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Nicole Nayel, with her husband, Amine, holds a photograph of their son, Fouad, on Friday. Adam Picard, 33, was charged for the June, 2012, killing of Fouad, but the first-degree murder charge was stayed after a four-year delay in the justice system. (Dave Chan/the globe and mail)
Nicole Nayel, with her husband, Amine, holds a photograph of their son, Fouad, on Friday. Adam Picard, 33, was charged for the June, 2012, killing of Fouad, but the first-degree murder charge was stayed after a four-year delay in the justice system. (Dave Chan/the globe and mail)

Charges thrown out due to trial delays a growing problem in justice system Add to ...

Adam Picard was in jail on a first-degree-murder charge when he learned how Lance Regan had beaten a similar rap.

Mr. Regan, a prisoner at Edmonton Institution, was charged with first-degree murder in the death of a fellow inmate, Mason Tex Montgrand. But in Alberta’s overburdened courts, a judge threw out the murder case last month because of excessive delay. It had already been five years since he was charged.

Mr. Picard had been in jail for nearly four years in Ontario, and his trial had not yet concluded. He brought the Regan case to the attention of his lawyer, Lawrence Greenspon of Ottawa, who asked the trial judge, Ontario Superior Court Justice Julianne Parfett, to stay the charge. This week, the judge granted the stay. Mr. Picard was free – although under the cloud of alleged murderer released on a technicality.

The two cases are the most striking signs of a chronic Canadian problem: justice delayed. And the tossing of criminal cases, even serious ones such as murder, may get worse before it gets better.

Opinion: Justice delayed: the law of unintended consequences

Read more: Supreme Court updates guidelines on ensuring right to timely trial

The ground rules are becoming stricter. In July, the Supreme Court made clear in a case known as R v Jordan that it was fed up with a quarter-century of complacency – a “tolerance of delay” by government, prosecutors, defence counsel and judges. A minority of four judges warned of havoc if the court set a maximum time for permissible delay. But the majority said, in effect, that the system needs a kick in the pants to make it change.

The Picard and Regan cases are the kick in the pants. Even after subtracting delay caused by the defence – 24 months in Mr. Regan’s case, eight months in Mr. Picard’s – the delays went beyond what the judges were willing to allow. (The rulings could still be overturned; Alberta and Ontario have filed appeals.) A look around shows that the system’s inherent delays bring many serious cases in multiple jurisdictions close to the Supreme Court’s new standard for trials in superior court: 30 months from the time the charge is laid until the trial is completed.

Unsurprisingly, criminal defence lawyers are eyeing unreasonable delay as a way out for their clients, many of whom are jailed for months or years as their legal proceedings slowly unfold.

“I don’t think there’s a criminal lawyer anywhere who doesn’t welcome it,” Toronto lawyer Walter Fox said in an interview. His office is seeking to have a $3.5-million fraud case thrown out for excessive delay.

Tossing serious cases from the system for time violations could reinvigorate the victim-rights movement that was prominent when the Conservatives were in power in Ottawa.

“In this country, victims have no rights,” Nicole Nayel, whose 28-year-old son, Fouad Nayel, a construction worker, was allegedly shot to death by Mr. Picard, said in an interview. Mr. Nayel was missing for five months before his body was found in a wooded area in 2012. “I lost my son and I’m losing to the system now.”

Ms. Nayel demonstrated with about 35 people in front of a local courthouse in Ottawa on Thursday, and plans another protest at a federal building on Monday. She said she is fighting for all Canadians. “This time it affects me, but guess what, it’s going to affect lots of people out there; they’re going to walk in my shoes.”

Others already have. In September, the Ontario Court of Appeal threw out an assault causing bodily harm conviction against George Kenny, who took part in the fatal 2005 beating of 22-year-old Brian Fudge at a bar in Ottawa; the delay in that case was 68 months.

A key issue is the role of Crown prosecutors.

“The thread that runs through the present case is the culture of complacency that the Supreme Court condemned in [R v] Jordan,” Justice Parfett said in her ruling setting Mr. Picard free. That echoed the appeal court in the Kenny case, which called the prosecution “a poster child for the culture of complacency towards delay.”

Prosecutors say it is actually the government that is complacent, and unwilling to add sufficient resources.

“Twenty years ago, a typical homicide trial would take about two weeks,” Kate Matthews, president of the Ontario Crown Attorneys Association, said in an e-mail. “Now, they typically take months. A simple impaired [driving] trial used to take approximately two hours, and now they are routinely scheduled for two days. But despite this increased pressure, there has been no corresponding increase in resources: courtrooms, judges, Crowns, support staff.”

In Nova Scotia, many homicide cases are beyond 30 months, or headed there, according to Rick Woodburn, a prosecutor in Halifax. That 30-month cap does not apply to cases already in the system before the Supreme Court ruling in July, but the Nova Scotia example shows how much work lies ahead to meet the new constitutional standard: Trials of a week or longer are now being booked at the province’s Supreme Court for 2018. And long delays in preliminary hearings come before the scheduling can happen.

“If the government doesn’t want to properly resource the justice system, they are going to have to legislate what we are no longer going to prosecute,” said Mr. Woodburn, president of the Canadian Association of Crown Counsel.

Part of Prime Minister Justin Trudeau’s mandate letter for Justice Minister Jody Wilson-Raybould was to modernize the criminal-justice system and improve its efficiency and effectiveness. She says she is holding discussions on the subject around the country.

“The input we are receiving will help us address various issues that contribute to court delays across the country in a way that is sustainable and in keeping with the Charter of Rights and Freedoms,” she said in an e-mail.

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