Court and Parties

Ontario Court of Justice Date: November 15, 2023 Location: Newmarket, Ontario

Between: His Majesty The King

— And —

Malachi Alleyne-Smart

Before: Justice R.M. Robinson

Heard on: November 3, 2023 Reasons for Judgment released on: November 15, 2023

Counsel: Matthew Tawdrous, for the Crown Nicole McDermott, counsel for Malachi Alleyne-Smart

ROBINSON J.:

Overview

[1] Mr. Alleyne-Smart stands charged with assault bodily harm, assault resist arrest and assault, all of which allegedly occurred on 8 June 2022. He was arrested and charged on 8 June 2022. His trial is scheduled to take place on 15, 16, 17 and 18 January 2024. From the date of the swearing of the Information (17 June 2022) to the last anticipated day of trial (18 January 2024), 19 months and 1 day will have elapsed.

[2] When Ms. McDermott filed her s.11(b) materials on 3 October 2023 and when Mr. Tawdrous filed his original response on 31 October 2023, the trial dates that had been set were on 2, 3, 4 and 5 July 2024. This would have resulted in a total delay of 23 months and 3 weeks from the swearing of the Information to the last anticipated day of trial.

[3] However, when this hearing commenced on 3 November 2023, I was advised that the Crown had brought the matter forward into Blitz Court on 2 November 2023 in order to obtain earlier trial dates of 15, 16, 17 and 18 January 2024.

[4] Mr. Alleyne-Smart alleges that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter has been violated. As a remedy, he seeks a stay of proceedings pursuant to section 24(1) of the Charter.

[5] This Application raises three distinct issues:

(1) What period of delay, if any, should be attributed to the defence? (2) How much of the delay in setting dates, if any, is attributable to the “discrete event” of COVID-19 to be deducted from the presumptive ceiling? (3) If the Remaining Delay is below the presumptive ceiling, has the defence discharged its onus of establishing that the delay was nonetheless unreasonable?

The 11(b) Analytical Framework

[6] In 2016, in R. v. Jordan [1], the Supreme Court of Canada developed a revised framework for applying section 11(b) of the Charter. The framework created a presumptive ceiling of 18 months for a trial at the Provincial Court [2] and 30 months for a trial at the Superior Court.

[7] The revised Jordan framework was summarized by the Ontario Court of Appeal as follows in R. v. Coulter, 2016 ONCA 704, at paras 34-40:

1. Calculate the Total Delay (the period of time between the swearing of the Information and the anticipated last day of trial).
2. Subtract defence delay from the total delay, which results in the “Net Delay”.
3. Compare the Net Delay to the presumptive ceiling.
4. 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.
5. 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.
6. 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.
7. If the Remaining Delay falls below the presumptive ceiling, 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.

[8] The starting point in the present case is the Total Delay of 19 months and 1 day. The Information was sworn on 17 June 2022 and the last anticipated day of trial is 18 January 2024.

[9] With the above framework in mind, I turn to the distinct issues raised in the present case.

Issue #1: What period of delay, if any, should be attributed to the defence?

Interpretation of “Defence Delay”

[10] Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence. While waiver can be explicit or implicit, it must be clear and unequivocal. [3]

[11] Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay [4]. Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay. [5]

[12] Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. In Jordan [1], the Supreme Court of Canada specifically noted that the defence must be allowed preparation time even where the court and the Crown are ready to proceed. [6] As a matter of logic and fairness, a reviewing judge should be hesitant to second-guess such preparation time, provided it is reasonable.

Disputed Periods of Delay

12 July 2022 – 23 August 2023 (43 days) Toward ceiling

[13] Mr. Alleyne-Smart’s first appearance was on 12 July 2022. The defence requested an adjournment to 23 August 2022 to sort out Mr. Alleyne-Smart’s legal aid application and to receive disclosure.

[14] While Mr. Tawdrous’ written Response to the s.11(b) application characterized this adjournment as “defence delay”, during submissions he acknowledged that the 6-week adjournment for retainer purposes was reasonable “preparation time”. He further acknowledged that, as no disclosure had yet to be provided, this was not a circumstance in which the court and the Crown were ready to proceed but the defence was not.

