceptional circumstance cannot factor into trial time delay.

[26] The Defendant’s first appearance on 24 August 2020 occurred just seven weeks after the courts had begun to re-open, following the initial closures in response to the declaration of the pandemic.[^15] In fact, this appearance was conducted in the Defendant’s absence, as required at the time. By direction of the Chief Justice of this court, matters were being adjourned “presumptively”[^16] for 10 weeks.

[27] On the Defendant’s second appearance (02 November 2020), counsel appeared and filed an enhanced designation. The matter was adjourned to await missing disclosure for 12 weeks. But for the pandemic this adjournment would only have been for four weeks.

[28] These two adjournments account for 18 weeks (approximately 4.5 months) of delay, when the court was trying to manage this unprecedented backlog caused by having been effectively closed for more than three months.

[29] The Defendant does not concede that any delay caused by the pandemic should be deducted from the overall delay.

[30] The Defendant submits that the intake functions (bail hearings, set-dates, disclosure preparation, crown/defence pre-trial meetings) were not affected by the pandemic, thus, the calculation of total delay should not include any deduction of time during this period.

[31] The Defendant’s argument is not without merit.

[32] In every pre-pandemic case, there was some intake period to prepare the initial disclosure package. This period ranged from six to eight weeks. The Defendant is correct that some of the intake functions and processes inherent in every prosecution were still taking place, even when the court was closed, albeit on a reduced scale.

[33] Much like prosecutions pre-pandemic, and in keeping with the practice of initial disclosure within 6-8 weeks post-charge, the Defendant received some disclosure directly from the police on 17 July 2020 (school surveillance videos) and his initial disclosure on 18 September 2020.

[34] Of the 22 weeks from the Defendant’s first appearance until his third (24 August 2020 through 25 January 2021), I find that 18 weeks (10 weeks for the presumptive adjournment plus 8 weeks for the adjournment until the third appearance) of delay were solely attributable to the COVID 19 pandemic and are appropriately deducted from the total period of delay.

[35] It is appropriate to deduct delay solely attributable to the pandemic because the prosecution was coping with an unforeseen circumstance that affected the ability of prosecutors, disclosure clerks, and police personnel to attend the courthouse to prepare disclosure and move the matter along.

[36] There were also two smaller delays that are solely attributable to the pandemic.

[37] Prior to the pandemic, during a court appearance, it was common for the court clerk to call the trial coordinator from the courtroom to obtain a judicial pre-trial or trial date. Dates were selected and put on the record. The Defendant was given the return date and the matter was adjourned to the hearing, without any additional delay.

[38] In this case, counsel conducted a crown pre-trial on 09 February 2021 and immediately wrote to the trial coordinator to obtain a judicial pre-trial date. Without a response, counsel wrote again on 18 February 2021. On 24 February 2021, the trial coordinator set the judicial pre-trial for 22 March 2021. The delay in setting the date for the judicial pre-trial reflects the inordinate strain on resources within the trial coordinator’s office. Accordingly, I am deducting two weeks (15 days, from 09 February until 24 February 2021) for this delay.

[39] Lastly, the Defendant appeared on 19 April 2021 for his fifth appearance. He had conducted a judicial pre-trial on 22 March and was ready to set a trial date. Again, due to the pandemic, the trial coordinator was not available to set the trial for 10 days. The trial coordinator offered trial dates on 29 April 2021 and the Defendant took the first available date offered: 14-18 March 2022.

[40] Subtracting pandemic delay (10 weeks + 8 weeks + 2 weeks + 1 week and 3 days = 21 weeks and 3 days) from the total delay in this case results in (600 days minus 150 days) 450 days or approximately 15 months, from the time that the Defendant was charged until the anticipated completion of his trial.

Pre-Trial Delay and Disclosure

[41] Much of the dispute between the parties concerns the delay occasioned between the Defendant’s first appearance (24 August 2020) and his sixth (14 June 2021), when the matter was set down for trial.

[42] From the second appearance until the fourth appearance, the Defendant noted that disclosure was outstanding. The prosecutor never took exception or sought clarification respecting the claim of missing disclosure. In fact, of the Defendant’s six appearances in court on these matters, save for the fourth appearance, the prosecutor was all but mute respecting dates, disclosure, or the progress of this case.

[43] The prosecutor has never challenged any of the disclosure sought as inappropriate or designed to delay the proceedings. I find that the delays required for the prosecution to comply with its constitutional obligations were unfortunate and lengthy.

[44] Accordingly, until the fourth appearance, I am not deducting any delay for any of the adjournments required for missing disclosure. I find that the disclosure sought was relevant, necessary, and required for resolution discussions or trial time estimates.

Defence Delay

[45] Strictly speaking, there are no periods of defence delay from the Defendant’s first appearance until his sixth, when the trial was set.

[46] There is only one brief period where there can be any complaint made respecting the Defendant’s conduct: the Defendant did not submit the Trial Scheduling Form and Trial Estimate to the trial coordinator for almost one month following the judicial pre-trial (22 March 2021 to 16 April 2021).

