Murder charge reinstated despite four-year delay
Exceptions in the Jordan ruling apply to case, appeal court says
Ontario’s highest court has ruled that an alleged killer must stand trial for first-degree murder in Ottawa, even though it took four years for his case to come near a jury.
In a closely watched decision issued Thursday, the Court of Appeal for Ontario reinstated the murder charge against former soldier Adam Picard, ruling that the delays in his case fell within exceptions set down by the Supreme Court in R. v. Jordan.
The appeal court said the trial judge should have considered the seriousness of the case, among other things, in making her ruling.
“First degree murder is the most serious offence in the Criminal Code. Given the serious nature of the alleged crime, there is a heightened societal interest in a trial on the merits,” Justice Paul Rouleau said in writing for the three-member appeal panel.
The court overturned the judge’s decision to toss out the murder case on the eve of Picard’s six-week trial due to excessive delays.
Defence lawyer Lawrence Greenspon said Thursday he intends to review the decision to determine if there’s the basis for an appeal to the Supreme Court.
“It’s obviously a disappointment,” he said.
It was expected that Picard would be re-arrested Thursday on a first-degree murder charge.
Last November, in a case that sent shock waves through the province’s legal system, Ontario Superior Court Justice Julianne Parfett stunned an Ottawa courtroom by staying the murder charge against Picard because of unreasonable delay.
“I cannot but emphasize that the more serious the charges, the more the justice system has to work to ensure that the matter is tried within a reasonable time,” Parfett said in handing down her ruling. “The thread that runs through the present case is the culture of complacency that the Supreme Court condemned in Jordan.”
In July 2016, the Supreme Court said that even the most serious criminal cases must be concluded within 30 months of charges being laid.
But Ontario’s appeal court disagreed with Parfett’s interpretation of the Jordan decision.
The panel said the Picard case deserved more latitude since charges were laid well before the release of Jordan, and that the delays incurred would have been acceptable under the previous legal regime.
Rouleau said the trial judge also made mistakes in her trial delay calculations.
The appeal court found that, properly analyzed, the Crown could be held responsible for only 14 months of the four-year delay, which would keep the case well within the bounds of the previous Supreme Court guidelines.
Last November, Picard walked out of the Elgin Street courthouse a free man 47 months after he was arrested in connection with the death of Barrhaven’s Fouad Nayel.
At the time, Nayel’s father said the family’s hearts had been ripped out by the justice system. “If a person is found innocent by his peers so be it,” said Amine Nayel. “I believe in our system, but not now. The so-called system is broken. What happened to us is a grave mistake.”
Nayel’s grandmother said Thursday that the family was relieved to have the murder charge reinstated.
Nayel, a 28-year-old construction worker, had been missing for five months when his decomposed remains were discovered in a wooded area near Calabogie in November 2012.
Before his disappearance, he had told his father, Amine, that he was driving to Petawawa and would be back with Chinese food to celebrate Father’s Day.
In the Jordan decision and in two subsequent rulings, the Supreme Court established guidelines for courts to follow when considering whether a criminal case has taken too long to reach trial.
The rulings recognize that the strict timelines should not always be applied in cases that originated before the high court handed down the Jordan decision.
The Supreme Court has allowed lower courts a transition period to adjust to the new limits. During this period, the court said, judges can consider the seriousness of an offence and the complexity in deciding whether delays are unreasonable.
The high court said judges must also consider whether the delays would be considered unreasonable under the legal framework that existed before the Jordan ruling — a framework based on the Supreme Court ruling in R. v. Morin.
Ontario judges stayed 77 criminal cases in the first eight months after the Supreme Court imposed new limits on trial delays. They also rejected more than 125 stay applications brought by accused persons.
The Picard case was the only case in which a murder charge had been stayed in Ontario.