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Canada Trial limits leave dead man's parents on long road to justice

Nicole Nayel holds a photograph of her son Fouad Nayel on Nov. 18, 2016 in Ottawa. Adam Picard, 33, was charged in Mr. Nayel’s June 2012 killing.

Dave Chan/The Globe and Mail

The night before Father's Day in 2012, 28-year-old Fouad Nayel of Ottawa asked his dad to order a pizza with him and hang out; usually Fouad went out with friends on a Saturday night. He wouldn't be around for Father's Day, he explained; he had to go to Petawawa, a small town with a military base nearby. He promised when he got back, they would eat Chinese food together to celebrate the day.

In the morning, Fouad drove off in his black Altima. He never returned. And the nightmare odyssey of his parents, Amine and Nicole Nayel, began. They went the next morning to a place parents dread to contemplate – the missing-persons bureau of the local police – and from there, feeling ignored, they investigated the disappearance themselves, meeting with an acquaintance of their son named Adam Picard, a former member of the Canadian military. Five months on, a hunter stumbled on their son's remains in the woods in Calabogie, an Ottawa Valley town.

A month later, on Dec. 13, 2012, police charged Mr. Picard with first-degree murder. Fouad had been shot. Nearly five years later, the Nayels are stuck in the justice system at a moment of dramatic change.

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Related: Prosecutors trying to prevent an accused murderer from walking free

The Supreme Court's ruling in a case known as R v Jordan established strict limits for criminal trials, and so, Mr. Picard, after spending four years in jail waiting to be tried, was released.

The dismissal of Mr. Picard's first-degree murder charge, the second in the country since the Jordan ruling, was followed by three other such decisions in murder cases, with the possibility of more to follow.

On Monday morning, the Nayels' journey brings them to the Ontario Court of Appeal in Toronto's Osgoode Hall. The province's Attorney-General has challenged the dismissal of the murder charge, and Fouad's killing is the first of the dismissed murder cases to reach a provincial appeal court. The result could influence what happens in the other murder cases, and indeed all serious cases under way before the Jordan ruling.

The Supreme Court, in a 5-4 ruling, said it was standing up against a quarter-century of intolerable delay in criminal justice. Delay, the court said, hurts everyone. The accused, innocent until proven guilty, may be held in custody, or live under a stigma in the community, and witnesses who might assist them may forget important details. Delay hurts the victims, too, the court said, aggravating their suffering and making it more difficult to move on with their lives.

The ruling was supposed to simplify the law of delay, by prescribing a 30-month time limit for completing trials in superior court. But for cases like Mr. Picard's that are already in the system, it's not a simple mathematical calculation. It's about what the Supreme Court called "transitional exceptional circumstances" – the prosecution's reasonable reliance on the rules as they stood at the time.

The rules "changed in the middle of the third period," Ontario Attorney-General Yasir Naqvi says, and the appeal court will have to decide: Should delays in a murder trial be given more leeway because of society's interest in prosecuting serious crime, as was the case before the Jordan ruling? How complex must a case be to be given extra allowance for delay? Did the Crown have to go so far as dropping their preferred prosecutors because of scheduling problems?

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The decision will determine whether Mr. Picard goes to trial. If found guilty, he would face an automatic life sentence without the possibility of parole for 25 years. But for the Nayels, the stakes are also great.

Steve Sullivan, the former head of Ottawa Victim Services, which provides support to crime victims and their families, says families who lose a loved one to crime often say the grieving process itself is put on hold until the justice process plays out. "To be told that trial is never going to come – unless the appeal goes through – that door for them is never going to be closed," he says of victims.

Ms. Nayel is not optimistic about the appeal court hearing. But Mr. Nayel still clings to a hope that the ruling will be overturned unanimously, and that the Supreme Court will refuse to hear an appeal.

Regardless, he is bitter that the right to a timely trial has benefited Mr. Picard, but not the victims. "His time delay is four years – our time delay is life," Mr. Nayel says. "Does the Supreme Court have an answer for me?"

The morning after Father's Day, Ms. Nayel phoned Fouad's workplace. He worked in construction, and was learning the trades of roofing, laying down bricks and asphalt. Eleven a.m. and he still wasn't there. "That's not like my son," she said. She and her husband went to the police. But they say the missing-persons bureau told them he was probably with a woman.

"They didn't take it seriously," Mr. Nayel says in an interview in the cozy den of the family's two-storey house in a comfortable suburb. (Contacted by The Globe, an Ottawa police media-relations officer declined to comment on Mr. Nayel's assertion.)

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Fouad's cellphone was registered in Amine's name; Amine quickly got the phone records from Rogers. Ms. Nayel called a number that she says appeared several times.

"Who is this?" she said, according to her account.

"Adam."

"Who is Adam?" she asked.

Mr. Nayel paid a visit to Mr. Picard, and came home convinced he had nothing to do with Fouad's disappearance. "He's not the guy," he told his wife. Not satisfied, she went with one of her brothers to meet with Mr. Picard at a Tim Hortons. Secretly, she taped the conversation on her cellphone. Later, she had a second meeting with Mr. Picard.

"Three interviews, three different stories," she says.

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The Nayels organized 30 to 40 volunteers for a search. They spent weeks looking through bushes, trying to cover a vast area from Ottawa to Petawawa. They posted updates on Facebook, plastered telephone poles with pictures of their son. Ms. Nayel spent hours on the phone with Rogers trying to match up cellphone calls with cell-tower records to track his movements. For months, she imagined the day her son would walk in the front door – freed from being kidnapped, perhaps.