[47] During this period, there were discussions between the parties to resolve the matter. In my view, the Defendant cannot delay moving forward to trial by attempting to resolve the matter and also complain about delay during this period. Nothing prevented the Defendant from doing both.

[48] There is no acceptable reason for the Defendant to have delayed submitting the necessary paperwork to the trial coordinator for more than three weeks. This delayed the fixing of a trial date for 25 days and undoubtedly affected the ultimate dates that were offered for the trial.

Total Net Delay

[49] The net delay in this case is (450 days minus 25 days) 425 days or 14 months. This is well below the presumptive Jordan limit for trials in this level of court. As a result, I will consider whether this case will have taken markedly longer than it should have to complete after a trial.

HAS THIS PROSECUTION TAKEN TOO LONG?

The Defendant Took Meaningful Steps to Proceed to Trial

[50] At this stage of the inquiry, the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have. The Supreme Court has made it clear that stays beneath the presumptive ceiling [will] be rare, and limited to clear cases.[^17]

[51] My review of the steps taken by the Defendant leads to a conclusion that he took meaningful steps demonstrative of a sustained effort to expedite the proceedings. The Defendant was arrested and released on 10 June 2020. He had retained counsel within days. Counsel initially wrote requesting disclosure on 16 June 2020 and continued to seek clarification about items received and to obtain further disclosure throughout five more letters: 22 July 2020, 21 October 2020, 30 October 2020, 21 January 2021, and 29 October 2021.

[52] I also note that the prosecutor had written to the Defendant’s counsel on 03 October 2020 to request a crown pre-trial. Unfortunately, this request was never acknowledged. There was no follow up by the prosecutor. There was no complaint that the Defendant was not moving things along. Inexplicably, the crown pre-trial was not held until 09 February 2021. However, as indicated earlier, it was not until the appearance on 22 February 2021 that any prosecutor took any apparent interest in advancing this case.

[53] There were six court appearances until the trial date was set, however, at least two of the appearances (24 August and 02 November 2020) required presumptive adjournments given the status of the courts during the pandemic. Two subsequent appearances related to outstanding disclosure, and one adjournment was to arrange a judicial pre-trial. The sixth appearance confirmed the trial date which had been arranged six weeks earlier. In all, the Defendant moved things along at an expedited pace.

[54] As a result, I find that all of the efforts of the Defendant to move the matter forward were genuine and appropriate.

This Prosecution Has Not Taken Markedly Longer Than It Should Have

[55] It is helpful to look at the chronology of the proceedings to determine if the matter has taken markedly longer than it should have:

i. 10 June 2020 – Defendant is arrested and released;

ii. 16 June 2020 – Defendant has retained counsel and counsel has made first written request for disclosure;

iii. 27 July 2020 – The Information is sworn – the Defendant is now charged; Jordan clock begins;

iv. 24 August 2020 – First Appearance – ex parte, per Chief Justice’s direction. Matter is adjourned presumptively 10 weeks;

v. 18 September 2020 – Initial Disclosure package is available;

vi. 02 November 2020 – Second Appearance – Defendant appears via enhanced designation; disclosure is outstanding; matter adjourned presumptively 12 weeks;

vii. 25 January 2021 – Third Appearance – disclosure is outstanding; Crown pre-trial is being arranged; matter is adjourned four weeks;

viii. 09 February 2021 – Crown pre-trial is held;

ix. 22 February 2021 – Fourth Appearance – disclosure is outstanding; Defendant has written twice (09 and 22 February 2021) to obtain judicial pre-trial date; court suggests 8 or 9-week adjournment; Defendant seeks 8 weeks;

x. 24 February 2021 – Trial coordinator advises date for judicial pre-trial;

xi. 17 March 2021 – Disclosure is completed;

xii. 22 March 2021 – Judicial pre-trial is held;

xiii. 16 April 2021 – Trial request and estimate forms submitted by Defendant;

xiv. 19 April 2021 – Fifth Appearance; eight weeks adjournment to set trial date;

xv. 29 April 2021 – Trial coordinator sets trial date; Defendant accepts first date offered, some 45+ weeks away;

xvi. 14 June 2021 – Sixth Appearance; trial is set for 14-18 March 2022; Defendant notes concerns with delay on the record;

xvii. 22-29 October 2021 – Discussions between the parties about s. 11(b);

xviii. 08 November 2021 – Prosecutor seeks an earlier trial date from the trial coordinator;

xix. 19 November 2021 – Prosecutor seeks an earlier trial date from the trial coordinator;

xx. 22 December 2021 – Defendant files extensive s. 11(b) Application materials;

xxi. 30 December 2021 – Prosecutor seeks an earlier trial date from the trial coordinator;

xxii. 06 January 2022 – Trial coordinator offers trial dates through 14 February to 04 March 2022;

xxiii. 07 January 2022 – Prosecutor accepts all of the proposed new trial dates;

xxiv. 12 January 2022 – Counsel for the Defendant advised of unavailability for all proposed new trial dates;

xx5. 09 February 2022 – Prosecutor responds to Defendant’s s. 11(b) Application; and

xxvi. 14-18 March 2022 – The Defendant’s trial is anticipated to complete.

