Giving victims a voice in the criminal justice system

Giving victims a voice in the criminal justice system Giving victims a voice in the criminal justice system Giving victims a voice in the criminal justice system Giving victims a voice in the criminal justice system

JUSTICE DENIED FOR THE VICTIMS

In June of 2012, 28-year-old Fouad Nayel left his parent’s home in the suburbs of Ottawa. It was Father’s Day, and he told his cousin he would be back in a couple of hours with Chinese food to celebrate, which was their annual tradition. His family did not realize that this would be the last time they saw their loved one alive.

Following Fouad’s disappearance, a relentless search ensued which left his family, as well as the authorities, tired and frustrated. Nicole, Fouad’s mother, described the experience as a nightmare she didn’t know when would end, and said, “I haven’t slept. I haven’t ate. I haven’t done anything. I’m just a walking body.”

In November of 2012, a passerby contacted the police about human remains they had found in the woods near Calabogie, a town about 100 km west of Ottawa. Soon after, Fouad’s family were informed that their worst nightmare had come true, and that the remains found were identified as Fouad’s.

It did not take long for the authorities to piece together what they believe happened to Fouad, and less than a month later they arrested and charged 33-year-old Adam Picard with first-degree murder. Picard is a former member of the Canadian armed forces, and was accused of shooting Nayel from behind twice, following a drug-related altercation.

During the following years, the case went through a number of impediments that delayed it coming to trial, including the defence changing lawyers four different times. The Crown also faced numerous procedural challenges, including the prosecutors being involved in other murder trials. They were also tasked with unpacking a complex case involving two police services, 30,000 pages of disclosure and 78 witnesses. In August 2015 the defence brought an application to expedite the trial, but was met with resistance by the Crown as they felt that this would mean both of the assigned lawyers would have to be removed from the case.

The family remained patient, hoping for justice for Fouad.  They could not have imagined what was coming concerning their son’s alleged killer. Unfortunately, to their dismay and devastation, on November 15, 2016, Superior Court Justice Julianne Parfett issued a stay of proceedings, after a motion made by the defence.  Picard walked out of the courtroom a free man. Justice Parfett placed particular blame on the Crown, citing the lawyers’ unavailability and institutional issues as the main reason for the delays.

Fouad’s parents were appalled with the ruling, and did not understand how the justice system could let them down the way it did. Fouad’s mother Nicole asked, “What kind of message does this send? That you can (allegedly) kill someone and get away with it… What kind of judge would do this? The system isn’t fair.”

The decision by Justice Parfett was issued on the grounds that the 4-year delay in getting to trial violated Mr. Picard’s Section 11(b) Charter rights which guarantee the right to a trial without unreasonable delay. This decision follows the precedent defined by the Supreme Court of Canada in R. v. Jordan from this past July, which set new ceilings on how long an accused must wait for their case to get to trial. The new guidelines state that the maximum delay for serious charges going to provincial court must be 18 months, and 30 months for charges going to superior court (from the time from charges are laid to the actual or expected end of trial).

This was not the first time a first-degree murder charge was stayed in Canada due to unreasonable delays in getting to trial. Lance Matthew Regan, an incarcerated Edmonton man, was charged with first-degree murder in 2011 for the death of fellow inmate Mason Tex Montgrand. In October of 2016, a stay of proceedings was issued, with Justice Stephen Hillier ruling Regan’s constitutional right to be tried within a reasonable time being violated.

Another recent example of this is the case of George Kenny. Kenny was charged in 2005 for assault causing bodily harm, as he was involved in the fatal beating of 22-year-old Brian Fudge, at a bar in Ottawa. In September 2016, after a delay of 68 months, the Ontario Court of Appeal threw out his case issuing a stay of proceedings again for a violation of Section 11(b) Charter rights.

Although it is recognized that the accused’s rights must always be protected in a criminal justice proceedings, many legal scholars and criminal justice professionals feel that the R. v. Jordan ruling may be a misguided attempt at solving the problem of trial delays. Benjamin Perrin, (a law professor at the University of British Columbia), in writing for The Globe and Mail stated, “The Supreme Court was flying blind when it set the standards in R. v. Jordan and had no idea what impact its decision would have … Parliament should streamline the Criminal Code, focus it on serious offences and abolish unnecessary procedures.”

The recent decisions relating to these cases, point to the significant problems our justice system is currently experiencing. Thousands of cases clog up the system every year which never amount to anything, with many criminal charges being stayed or withdrawn (43.1% on average in Ontario, the highest in Canada). A study found that in Newfoundland and Labrador, up to 72% of court’s sitting time is spent on scheduling hearings alone. Both examples indicate the major inefficiencies within Canada’s court systems, and with the R. v. Jordan decision, may result in many more serious cases being dismissed.