"We did the 'missing thing,'" Mr. Nayel says.

The missing-persons bureau eventually, after some weeks passed, gave the file over to Detective Sean Gordon of major crimes, and an intense investigation began. It was three months before police found Fouad's black Altima, on a well-travelled street in Ottawa's west end. It was two more months before the body was found, and another month till police charged Mr. Picard with murder.

Each case is unique, but Fouad's illustrates the challenges in moving a case through a clogged court system within 30 months.

The clock began to tick on Dec. 13, 2012, the day after his arrest, when Adam Picard was charged and appeared by video link at his first court hearing. Mr. and Ms. Nayel were there in person, girding themselves for what they knew would be a long process. The bail hearing took seven months to complete. Why is not clear. But up went the first red flag, a judge warning the Crown to make "every effort" to bring the case to trial as soon as possible. Mr. Picard was denied bail – and fired his lawyer. The next two lawyers he hired had conflicts of interest and quit the case. Six more months.

Next came a preliminary hearing, a kind of dry run to determine whether there is enough evidence for trial. (Ontario, Manitoba, Quebec and Alberta are all trying to persuade Ottawa to scrap or modify these hearings to save time.) In Ottawa's crowded courtrooms, the first available date was a full year after Mr. Picard retained his fourth lawyer. Mr. Nayel found the proceedings unbearable; he had a heart attack, and was later diagnosed with post-traumatic stress disorder. Three months after the preliminary hearing began, a judge sent the case on to trial. By now, 27 months had elapsed.

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A courtroom and a judge were available in eight months, but the Crown wanted to delay the trial for another seven months after that, so that both experienced prosecutors, James Cavanagh and Dallas Mack, could be on the file. The defence went to court to ask a judge to order an earlier date. But the Crown argued that having prosecutors of its choice was a matter of prosecutorial discretion. The judge agreed, and refused to order an early trial.

But those seven months of delay proved critical when Mr. Picard – days before his trial was to begin – sought to have his case dismissed over delay. "Ultimately," Ontario Superior Court Justice Julianne Parfett said in her written ruling last November, "far from making every effort to move the matter forward, [the prosecutors] chose very deliberately to ignore the delay in favour of Crown discretion."

Justice Parfett deducted two months from the 48 months for "defence delay," based on the firing of the first lawyer. She deducted six months for the problems with the subsequent two lawyers, describing it as a "discrete event" that the system could not be blamed for. But she refused to deduct any time, as requested by the Crown, for the complexity of the case – even though, according to her own figures, Ottawa police and the Ontario Provincial Police, working together, amassed 30,000 pages of evidence. There were 2,800 photographs; dozens of witness statements recorded on video; 6,800 pages of cellphone records; 25,000 text messages; 103,000 lines in Excel of subscriber records from Mr. Picard's phone; 78 witnesses interviewed; 60 judicial authorizations; and eight areas of expert evidence.

"To the extent that any murder trial could ever be described as typical, this is it," Justice Parfett wrote.

She made no allowance for the seriousness of the crime.

"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."

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Ms. Nayel organized protests in front of the Ottawa courthouse on Elgin Street, and in front of a federal Justice Department building. Within weeks, the Crown announced an appeal, and in April, five months after Justice Parfett's ruling, the Crown filed its legal arguments with the appeal court. Before Jordan, a prosecutor's unavailability was not counted against the state. The Crown also said it would have needed to replace both senior Crowns, which would have caused further delay. It said the judge did not appreciate the complexity of the case, or the public's wish to prosecute serious crimes – a dominant principle in delay cases, pre-Jordan, in its view.

Ottawa lawyer Howard Krongold, who is representing Mr. Picard in his appeal, said he did not wish to comment directly on the case. But speaking generally, he said, "Both an accused person and society, including the family of a deceased person, have a strong interest in seeing timely justice done. In cases where it is not, everyone suffers." Delay is the real source of injustice in these cases, he said.

The appeal hearing Monday is seven long months from Justice Parfett's dismissal of the charge. Fouad was a fighter for his rights, according to Ms. Nayel, who has kept her job in a restaurant throughout the ordeal. She says she will fight for him because he can no longer do so for himself.

Mr. Nayel tells of his son as a young schoolboy. He had given his son the name Ryan to make life easier on him at school. Fouad was Amine's father's name. In the family's Lebanese tradition, the first-born son takes his father's father's name. When Amine, a second-generation Canadian, had been young, he had problems at school in Ottawa. "There was a stigma to my name." Hence, his son would be Ryan. But "when he was seven or eight years old, he said, 'I want to be called what I am, I'm proud of my heritage.'"

He was loyal, Mr. Nayel says. And loving and demonstrative, Ms. Nayel says. "He'd come to me, 'Mom, Mom.'"

It was true – as the Ottawa police have said publicly – that their son was involved in drugs with Mr. Picard, Mr. Nayel says. But not hard drugs, "When people think of drugs, they think of cocaine and heroin. It was marijuana."

Mr. Nayel had a restaurant business for 20 years, but doesn't work any more. He has no drive. "My heart was torn out," he says. "It's like being under ice, and the ice is frozen and you can't get out."

"This wait is killing us; it's eating us alive," Mr. Nayel says. "There's no Jordan ruling for the victims, is there?"

"What we've been going through, it's hell," Ms. Nayel says. "And I'll tell you, the system put us through more hell."

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