Law Times

Law Times • augusT 7, 2017 Page 3 www.lawtimesnews.com Ruling involves self-represented people in custody Crown has obligation to provide meaningful disclosure BY ALEX ROBINSON Law Times T he Ontario Court of Appeal has issued a new trial for a woman accused of arson after determining the Crown had not carried out its obligations when it came to disclosure. Lawyers say the Court of Appeal decision has important implications for the Crown's obligations to ensure full disclo- sure for self-represented accused people in custody. In R. v. Tossounian, the self-represented accused, Jean- nette Tossounian, did not receive 500 pages of disclosure that the Crown had couriered to her in a detention facility. Tossounian spent 191 days in custody before and during her two-day trial that resulted in her conviction. The Court of Appeal found that her right to a fair trial had been violated as the Crown "did not take adequate steps" to con- firm Tossounian had received disclosure. The court also found the trial judge failed to rectify the issue. Kristin Bailey, the lawyer who represented Tossounian in her appeal, says the ruling de- termined that the due diligence a self-represented accused per- son in custody must exercise is minimal and that the obligation to ensure meaningful disclosure lies with the Crown. "It really puts the onus square- ly on the Crown to make sure when they're dealing with some- body who doesn't have counsel, especially if that person is in cus- tody, to make sure that person has everything they need in their hands — not just [to] ship it to the jail and expect that they're some- how going to get it," she says. Part of the appeal hinged on whether a requirement existed for a self-represented accused in custody to exercise due diligence in seeking out disclosure. The 500-page package the Crown had sent to the jail was scanned through security and lodged in Tossounian's property, but these materials were kept in a man- ager's office and available only on request. Fresh evidence submitted to the Court of Appeal showed the detention facility did not advise Tossounian of its receipt and that she was not aware that it was in her property until after the trial. The Crown argued that Tos- sounian should have known she was missing disclosure, as she had been told at a pre-trial that additional material would be sent. The Crown contended that she did not exercise due dili- gence as she did not ask if it had been sent, nor did she ask the jail if it had been received. But the Court of Appeal found that while defence coun- sel would have to ensure dis- closure was received, the stan- dard of diligence expected of a self-represented accused person is minimal. "I appreciate the complica- tions in making disclosure to an unrepresented accused person who is in custody," Justice Russell Juriansz wrote in the decision. "The Crown must resolve these complications in order to fulfil its responsibility to ensure the relevant materials make it into the hands of an in-custody accused." Juriansz added that this could involve the personal service of disclosure materials or video- conference court appearances to ensure disclosure is complete before trial. Practically, this ruling could mean that Crowns prosecut- ing cases with self-represented accused people in custody will either have to hand documents to the accused in court or will have police officers serve disclo- sure documents directly to the person, says Bailey. Daniel Lerner, a former Crown attorney who is now a criminal defence lawyer, says the Ministry of the Attorney Gen- eral and the Crown's office will need to reach out to the Min- istry of Community Safety and Correctional Services in order to come up with some policies, training and protocols to make sure disclosure documents are being delivered and reviewed. "If the Crown is going to be relying on somebody other than a lawyer and somebody other than the Crown's office to give disclosure to a defend- ant . . . there has to be a way for the Crown to confirm that their disclosure obligations have been met," says Lerner, who was not involved in the case. "At the end of the day, it's the attorney general's obligation [and] no one else's." Jessyca Greenwood, a crim- inal defence lawyer who was not involved in the case, says the case highlights a concern over whether self-represented accused peoples' rights are being protected in the trial process. With cuts to Legal Aid On- tario's certificate program, Greenwood says, she fears there could be more self-represented accused people going through the system that will come up against complicated cases. "This is an example of what can happen when someone doesn't have a lawyer in a serious case," she says. "I find that really concerning and hope it's not a sign of things to come." A spokeswoman for the Ministry of the Attorney Gen- eral declined to comment as the matter is still within the appeal period. LT NEWS Kristin Bailey says a recent Ontario Court of Appeal ruling shows the obligation to ensure meaningful disclosure lies with the Crown. 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