Justice delayed, justice denied
Requests for murder cases to be thrown out of court have risen
MONTREAL — A Quebec superior court judge denied a motion for a stay of proceedings last week in a murder case that has been ongoing for almost four years.
“Thank you for justice!” Hanim Sen shouted as she exited the courtroom after hearing the judge’s decision. She then collapsed, overcome with emotion and had to be supported by relatives.
Her son, Fehmi Sen, was murdered in 2013. He was shot in Kent park in NDG in what police believed to be a case of mistaken identity.
The three men on trial for his murder: Marlon Henry, 27, Rakesh Jankie, 28, and Shorn Carr, 35, all submitted a motion for a stay of proceedings in February 2017. A judicial stay of proceedings, if accepted by the judge, would mean that their trials would essentially end without any closure or punishment.
“Charges that are stayed may never be prosecuted, an alleged victim will never get his or her day in court.” — Nova Scotia Supreme Court Justice Gerald Freeman in a 2002 decision.
Sen’s case wasn’t the only one facing a stay of proceedings during the week of May 8. Kirk Ainsworth Howell, who is charged with the second-degree murder of his six-year-old daughter, also had his request for a stay of charges denied.
Howell’s daughter died on July 1, 2008. He was charged on April 18, 2012.
The Jordan ruling
The Canadian Charter of Rights and Freedoms guarantees that any person charged with an offence has the right to be tried within a reasonable time.
In July 2017 the Supreme Court of Canada set precise limits on how long courts have to deal with criminal cases.
Superior courts now have 30 months to complete a case— from the moment charges are laid to the conclusion of a trial. Provincial courts have 18.
The decision came as a result of a case in British Columbia involving a convicted drug trafficker named Barrett Jordan. Jordan was arrested in Dec 2008 and only went to trial in Feb 2013.
Justice stayed
While the Jordan ruling hasn’t resulted in the tidal wave of cases being thrown out that some feared, it has resulted in a higher number of requests for stays of proceedings.
Approximately 50 per cent of those requests have been granted nationally.
One of those was the case of Sivaloganathan Thanabalasingham, 31, who was accused of murdering his 21-year-old wife in Montreal in 2012. He was arrested in August 2012.
Thanabalasingham’s case was thrown out in April. The crown is appealing the decision.
Last week Thanabalasingham told an immigration review board that he wants to be deported to his native Sri Lanka as soon as possible, before the appeal can proceed.
A second Quebec murder case that was thrown out of court is also being appealed by the Crown.
Convicted murderer Ryan Wolfson was facing a first-degree murder charge in connection with the death of Pierre-Paul Fortier, who was killed in October 2012. His request for a stay of proceedings under the new Jordan rules was granted in April.
Wolfson is already behind bars; sentenced to life in prison last fall for the first-degree murder of Frederick Murdock, who was also killed in October 2012.
Quebec courts in crisis
Since the Jordan ruling, over 700 motions for stays of proceedings have been filed in Quebec, more than any other province.
In March of this year the Quebec government announced the appointment of 16 new judges and the hiring of 52 new prosecutors to try and unclog the judiciary system.
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