Ottawa’s trial backlog worst in province

The latest figures don’t lie — wait long enough in Ottawa, even murder goes away.

According to fresh statistics from the Ontario Court of Justice, the average number of days it took for a resolution on homicide charges in Ottawa was 684. The Ontario average was 362. In the peaceable kingdom of Toronto, the number was 329.

The new figures cover the period from October 2015 to September 2016, but this is not a weird spike. Ottawa’s time frames for dealing with homicides has been above the Ontario average every year since at least 2012. (In 2013, it was almost twice as long: 548 days vs. 291.)

Last week, the city witnessed a dramatic episode of why all this matters.

After nearly 48 months in custody, an accused killer, Adam Picard, was released when a judge declared the four-year wait was a violation of his constitutional right to a trial within a reasonable time.

The family of the victim, Fouad Nayel, 28, exploded with anger. This is a horrendous failure of the system and one that goes to the heart of what we mean by “rule of law” in a civilized society.

(How are we all to be subject to the same rules and penalties in this country if the administrative arm of the “system” is so broken it lets a person accused of first-degree murder walk away without a trial? And we sit here in Ontario, all worked up about things like electricity rates? What is wrong with us?)

Those inside the criminal system say not to be surprised if this is just the start, especially with Ottawa’s track record on trial delays.

“I think there is going to be a body of cases that end up being stayed because we just don’t have the resources to deal with it,” says Anne London-Weinstein, president of the Defence Counsel Association of Ottawa.

“The answer is not an easy one, but people shouldn’t be shocked that this happened,” she adds. “This has been coming for a while.”

She sees a couple of obvious problems: not enough courtrooms on Elgin Street, and more importantly, not enough judges to clear the backlog. The whole system suffers when trials are held years after the alleged offences, she added.

“It makes it more difficult for everybody, including judges, too. The evidence doesn’t get better with time.”

The new flashpoint this fall is the Jordan decision, a Supreme Court of Canada ruling in July that provided clarity on how long an accused person can reasonably expect to wait for trial. The court set the ceiling at 30 months from the charge date, with some wiggle room.

Of the 48 months in delays in the Picard case, Justice Julianne Parfett broke it down in a chart: 14 were “institutional,” 19 were “inherent,” eight were due to defence delays (fired lawyers), while seven were due to Crown delays. Then she ended the ruling, guns blazing:

“However, 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. The thread that runs through the present case is the culture of complacency that the Supreme Court condemned in Jordan,” the judge wrote.

“Everyone, not just the Crown, was content with trying this matter within the time for delay that has become the norm in Ottawa. Normal delay is not acceptable when an accused is in custody. Delay beyond that prescribed for the past 24 years is not acceptable regardless of whether the accused is in custody or not.”

So Picard, 33, walked out into the fresh air and the victim’s parents began living a fresh hell.

Not to mention the utter waste of investigative resources, which Justice Parfett referenced: 30,000 pages of disclosure, 2,800 photographs, 6,800 pages of cellphone records, 25,000 text messages and six months of detective work by two police forces.

None of it is a mystery to the Ontario Crown Attorneys Association, which represents 850 assistant Crowns.

“Anyone working in the criminal justice system could see Jordan coming and yet the government did nothing with respect to the key reasons behind it. In fact, they’ve done quite the opposite,” association president Kate Matthews writes, calling matters a “crisis.”

“In the last few years, the government has effectively reduced the number of assistant Crown attorneys in trial offices across the province. We estimate that there are at least 6,000 cases in Ontario which sit at the Supreme Court’s benchmark of 18 months. In trial offices across the province there are hundreds of matters set for trial which sit unassigned because there are no available prosecutors.”

Criminal. Is there any other word for it?