Some have questioned why it takes so long for cases like Magnotta's to get to court. Lukatrial.com, for example, the popular website that has been following the case from the beginning, says, "I will never understand how we can delay justice for so long in a case like this."
The key determinant in most cases has to do with judicial resources, rather than issues related to the defence or the prosecution.
Ottawa criminal lawyer Ian Carter told CBC News that the 16-month delay between the preliminary hearing and Magnotta's trial before judge and jury is not unusual. A trial like Magnotta's "is normally set that far in advance because they need to find a courtroom and a judge."
The Magnotta trial is expected to last six to eight weeks, a relatively big block of court time. The court facilities, the judge, the lawyers and the witnesses all need to be available at the same time, and there are always other trials in the queue competing for timeslots.
In the Magnotta case, his lawyer, Luc Leclair, had requested an earlier start date — April 2014 — but last week Justice Andre Vincent said September was the earliest possibility. "It's a busy courthouse," Leclair told reporters, adding, "I'm not completely surprised."
There are others factors as well that play a role in setting the date. The starting point is the Charter of Rights and Freedoms, which states, "Any person charged with an offence has the right ... to be tried within a reasonable time."
Section 11 of the Charter is also the one that says anyone charged should "be presumed innocent until proven guilty."
A defendant who is to be tried by a superior court judge alone or a judge and jury usually has the right to a preliminary hearing. Magnotta's wrapped up April 12 with an order to stand trial for first-degree murder and four other charges.
Carter says Magnotta's preliminary hearing happened relatively quickly. "In terms of judicial resources, there's a longer period of delay from the initial charge to the preliminary inquiry than there is between the preliminary and the superior court trial."
"Technically, the preliminary is there to serve as a screening mechanism to see if there is some evidence of the offence you've been charged with, [but] in the vast majority of cases there's no argument about committal to stand trial," Carter said.
Where that does happen, sometimes, is in murder cases, with an argument over whether the charge should be first- or second-degree murder or manslaughter. Leclair argued unsuccessfully that Magnotta should be tried for second-degree.
However, Carter explained that the reality with preliminary inquiries is that, "In the vast majority of cases it's used by the defence as discovery-type process, to get information about certain parts of the crown's case," and to get an idea of how witnesses will perform in the courtroom.
The Crown can avoid a preliminary inquiry by getting the attorney general to approve a direct indictment.
The decision to do so is made unilaterally by the prosecutors and the defence has no ability to argue against it. Last year, the Crown got a direct indictment in a terrorism case in which Carter is representing one of the accused, Misbahuddin Ahmed, who was arrested in 2010. In that case, the jury trial won't begin until April 2014.
The availability of the lawyers for both sides, and the witnesses, is also taken into account when setting a trial date. Once the available date for a judge and courtroom are known, the two sides usually work out which option to choose.
After a trial date is set
Once the trial date is set, both sides have more work to do. Although most of the investigative materials should have been handed over to the defence ahead of the preliminary hearing, both sides will study the transcripts from the hearing.
The prosecution probably won't put forward its full case at the inquiry, and "it's a much bigger task doing it in front of a jury," Carter explains.
The defence has to work out their strategy, line-up expert opinion, get extra evidence, and prepare to cross-examine witnesses, which Carter says will be different in front of a jury compared to the preliminary. And it's likely there will be additional witnesses called.
"In a jury trial, there is always more work to be done," he said. "As defence counsel you don't necessarily want to show your entire hand at the preliminary."
Pickton, Shafia, Bernardo murder trials
Compared to some other high profile murder trials in Canada, the expected timeline for the Magnotta trial appears to be about average. As a comparison:
- For Robert Pickton, who was charged in 2002 in connection with the disappearance of dozens of women in Vancouver, it was four years, 11 months before his murder trial began.
- For the three accused in the 2009 Shafia family murder case, two years and three months would elapse between the arrests and the start of the trial.
- Paul Bernardo was arrested in 1993 for the murders of school girls Leslie Mahaffy and Kristen French. His trial began two years, three months later.
Magnotta's trial is set to begin two years, three months after his arrest.Suggest a correction