23 August 2022 – 27 September 2022 (36 days) Toward ceiling

[15] On Mr. Alleyne-Smart’s court appearance of 23 August 2022, his representative requested an adjournment to 27 September 2022 to sort out his legal aid application.

[16] Ms. McDermott argues that this period should be considered necessary preparation time that does not go toward Defence Delay. Mr. Tawdrous argues that it is Defence Delay, as there was nothing stopping the defence from setting a Crown Pre-Trial (“CPT”) to move the matter along.

[17] I am advised that initial disclosure was provided only 19 days earlier, on 4 August 2022. The transcript also reveals that Ms. McDermott was still not retained as Mr. Alleyne-Smart needed to take steps to sort things out with legal aid.

[18] I conclude that this adjournment was necessary and reasonable “preparation time” that reflects the inherent time requirements of the case. It does not count toward Defence Delay.

27 September 2022 – 25 October 2022 (29 days) Defence delay

[19] On Mr. Alleyne-Smart’s court appearance on 27 September 2022, his representative requested an adjournment to 25 October 2022 to sort out his legal aid application.

[20] Ms. McDermott again argues that this falls under necessary preparation time. Mr. Tawdrous again argues that it is Defence Delay, as there was nothing stopping the defence from setting a Crown Pre-Trial (“CPT”) to move the matter along.

[21] By the time of this appearance on 27 September 2022, the defence had been in possession of disclosure for 55 days. The correspondence filed as part of the defence materials indicates that, on 26 September 2022, the defence emailed the Crown’s office regarding setting a CPT. The Crown’s office responded the next day by providing the defence with the assigned Crown’s email address with a suggestion that the defence email the assigned Crown directly.

[22] It is apparent that, despite the issue of retainer through legal aid not being finalized, the defence was prepared to move the matter forward. It is unclear why the defence waited until the late afternoon the day before Mr. Alleyne-Smart’s court appearance of 27 September 2022 to reach out to the Crown’s office regarding a CPT. It is also unclear why the defence need a month-long adjournment, when the response from the Crown’s office suggested that the assigned Crown could be contacted at any time.

[23] As of 27 September 2022, it appears that the court and the Crown were in a position to proceed but the defence was not. Accordingly, I find that the 29-day adjournment is attributable to Defence Delay.

25 October 2022 – 22 November 2022 (29 days) Toward ceiling

[24] On Mr. Alleyne-Smart’s court appearance on 25 October 2022, his representative requested that the matter be adjourned to 22 November 2022 so that his legal aid application could be sorted out.

[25] Mr. Tawdrous argues that the adjournment should count toward Defence Delay as it was for essentially the same reason as the prior adjournment.

[26] Ms. McDermott points to the steps taken by the defence between 25 October 2022 and 22 November 2022 and argues that they were necessary steps taken by the defence to move the case along.

[27] On 27 October 2022, the defence emailed the assigned Crown regarding scheduling a CPT. Having received no response, the defence sent a follow-up email to the assigned Crown on 1 November 2022. The assigned Crown responded with instructions on how to access his online calendar to book a CPT. A CPT was scheduled for 15 November 2022.

[28] I have determined that the period between the 25 October 2022 court appearance and the 15 November 2022 CPT involved the defence taking necessary and reasonable steps to move the matter along. In the absence of any particular evidence regarding the parties’ availability, I find that period of time reflected the inherent time requirements involved in the defence and the assigned Crown scheduling a CPT.

[29] I also conclude that the period from the CPT on 15 November 2022 to the next court date of 22 November 2022, was reasonable “preparation time” for the defence to discuss the outcome of the CPT with Mr. Alleyne-Smart and to receive instructions.

[30] Accordingly, I am not prepared to find that any of the delay between 25 October 2022 and 22 November 2022 was attributable to Defence Delay.

6 December 2022 – 20 December 2022 (15 days) Toward ceiling

[31] On Mr. Alleyne-Smart’s court date of 6 December 2022, no one appeared on his behalf. At the Crown’s request, the matter was adjourned to 20 December 2022 with a bench warrant with discretion.

