A Supreme Court ruling is a ‘wake-up call’ for the justice system at a time when cases have never been more complicated and resources stretched so thin

Fouad Nayel vanished on June 17, 2012. Father’s Day. He told his dad, Amine Nayel, he would be home in time for his special supper—Chinese food, like every year—but he never walked through the front door again. By sundown, his Ottawa family was frantic, already fearing the worst. “He always, always, always answered his phone,” says Nayel’s mom, Nicole. “But when I tried to call, he didn’t answer. As a mother, I knew something was wrong.”

Tragically, her instincts proved correct. Five agonizing months after Nayel disappeared, the 28-year-old’s decomposed remains were discovered in the woods of Calabogie, Ont., 100 km west of the capital. He’d been shot twice. “There was nothing left of my son,” Amine says now. “The animals ravaged him.”

A few weeks later, police announced the arrest of Nayel’s alleged killer: Adam Picard, a 29-year-old former soldier. The charge was first-degree murder.

So began yet another glacial journey through Canada’s criminal justice system: court appearances. More court appearances. Multiple lawyer changes. Bail applications. A preliminary inquiry. Nicole, a waitress, never missed a minute of the proceedings, month after month, year after year. “I wanted to know every little thing that happened, even when it was eating me alive to see some of the evidence,” says the 63-year-old. “I had to be there because my son couldn’t be there for himself. I was his voice.”

Although the vast majority of the evidence remains shielded by a publication ban (in place to protect Picard’s fair-trial rights), the gist of the case has been revealed in numerous pretrial rulings. Simply put, the Crown’s theory is that Picard and Nayel were recent associates in the drug trade, and that Picard, desperate for a cash infusion after some bad luck, lured his target to a meeting, shot him dead, then stole his marijuana. Picard insists he is innocent and that “one or more unknown assailants” surprised them at the scene and pulled the trigger.

Jury selection was supposed to begin in November 2016, four full years after Nayel’s remains were properly buried. Instead, an Ottawa judge issued a bombshell ruling—throwing out the first-degree murder case because it took so long to reach trial. Just like that, Picard was free to go.

“I am well aware that in [my] deciding to stay these charges, the family of the deceased in this matter will not see justice done as they would want,” Justice Julianne Parfett told the courtroom. “Moreover, the accused himself may find this to be a hollow victory. A stay of proceedings is not the same as a verdict of not guilty.”

Sitting in the gallery, Amine couldn’t quite comprehend what he was hearing. “It was like being in a car accident,” he recalls. “Everything happened in slow motion. I tried to keep my cool, but I was burning inside. I’d never felt such anger in my life, and I think anybody in my shoes would feel that way.”

Though one of the most extreme examples, Adam Picard is among a growing list of alleged criminals to have their cases stayed as a result of R. v. Jordan, a landmark Supreme Court decision released last July that established strict new ceilings on how quickly a suspect should be tried after charges are laid (18 months for cases in provincial courts; 30 months for files in superior courts, which preside over the most serious cases, including all jury trials). As soon as a case stretches beyond those ceilings, it is now automatically presumed that a suspect’s Charter right to timely justice has been breached—with the onus shifting to the Crown to justify the delay or risk seeing the case tossed.

In theory, the Supreme Court’s rationale should surprise no one who has spent time in a Canadian courthouse. As the majority of judges (5–4) accurately lament in their exhaustive ruling, a “culture of complacency” has infected the country’s criminal justice system, so much so that everyone who works in that world “has come to tolerate excessive delays.” The moment has come, in other words, for a drastic reboot—for the sake of all involved, from suspects to victims to a disillusioned public. “The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself,” the court ruled. “The stakes are indisputably high.”

