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.

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

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