[32] Mr. Tawdrous submits that, by definition, an adjournment caused by the accused’s failure to appear must be considered Defence Delay.

[33] Ms. McDermott argues that it is important to look at what occurred in the appearances prior to and subsequent to the missed court date of 6 December 2022; that doing so would lead to the conclusion that the missed court date did not delay anything and essentially did not matter. She further submits that the Crown who adjourned it two weeks with a discretionary warrant could have brought it back sooner.

[34] I have been advised by both parties that, at the CPT that took place on 15 November 2022, it was agreed that the assigned Crown would make inquiries of one of the officers involved in the case and then get back to the defence.

[35] When Mr. Alleyne-Smart’s matter was in court on 22 November 2022, it was adjourned two weeks at the defence request because counsel “is waiting for an update from the assigned Crown.”

[36] In his s.11(b) Response materials, Mr. Tawdrous conceded that this adjournment should count toward the ceiling, which I interpret as his concession that the adjournment came as a result of the assigned Crown’s delay in responding.

[37] Similarly, Mr. Tawdrous characterized the adjournments on the court appearances of 20 December 2022, 17 January 2023, 7 February 2023 and 7 March 2023 as counting toward the ceiling, which I also interpreted as his concession that they came as a result of the assigned Crown’s delay in responding.

[38] On 20 December 2022, Mr. Alleyne-Smart’s representative in court stated:

“I understand counsel is still awaiting an update from the Crown… They can’t move the matter forward without Crown input.”

[39] On 17 January 2023, Mr. Alleyne-Smart’s representative stated:

“I have a note here that counsel still has not received a resolution position from the Crown and counsel’s understanding from the CPT that he was waiting to see – get some updates from one of the police officers. I am going to request to adjourn this… for the Crown to follow-up with counsel and counsel can do a bring forward in the interim if the Crown gets back to her and there’s a resolution.”

[40] On 7 February 2023, Mr. Alleyne-Smart’s representative relayed the following message from counsel to the court:

“Still have not heard from the assigned Crown regarding a firm position on a resolution for the information on the officer’s injuries. Asking for a four-week adjournment for a further Crown pre-trial to see if, if that makes things happen faster…”

[41] On 7 March 2023, Mr. Alleyne-Smart’s representative provided the following information to the court:

“[Counsel] says she still has not heard from the assigned Crown regarding a firm position on resolution following further information on officer’s injuries. She said, “We are hopeful that a further Crown pre-trial will expedite this.” She says “[their Law Clerk] reached out to the assigned Crown regarding the scheduling of a Crown pre-trial. No response. She has reached out again to the Crown’s office in hopes of scheduling that CPT. She is asking that we adjourn this matter for a response from the Crown’s office…”

[42] The missed court appearance on 6 December 2022 was an unfortunate oversight on the part of the defence. However, placed in the context of the assigned Crown’s persistent failure to respond to defence counsel, it is clear that the missed court appearance was inconsequential.

[43] As a result, I am not prepared to attribute the delay between 6 December 2022 and 20 December 2022 to Defence Delay.

28 March 2023 – 25 April 2023 (29 days) Toward ceiling

[44] On Mr. Alleyne-Smart’s court appearance on 28 March 2023, his representative advised that, as the assigned Crown had not yet got back to them, the defence had scheduled a second CPT to move the matter along. As the date of the second CPT was 20 April 2023, the matter was adjourned to 25 April 2023.

[45] Mr. Tawdrous invites me to view the adjournment as Defence Delay.

[46] Ms. McDermott argues that the reason for the delay was the assigned Crown’s continued failure to respond since November 2022.

[47] In my view, this adjournment was a necessary and reasonable step taken by the defence. Faced with the assigned Crown’s failure to respond, the defence was pro-active in setting a second CPT to force the issue.

[48] In the absence of any particular evidence regarding the parties’ availability, I find that period of time reflected the inherent time requirements involved in the defence and the assigned Crown scheduling a second CPT. Having the matter return to court on 25 April 2023, 5 days after the CPT, was a reasonable amount of preparation time for the defence to consult with and receive instructions from Mr. Alleyne-Smart.

