Corrections officers Leslie Lonsbary and Stephen Jurkus were charged with failing to provide the necessaries of life after 29-year-old Adam Kargus was beaten to death by his cellmate at the Elgin Middlesex Detention Centre in October 2013.
A lower court stayed the charges against the two officers in February 2017, ruling that the case against them had eclipsed the 30-month time limit for trials set out by the Supreme Court of Canada.
Crown prosecutors appealed that decision, arguing the judge made errors in her analysis of the time-frame rules, which allow certain types of delays to occur without counting toward the 30-month limit.
In a decision released Monday, the Ontario Court of Appeal found in favour of the Crown, saying the lower court judge had miscalculated the total delay in the case.
“There was no unreasonable delay,” Justice Michal Fairburn wrote in a decision agreed to by fellow justices Sarah Pepall and Robert Sharpe. “I would â¦ lift the stays of proceedings and remit the matter to the Superior Court of Justice for trial.”
Lonsbary and Jurkus were on duty at Elgin Middlesex the night that inmate Anthony George beat Kargus to death in a jailhouse shower stall.
The beating lasted about an hour and was so loud that an inmate on the floor below could hear “excessive banging,” Fairburn said in her decision.
Kargus screamed for help, but guards did not respond until his body was found the next morning, the justice added.
George pleaded guilty to second-degree murder last year in connection with Kargus’ death, and was sentenced to life in prison with no chance of parole for 10 years.
The appeal court’s decision focused largely on evaluating delays in the case.
Delays that were caused by the defence, and delays that were caused by “exceptional” circumstances — which can include specific incidents or the general complexity of the case — do not count toward the 30-month ceiling for criminal proceedings, Fairburn said in her decision.
Among the time not properly taken into account by the lower court judge was a “three-month delay generated by the need for an additional day to complete the preliminary inquiry,” Fairburn said.
Two “critical” events occurred that necessitated the extra day of inquiry: the Crown dropped their charge against a third Elgin Middlesex guard who was then added to the prosecutors’ list of witnesses, and Lonsbary’s lawyers decided to add their own new witness to the defence list.
“Courts must be prepared to respond promptly and effectively to unexpected or unavoidable delays in criminal trials,” Fairburn said. “However, I am not satisfied that the court was responsible for the three-month delay in this case.”
Once the relevant delays are properly subtracted from the total time elapsed, the case against Lonsbary lasted just below 30 months and, although the case against Jurkus lasted three weeks longer than the limit, the difference can be excused because of the complexity of the case, Fairburn said.
Jurkus’ lawyer voiced his disappointment with the ruling.
“I believe that there was ample evidence before the Court of Appeal to uphold the decision of the trial judge that the case was unreasonably delayed â¦ through no fault of the defence,” Patrick Ducharme said.
“I will seek instructions from my client as to whether or not we should seek leave to appeal to the Supreme Court of Canada, or, proceed to trial.”
Lonsbary’s lawyer, Jill Presser, said she would review the decision and “carefully consider all of his legal options.”