Nicole Nayel (right) and Amine Nayel hold a photograph of their son Fouad Nayel, who was shot to death in June 2012. Adam Picard, now 34, is charged with first-degree murder. (Dave Chan)
A former Canadian soldier accused of first-degree murder—who was freed from jail last year because his criminal case took too long to reach trial, only to be re-arrested after Ontario’s top court overturned that controversial ruling—is trying one more time to have his charge thrown out.
As expected, alleged killer Adam Picard is seeking leave to appeal to the Supreme Court of Canada, arguing that the high court needs to clarify its landmark ruling in R. v. Jordan, which took direct aim at the justice system’s “culture of complacency towards delay” by establishing strict new ceilings on how much time can elapse between a person’s arrest and the completion of trial: 18 months for provincial court cases, and 30 months for charges in superior courts. If a criminal prosecution stretches beyond those limits, the onus is now on the Crown to justify the delay or see the case tossed.
At the heart of Picard’s last-ditch appeal is one key question: How should the Jordan framework be applied to suspects who were arrested before the Supreme Court unveiled its new trial deadlines in July 2016?
Charged in the 2012 shooting death of 28-year-old Ottawa construction worker Fouad Nayel, Picard spent nearly four years in pre-trial custody before a judge stayed his case last November, citing the recently released Jordan decision. He was a free man for 10 months, until September, when the Court of Appeal for Ontario ordered a new trial.
How to deal with such “transitional” cases has “broad implications for criminal law” and requires further direction from the Supreme Court, Picard’s lawyers write in his notice of application for leave. “There is a significant public and national importance to ‘getting it right,’ ” the application reads, “particularly when the disparity in outcome for the accused and the public is so stark: the difference between a permanent stay of proceedings and facing a trial [involving]the risk of a loss of liberty for life.”
The Jordan ruling (5-4) was an unprecedented wake-up call for the country’s legal system, and few who spend any time inside a Canadian courthouse would challenge the majority’s ultimate conclusion: that the wheels of justice spin far too slowly for anyone’s good, from suspects to victims to society-at-large. But many stakeholders—as well as the four dissenting judges who disagreed with their Supreme Court colleagues—expressed concern about implementing such hard deadlines. Writing for the minority, now-retired Justice Thomas Cromwell called the ceilings “both unwarranted and unwise,” warning they could result in “judicial stays in potentially thousands of cases” that pre-date the Jordan decision.
In its lengthy ruling, the majority directed lower courts to apply the new framework “flexibly” to cases already in the system, stressing that “stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist.” However, the high court also said that a suspect’s right to be tried within a reasonable time, enshrined in Section 11(b) of the Charter, “cannot be held in abeyance while the system works to respond” to the new ceilings. “We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case.”
The judge in Picard’s case, Madam Justice Julianne Parfett, concluded that the Jordan decision warranted a stay of proceedings—even though it meant an alleged killer would walk free, not on the merits of the evidence, but because it took too long for that evidence to be presented at a trial. “The thread that runs through the present case is the culture of complacency that the Supreme Court condemned in Jordan,” Parfett ruled last November. “The justice system has failed this accused and the public.”
If the Jordan ruling wasn’t enough to force politicians to finally address Canada’s under-resourced criminal justice system, the Picard decision was, triggering outrage across the country. Provinces injected hundreds of millions of dollars into hiring new judges and Crown attorneys, while federal Justice Minister Jody Wilson-Raybould continues to examine other ways to tackle delay, including limiting preliminary inquiries and streamlining bail hearings.
In September, however, Ontario’s top court unanimously overturned the Picard ruling, concluding that Parfett misinterpreted the Supreme Court’s guidance on how to deal with pre-Jordan cases. Picard, now 34, surrendered to police the next day, an accused killer once again.
Simply put, the Jordan ruling acknowledged that Crown and defence lawyers should not be held to a standard that did not exist at the time, and laid out a “transitional exceptional circumstance” for cases already in the queue: if a pre-Jordan prosecution is found to exceed the new ceilings, that delay can still be “justified based on the parties’ reasonable reliance on the law as it previously existed”—a law, known as the Morin framework, that allowed judges to consider the severity of the crime, for example, before declaring a stay. The Ontario Court of Appeal found that although Picard’s case “exhibits some of the delay concerns that Jordan sought to address” (and would likely have been tossed had the new framework been in place back in 2012) it would be wrong to judge the Crown’s conduct “against a standard of which they had no notice.”
In their notice of application, Picard’s lawyers say his case raises numerous “issues of national importance,” namely that the Ontario Court of Appeal has applied the transitional exception in a manner that is “entirely contrary” to the Supreme Court’s declaration that a suspect’s right to timely justice not “be held in abeyance while the system works to respond to this new framework.”
“While the ‘transitional’ exception outlined by this Court in Jordan admittedly applies to a closed and time-limited class of cases, this is still a large class of cases, including a number of serious cases, including murder cases (by media reports, there are at least five ‘transitional’ murder cases making their way through the appellate courts),” their filing continues. “It is of national importance that an approach that permits Charter rights to be held in abeyance not be endorsed, or even countenanced, by this Court.”
Picard’s lawyers—Howard Krongold, Eric Granger and Lawrence Greenspon—have yet to reply to a request for comment from Maclean’s. Denied bail last month, Picard’s trial is now set to begin in early April 2018. The Supreme Court is expected to decide well before opening submissions whether to hear his appeal.
Nicole Nayel, the murder victim’s mother, says she is praying the high court does not intervene. Her family has endured too much heartache already, she says, to contemplate the prospect of her son’s accused killer being set free—again—on a technicality. “It has been over five years we’ve been waiting for a trial, and I am dealing with this over and over and over again,” Nayel says. “It has been a nightmare. My whole life has been turned upside down.”
Daniel Brown, a Toronto criminal lawyer who is not involved in the Picard case, says it’s unlikely the Supreme Court will agree to hear his appeal, especially since the high court recently ruled on another delay-related case and reaffirmed that the Jordan framework provides sufficient leeway to deal with transitional files. “Given that the Supreme Court has already spilled a lot of ink on this subject in the past year, they are not likely to engage in a third round in order to clarify this point,” Brown says. “Yes, there has been a lot of controversy over the Picard case, but most people will accept that the Ontario Court of Appeal’s assessment on how to deal with transitional circumstances is going to be the final word.”
The Supreme Court may also wait to see how other provincial appellate courts deal with pre-Jordan cases before weighing in, says Anthony Moustacalis, former president of the Criminal Lawyers’ Association. “There are always some issues you can raise with any decision, and I agree with the appellants, as a defence lawyer, that it would be helpful to have the court look at some of the nuances of the transitional provisions,” he says. “But regardless of the merit of any argument, it is extremely difficult to get leave to appeal.”