Systemic Delay Issues Lead to a First-Degree Murder Charge Being Stayed

It is not very often that mainstream news picks up a Superior Court case for reasons of administrative technicalities. However, it is not every day that a first-degree murder charge is prevented from being heard on its merits. R v Picard, 2016 ONSC 7061 [Picard] is just one example of numerous legal cases that are being stayed (permanently suspended with no ruling on whether someone is guilty or innocent) across the country due to a new Supreme Court requirement that trials take place within a reasonable time (Charter right, s. 11(b)). No judge will get to hear the strong case against Adam Picard. The mother of the victim, Fouad Nayel, is deprived the solace of a court verdict. A potential murderer gets to walk free—all because of the fact that government prosecutors have been overworked, coupled with a culture of complacency.

Last year I speculated on the impact the new R v Jordan, 2016 SCC 27 [Jordan] test for conducting a trial within a reasonable time would have on the Federal Crown. I surmised that if the Crown did not have the ability to fundamentally reorganize itself, this decision would result in numerous stays of proceedings. My hypothesis proved correct—some sources estimate that between 6,000 and 10,000 cases within Ontario have already been stayed because of the Jordan decision. While the Ontario provincial government has since hired more judges, Crown Attorneys, and court staff to prosecute cases quicker, this huge shift in the law continues to have large ramifications.

The transition between a flexible, discretionary framework on “reasonable” delay to a hard-line limit was undoubtedly going to be difficult. The risk was predictable: in the 1990s, tens of thousands of cases were stayed in Ontario alone after the Supreme Court modified the s. 11(b) test in R v Askov, [1990] 2 SCR 1199. Hoping to avoid the same result, the Supreme Court added a “transitionary period” exception to Jordan. However, as Picard reflects, the transitional guidelines are unclear.

The Picard Reason For Delay

The Picard case involved a total delay of 48 months—well beyond the Jordan hardline limit of 30 months or the old R v Morin, [1992] 1 SCR 771 [Morin], discretionary limit of eight to ten months for provincial offences. Once the limit is passed, a violation of s. 11(b) is assumed to have occurred unless the Crown can rebut the presumption with an exceptional circumstance.

Justice Parfett concluded that there was one exceptional circumstance in this case. Nevertheless, this circumstance only reduced the total time limit by two months. The beginning of the case lagged: Mr. Picard fired his first counsel. His next two counsel needed to remove themselves due to a conflict of interest. His fourth, and final, counsel arrived on the case approximately six months after Picard was charged. However, of this period, Justice Parfett only deducted two months’ time because defence counsel was waiting for disclosure from the Crown. The disclosure in this case consisted of:

• six months of investigation, involving two police services
• 30,000 pages of disclosure
• 2,800 photographs
• dozens of video-recorded witness statements
• 6,800 pages of cell phone records
• 25,000 text messages with content
• 103,000 lines in Excel of subscriber records from Mr. Picard’s phone
• 78 witnesses interviewed
• 60 judicial authorizations
• and eight separate areas of expert evidence

This disclosure came in three separate packages, the final package being given to defence counsel about four months after Mr. Picard’s charge. Therefore, the judge attributed the defence delay to a switch of counsel that only resulted in two months of delay. Justice Parfett also mentioned in her judgement that the defence was ready to set a bail hearing even before receiving substantial disclosure, and should this not have been the case, defence actions taken to legitimately respond to a charge should not fall under delay. I agree that the defence must be allowed preparation time, even where the Crown and the court are ready to proceed. I would argue, however, that under the new hardline limit all activities of the defence that result in a delay should be strictly accounted for. This is because the framework does not discriminate—once the threshold is exceeded, a stay is granted unless the Crown can justify the delay.

I am incredibly concerned that the hardline Jordan guidelines do not account for cases, such as this one, where there is a voluminous level of disclosure. Even the fact that much of the disclosure was expected to be whittled down in trial does not change the fact that this case involved an in-depth murder investigation. A good lawyer is expected to review and be familiar with all the facts of a case. While the level of disclosure was not explicitly accounted for under the previous Morin regime, the release of disclosure was accounted for in the category of “inherent” delay, i.e. delays inherent in every case that are necessary to move the case forward. Inherent delays did not account against either party when assessing s. 11(b) infringements under Morin. While the Supreme Court would retort that the inherent time to process a case has been accounted for in the 30-month limit, this limit does not account for incredibly complex cases, such as murder and white collar crime, whose investigation usually results in a great deal of evidence, typically released in waves after heavy redaction. Most of these types of cases are charges that society would like to see adjudicated on their merits.

The fact that the Crown had a strong case against the victim actually worked against it. According to the mother of the victim, Mr. Picard was almost certainly going to be found guilty based on the evidence. The cause of death was not an issue and there were no self-defence issues raised. Due to the routine nature of the case and the strong evidence against Mr. Picard, no novel or complicated legal issues were raised. This fact is notable because the new Jordan test only allows for a deduction of time if the legal issues—not the legal disclosure—are particularly complex. Therefore, Justice Parfett did not deduct any time due to the fact that this was a routine murder case.

Failure/Inability to Re-Assign Crown

The nail in the coffin of this case was the Crown’s failure to expedite the trial dates by removing at least one of the assigned Crown attorneys. Earlier in the case, the defence had launched a motion to expedite that was adamantly opposed by the Crown, despite the accused being in pre-trial custody. As the judge noted, this case had two senior Crown lawyers who both had very heavy caseloads. Because of this, both counsel were not available for approximately five months between February and June, 2016, despite the Court and defence counsel being ready to proceed. To exacerbate the issue, the Court typically did not address these types of matters during the months of July and August. Nevertheless, I agree with the judge’s decision that the full seven months should have been attributed to the Crown for this delay. While it was a typical practice of the court not to take cases for two months of that period, the trial would not have fell into that two-month period had the case been expedited.

Both Justice Parfatt and I seem to be grappling with Jordan’s inability to account for severe systemic delays, especially during the transitional period. At the time of this case, the average approximate institutional delay in Ottawa was thirteen months in the provincial court and ten months in the Superior Court (Picard, at para 74). The Morin framework would have only, just barely, accommodated the latter delay. The Ottawa criminal justice system was clearly overworked, so it is understandable that the Crown did not want to reassign their attorneys because there were most likely not many attorneys to whom the case could be re-assigned. Requiring cases to be constantly reorganized leads to inefficiencies in the justice system: another lawyer would need to familiarize him or herself with the case and review the substantial disclosure that has already been granted. Because of the public outcry from this case and others, the government has recently increased the number of government attorneys to try to address the problem. It is a shame that the government needed to learn this lesson via a stayed murder charge.

My final note is that this case has since been appealed. It is notable that Justice Parfatt did not engage in a full Morin analysis, but did make the statement that she did not believe that the party’s reliance on the old law was reasonable (due to a culture of complacency) and it was “obvious” that the Morin threshold was exceeded. I am interested to see how the facts of this case will be interpreted by a higher court.