The London Free Press.
Two former correctional staff at London’s provincial jail, their cases caught up in a fight over justice delays, will learn next month if they’ll go to trial over the death of inmate Adam Kargus.
The province and lawyers for the two will argue in Ontario’s highest court whether the long delay between being charged and the start of the trial breached the rights of the accused to a fair trial.
Many of the arguments rely on arcane, he-said, she-said calculations over what side caused the long delay.
But the importance of the decision cannot be understated, lawyers for the province say.
“A man was killed in state custody,” Crown counsel Michael Fawcett states in his factum filed before the court.
“The Crown says that the guards who were supposed to be ensuring that he had the necessaries of life failed to do so. It is a serious matter. The case has generated media attention. Society deserves a determination of guilt on the merits.”
Kargus, 29, of Sarnia, was killed by his cellmate Anthony George, 32, also of Sarnia, on Halloween 2013 at the Elgin-Middlesex Detention Centre (EMDC) in London.
Three correctional employees were charged in March 2014 with failing to provide the necessaries of life — operations manager Stephen Jurkus and correctional officers Leslie Lonsbary and Gregory Langford.
The charge against Langford was withdrawn in 2015 and he became a witness for the Crown, one of the many complications in the case prompting delays that each side says were caused by the other.
A long preliminary hearing, a three-month wait for the decision from that hearing to commit to trial, adjournments, and scheduling mix-ups caused the delays.
In February 2017, the charges against the other two men were stayed, after their lawyers argued the case had been in the court system too long under the Jordan decision of the Supreme Court of Canada the year before. The case was slated to go trial in May.
The Supreme Court set new timelines for the right of an accused to be tried within a reasonable time frame, and for the Superior Court of Justice — which handled this case — the cap is 30 months.
In the February 2017 decision staying the charges, Superior Court Justice Mitchell calculated Jurkus’s delay at 35.8 months and Lonsbary’s at 36.6 months.
The Ministry of the Attorney General appealed the decision to stay the charges, bringing the matter back to the Ontario Court of Appeal at a hearing scheduled for Feb. 22.
The Crown estimates that after delays caused by the defence and by “exceptional events” that were no one’s fault, the case took less than the 30-month threshold to wind through the courts.
Putting the math aside, the Crown also argues the severity and complexity of the case warrant the stays being put aside and the trial going forward.
The case was hardly the “garden variety” type, the Crown argues.
“It involved three accused, a voluminous amount of disclosures, multiple pre-trials, a turned Crown witness,” and the judge at the preliminary hearing taking three months to commit the matter to trial, the Crown says.
But lawyers representing Jurkus and Lonsbary argue the decision to stay the charges was the right one.
Key to the delays in the case was the Crown’s decision to prosecute the two men jointly, Jurkus’s lawyer Patrick Ducharme argues in his factum.
The evidence against Jurkus mostly involves a statement he made to police shortly after the killing, while the focus on Lonsbary is the proper and consistent use of a recording tool during rounds, Ducharme says.
“The conduct of Mr. Jurkus forming the basis for the charge is separate and distinct from the conduct of Mr. Lonsbary forming the basis of the charge against him,” he says. “The Crown’s decision to proceed against the (two men) added complexity, in terms of scheduling and voluminous disclosure, to a case where there was none.”
The accused “made every effort to move the matter along as quickly as possible,” Ducharme says.
By Randy Richmond