Ontario court orders trial for man whose murder charge was dismissed over delay

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The Ontario Court of Appeal has unanimously ordered a trial for an Ottawa man on a charge of first-degree murder, overturning a lower-court ruling that dismissed the charge over delay.

Adam Picard spent four years in jail, but never came to trial, in connection with the killing of 28-year-old Fouad Nayel in June, 2012.

The 3-0 ruling sets an important tone for courts in Ontario and beyond, in dealing with the 1,000-plus defence applications for stays that followed a Supreme Court ruling last summer, in a case called Jordan, that set a limit of 30 months for criminal trials in superior court. It comes as federal Justice Minister Jody Wilson-Raybould prepares to discuss new measures to reduce delay, prompted by the Jordan ruling, at a meeting with her provincial counterparts this month.

The Supreme Court never intended, the appeal court said, that most cases under way before Jordan would be dismissed in a judicial rush to stamp out delay. Justice Paul Rouleau, writing for the court, quoted from Jordan: "For most cases that are already in the system, the release of [Jordan] should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one."

The Picard ruling may prove especially significant for cases involving serious offences.

It was the first of a half-dozen dismissals of murder charges to reach a provincial appeal court. Other appeals are on their way in Alberta and Quebec.

The appeal court said the trial judge who dismissed the murder charge, Superior Court Justice Julianne Parfett, had misinterpreted the Supreme Court and understated the importance of considering the seriousness of the offence when deciding whether a delay has been unreasonable.

Mr. Nayel, a construction worker involved in a drug deal with Mr. Picard, according to Ottawa police, disappeared on Father's Day, after spending the previous night eating pizza with his father, Amine Nayel. His parents quickly, by means of his telephone records (Amine owned the phone his son used), established that Fouad had had several contacts with Mr. Picard on the day of his disappearance.

Mr. and Ms. Nayel then met, separately, with Mr. Picard and questioned him. It was five months before their son's body was found, in a wooded area west of Ottawa. One month after that, Ottawa police charged Mr. Picard in what they described as a planned, premeditated killing.

"We've been in limbo for over five years and now we're going to go to trial," Amine Nayel, Fouad's father, who suffered a heart attack during the lower-court process, said in an interview. "My son's not coming back, but if we can get justice for my son, it is worth the wait."

"I didn't expect the bump we had but at least we crossed this bump in the right direction," Nicole Nayel, Fouad's mother, said. "I feel justice is going to be served, finally."

If convicted of first-degree murder, Mr. Picard would face an automatic life sentence, with first chance at full parole after 25 years.

The unanimous ruling means the Supreme Court is not obliged to hear an appeal. Howard Krongold, a lawyer who represented Mr. Picard at his appeal, declined to comment on whether he will seek the court's permission to appeal.

Mr. Picard will turn himself in to police and return to custody, his trial lawyer Lawrence Greenspon said.

The Picard case sparked demonstrations outside of an Ottawa courthouse and the federal justice department building, spearheaded by Ms. Nayel. Within two weeks of the dismissal of the first-degree murder charge, the Ontario government announced its biggest expansion of the criminal-justice system in two decades, adding 13 judges, 32 prosecutors, 16 duty counsel serving accused people and 26 court staff, at a cost of $25-million a year.

Justice Parfett had said the Crown's behaviour exemplified the "culture of complacency" the Supreme Court criticized in its Jordan ruling. The Crown had insisted on keeping two senior prosecutors on the case, even though that insistence added seven months to the delay.

But the appeal court defended the Crown. It agreed the Crown was wrong to have added so much time to the case, and should not do so again, post-Jordan. But it also said the Crown had merely made a "mistake or misstep." At that point in the case, there had been just seven months of "institutional delay" (the wait for a courtroom and a judge, when the parties are ready), and the seven months of Crown delay merely brought the case to the lower end of the range where red flags would be raised over delay, prior to Jordan. More than half of the delay in the case (total delay was about 40 months after subtracting for delay caused by the defence) was caused by "inherent requirements" – the time needed to get a complex case through bail hearings, a preliminary inquiry, and so on, the appeal court said.

Sid Freeman, a Toronto criminal-defence lawyer who was not involved in the Picard case, said she was troubled that the court said over two years were needed for the inherent time requirements of the case. She added in an e-mail that she worries that, particularly in serious cases in which someone has died, the courts may skirt the issue of delay, despite the time limits established in Jordan, in their wish to preserve public confidence in the justice system. "The Courts may now have to find ways to categorize periods of delay in a way that sends cases through to trial."