But is the Supreme Court’s solution too extreme, at least in the short term? Although stakeholders are now acutely aware that the clock is ticking on every new charge, many older cases—like Picard’s, which dates back well before the Jordan ruling—are being re-evaluated under a framework that did not exist at the time. Among the dozens of other suspects who’ve had their charges suddenly stayed are Salvatore Cazzetta, a Hells Angels leader in Quebec; David Keyes, a Toronto man charged with possessing child pornography; an Ottawa father (who cannot be named) who allegedly broke his newborn baby’s ankles; and two employees of a London, Ont., jail (Stephen Jurkus and Leslie Lonsbary) who were accused of failing to provide the necessaries of life to an inmate found beaten to death in a shower stall.

Adam Picard isn’t even the only accused murderer to have his case stayed post-Jordan. A few weeks earlier, an Alberta judge did the same for Lance Matthew Regan, who allegedly stabbed to death a fellow prisoner at an Edmonton penitentiary. He’d waited a whopping 62 months for his trial to begin.

In fact, the nightmare scenario most feared by the Supreme Court’s four dissenting judges—“that the introduction of these ceilings will put thousands of cases at risk of being judicially stayed”—has proven prescient. At last count, defence lawyers have launched close to 800 stay applications since Jordan (the most, 574, are in Quebec, followed by 240 in Ontario), and in the months to come, some other high-profile suspects could be walking free—because of technicalities, not acquittals.

Jamie Bacon, the Vancouver gang leader who allegedly ordered the 2007 “Surrey Six” massacre, is reportedly seeking a stay of proceedings due to unreasonable delay. So are Tom Harding, the train engineer facing 47 counts of criminal negligence causing death in connection with the Lac-Mégantic rail disaster; Peter Beckett, a former New Zealand politician who allegedly drowned his wife during a British Columbia vacation six years ago; and Robert Wood, the last inspector to examine the rusty steel beams holding up the doomed shopping mall in Elliot Lake, Ont., which collapsed in 2012, killing two.

“When people see the justice system operating like this, there is a real concern about a loss of confidence in the system itself,” says Scott Newark, a former Alberta prosecutor who has also worked as an advisor the federal public safety minister. “The Supreme Court could have done a better job of clarifying specifically how the ruling should be interpreted for cases that were already in the system, when those arbitrary timelines were not set.”

Conservative Sen. Bob Runciman, a former Ontario solicitor general, is now chair of the Standing Senate Committee on Legal and Constitutional Affairs, which just so happened to be studying the long-standing plague of court delays when the Jordan ruling was rendered. His committee has since called on Justice Minister Jody Wilson-Raybould to seek clarity from the Supreme Court on how to handle files already languishing in the queue. “Some cases are falling between the cracks and causing a lot of hurt and pain across the country,” Runciman says. “I don’t think that’s what was intended by the court in the Jordan decision, but that is the way it’s being interpreted by some judges.”

To be clear, the Supreme Court directed lower courts to apply the new framework “flexibly” to cases already in the system, adding that certain factors, including the seriousness of the offence, can be considered. “Parliament, the legislatures, and Crown counsel need time to respond to this decision,” the ruling reads, “and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist.”

The court also said, however, that a suspect’s right to be tried within a reasonable time “cannot be held in abeyance while the system works to respond” to the new Jordan ceilings. “The analysis must always be contextual,” the ruling continues. “We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case.”

The results have been mixed, to be sure. For all the alleged criminals who have secured stays, there are many others whose applications have failed—including Shakti Ramsurrun, accused of a gruesome triple murder in Gatineau, Que.; Barney Shum, a former director at Library and Archives Canada who allegedly participated in a $3.5-million bid-rigging conspiracy; and British Columbia’s Zachary Matheson, charged with possession of cocaine, ecstasy and methamphetamines for the purpose of trafficking.

Prosecutors in Ontario and Alberta have also filed appeals in their respective first-degree murder cases, leaving open the possibility that the top judges in each province will interpret the Supreme Court’s guidance differently than the lower courts and restart the two cases that have triggered the most public uproar.

“This is the way our system works: the judiciary interprets the Supreme Court of Canada’s decisions and applies them,” says Martin Herschorn, the director of public prosecutions in Nova Scotia. “It is a work in progress, I would say.”

