'It's been hell': Ottawa family on edge as appeal begins in stayed murder case

The hope of justice for their loved ones can help many families cope during endless court days waiting for a conviction, but that hope was taken away from Nicole and Amine Nayel in an instant last November. 

Their son, Fouad Nayel, a construction worker who grew up in Ottawa's suburb of Barrhaven, was shot and killed in June 2012. The 28-year-old's remains were found five months later after a desperate search by his family and network of friends. 

His alleged killer, Adam Picard, a former Canadian Forces soldier, was charged with first-degree murder in December that year.

Four years later, on the day jury selection was to begin, the Nayel family was given more bad news: Picard's lawyer had successfully argued the length of delay in getting the trial started — nearly 48 months — violated his client's constitutional right to a speedy trial. 

It's hard to smile, it's hard to laugh.- Nicole Nayel

Ontario Superior Court Justice Julianne Parfett stayed the first-degree murder charge on Nov. 15, 2016, and Picard walked out of the Ottawa courthouse a free man.

• Experts alarmed by court delays after murder trial halted
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Ontario Attorney General Yasir Naqvi subsequently appealed the stay of proceedings, and on Monday two Crown prosecutors will appear before a panel of judges at the Ontario Court of Appeal in Toronto, trying to persuade them to order a new trial.

The hearing ended Monday afternoon after both the Crown and Picard's Ottawa-based lawyer, Howard Krongold, made their arguments. The panel reserved its decision on the appeal for a later date, according to an appeal court spokesperson. 

Fouad was described as a passionate debater and a ladies' man by his parents. His death devastated family and friends. 

"It's hard to smile, it's hard to laugh. It's a struggle to feel happy, cause I'm not happy," Nicole Nayel told CBC News before the hearing on Monday.

Five months had passed after he went missing on June 17, 2012 before his body was discovered. Nicole Nayel said she even approached Picard twice about her son before police charged him in Fouad's death. 

Fouad's remains were found in the woods near Calabogie, Ont., about 100 kilometres west of Ottawa.

Police told CBC News at the time they believed he was shot to death and that drugs played a role in the killing.

No longer than 30 months

Picard's lawyer at the time, Lawrence Greenspon, relied on a 2016 Supreme Court of Canada ruling to stay the accused killer's murder charge. 

The ruling, also known as the Jordan decision, states that the time between charges being laid and the completion of the trial must not exceed 30 months for cases in Superior Court. The limit for cases in provincial court is 18 months. 

This week's appeal is Nicole Nayel's last effort to seek justice for her son. 

Prosecutors Roger Pinnock and Tracy Kozlowski have argued in court filings that Justice Parfett mischaracterized the periods of delay before staying the murder charge and did not allow the Crown in Ottawa to make full submissions.

They have also argued the judge erred in her assessment of the complexity of the case and failed to apply an exception for cases already in the court system before the Jordan ruling was issued.

But, having been disappointed by the justice system once before, the Nayels say they have little hope. 

"I don't feel very optimistic …. It's been hell for us," Nicole Nayel said, adding that while she felt confident at first, their treatment by the justice system took that away. 

"If they want to be reasonable and fair and put justice ahead of everything, they should side with us. They should side for the right thing."

'A pretty considerable challenge'

The legal community is watching the appeal closely. University of Ottawa law professor Emilie Taman believes the Crown faces "a pretty considerable challenge" in showing that the trial judge made an error of law in agreeing to stay the charge because of the delay.

"At the end of the day, the Crown here is trying to argue that the court didn't appreciate the complexity of the case, and because it's a more complex case, they argue it ought to have been allowed a little bit more time to move through the system. That's going to be a difficult argument to make, unfortunately, at the appellate level," Taman told CBC Radio's Ottawa Morning Monday.

Despite the public interest in this case, if the appeal fails, Taman hopes the process at least sends a message to the rest of the legal system across the country, and particularly Crown prosecutors, "about the seriousness of the obligation that they have to move a case through the system at an appropriate pace.

"And in this case, the trial court was quite troubled by the complacency that the Crown had shown in failing to accommodate a scheduling issue. And that's what Jordan was trying to get at as well — this culture of complacency, a flippancy about the right of the accused to a trial in a reasonable time, especially in a serious offence," she said.

'We were 1 day away'

Even though Picard was charged before the Supreme Court's Jordan decision was introduced last July, the ruling impacts what the Supreme Court calls "transitional cases."  

More than 1,000 criminal cases in Ottawa are at risk of getting thrown out as a result of the ruling, according to the Ontario Court of Justice Criminal Modernization Committee. 

• Ontario judges stayed 46 cases due to court delays in 2016

The Nayels worry it sets a dangerous precedent. 

"Are we sending the right message to everybody that you can kill someone and walk down the street?" Nicole Nayel asked.

It's this question that is puzzling courts across Canada. In response, Naqvi has announced he would add 13 judges, 36 assistant Crowns and a number of other legal aids across the province to help speed up cases and prevent more heartaches for families. 

But that step didn't come soon enough for the Nayels.

After five years of preliminary court hearings and learning gruesome details of their son's killing, Picard's appeal was granted. 

Nicole Nayel laments the fact her son's alleged killer walked free just before his trial was about to start.  

"We were one day away. It's not like we had another six or seven months to wait," she said.  

"How does that make us feel? All this time waiting and what do I see? An [alleged] killer walks free."