



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tossounian, 2017 ONCA 618

DATE: 20170725

DOCKET: C57314

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeannette Tossounian

Appellant

Kristin L. Bailey, for the appellant

Jessica Smith Joy, for the respondent

Heard: May 30, 2017

On appeal from the conviction entered on July 5, 2012,
    and the sentence imposed on August 27, 2012, by Justice Barry Herriot Matheson
    of the Superior Court of Justice.

Juriansz J.A:

A.

Overview

[1]

This appeal raises issues about the Crowns disclosure obligations to an
    unrepresented accused in custody, and a trial judges duty to assist an
    unrepresented accused, particularly in ensuring that the accuseds right to
    full disclosure has been fulfilled.

[2]

On February 15, 2012, a fire took place on premises which the appellant rented
    and where she operated an unsuccessful art gallery. Three people in a passing
    car, all of whom were unknown to the appellant, noticed the blaze, and saw a
    female walking away from the site of the fire carrying a gas can. They called
    the police and followed the woman. The police arrived and arrested the
    appellant. The police found an empty gas can along the route the appellant had
    taken. On her arrest, she was in possession of two lighters and smelled of
    gasoline.

[3]

The appellant was in custody for some 191 days at the Vanier Institute
    before and during the trial. She was unrepresented throughout the proceedings.

[4]

After a two-day trial by judge alone, she was convicted of arson and
    possession of incendiary material for the purpose of committing arson. The
    Crown called 16 witnesses. The appellant did not call a defence. The only issue
    at trial was identity. In her closing argument, the appellant submitted the
    evidence of the three civilian witnesses who identified her was not reliable.

[5]

On appeal, the appellant advances two main issues: (i) that her right to
    a fair trial and the right to make full answer and defence was compromised by
    the Crowns failure to provide disclosure; and (ii) that the trial judge failed
    to provide adequate assistance to her, particularly by failing to ensure she
    understood her right to full disclosure.

[6]

For the reasons that follow, I would allow the appeal, set aside the
    finding of guilt, and order a new trial.

B.

Facts of Disclosure Made

[7]

The Crown made disclosure in three stages.

[8]

On March 27, 2012, an in-court judicial pre-trial was held. Although
    urged by the pre-trial judge to talk to a lawyer, the appellant indicated she
    would be representing herself as she had never received good advice from a
    lawyer once in my life. She also stated that she would definitely not be
    applying for Legal Aid because she did not want to waste the taxpayers
    money, and that she would be pleading not guilty. She acknowledged that she
    had received and already read a 144-page disclosure package, but understood
    that there was more evidence coming. The Crown provided a synopsis of its
    anticipated evidence and indicated that summaries of the witness statements
    were included in the 144-page disclosure package. The Crown advised that the
    police had put a rush on the transcripts of the witness statements that were
    being prepared and they were expected to be done in a few weeks. The pre-trial
    judge confirmed that as soon as they were ready, the transcripts would be made
    available to the appellant. The Crown also indicated that samples from the site
    had been sent to the Centre for Forensic Sciences (CFS) to test for
    accelerant, and that a CFS report would be forthcoming. In two to three months.
    As well, the Crown anticipated a Fire Marshals report within the next couple
    of weeks. The pre-trial judge inquired whether, subject to receiving the
    further disclosure, the appellant was ready for trial and she indicated that
    she was. The pre-trial judge reiterated that the appellant should speak to a
    lawyer. He remanded the case to an April 17 Assignment Court but indicated that
    he was unsure whether the Crown would be ready to proceed because it was still
    awaiting forensic evidence which might take months to receive.  The pre-trial judge
    made the following endorsement:

Accused is in custody but claims to be ready for trial,
    however, the Crown is awaiting forensic evidence, which it does not anticipate
    receiving for several months. The accused intends to plead not guilty to the
    charges and intends to testify on her own behalf. The Crown expects its
    evidence to take two to three days, the accused does not plan to call any
    evidence other than her own evidence.

[9]

On April 17, a trial date of July 3 was set by another judge, who made no
    inquiries nor comments on the state of the Crowns disclosure. On June 13, 2012,
    the Crown personally served the appellant with the expert report of the CFS
    chemist.

