Criminal justice

Unreasonable delay

6,000 criminal cases could be thrown out because of new rules around how long someone has to wait before standing trial

Canada could throw out thousands of criminal charges because the trials will take too long

A prominent Toronto criminal defence lawyer says there’s no chance the government will clear a backlog in the justice system in time to save thousands of charges from being thrown out.

All told, as many as 6,000 criminal cases in Ontario are at risk of being stayed because they violate the Supreme Court’s definition of a speedy trial.

An Ottawa court has already set aside a first-degree murder charge, allowing the accused to walk free.

 

“I don’t trust the system anymore,” Nicole Nayel, whose son Fouad Nayel was the victim in that case, told VICE News.  “I don’t believe in justice. I put my faith in the system. I trusted the system since day one and they failed me.”

Fouad’s partially decomposed body was found in November 2012 in woods near Calabogie, Ontario, about 100 kilometres west of Ottawa. Tuesday should have been the start of jury selection. Instead, the judge stayed the charges — effectively throwing the case out — and Adam Picard was released.

“This is truly a crisis and yet there has been no meaningful response from the government.”

The case is a bellwether for Ontario’s backlogged criminal justice system.

A Supreme Court ruling in July, known as the Jordan decision, set time limits for reasonable trial delays. The court ruled that, barring certain circumstances, trials could not be delayed more than 18 months in provincial court and 30 months in superior court.

Even then, some members of the Supreme Court agree the new changes set by the top court’s majority are wrong-headed.

The decision “risks thousands of judicial stays,” wrote Justice Thomas Cromwell in a dissenting opinion. He was backed up by four justices on the court, but a five-member majority ultimately upheld the new standard.

“In short, the new framework is wrong in principle and unwise in practice,” wrote Cromwell. His words may end up ringing true.

Trial delays are systemic and the government has struggled for decades to introduce efficiencies and move casework through a sluggish system.

The estimate of 6,000 cases that face a stay of proceedings under the new Supreme Court standard is provided by the Ontario Crown Lawyers Association.

“If you were an innocent man in jail, you would say that one day in jail was too long.”

Kate Matthews, the association president who represents all of the province’s attorneys responsible for prosecuting those cases, wrote an open letter putting the blame squarely with the Ontario government.

“It has long been apparent that a crisis was inevitable. Anyone working in the criminal justice system could see Jordan coming, and yet the government did nothing with respect to the key reasons behind it,” Matthews wrote. “This is truly a crisis and yet there has been no meaningful response from the government.”

Unless more assistant Crown attorneys are hired, any efforts to make the system more efficient by the Ministry of the Attorney General will be “mere band-aids,” Matthews said.

Yasir Naqvi, Ontario’s Attorney General, said his office is reviewing thousands of criminal cases to identify the most serious charges at risk of being stayed and coordinating with judges, Crown attorneys and the criminal defence bar to move trial dates forward.

But Daniel Brown, a Toronto criminal lawyer, told VICE News there is little chance the backlog can be addressed in time.

“Unless the Crown attorney has created a time machine, the Crown attorney is not going to be able to fix the delays in these particular cases that they’ve identified as being at risk of being stayed for delay,” Brown said.

“In the present case, the justice system has failed this accused and the public.”

To start clearing the backlog, the Crown should offer alternatives to a criminal trial — counselling or peace bonds, for example — to those charged with more minor offences like shoplifting and drunk driving, Brown said.

Procedural issues like evidence disclosure can be blamed for some of the delays, but the most pressing thing is for governments to fill vacant judicial appointments at the provincial and federal level so there are more judges to hear cases, Brown said.

“If you were an innocent man in jail, you would say that one day in jail was too long,” he said.

The problems were all highlighted by the decision last week to stay the first-degree murder charge against Adam Picard.

Picard, 33, a former Canadian Forces soldier, was arrested in December 2012 and accused of shooting Fouad Nayel. The month before, the 28-year-old construction worker’s body was found rotting in woods near Calabogie, Ontario, about 100 kilometres west of Ottawa. The police theory is that Nayel was killed in a drug robbery that went south.

In letting the accused walk, Justice Julianne Parfett echoed the Jordan decision, citing “the culture of complacency” over trial delays in the criminal justice system. The judge said the more serious the charges, the greater the need to deal with them in a timely manner.

“This is first-degree murder. It is not a joke, here.”

While the prosecution argued that multiple changes to Picard’s legal team caused the delays — he fired one lawyer, and had two others replaced — the judge ultimately ruled that the Crown was to blame for fighting a motion to speed up the process. A heavy caseload for the prosecution team was a factor, Parfett found.

“I am well aware that, in deciding to stay these charges, the family of [Nayel] 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,” Parfett said in announcing the decision, according to the Ottawa Citizen. “In the present case, the justice system has failed this accused and the public.”

Picard maintained his innocence in a statement to reporters outside the Ottawa courthouse. “I’m relieved that this is all over and I would just like to get back to my life,” he said

The Attorney General’s office said it will appeal the ruling.

As for Nayel’s family, they say they are devastated and feel betrayed: “You know what I don’t understand? They should at least let him go to trial,” Nicole Nayel said. “Let the jury decide. One day is going to make a difference?

“This is first-degree murder. It is not a joke, here. Right now he is out on the streets. Do I feel safe, myself and my family? No we don’t. He is out there. Do I feel the public is safe? No I don’t. They shouldn’t feel safe.

“It is not only our case. A lot of families are going to be affected by this.”

Cover: Photo by Adrian Wylde/the Canadian Press

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