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.
Sep 29, 2016
By: Briar Dodge, Ottawa Community News
Everything changed for the Wassill family in May of 2013.
A confrontation that month led to 20-year-old Michael Wassill being stabbed with a box cutter, allegedly by the ex-boyfriend of a female friend of his. Michael was rushed to hospital. At first his family thought he’d recover, but on May 23, 2013, he died in his Ottawa Civic hospital bed.
Ever since then, his family has been living a nightmare. Not only is Michael dead, but the family’s wait for the trial for the then 20-year-old arrested in relation to his murder has dragged on and on. A court date has been set for 2017.
“It’s such a long period of time, and the grief never goes away,” said Betty-Ann Wassill, Michael’s mother. “Going through the trial is going to bring it all back.”
The Wassill family isn’t alone when it comes to a long wait for justice in the death of their son. While their wait is longer than most, the Canadian average sees most murder cases last more than a year. It can be a difficult emotional burden on friends and family of serious crime victims.
There are things Betty-Ann isn’t allowed to say about the case, and people she’s not allowed to talk to about it.
But as the reported facts go, Michael was at his father’s Fernleaf Cresent home in Orléans while his dad was away in Jordan on a work trip. A female friend of Michael’s had been staying there for a few weeks too.
On May 15, 2013, an ex-boyfriend of the girl’s, who she claims had been stalking her, showed up and what would end up being a deadly confrontation ensued, Michael’s uncle Paul Champ told media at the time.
Michael was stabbed with a box cutter, taken to hospital and his family remained hopeful he would survive. But on May 19, 2013, they found out he was brain dead. There was nothing anyone could do.
Police quickly arrested Carson Morin, 20 at the time, who Betty-Ann refers to as “the accused” throughout her interview with Metroland Media. She calls Michael’s death “the incident” or “the event.”
Morin was originally charged with attempted murder and possessing a weapon dangerous to public peace, but after Michael died, the charge was upgraded to second-degree murder. Following further investigation, police upped the charge again – to first degree murder.
Before Michael died, his family was already bracing themselves for a long legal ordeal.
“The night of the event the police were at the hospital. Even then, they were saying ‘just be prepared, the legal proceedings could take years.’” Betty-Ann said.
Morin’s lawyer Natasha J. Calvinho received a request for comment for this story and, citing the need to have permission from Morin, did not comment.
But even though Morin was arrested almost immediately in the aftermath of the incident, the case isn’t scheduled to go to trial until January 2017.
Michael’s family’s frustration partially comes from how that timeline, accelerated compared to some cases that take months to solve or before charges are laid, has resulted in such a long wait.
Betty-Ann, her two daughters, Michael’s father, his friends: they all want to move on and put this behind them, but there’s a dark shadow following them around.
They’re not alone.
On average, it took 451 days to complete a homicide case in 2013/14, according to the most recent Statistics Canada data. But it’s tough to use averages for such cases, because abnormalities — such as cases wrapped up extremely quickly, such as a murder-suicide — can skew the data.
So you end up with families like the Wassills, often waiting years for a case to make its way through the justice system.
WATING IN LIMBO
“You’re sort of in this limbo of waiting,” said Heidi Illingworth, executive director of the Canadian Resource Centre for Victims of Crime. “It just leaves people hanging, and they’re really just yearning for justice.”
It’s common for trials to take years, she said, especially when it comes to homicide cases.
Those accused of a crime in Canada are offered constitutional protection under the Charter of Rights, both for a fair and a speedy trial.
“At the moment, the concerns for suspects trump everything for victims,” said Irvin Waller, a University of Ottawa law professor and president of the International Organization for Victim Assistance. “The system isn’t designed around them, around victims.”
Delays in the court system have long been documented, and involve a complex web of issues in the justice system.
A 2016 Senate Committee on Legal and Constitutional Affairs, in preparation for an interim report that was released in August called ‘Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada’, heard from numerous justice experts, judges, and lawyers, including Illingworth, who told the committee the Wassill family’s story.
The committee was told that among the reasons for delays in the court system are the mandatory minimums sentencing system that results in more court appearances, that judges are too lenient in allowing delays when asked for, and the courts are not using modern technology as much as they could which leads to more in-person court appearances than would be needed if technology was used more.