[10]

The
    Crown couriered a disclosure package of over 500 pages
[1]
to the appellant which was received by the Vanier Institute, scanned through
    its security, and lodged into the appellants property by June 25, 2012. This
    package included the Fire Investigation Report containing some 165 photographs
    taken by the author of the report, and the transcripts of the witness
    statements; both of which had not been previously disclosed.

[11]

The
    trial began on July 3, 2012. At the outset, the Crown alerted the judge to the
    fact that the CFS report had not been served on the appellant within the
    requisite 30 days notice. The Crown proposed three options: (i) adjourning the
    trial, (ii) calling all of the evidence but for the expert testimony and adjourning
    to allow the appellant adequate time to review the expert report, or (iii) proceeding
    with the trial with the appellants consent. The trial judge explained each of
    these options to the appellant. The appellant confirmed that she had read the CFS
    report, that she had understood it, that she would not be calling contrary
    expert evidence, and that she consented to the admission of the CFS report on
    short notice.

[12]

Early
    in the trial, the Crown indicated she would like to approach one of the three civilian
    witnesses to show her some photographs of the crime scene taken by the Ontario
    Fire Marshal. The judge asked the appellant if she had seen the pictures and
    she indicated that she had not. On a further inquiry by the judge, the
    appellant confirmed the photographs had not been served on her. The Crown
    protested that she had couriered all materials to the appellant properly and
    that she had confirmed with the Vanier Institute that they were all placed in
    the appellants property for her access and that she would have had access to
    all these documents. The judge asked if the Crown would be calling a witness
    from the Vanier Institute to confirm that, and the Crown indicated they would
    not be. The trial judge stated: Well she denies receiving it. The Crown
    proceeded by asking questions on the description of the building without
    showing the witness the photographs.

[13]

At
    the opening of the second day of trial, the Crown advised that the police had
    followed up and had obtained confirmation from the Vanier Institute that it had
    received the Crowns material and it had been lodged in the appellants
    property by June 25, 2012. The Crown also had obtained confirmation from the
    courier that the material had been delivered to the Vanier Institute. Although
    the Crown accepted that the appellant had not seen the photographs, she did
    wish to introduce six photographs as exhibits and suggested a brief recess to
    allow the appellant to look at them. The appellant agreed and, after the
    recess, the trial continued.

[14]

The
    appellant brought a motion to file fresh evidence relating in part to the issue
    of disclosure. The Crown consented to the motion.

C.

Analysis

(1)

Right to disclosure

[15]

The appellant has the constitutional right to disclosure of all material
    that could reasonably be of use in making full answer and defence of the case
    against her as guaranteed by s. 7 of the
Canadian Charter of Rights and
    Freedoms
. At this stage, in order to be entitled to a remedy under s. 24
    (1) of the
Charter,
the appellant bears the onus of establishing two
    things. First, she must establish on a balance of probability that the Crown
    breached its obligation to make proper disclosure. Second, if she does so, she
    must go on to establish that the Crowns failure to disclose impaired her right
    to make full answer and defence:
R. v. Dixon
, [1998] 1 S.C.R. 244, at
    para 31.

[16]

I
    am satisfied that the appellant has established both stages and is entitled to
    a new trial as a remedy under s. 24 (1) of the
Charter
.

(a)

Violation of the appellants right to disclosure

[17]

The
    Crown attempted to make full disclosure of all materials but, in my view, did
    not take adequate steps to ensure that the appellant received them. The Crown
    ensured the appellant received the initial 144-page package of disclosure by
    handing it to her in court in March 2012. The Crown also ensured that the
    appellant received the expert report of the CFS chemist by personally serving
    it on her on June 13, 2012. However, the Crown delivered an additional package
    of over 500 pages of disclosure to the Vanier Institute and instructed the
    Institute to place the package in her property. This material was received by the
    Vanier Institute by June 25, 2012 and differed from the 144-page disclosure
    previously made by the Crown.  It consisted of transcripts of the witness
    statements of three civilian witnesses, a transcript of the appellants
    statement to the police, reports from the Centre of Forensic Sciences and
    notices to tender expert evidence. The fresh evidence establishes that the Vanier
    Institute did not advise the appellant of its receipt, and, although it was
    placed in her property, the appellant was not aware of it until after trial.