The CRCVC echoes the concerns many raise about the potential impact the R. v. Jordan decision will have on subsequent cases being stayed. Our greatest sympathies go out to Fouad’s family and friends. While the Crown is appealing the decision, it is of little comfort to them. It is abhorrent that the most serious charges can be thrown out solely due to scheduling and procedural failures. Victims’ rights need to be considered and protected during the criminal trial. We will continue to advocate that victims be dealt with equitably, respectfully, and compassionately in our criminal justice system. To read our recent letter to the federal Minister of Justice & Attorney General regarding these matters, click here.

OWEN’S STORY –

How one young man turned shock and fear into forgiveness

By: Kurtis Herrington

On the morning of Monday, April 24, 2000, Art and Marjorie arrived at their daughter Cory’s Winnipeg apartment, only to find their three-year-old grandson alone, peacefully asleep. It didn’t take them long to realize that their daughter was nowhere to be found, and that something was clearly not right. Soon after, Art and Marjorie contacted the authorities, and what ensued is undoubtedly the worst day of their lives.

The little boy’s name is Owen, and on the day before his grandparents found him, his mother was brutally murdered in his presence by her estranged boyfriend. Over the following day investigators were able to connect the dots, which lead to the apprehension of the perpetrator. A thorough investigation resulted in the offender confessing to the murder, and leading them to where he concealed Cory’s body under his grandmother’s cottage. He was charged with second-degree murder, and sentenced to life in prison with parole eligibility after ten years served. Although a seemingly proportionate sentence, it serves as little reparation for the inconceivable loss experienced by Owen, Art and Marjorie, for the murder of their beloved family member.

Owen has had a tough road; navigating his childhood and adolescence without the guidance and love of his biological mother. In addition to the impact this left on Owen’s emotional wellbeing, he has also had to deal with psychological repercussions, including an ongoing diagnosis of Post-Traumatic Stress Disorder during his elementary school years. This seems to have been kept in check since Owen has taken many steps for self-care. While his loving and capable grandparents Art and Marjorie assumed custody of their grandson, Owen was still left with an unimaginable void in his life due to the irrational, hateful, and brutal acts of the offender.

At the age of nineteen, Owen has had to endure more hardships than most will have to within their entire lives. In turn, he has had no choice but to grow up fast, leading to the mature, assured, and spiritual man he is today. During his recent four-month Bible school semester in Costa Rica, Owen was able to take considerable time to reflect on his life through prayer, and try and make meaningful interpretations of the events that he has experienced. It was on this trip that Owen came to a startling conclusion; he wanted to confront the offender in a face-to-face meeting with the hopes of better understanding why he murdered his mother, and potentially offer forgiveness for the heinous acts he committed.  He felt he needed to let go of the past.

In August of 2016, Owen made the difficult trip to British Columbia, where his mother’s killer is currently imprisoned. On the 26th of August, Owen sat across from the offender, with the accompaniment of a mediator and a support person. The meeting was long, lasting two hours in the morning, and two hours in the afternoon. Finally, Owen was offered the chance to confront the evil monster he had built up in his head for all of those years.

Owen’s main intention going into this meeting was to find out who the offender was, and try to understand how he could have possibly done what he did. He didn’t want to carry around the anger he was feeling any longer, and he hoped to finally find a sense of peace. Over the course of the encounter, the offender was able to explain the details of what happened, and try and convey the context of who he was at the time of Cory’s murder. He talked about his difficult childhood, his struggles with substance abuse, and explained that his crime was a result of jealousy and anger. Although this could not have been easy to hear, Owen felt that the offender was open and honest with him, and that he had genuine remorse for his crime.

Following the events of that day, Owen describes a personal sense of peace, and said that the meeting was an overall success. He felt he could finally forgive the offender for what he did to his mother, and that their interaction could potentially set him on the right path. Owen’s grandfather Art also describes how Owen’s demeanor has become calmer since the meeting, and that he believes he has come away a more confident and strong individual.

Owen is an impressive young man and will undoubtedly take what he has learned from this restorative justice encounter, and try apply it to his life. He is a very driven individual, and has recently applied to the University of Winnipeg, the Armed Forces Reserves, and the United Nations to become a youth ambassador.

Although Owen’s healing journey continues, his progress has been tremendous. He serves as an example of the difficult path a victim of crime must endure, but also how one can come out the other side a stronger, stable and more understanding individual. Owen’s story serves as an inspiration to other young people impacted by violence.  The CRCVC is excited to see where his life will lead him, and everything he will be able to accomplish along the way.

The Canadian Resource Centre for Victims of Crime offers support, research and education to survivors and stakeholders.

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