Legal experts raise alarm over court delays after murder trial halted

Legal experts and victims advocates fear more murder cases will be halted because of long delays getting them to trial.

July Supreme Court ruling dictates serious cases should not be delayed past 30 months

Amine and Nicole Nayel had waited four years for the trial of a man charged with first-degree murder in the death of their son. On Tuesday, a judge ruled the time was unreasonable and stayed the charges. (Simon Gardner/CBC)

An Ontario Superior Court justice's decision to call a halt to a murder prosecution over delays in getting to trial is being viewed as an ominous sign for the Canadian justice system, with legal experts and victim's advocates fearing more murder cases will be stayed because they are dragging too long.

Adam Picard, 33, was charged with the first degree murder of 28-year-old Fouad Nayel in 2012. Picard had been in jail ever since without the case actually getting to the trial stage.

This week, Nayel's parents assumed they were finally going to get a measure of justice because jury selection was starting. They were crushed when the case was stayed and the accused walked out of the court a free man.

"The system really failed us," said a devastated Nicole Nayel, the victim's mother.

Last July, the Supreme Court took aim at the sluggish pace of lower courts by ruling that most criminal cases must not exceed eighteen months to get to trial. Trials for the most serious cases, such as murder, should not be delayed past an upper limit of 30 months, the court said.

Picard case not unusual

The Picard case is not unique. That's why there are predictions other serious cases are about to collapse under the weight of delayed justice.

Construction worker Fouad Nayel's body was found in 2012 months after he disappeared in a wooded area near Calabogie Ont. (CBC)

In March, the Canadian Resource Centre for Victims of Crime submitted a brief on delays in the criminal justice system to the Senate Standing Committee on Legal and Constitutional Affairs.

The authors cited the Ottawa case of Carson Morin, who is facing a first-degree murder charge in the fatal stabbing of Michael Wassill.  In the spring of 2013 Wassill was trying to shield a female friend from violence when he was brutally attacked himself.

The group's brief noted the overwhelming grief suffered by Wassill's family "is compounded by the fact the trial for the accused will not take place until January 2017" and that, "setting a trial almost [four] years after the incident is an egregious injustice."

Heidi Illingworth, the executive director of the non-profit group, is worried about the future of the case.

"So are we now anticipating that these cases are going to be thrown out as well? It's very concerning," she said.

Crown lawyers say they need more resources

CBC Ottawa found two other murder cases that have already exceeded the Supreme Court's length benchmark of 30 months for serious criminal cases.

  • Michael Belleus. He was charged for the 2012 murder of Levy Kasende. There have been multiple delays at the preliminary hearing. The case is approaching three-and-a-half years.
  • Devontay Hackett. He's accused of second-degree murder in the killing of Brandon Volpe. The case is approaching three years and, like the Morin case, is scheduled for trial in Janaury.

Just last month, Kate Mathews, the President of the Ontario Crown Attorneys Association, called the situation a crisis. She blames a provincial government that is cutting resources when much more are needed.

"We don't have enough courtrooms, we don't have enough judges, we don't have enough Crowns, we don't have enough support staff to support the Crowns in their work. All of those, in my view, are underresourced", said Mathews.

Crown was put on notice 'that the clock was ticking'

Adam Picard, 29, had been charged with first-degree murder in the death of Fouad Nayel. (CBC News)

It's not clear if a lack of resources played a role in the Picard prosecution dragging on for four years. In Justice Parfett's ruling, she describes delays right from the start of the case.

"The Crown was put on notice as early as June 2013 that the clock was ticking and they had a positive obligation to proceed expeditiously."

She adds that, "despite this warning, there is no evidence that the Crown counsel was making any effort to find early dates."

In August of last year, Picard's lawyer brought a motion to expedite the trial. The Crown opposed the move, arguing that it would mean one of the assigned Crown attorneys would be unavailable on the proposed dates.

Attorney General orders review of case

After examining the ruling, Norm Boxall, one of Ottawa's top criminal defence lawyers, concludes there is no evidence to suggest Picard and his lawyer were deliberately causing delays to get the case stayed.

Criminal defence lawyer Norm Boxall said the case was not deliberately delayed, as the accused asked for an earlier court date over a year and a half ago.

"It clearly doesn't fly because in this case the accused had brought an application over a year and a half ago asking for an earlier trial date. It was opposed by the Crown. This is not a case of an accused who was delaying his trail date. In fact, it's quite the reverse," said Boxall.

The Crown can appeal Parfett's ruling.

In the meantime, Yassir Naqvi, Ontario's Attorney General, has ordered a review of the case.

Here is an excerpt of the conclusion of Parfett's ruling:

"I am well aware that, in deciding to stay these charges, the family of the deceased in this matter will not see justice done as they would want.

"Moreover, the accused himself may find this to be a hollow victory. A stay of proceedings is not the same as a verdict of not guilty.

"However, I cannot but emphasize that the more serious the charges, the more the justice system has to work to ensure that the matter is tried within a reasonable time. The thread that runs through the present case is the culture of complacency that the Supreme Court condemned in Jordan.

"Everyone, not just the Crown, was content with trying this matter within the time for delay that has become the norm in Ottawa. Normal delay is not acceptable when an accused is in custody.

"Delay beyond that prescribed for the past 24 years is not acceptable regardless of whether the accused is in custody or not.

"In the present case, the justice system has failed this accused and the public. Consequently, a stay of proceedings will be entered."

With files from Judy Trinh