30 May 2023 – 22 June 2023 (24 days) Toward ceiling

[49] On 30 May 2023, a Judicial Pre-Trial (“JPT”) was conducted before Justice Armstrong. The transcript of the speak-to that followed the JPT reveals that Justice Armstrong put the matter over to 22 June 2023 for a further JPT so that he could review some material that had been provided to him.

[50] Mr. Tawdrous argues that the adjournment should fall at the feet of the defence, as the Crown “was prepared and eager to resolve or set trial dates.” Not only does the history of the case suggest otherwise, but the words of Justice Armstrong suggest that the court was not in a position to proceed because a second JPT was deemed necessary.

[51] I conclude that the adjournment for a second JPT, with the apparent agreement of all parties, formed part of the inherent time requirements of the case.

Conclusion re Defence Delay:

[52] I have concluded that the total Defence Delay in this matter is 29 days.

[53] The Net Delay is, therefore, 18 months and 2 days, which is above the presumptive ceiling of 18 months.

[54] As the Net Delay is above the 18-month ceiling and is presumptively unreasonable, it falls to the Crown to establish exceptional circumstances. There is no suggestion that this case was particularly complex.

[55] In the present case, the Crown relies on delays caused directly or indirectly by the exceptional circumstances created by the discrete event of the COVID-19 pandemic.

Issue #2: How much of the delay in setting dates, if any, is attributable to the “discrete event” of COVID-19 to be deducted from the presumptive ceiling?

[56] There is one time period that the Crown submits is attributable to the “discrete event” of the COVID-19 pandemic, namely from 22 June 2023 (the second JPT) to 6 July 2023 (the Blitz Court appearance).

[57] The Crown submits that these 15 days should be deducted as exceptional circumstances attributable to the discrete event of the COVID-19 pandemic.

[58] The defence submits that, absent any concrete evidence in support of the actual impact of the COVID-19 pandemic on court delays, there should be no deduction for exceptional circumstances attributable to the pandemic as a discrete event.

Law and Analysis

[59] In Jordan [1], the Supreme Court of Canada stated, “Exceptional circumstances lie outside 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.” [7]

[60] That the onset of the COVID-19 pandemic in March 2020 was unforeseen and unavoidable is clear. Thus, it appears to be the epitome of a discrete event. “No reasonable person could contend otherwise.” [8]

[61] In Jordan [1], the Supreme Court of Canada specifically envisioned that medical emergencies could qualify as a discrete exceptional circumstance. [9] In Agpoon, 2023 ONCA 449, the Ontario Court of Appeal interpreted this to apply to COVID-19: “Although this comment was made in the context of individual medical emergencies, in our view it can be and should be, generalized for the pandemic.” [10]

[62] The immediate chaos brought on by the pandemic cannot be seriously disputed. It included the cancellation of all Ontario Court of Justice trials and preliminary inquiries in March 2020. Thereafter, court operations incrementally resumed in July 2020, starting with the re-scheduling of previously cancelled matters. This had an immediate – and ongoing – impact on new cases entering the system that had to compete with the backlog.

[63] In this case, no evidence was adduced by the Crown that speaks directly to how the pandemic impacted the setting of various court dates (i.e. the Blitz Court date).

[64] In Jordan [1], at para 89, the Supreme Court of Canada specifically recommended that, “In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.”

[65] This reliance on the trial judge’s knowledge of local circumstances was recently endorsed by the Ontario Court of Appeal in Agpoon, at para 26.

[66] In the recent case of R. v. Zettler [11], my colleague, Justice Bergman, found that he was unable to make meaningful findings about the impact of the pandemic drawing from his own knowledge of the culture at the Newmarket courthouse, as he was recently appointed to Newmarket and had limited knowledge of the culture of the jurisdiction.

[67] Accordingly, in Zettler [11], Justice Bergman declined to find that the time-to-trial delay (i.e. from the Blitz Court appearance to the trial date) was attributable to the pandemic.