[18]

The
    Crown submits that the appellant was told at the pre-trial that additional
    material would be forthcoming and that she should be found to have not exercised
    due diligence because she did not ask the Crown if it had been sent and did not
    ask the jail if it had been received.

[19]

Although
    the courts have recognized that diligence on the part of defence counsel is
    relevant in determining whether there has been a breach of the right to
    disclosure (see,
Dixon
, at para. 37 and
R. v. Bero
(2000),
    151 C.C.C. (3d) 545 (Ont. C.A.), at para. 29), neither party provided the court
    with any authority discussing the standard of due diligence imposed on an
    unrepresented accused in custody. Because pre-trial custody may involve
    institutional rules that are inhospitable to accessing disclosure, as well as
    unpredictable events, such as lockdowns, an accused person has little scope for
    exercising initiative in relation to disclosure. Consequently, the standard of
    diligence expected in the circumstances must necessarily be minimal. This case
    serves as a good example of some of these restrictions. In cross-examination on
    the appellants December 17, 2015 affidavit in the fresh evidence admitted on
    consent, the appellant testified that the Vanier Institute did not even permit
    her to take the 144-page disclosure package with her to trial. That said, the Crown
    again gave her a copy of that package to use at trial and she acknowledged that
    she had reviewed it again in preparation for trial.

[20]

The
    fresh evidence establishes the appellants disclosure materials were kept in
    the managers office and were only available to her on request. She did request
    the disclosure materials when she prepared for trial, but that was before the
    second disclosure package arrived. She explains that when she was personally
    served with the report of the CFS expert on June 13, 2012, she believed she had
    received the material she had been told at the pre-trial would be forthcoming. This
    was a reasonable assumption on the appellants part.

[21]

In
    all of the circumstances, the appellant acted diligently in relation to the
    incremental disclosure made by the Crown.

[22]

I
    would conclude the Crown failed to make full disclosure. 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. This may involve personal service of materials. It may
    involve further court appearances including videoconferences, to ensure that
    disclosure is complete and the case is ready for trial. It will depend on the
    circumstances of each case. In this case, the problem might have been
    diminished had the set-date judge made further inquiries on the state of Crown
    disclosure and expected delivery dates. Similarly, a readiness hearing held reasonably
    in advance of the trial could have served to alleviate or eliminate the
    inadequate disclosure.


(b)

Impaired ability to make full answer and defence affected the overall
    fairness of the trial

[23]

Appellants
    counsel frankly concedes it would be a difficult task to persuade the court
    that there is a reasonable possibility that, on its face, the undisclosed
    information affects the reliability of the conviction. However, she relies on
    the second branch of the test Corey J. set out in para. 36 of
Dixon
:

Even if the undisclosed information does not
itself
affect the reliability of the result at trial, the effect of the non-disclosure
    on the overall fairness of the trial process must be considered at the second
    stage of analysis. This will be done by assessing, on the basis of a reasonable
    possibility, the lines of inquiry with witnesses or the opportunities to garner
    additional evidence that could have been available to the defence if the
    relevant information had been disclosed. In short, the reasonable possibility
    that the undisclosed information impaired the right to make full answer and
    defence relates not only to the content of the information itself, but to the
realistic
opportunities to explore possible uses of the undisclosed information for
    purposes of investigation and gathering evidence. [Emphasis in original.]

[24]

To
    meet the onus of showing there is a reasonable possibility that undisclosed
    information impaired the right to make full answer and defence, appellants
    counsel puts forward two categories of materials in the second disclosure
    package of which the appellant was not aware at trial.

[25]

Appellants
    counsel acknowledges that the appellant was given a fair opportunity to review
    the six photographs that the Crown put into evidence. However, pointing out
    that those six photographs were drawn from among the 165 photographs taken by
    the Fire Marshals office, she submits the appellant might have made use of
    some of the other photographs for the defence. Appellants counsel did not draw
    the courts attention to any particular photograph to show how there was a
    reasonable possibility it might have been of use in the appellants defence. I
    would not give effect to this argument.

[26]

The
    other category of materials on which the appellant relies are the transcripts
    of the witness statements. The appellant had disclosure only of the brief
    summaries of the statements that were included in the initial 144-page package
    of disclosure. Appellants counsel points out discrepancies between the
    statements of certain witnesses and their testimony at trial. There are a
    number of discrepancies about which effective cross-examination might have been
    possible.

