New trial ordered for woman without lawyer over lack of disclosure

The third — a package of more than 500 pages that included photographs of the scene and transcripts of witness statements — was delivered to the Vanier Institute, where Tossounian was being held in pretrial custody, the documents say.

It was later discovered that the facility had not alerted Tossounian to the delivery, meaning she was not able to see the materials before trial, they say.

The Crown argued that it had warned Tossounian early on that more material would be delivered and that it was up to her to check that it had been sent and received, the documents say.

Tossounian, meanwhile, said she thought she had received all the promised disclosure when the second package arrived — an assumption the appeal court deemed reasonable.

“I would conclude the Crown failed to make full disclosure,” Justice Russell Juriansz wrote on behalf of the three-judge panel.

“I appreciate the complications in making disclosure to an unrepresented accused person who is in custody. 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,” he wrote.

“The only issue at trial was her identification as the woman seen walking away from the fire. The failure of disclosure detrimentally affected her ability to cross-examine and to diminish the reliability of the witnesses who identified her.”

What’s more, the trial judge failed to give Tossounian the assistance she needed, particularly on the issue of disclosure, the appeal court said.

“As soon as it seemed there was a problem with disclosure, it was the duty of the trial judge to make the necessary inquiries and to take the necessary steps to ensure that the unrepresented accused received full disclosure, and that she fully understood her rights to disclosure and the available remedies for infringement of those rights,” Juriansz said.

Tossounian had raised three other issues in her appeal but the court found it unnecessary to address them since a new trial has been ordered.

Paola Loriggio, The Canadian Press

by Canadian Press

New trial ordered for woman without lawyer over lack of disclosure

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