In the meantime, the system is clearly struggling to adjust to the intensified pace demanded by the Jordan decision—in an era when criminal prosecutions have never been more complicated and resources stretched more thin. It’s one thing to declare a resounding end to “business as usual,” as the Supreme Court just did. Actually accomplishing that feat, if it’s even possible, will be daunting. If the early days are any indication, the situation is sure to get worse before it improves.

“It has long been apparent that a crisis was inevitable,” Kate Matthews, the president of the Ontario Crown Attorneys Association, wrote in a recent open letter. “Criminal prosecutions have become increasingly complex and take much longer to prosecute. Yet the numbers of prosecutors in the trial offices has decreased. Increasingly we are concerned that we will be unable to comply with our professional obligations and duties to the public we serve.” In Ontario alone, more than 6,500 criminal cases in the provincial court system have already breached the new 18-month ceiling.

As a direct result of Jordan, the Quebec government has invested $175 million to recruit new provincial judges, prosecutors and other courthouse staff. In Ontario, which also announced a funding boost, Attorney General Yasir Naqvi says the time has come to dramatically limit the use of preliminary inquiries, which he says add “many months” to serious criminal cases. Other regions, Alberta included, have introduced “triage” systems to ensure limited resources are being directed toward the most at-risk files—while at the same time urging Ottawa to finally fill close to 60 judicial vacancies in the country’s superior court ranks.

“After the Jordan decision, we have redoubled our efforts,” said Kathleen Ganley, Alberta’s justice minister, in an interview with Maclean’s. “My initial concern was for victims and families of victims, because no one wants to see their accused person walk free, particularly when it’s on a procedural matter.”

Alberta has seen 60 stay applications filed since last July; 17 have been dismissed so far, while six have been granted. Ganley said her ministry is working “incredibly hard” to ensure that all new cases stay below the Jordan ceiling by prioritizing violent crime files and rethinking the plea bargain process. “There is a lot of discipline around ensuring that the first offer from the Crown is the best offer,” she says.

The minister also conceded, however, that prosecutors will have “some difficult decisions” to make in the weeks ahead as they prioritize which cases to pursue in this post-Jordan reality. And that is exactly what happened just a few days after she made those remarks: in Edmonton, a senior Crown stood up in court and announced that prosecutors had no choice but to stay 15 cases—from impaired driving to assaulting a police officer—because there simply aren’t enough resources to try them. The Alberta Crown Attorneys’ Association later revealed that more than 200 cases have been stayed in the province since the start of 2017.

“The Jordan ruling was a wake-up call for the system, and when it is the Supreme Court of Canada speaking, you pay attention,” says Herschorn. “But there are finite resources in our system—like any system—and we have to make it work as efficiently as possible.”

Kevin Westell sympathizes with everyone affected. A Vancouver defence lawyer who also works a few days a month as an ad hoc Crown, he understands how judicial delays impact both accused criminals and the victims of crime. “It is a fine balance, and I have looked at it from both sides of the equation,” he says. “But I would be disappointed in a story that laid claim to the idea that people who commit major offences can, or are, routinely walking out of jail. The right to be tried in a reasonable amount of time is meant to be a good thing for all Canadians, not just the accused. This is the only real mechanism in our law that exists to make sure things are dealt with efficiently and quickly so that matters don’t languish in the courts forever.”

Fouad Nayel’s grieving parents understand that. They’ve come to learn far more than they ever imagined they would about Canada’s criminal justice system, and they agree all accused criminals—even the one who allegedly shot their son and left him for dead—have every right to defend themselves. “If he won in court, I would be the first one to say he won fair and square,” Amine says. “But this is not fair and square. This had nothing to do with the evidence.”

They hold out hope, however faint, that Ontario’s top court will send their son’s accused killer back to trial. A hearing on the appeal is scheduled for June in Toronto.

“Where is our justice?” Nicole asks. “Where are our rights? We are victims—and we are being punished by the system on top of it.”