The London Free Press.
TORONTO – The fate of two London correctional staffers charged in the death of an inmate rests in the hands of three judges now weighing complex legal arguments in the midst of a shifting Canadian justice landscape.
The faith in the justice system of a mother who lost her son is in their hands, too.
“To my last breath, when I join my son, that’s how long I will be on it,” a determined Deb Abrams said outside the Ontario Court of Appeal Wednesday.
“The public needs to know and the more people that are aware, eventually somebody is going to make changes. I don’t have the power to do it. I just have a voice.”
Abrams’ son, Adam Kargus, 29, was killed by cellmate Anthony George on Oct. 31, 2013, at Elgin-Middlesex Detention Centre (EMDC).
Three correctional employees were charged in March 2014 with failing to provide Kargus with the necessaries of life.
Charges against one were withdrawn in 2015.
But two others — operations manager Stephen Jurkus and correctional officer Leslie Lonsbary — were headed to trial.
A long preliminary hearing, a three-month wait for the decision from that hearing to commit the men to trial, scheduling mix-ups and regular court adjournments caused delay after delay until the trial was set for May 2017.
In February 2017, the charges against Jurkus and Lonsbary were stayed, after their lawyers argued the case had been in the court system too long and their rights to a trial within a reasonable time frame breached.
The province appealed the stay, resulting in Wednesday’s three-hour hearing before the Appeal Court.
Justice Robert Sharpe reserved the Court of Appeal decision.
“Given the nature of the claim, we will do our best to get it out expeditiously,” he said.
That would come as a relief to Lonsbary, his lawyer suggested during the hearing.
“It is very long time for Mr. Lonsbary to be living with this sort of thing over his head,” lawyer Jill Presser said.
All the emotions on all sides aside, the Appeal Court has to deal with complex arguments that dissected which side caused which delays in getting the case to trial.
Those arguments dug further than the typical case law thrown at appeal courts, into emails between legal assistants over scheduling, who did what on specific dates
two years ago and whether a London judge taking three months to commit the men to trial after their preliminary hearing was unusual or common in the court system.
The decision may come down to simple mathematics, a count of what delays can be attributed to each side, or to the court system in general.
It may come down, as well, to the seriousness of the charges, whether they warrant a trial despite concerns about the delay.
“It is difficult to read what happened to Mr. Kargus and to know he was locked in a cell and screaming and begging for the guards to come for over an hour but no one did,” Crown counsel Michael Fawcett told the Appeal Court.
“I don’t know how you call that anything but serious.”
But the lawyers for Lonsbary and Jurkus argued that the allegations against their clients did not reach a high level of seriousness.
Jurkus was supervising on a floor below the unit and had nothing to do with checking inmates, said his lawyer, Patrick Ducharme.
Had the Crown decided to try Jurkus separately, that matter would have come to a far earlier conclusion, Ducharme said.
The allegation against Lonsbary are “that he failed for one half-hour to do a round on a range,” Presser said.
The arguments took place against the new legal landscape in Canada created by the Supreme Court of Canada’s Jordan decision.
In that 2016 decision, the top court set reasonable timelines for the completion of cases. In Superior Court, where the correctional trial was to be held, the cap now is 30 months.
From time of charges to the expected trial date, the trial of Jurkus and Lonsbary was going to reach 38⅓ months.
But, because this appeal case is anything but simple, the trial fell into a transitional period not quite covered by the new Jordan timelines.
For Abrams and her family, though they’re hoping for a trial
for the correctional staff, even getting to the Appeal Court was a victory.
“For us to get this far is amazing, to get this far and bring more awareness to what’s going on in our correctional institutes and make some changes so that it doesn’t happen to another Adam, so that guards must do their jobs,” she said outside the court.
“We don’t want another family to go through this. We don’t want another inmate dying in a correctional institute, a death that could be prevented.”
By Randy Richmond