‘Ottawa’ How an Accused Killer Walked Free — and the Uncertain Future Facing Victims
The mother of a man killed in May 2013 will wait 44 months from the day her son’s alleged killer was charged to the day his trial is expected to begin, and now fears a result more heinous than just delay.
Michael Wassill’s mother is concerned whether the man accused of killing her son will ever face justice after a judge released another accused killer following a four-year delay in bringing the matter to trial.
Betty-Ann Wassill read Wednesday morning’s newspaper and fought back tears as she saw herself in Fouad Nayel’s mother and father.
Nayel was killed in 2012 and as a jury was set to be selected in the first-degree murder trial of the man accused of killing him, an Ontario judge instead stayed the proceedings and released the accused, Adam Picard.
“I could have cried because I thought (of) the implication to our case,” she said.
Michael Wassill, 20, was fatally stabbed at his Orleans home. Police allege the angry ex-boyfriend of one of Michael’s friends showed up at the home bent on revenge. His family believes Michael was killed while trying to protect his friend. Carson Morin, charged with first-degree murder, is expected to stand trial in January 2017.
With every new delay in the case against Morin, Wassill said she feels uneasy. The decision to stay the charges Tuesday heightened those feelings.
Judge Julianne Parfett followed guidelines set out by the Supreme Court in the 2016 Jordan decision, which set new rules for an accused to be tried within a reasonable amount of time. Cases in the Superior Court have 30 months to be completed from the time charges are laid until the completion of the trial.
The Picard case is the first murder case in the province to have been stayed since the Jordan ruling.
And Tuesday’s decision is bound to lead to questions in other cases. Lawyer Lawrence Greenspon, who represented Picard, said he has already received calls from half a dozen lawyers with similar delay applications looking for a copy of the judge’s decision.
Just how many criminal cases, for murder charges and other offences, could be affected by the Jordan decision and its guidelines remains unclear. Cases started after the Jordan decision will be subject to a hard 30-month limit. However, in instances where charges were laid prior to the decision, a degree of uncertainty exists.
In Ottawa, for example, there are multiple murder trials that have experienced lengthy delays that have yet to go to trial. These “transitional cases” — cases that were already in the system before the Jordan decision — each have to be assessed independently.
Where the delay exceeds what is considered reasonable, the Crown can show that the time it has taken is justified based on the law as it existed before the Jordan decision.
Transitional cases can also exceed the ceiling for delay if the case is of moderate complexity in a jurisdiction with significant institutional delay problems.
But in Picard’s case, the arguments for why he had yet to face trial after four years didn’t suffice for Justice Parfett.
The judge found the case to be moderately complex, but blamed the bulk of the delay on institutional issues, the inherent time requirements of taking a matter to trial, and the availability of Crown prosecutors.
Picard’s lawyer brought an application to expedite the trial in August 2015 after neither of the two assigned prosecutors was available for pre-trial motions until more than a year later. The Crown fought the application, arguing it would mean one or both of the assigned prosecutors would have to be removed from the case.
In that decision, another judge agreed with the Crown, and found there was no abuse of process or bad faith on the part of the prosecution. He also found that the two assigned Crowns had legitimate reasons for being unavailable — they both had other murder trials scheduled.
Parfett saw it otherwise. She found that the procedural choices of the Crown, while within its rights, were unreasonable given the length of the delay.
She also found that the prejudice to Picard was significant because he remained behind bars awaiting trial.
Parfett also noted the Crown was warned by a judge during Picard’s bail hearing in 2013 that the “the clock was ticking” and they needed to proceed expeditiously. She also took into consideration time lost when Picard fired one lawyer and tried to hire two others that couldn’t take the case because of conflicts.
While the Jordan decision came out in July, Crown prosecutors only received notice of Picard’s application to have the charge against him stayed on Nov. 4. Prosecutors had less than a week to prepare arguments against the motion.
The judge recognized the severity of the charge in reaching her decision, but said the Supreme Court had found that a person’s right to a trial in a reasonable amount of time can’t be diminished based solely on the nature of the alleged crime.
“It does not guarantee the right to be tried within ‘somewhat longer’ than a reasonable time, or within a time that is ‘excessive but not so long as to be clearly unreasonable’ when the charges are serious,” said the judge, quoting from a Supreme Court decision. “Delay is either unreasonable, or it is not.”
That is little comfort to victim rights advocates, who said the court’s decision sends the wrong message to victims of crime, who already feel marginalized by the criminal justice system.
“I think (this decision) speaks volumes about the delays that are going on in our criminal justice system right now,” said Heidi Illingworth, executive director of the Canadian Resource Centre for Victims of Crime. “It calls not only the victims’ confidence in the justice system, but the public’s confidence in the justice system into question.”
Nayel’s father, Amine, has already called Canada’s justice system a “piece of garbage” that fails victims of violent crime. Nayel’s family are planning a protest outside of the courthouse Thursday.
Illingworth said more needs to be done to divert less serious crimes out of the system so the courts can focus on dealing with the more serious offences in a more timely manner.
“Everyone, from victims to offenders, are entitled to a fair and speedy trial,” added Sue O’Sullivan, the Federal Ombudsman for Victims of Crime.
O’Sullivan said families of victims suffer an incredible emotional and financial burden after a crime occurs as they navigate the justice system.
Carleton MP Pierre Poilievre rose in the House of Commons Wednesday to ask for both the provincial and federal justice ministers to order a full review of what he called a “catastrophic injustice.”
Poilievre wants the review to answer why it took four years for trial and whether strategic legal delays or “administrative incompetence” played parts.
“The accused does have rights, but so should victims, like the Nayel family, whose son is gone and whose lives are forever torn to shreds by this odious crime and an even more odious injustice,” he said, before a round of applause.
Anthony Moustacalis, president of the criminal lawyer’s association, said an accused’s rights to a fair trial in a reasonable amount of time are “extremely important rights.”
“It’s a terrible punishment to be in jail for four years without a determination of your case,” he said.
Moustacalis said the delay is particularly acute in the Superior Court. The federal government has been under increasing pressure to fill vacancies, with senior judges warning the lack of appointments were causing trial delays.
“They need to appoint more judges and the Crowns needs to streamline which cases they really want to pursue,” he said.