[56] Obtaining disclosure, conducting resolution discussions, setting a judicial pre-trial, continuing resolution discussions, setting a trial, and completing a trial takes time. In the post-Jordan era, the parties are expected to work cooperatively and diligently to advance the matter to completion. The entire judicial system is required to observe the Defendant’s s. 11(b) right. There is no room for complacency. Eighteen months is the outside limit, not the goal.

[57] Accounting for the pandemic and defence delay, by the time this trial completes, the matter will have taken 14 months from start to finish. From the date when the trial was set (29 April 2021), there was a delay of approximately 10.5 months to trial.

[58] Before concluding this analysis, several observations are worth mentioning.

[59] Disclosure is a shield, not a sword. It protects the Defendant from trial by ambush. However, the Defendant is not entitled to halt the pace of the proceedings until every last piece of disclosure is received. Given the prosecution’s duty to continue to make disclosure of all evidence going to guilt or innocence (even after a prosecution has ended), it is never appropriate (and theoretically impossible) to await all disclosure before setting a matter down for trial. Once there is substantial disclosure, parties must move things along.

[60] I find that but for one period of 25 days, the Defendant has always tried to move things along. His efforts are numerous, consistent, and apposite.

[61] The prosecution was not diligent in moving this matter along. A prosecutor was assigned to this case early. That prosecutor responded to disclosure requests in a timely way. Beyond that single prosecutor’s efforts, the prosecution was content to let the pace of things unfold without any haste or concern. Every prosecutor who touched this file or spoke to the matter in court missed an opportunity to discern the status of disclosure, assist the Defendant, and move this matter to completion in a timely way.

[62] The prosecution was silent on almost every court appearance. The prosecution did not respond in any way when the trial was set and the Defendant noted concerns over the delay to complete his trial. It was not until the Defendant spoke of when to bring this Application that the prosecution took notice of his constitutional right.

[63] Perhaps not uncharacteristically given the history of this matter, the prosecutor only responded formally to this Application at the last possible moment.[^18]

[64] However, in the end, I am not satisfied on a balance of probabilities that it took an inordinate amount of time to try the Defendant for these charges for the following reasons:

i. The charges are serious and all parties have an interest in a trial on the merits;

ii. All matters have intake periods for disclosure and resolution discussions; in this case, things moved along slowly, but not beyond what is customary in this court; and

iii. The bulk of the net 14-month delay is the time it will take from the date when the trial was fixed on 29 April 2021 until it is anticipated to complete on 18 March 2022 (10.5 months). Waiting 10-12 months for a five-day trial is not unexpected or inordinate in one of the busiest jurisdictions in the country.

CONCLUSION

[65] This is not a clear example of a s. 11(b) Charter violation. It is a borderline case. I am not satisfied on a balance of probabilities that the requirements of Jordan have been unfulfilled.

[66] The Defendant’s s. 11(b) Charter right is not anticipated to be violated if the evidentiary phase of his trial ends on 18 March 2022.

[67] Accordingly, this Application is dismissed.

Released: 22 February 2022

Justice G. Paul Renwick

[^1]: 2016 SCC 27. [^2]: Jordan, supra, at para. 60. [^3]: Ibid. [^4]: Jordan, supra, at para. 47. [^5]: Jordan, supra, at para. 48. [^6]: R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at para. 28; Jordan, supra, at para. 66. [^7]: Cody, supra, at paras. 29-30 and 32-33, respectively. [^8]: R. v. Mallozzi, 2018 ONCA 312, [2018] O.J. No. 1794 (C.A.) at para. 3. [^9]: See R. v. Simmons, 2020 ONSC 7209 and R. v. Khattra, 2020 ONSC 7894. [^10]: Khattra, supra, at para. 59. [^11]: 2020 ONCJ 507. [^12]: R. v. Kalanj, 1989 63 (SCC), [1989] S.C.J. No. 71 at paras. 10-25, R. v. Gandhi, 2016 ONSC 5612 (S.C.J.) at para. 4 and R. v. Medeiros, 2020 ONSC 569 at paras. 9-15. [^13]: For these purposes, I am leaving aside the proffer of a direct Indictment pursuant to s. 577 of the Criminal Code. [^14]: See: 11 March 2020 Media Announcement by the World Health Organization. [^15]: The parties accept that the court was only operating on a limited basis from 16 March until 06 July 2020. [^16]: Neither the Defendant nor his counsel were required to appear. [^17]: Jordan, supra, at para. 48. [^18]: I mention this as an aside; this fact did not form any part of the argument or my analysis of this Application.```