[68] Notably, though, Justice Bergman did find that the time-to-Blitz-Court delay (i.e. from the submission of the Trial Scheduling Form to the Blitz Court appearance) was attributable to the pandemic. In support of that conclusion, Justice Bergman noted that Blitz Court was a measure specifically created to address the COVID-19-related backlog in the court system.

[69] With respect to the Blitz Court delay, I reached the same conclusion in R. v. Smith, 2023 O.J. No. 4803 [11].

[70] Prior to the pandemic, counsel could walk into the Trial Coordinator’s office immediately after a JPT and obtain trial dates. I have done so myself when I was counsel.

[71] With the overwhelming backlog created by the pandemic, the days of walking into the Trial Coordinator’s office to obtain a trial date appear to be over. Rather, Blitz Court was created to attempt to address the backlog. But for the pandemic, there would be no Blitz Court.

[72] There is reason for optimism, though, as the inherent delays appear to be improving significantly in Newmarket:

• In R. v. Cao, 2022 ONCJ 179, it took 3.5 months to get to Blitz Court (14 January 2021).
• In Zettler [11], it took 43 days to get to Blitz Court (7 September 2022).
• In Smith [11], it took 44 days to get to Blitz Court (5 October 2022).
• For Mr. Alleyne-Smart, it took 15 days (6 July 2023).

[73] I find that the 15-day delay between 22 June 2023 (when the defence requested a Blitz Court date) and 6 July 2023 (the Blitz Court date), is deductible as exceptional circumstances attributed to the discrete event of the pandemic.

[74] The Remaining Delay in this case is 17 months and 18 days and, therefore, falls just below the presumptive ceiling.

[75] For the sake of clarity, I have calculated the various periods of delay as follows:

Total Delay 19 months, 1 day

Defence delay

• 29 days

Net Delay 18 months, 2 days

Exceptional circumstances • Delay setting Blitz Court date

• 15 days

Remaining Delay 17 months, 18 days

Issue #3: Has the Defence Established that the Delay Below the Presumptive Ceiling Was Nonetheless Unreasonable?

[76] In Jordan [1], a two-part test was set out for the defence to discharge its onus where the delay is below the presumptive ceiling:

(1) The defence must establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) The defence must establish that the case took markedly longer than it reasonably should have. [12]

[77] The Supreme Court of Canada noted that stays below the presumptive ceiling would be rare and would only be granted in clear cases [13].

Meaningful and Sustained Efforts by the Defence

[78] The evidence before me establishes persistent efforts by the defence to move this case along. The evidence also suggests a failure by the assigned Crown to respond to the defence efforts. No explanation for the assigned Crown’s failure to respond has been provided.

[79] However, as reasonable as I find the defence efforts to be, Jordan [1] appears to draw a distinction between steps toward resolution and steps toward trial:

“Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider” (Morin, at p.802). Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible.” [14]

…it falls to 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…

[80] The various adjournments between November 2022 and April 2023 came as a result of the assigned Crown’s inaction. The defence tried to follow up with the assigned Crown and put the Crown and court on notice during court appearances that their efforts had gone unanswered.

[81] The evidence before me suggests that the Crown update that the defence was awaiting went directly toward the possibility of resolution. I recognize that the pursuit of resolution is a worthy and reasonable path and was undertaken by the defence in good faith in the present case. For this reason, I have not attributed the various adjournments toward Defence Delay.

[82] However, given the unambiguous language in Jordan [1], it seems to me that, for the defence to establish a s.11(b) violation when the delay is below the presumptive ceiling, there must be meaningful and sustained efforts to not just move the case along, but to set trial dates.

[83] As a stay below the ceiling is reserved for the clearest of cases, there must be evidence of defence efforts aimed at obtaining the earliest possible trial dates. This may call for the defence to pursue what was referred to by Thibideau J as “the parallel track defence” [15] in R. v. Nichol, 2004 ONCJ 297, where the defence seeks a stay below the ceiling.

[84] On the record before me, the defence has failed to establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings in the sense described in Jordan [1].

Time Markedly Exceeded.