“We generally shun the use of technology as a method to enhance the effective use of court time,” Raymond Wyant, former chief judge to the provincial court of Manitoba, is quoted as saying in the committee’s transcripts.
But there are clear and established frameworks in other countries to help protect victims through the process. Wyant cited a video system used in France, that both speed up the court process, and in some cases allowed witnesses to be spared travel.
In the United States, the federal Crime Victims’ Rights Act was enacted in 2004. The act was named for five American murder victims whose families were denied some, or all of the eight rights covered in the act during the course of their cases. Included in the act is the right to proceed without unreasonable delays. “We are just so far behind other advanced countries, and we need to move on that,” the University of Ottawa’s Waller said.
As the Wassill family approached the end of 2013, they were faced with Morin’s bail application as he requested to be released for Christmas.
But after emotionally preparing to face him in court, the bail hearing didn’t happen, and his lawyer asked for a delay.
As the case has continued, Michael’s family and friends have continued to be frustrated by the delays, and the length between them. They attended a preliminary hearing in November 2014, Betty-Ann said, and hoped for court dates to be set for a seven-week trial. They were told the case would be heard at the earliest in May 2016.
Morin’s legal team asked to push the dates back further, and the family thought there would be a September 2016 trial.
In the end, the date was finally set for Jan. 23, 2017.
“We’re still not clear; how did it jump from September to January?” Betty-Ann said, pointing to scheduling issues among various lawyers’ schedules. “They knew all along this was coming down the pipeline.”
She believes Ottawa Police and the courts have offered her family every right they have to under the current victim’s rights situation, but she struggles with why they, the victim’s family, haven’t had the right to push for fewer delays, and a quicker trial in the Canadian justice system.
“We do concern ourselves with what the police do, what the Crown does and what the accused has done in the court, but we never actually take into consideration that this isn’t fair for the victims,” Senator Vern White, former Ottawa police chief, said in the standing committee hearings transcripts.
Senator Bob Runciman, who has previously served as Ontario’s provincial minister of public safety and security and as solicitor general and who now leads the committee, told Metroland Media that one of the most significant things he heard in the presentations to the committee was the need for better court management, and “laying down the law” when it comes to justifying lawyers’ requests for “adjournment after adjournment.”
“For me, that’s a sore thumb out there, that some judges are managing their courts much more effectively,” Runciman said.
Now, almost three-and-a-half years later, and still waiting for a trial, Michael’s family still haven’t had any closure. Betty-Ann feels empathy for Michael’s friends who will be called on as witnesses and will have to rehash the events and memories of a traumatic day back in 2013.
She worries others will struggle to balance wanting to be in court with having careers that may not afford them the time off, or the finances to take unpaid leave.
It’s not just stressful, but memories fade over time, and there are always concerns that witnesses will forget details when they’re called to the stand years after a crime has allegedly been committed.
Tom Stamataskis, president of the Canadian Police Association, told the senate committee it’s a struggle for police officers who are asked to testify as well. “Imagine yourselves and how effective you might be at remembering precise details from an incident that happened in your life two or three years ago,” he said, in committee transcripts. “Particularly under cross examination from tenacious defense counsel and after investigating numerous similar incidents over that same period of time.”
Michael’s parents, who are separated, are Foreign Affairs department employees who didn’t think they’d ever find themselves in this sort of position, and have had to become familiar with the legal system in a way they never expected.
“No one thinks they’re every going to be a victim,” Waller said. “Exactly the same issues arise all the time, and not just in murder cases … not only are they re-traumatized, but they are re-traumatized over many years.”
Betty-Ann said her family has tried to move past “the incident” and talk about their happy memories with Michael, who she said enjoyed staying home and playing board games and who quickly made friends in the different places he had lived.
The family tries to reflect on days such as Sept. 8, which is Michael’s birthday, on all the positives about his too-short life.
“We don’t talk about the incident,” she said. “It worries me a bit that the trial will put us back.”
It’s common for victims to feel re-victimized, devalued and that their lives are on hold until a case is finished, Sue O’Sullivan, the federal ombudsman for victims of crime told the senate committee back on March 24.
