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PROCEDURE - Crown's duties - Disclosure

Wednesday, August 02, 2017 @ 8:23 AM  


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Appeal by the accused, Tossounian, from conviction for offences related to an arson. The accused rented and operated an unsuccessful art gallery that burned down. Three eyewitnesses in a vehicle saw a woman walking away from the fire carrying a gas can. They called police and followed the woman. Police arrived and arrested the accused. The accused possessed two lighters and smelled of gasoline. An empty gas can was recovered nearby. The accused spent 191 days in custody before and during trial. She was unrepresented throughout the proceedings. The sole issue at trial was identity. The Crown called 16 witnesses. The accused did not call a defence. In her closing submissions, the accused argued that the evidence of the three eyewitnesses was unreliable. The accused was convicted following a two-day trial before a judge sitting without a jury. The accused's appeal raised issues regarding the Crown's disclosure obligations to an unrepresented accused in custody, and the trial judge's duties to an unrepresented accused with respect to ensuring full disclosure had occurred.

HELD: Appeal allowed. The Crown breached its disclosure obligations to the accused in a manner that impaired her right to make full answer and defence. The Crown did not take adequate steps to ensure the accused received 500 pages of additional disclosure where the accused was in custody. Fresh evidence established that the institute did not advise the accused of receipt of the materials. Although the materials were placed with the accused's property, she was not aware of it until after trial. There was a minimal standard of diligence expected of an unrepresented accused in custody with respect to incremental Crown disclosure. In all of the circumstances, the accused had acted diligently, as other additional disclosure had been personally served. It was the Crown's responsibility to ensure relevant materials reached an in-custody accused. The disclosure package at issue included transcripts of eyewitness statements that contained inconsistencies with trial testimony that could have been raised during cross-examination. The lack of disclosure foreclosed lines of inquiry, thereby impairing the accused's right to make full answer and defence on the sole issue of identification. Furthermore, the trial judge failed to provide sufficient assistance to the unrepresented accused on the issue of disclosure once it became apparent the accused had not seen photographs shown by the Crown to its witness. A new trial was ordered.

R. v. Tossounian, [2017] O.J. No. 3842, Ontario Court of Appeal, R.G. Juriansz, S.E. Pepall and G.T. Trotter JJ.A., July 25, 2017. TLD-July312017005