[85] Although it is unnecessary to consider the second requirement for a stay below the ceiling given my conclusion above, I will address it nevertheless.

[86] This part of the test requires the defence to establish that the time the case has taken markedly exceeds the reasonable time requirements of the case. A variety of factors are to be considered in determining the reasonable time requirements of a case, including the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings. [16]

[87] Regarding the latter factor, there is no evidence before me that the Crown took reasonable steps to expedite the proceedings. It was the assigned Crown’s failure to respond that delayed this matter unnecessarily from November 2022 to April 2023.

[88] When the matter appeared in Blitz Court on 6 July 2023, Justice Sickinger inquired into the Jordan [1] deadline and was advised that it was 17 December 2023.

[89] When the Trial Coordinator inquired if the Crown was seeking to prioritize this matter, the Crown declined, responding, “I don’t believe so. I am unable to look at the notes at this point but I don’t have a note to have it prioritized.”

[90] When Justice Sickinger asked if 11(b) was in issue, Mr. Alleyne-Smart’s representative confirmed that it was. Still the Crown did not direct the Trial Coordinator to prioritize the matter. As a result, trial dates in July 2024 were fixed.

[91] The only positive step taken by the Crown to expedite the proceedings could hardly be described as reasonable: the day before this 11(b) hearing, the Crown brought the matter forward to obtain January 2024 trial dates.

[92] The bottom line, however, is that the time-to-trial from Blitz Court (6 July 2023) to the current trial date (18 January 2024) is 6 months. Even if the matter had arrived in Blitz Court 4 months earlier – i.e. if the assigned Crown had taken 4 fewer months to respond – the time-to-trial would be approximately 10 months.

[93] Based on my knowledge of local considerations, I cannot conclude that a 10-month time-to-trial delay in the Ontario Court of Justice in Newmarket is markedly longer than it would be for similar matters.

[94] Accordingly, the defence has also failed to establish the second requirement for a stay under the presumptive ceiling.

[95] I would be remiss not to mention my dissatisfaction with the Crown’s conduct in this matter. The defence was left waiting for a response from the assigned Crown for approximately 4 months. When the matter was in Blitz Court and the delay concern was flagged, the Crown specifically declined the Trial Coordinator’s invitation to prioritize this prosecution. Mr. Alleyne-Smart / taxpayers through legal aid were then put to the significant expense of funding a viable s.11(b) application. Defence counsel was forced to expend significant time preparing thorough s.11(b) application materials. Literally on the eve of what would likely have been a successful s.11(b) hearing, the Crown brought the matter forward to Blitz Court to obtain earlier, Charter-compliant trial dates. Valuable court time and judicial resources were then wasted for the hearing and determination of this application.

Conclusion

[96] The Remaining Delay in this matter is below the presumptive ceiling. The defence has not discharged its onus of establishing 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.

[97] Accordingly, the application for a stay of proceedings is dismissed.

Released: 15 November 2023 Signed: Justice R.M. Robinson

[1] R. v. Jordan, 2016 SCC 27 [2] In the present case, the Crown has proceeded summarily. Accordingly, the Ontario Court of Justice has absolute jurisdiction and the presumptive ceiling is 18 months. [3] Jordan, supra, at paras 61, 63; Coulter, supra, at paras 42-43. [4] Jordan, supra, at para 63; Coulter, supra, at para 44. [5] Jordan, supra, at para 64; Coulter, supra, at para 44. [6] Jordan, supra, at para 65. [7] Jordan, supra, at para 69. [8] Nakatsuru J in R. v. Simmons, 2020 ONSC 7209, at para 60. [9] Jordan, supra, at para 72. [10] R. v. Agpoon, 2023 ONCA 449, at para 19. [11] R. v. Shawn Zettler, unreported decision of Justice Bergman, OCJ, dated 2 June 2023. [12] Jordan, supra, at para 82. [13] Jordan, supra, at para 83. [14] Jordan, supra, at para 84. [15] This involves the defence pursuing resolution while simultaneously pursuing the setting of early trial dates in the event that resolution does not come to fruition. [16] Jordan, supra, at para 87.