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Prosecutors trying to prevent an accused murderer from walking free

Nicole Nayel holds a photograph of her son Fouad Nayel on Nov. 18, 2016 in Ottawa. Adam Picard, 33, was charged for the June 2012 killing of Fouad Nayel. Picard’s first-degree murder charge was stayed after a four-year delay in the justice system.

Dave Chan/The Globe and Mail

Ontario prosecutors, trying to prevent an accused murderer from walking free because of delays in his trial, say a judge ignored society's wish to combat serious crimes when she threw out the charge.

The case of Adam Picard of Ottawa is one of three across Canada in which courts have stayed murder charges over delay, under new time limits set down by the Supreme Court last July. The Ontario Attorney-General is appealing the stay, granted in November. Of the other two, one was in Alberta, in October, in a case also under appeal, and the other was in Quebec last week, involving a man accused of killing his wife.

A victory for Ontario on the issue of seriousness could help blunt the impact of the Supreme Court ruling, known as R v. Jordan, by discouraging other judges from throwing the most serious cases out of court. That would establish a major precedent for the province, and could be influential in other provinces when judges are asked to throw out serious cases that were well under way before July. But if the stay is upheld, it would send a signal to other judges to be tough on delay, even at the cost of dismissing more murder charges.

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"I think the Picard case is really going to be the litmus test on whether courts will in fact stay a criminal offence," Daniel Brown, a Toronto director of the Criminal Lawyers' Association, said in an interview. (He is not directly involved in the case.)

Two months ago, he brought an application for a stay over delay in a homicide case, and lost. He said that since the Picard ruling, courts have been reluctant to dismiss other serious cases. "I think the courts are reluctant to stay a serious charge; I think there was a strong backlash following the Picard decision."

In a legal filing with the Ontario Court of Appeal, which is to hear the case in June, prosecutors say judges should be far more hesitant to dismiss serious charges. It said that under the rules in place as Mr. Picard's legal proceedings unfolded, the gravity of an offence "often played a decisive role" when courts decided whether delays were unreasonable. The more serious the offence, the less likely a delay would be seen as unreasonable.

Mr. Picard is accused of first-degree murder in the shooting death of Fouad Nayel, 28, whose body was found in a wooded area near Ottawa five months after he disappeared. The charge was laid in December, 2012. The trial was to begin on Nov. 7, 2016, and end in December. Mr. Picard's lawyer applied for a stay under the Charter of Rights and Freedoms just before the trial was to start.

Justice Julianne Parfett ruled that "the thread that runs through the present case is the culture of complacency that the Supreme Court condemned." She said the 48 months from the charge to the trial's anticipated completion, minus eight months of delay caused by the defence, was past the 30-month ceiling set by the Supreme Court for trials in superior court, and therefore had to be stayed.

The Crown argues that it was not complacent, but acting under the rules in place at the time. The Supreme Court made allowances for the "transitional period" involving cases already in the system. The court said it is not fair to change the rules for cases already well under way before July. But the "transitional" rules for cases under way before R v. Jordan have been the subject of wildly varying decisions across the country.

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A key principle in R v. Jordan is that the Charter right to a trial within a reasonable time applies no matter how serious an alleged offence. But, prosecutors say, Justice Parfett minimized the concern about the seriousness of the charge under the existing rules, by observing merely that the victim's family would be deprived of seeing justice done, rather than considering society's interest, and the reputation of the justice system.

Prosecutors Roger Pinnock and Tracy Kozlowski add in their legal filing: "The trial judge's assertion that the more serious the offence, the less tolerance will be given for any delay, turns the proper consideration of this element quite neatly upon its head."

The Crown has a difficult argument to make in the Picard appeal, Mr. Brown said. In a ruling released at the same time as Jordan, called R v. Williamson, the Supreme Court upheld a stay for a teacher convicted by a jury of raping a young boy he was mentoring. The court said in that case that Charter rights have long applied, no matter how heinous an offence.

Mr. Picard's lawyer for his appeal, Howard Krongold, said he was not prepared to comment at this time.

The risk of murder allegations being dismissed over delay has jolted the justice system. In Ontario and other provinces, the preliminary inquiry has come under prosecution attack. In Alberta, the Attorney General dropped hundreds of cases over a lack of prosecutors, in order to focus on serious crimes. Ontario, Alberta and Quebec are together pouring hundreds of millions of dollars into hiring new judges and Crown attorneys and expanding legal aid.

The Crown pointed to other reasons, too, to overturn the stay and order another trial for Mr. Picard. It said the case was more complex than the norm, while Justice Parfett said it was a typical murder case. It said that the accused had been so focused on a bail hearing, seven months after his arrest, that he delayed preparing for trial. It said Mr. Picard's application for a stay should have been made in May, when the court was setting trial dates, not mere days before the trial was to begin in November, which harmed the Crown's ability to argue against a stay.

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