Freeing of accused killer a call to arms for courts
It’s an alarming thing when an accused killer walks away free because the justice system couldn’t try him in time.
But it’s now happened in Canada for a third time, with Quebec Superior Court Judge Alexandre Boucher last week staying a charge of second- degree murder against Sivaloganathan Thanabalasingham, a Quebec first.
He was charged in the Aug. 11, 2012, slaying of his young wife, Anuja Baskaran, found in her Montreal home that day with her throat slit.
The delay from arrest to trial was almost five years, all of which Thanabalasingham spent in custody as a presumptively innocent man.
The 31- year- old, who is from Sri Lanka, was scheduled to have a hearing at the Immigration and Refugee Board Monday afternoon — he’s now facing deportation because of an earlier criminal record.
In the latter part of last year, Alberta and Ontario each saw a similar murder charge stayed.
In Alberta, it was in the death of Mason Tex Montgrand at the maximum-security Edmonton Institution.
Lance Matthew Regan was also an inmate there, serving another sentence, when Montgrand was shanked to death. Regan spent almost all the five- year delay to get to trial in jail, though he may have been eligible for statutory release on his previous charges earlier.
And in November of 2016, Ontario Superior Court Judge Julianne Parfett stayed a first- degree murder charge against former Canadian Forces soldier Adam Picard, accused in the death of a 28- year- old construction worker named Fouad Nayel.
Nayel had been missing for five months when his body was discovered in a wooded area about 100 kilometres from Ottawa.
Picard spent four years in pretrial custody.
These are the most serious criminal charges that have so far been stopped in their tracks in the wake of a Supreme Court of Canada decision in July of last year.
Called R v Jordan, it rewrote the rules around how long is too long to wait for trial.
The SCC majority decided to tackle what it accurately called “the culture of complacency” in the criminal courts by daring to challenge justice participants like judges, defence lawyers and prosecutors to try to prevent delay, not just attempt to redress it afterwards.
The high court set tough timelines: In the provincial courts, 18 months from arrest to trial; in the Superior Courts, where charges such as murder are tried, 30 months. Go beyond that, the SCC told the courts, and the delay is presumptively unreasonable.
It laid out new expectations for defence lawyers (who aren’t to stall things as part of a deliberate strategy to avoid trial, or bring frivolous applications) and prosecutors (who can no longer just blithely attribute delay to the sys- tem, but must justify it) and judges (who are to take control of their courtrooms).
The SCC also made room for “exceptional circumstances,” which could encompass anything from a family or medical emergency to particularly complex cases that legitimately require more time.
The high court knew it wouldn’t be easy, that you don’t change a somnolent system overnight.
It knew some charges would be lost, but cautioned that “stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist.” Change takes time.
Because R v Jordan is only nine months old, it’s too soon for panic.
Some of the cases where charges were stayed are being appealed — including the Alberta and Ontario murders — and may not stand up to greater scrutiny.
But some may survive, and perhaps they should.
At first blush, at l east, the Thanabalasingham case may be one of them.
The Montreal police officer, Hugues Olivier, who was first on the scene of Baskaran’s gruesome killing, may be “outraged” by Judge Boucher’s decision, as he told The Canadian Press Monday, but he isn’t the arbiter.
Olivier also told CP he remembers Thanabalasingham’s preliminary hearing as being fairly brief.
Yet Judge Boucher questioned “questionable procedural choices” in his five- page decision, notably the Crown’s decision to charge Thanabalasingham with seconddegree murder and later attempt “in vain, based on weak evidence, to have him committed on firstdegree murder by the preliminary hearing judge.”
That prelim, which the officer remembers as brief, in fact was spread over 20 days — it’s wellknown in Montreal that it’s “virtually impossible to preliminary hearing continuously,” the judge said — and took more than a year.
Thanabalasingham’s prelim started on March 17, 2014, and he was committed to trial only on April 28, 2015.
“The inordinate amount of time taken for the preliminary hearing was not beyond the control of the Crown,” Boucher wrote, and as a former prosecutor ( federal and provincial) himself before he was appointed to the bench, he would know.
“This is not to point the finger at anybody,” the judge said, “but a better cost- benefit analysis in prosecution decision- making would have better served the justice system.”
The R v Jordan decision was in effect a call to arms: The players in the justice system must all be better.
It’s not just about resources, either (in the 2017 budget, Ottawa promised to appoint a whopping total of 28 new federal judges to fill the almost 60 vacancies across the country), but rather about doing business differently.
Whether that is clearing the decks by taking minor charges out of the system and turning them into ticketed offences, decriminalizing drug possession or more charge screening by prosecutors, when the criminal justice system can’t even bring a con like Lance Regan to trial in 62 months, that’s a disgrace.
And lest we forget, it’s precisely those crimes — murder and violent offences — that are the “core business” of the courts.
A BETTER COST-BENEFIT ANALYSIS IN PROSECUTION DECISIONS.