“Lengthy delays in criminal proceedings can impede some victims’ ability to move forward, and in some circumstances, victims’ access to justice can be completely compromised when charges are stayed as a result of unreasonable delay,” O’Sullivan said in the senate standing committee transcripts.
If a case is delayed too long – though an accused may have to waive their rights to speedy resolution if they cause a delay by, for example, choosing a lawyer that isn’t available for 18 months — charges could be stayed and the accused could walk free.
That happened this year, in the case of the Crown vs. Shane Rayshawn Vassell. In a Supreme Court decision, the judges found the three years it took for the three-day trial, which dealt with charges for possession of cocaine for the purpose of trafficking, had unreasonable delays, mostly caused by his co-accused and their counsel. The Supreme Court of Canada threw out the charges against him in June.
Waller said changes need to be made to give victims, not just the accused, the right to avoid unnecessary delays. He said he’d like to see a Victim Bill of Rights in Ontario and changes to the Criminal Code to protect victims.
He’d also like to see a change to the Charter of Rights and Freedoms, a complex process.
He said the Bill of Rights for Crime Victims Ontario’s legislature adopted in 1996, and the federal Bill of Rights are not having much impact.
“There’s been talk about these sorts of things, and very little action,” Waller said. “The Ontario legislature adopted a thing called a Bill of Rights for Crime Victims that is basically unenforceable.
“There was political interest in doing something, so they made a nice statement instead of an enforceable statement. In the recent federal bill of rights that was adopted during the Harper years, it’s the exact same. They’re nice principles, and they’re unenforceable.”
The most enforceable thing, Waller said, would be an amendment to the Charter of Rights and Freedoms. But he said Ontario would need to find a political “champion” to take that on.
He’s waiting to see what Ontario’s new attorney general, Ottawa Centre MPP Yasir Naqvi, does.
Naqvi’s spokesperson Jenna Mannone was asked if Naqvi would support a Charter of Rights and Freedoms change. She replied with with a list of funding announcements and programs the provincial government has for victims.
“That being said, we recognize that there is always more work to do,” she responded in an email. “Our government is always open to hearing ideas on ways we can further support victims of crime.”
Now, Betty-Ann and her family are preparing themselves emotionally for the impact of the trial coming up in January 2017. Not only has her family had to prepare, but so do Michael’s friends who will be called as witnesses.
Witnesses in Michael’s case have tried to move on with their lives, some studying out of province, and will need to come back to Ottawa in order to testify, Betty-Anne said.
“It’s absolutely an issue,” Illingworth agreed. “Everything’s pushed off again and again because of lawyers’ schedules or judges’ schedules are so busy they have to keep pushing dates. It’s a tactic we think the accused use as well — it’s sometimes in their interest to have things longer because people forget and witnesses disappear,” she said.
Betty-Ann said the system need to be improved – and she’s willing to speak out to make things better for the next family that finds itself in her shoes.
“I like to be an optimistic person, but I’ve been involved in the legal system as either a critic or a minister, so I find it hard to be overly optimistic,” said Runciman.
“All we can do is keep plugging away and banging the drum and hopefully people will start to listen.”
But constitutional changes, as some propose, are not something Runciman is enthusiastic about. “I can’t speculate at this stage of the game,” he said. “To open up the constitution to talk about something like even Senate reform, it would have to be a whole package once they re-open the constitution. But no one seems to have an appetite.”
The report from senators, who heard Michael’s story and the Wassills’ plight as a part of the process, did make four recommendations. They recommended the federal government:
- work with provinces and judges to implement best practices to reduce unnecessary appearances and adjournments,
- take immediate steps to make sure an efficient system is in place for appointing judges to provincial superior courts
- invest in research on best practices and implementation procedures for mega-trials, and
- provide resources to develop and make available suitable technology and computer systems to modernize the court system.
Regardless of those recommendations, Betty-Ann and her family have spent the last three-and-a-half years waiting for a trial in a system the family feels doesn’t take into account victims.
“Justice delayed has been justice denied,” Betty-Ann said. “It’s such a long period of time, and the grief never goes away. Going through the trial is going to bring it all back.”