[27]

The
    interview summary of the witness who was the front passenger of the passing car
    indicated that the woman seen walking away from the fire came across the
    street toward their vehicle, she didnt say anything or make a motion to them
    but appeared calm and began to walk east. The transcript of the interview of
    the witness indicates she said,  she crossed the street in front of us and
    when she noticed that we had pulled into the plaza she looked somewhat shocked
    and distraught she looked at us and then turned around and walked in a circle
    and looked at us and turned around and walked in a circle. At trial, the
    witness testified that the woman started casually walking down the street. She
    turned to look back at us a few times. At one point
she
    shrugged at us
and continued casually walking down the street (emphasis
    added).

[28]

Appellants
    counsel combines the testimony of this witness with that of the witness who was
    the driver of the passing car. The interview summary that the appellant had reviewed
    indicated that the driver saw the female and described her as white, with
    brown, long hair, wearing a dark jacket. He could not see her face. He
    described her demeanour as calm, not in a hurry. The transcript of the
    drivers statement indicates that he said, well like I said I caught, I saw
    her face for maybe 10 seconds not enough to really grasp anything but she wasnt
    erratic she wasnt running she was walking there was nothing that really jumped
    out at me that said you know this was a really agitated or upset individual.
    At trial, the driver testified: Initially, I noticed that the reaction seemed
    very calm. When the person looked at us in the vehicle, it appeared to me that
    they made a
kind of shrugging motion
, and then
    proceeded to turn around and walk away very calmly (emphasis added).

[29]

There
    are inconsistencies in these testimonies that could have been explored at
    trial. For example, the passenger, after telling the police that the woman made
    no gestures, testified at trial that the woman shrugged. Appellants counsel
    emphasizes that the first time that both the passenger and the driver testified
    the woman shrugged was at trial. The appellant could have made use of this to
    suggest inadvertent collusion between the witnesses was possible, that it
    showed they had discussed their evidence and that discussion influenced their
    testimony. This was a line of inquiry that the failure of disclosure foreclosed
    to the appellant.

[30]

Appellants counsel points out that the Supreme Court of Canada in
R.
    v. Taillefer
,
2003 SCC 70, [2003] 3 S.C.R. 307, at para. 103, found
    that the mere reasonable possibility that the discrepancies could be used to
    impeach the credibility of witnesses is all that is needed for it to be
    possible to hold that there was a reasonable possibility that the failure to
    disclose impaired the overall fairness of the trial.

[31]

I
    am satisfied there is a reasonable possibility that the failure of disclosure
    in this case foreclosed lines of inquiry that could have been available to the
    appellant had disclosure been made, thus impairing her right to make full
    answer and defence. 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. Hence I am satisfied the inadequate disclosure
    negatively affected the overall fairness of the appellants trial. The remedy
    for the infringement of the appellants right is a new trial.

(2)

Inadequate assistance by the trial judge

[32]

Further,
    I am persuaded that the trial judge failed to provide the requisite assistance
    to the unrepresented appellant during the trial, particularly on the issue of
    disclosure.

[33]

Early
    in the trial it became apparent the appellant had not seen the photographs the
    Crown wished to show to the second witness. It was at that point obvious there
    had been a failure of disclosure. The trial continued, and later that day, the
    Crown noted the appellant did not have a copy of the warrant to search her premises
    and provided her with a second copy. The warrant had been included in the
    initial 144-page disclosure package, and the appellant acknowledged having
    received that package. At the beginning of the second day of trial, the Crown
    advised the court that a subsequent package of disclosure that enclosed the
    photographs had been couriered to the Vanier Institute. The court afforded the
    appellant a recess to look at the six photographs tendered and then the trial
    continued.

[34]

The
    Crown points out that the appellant did not raise any concerns about her
    receipt or review of disclosure. That seems to me to be beside the point.

[35]

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.

[36]

This
    court described the duty of a trial judge when dealing with an unrepresented
    accused in
R. v. McGibbon
(1988), 45 C.C.C. (3d) 334 (
Ont. C.A.), at p. 347,
as follows:

Consistent with the duty to ensure that the accused has a fair
    trial, the trial judge is required within reason to provide assistance to the
    unrepresented accused, to aid him in the proper conduct of his defence, and to
    guide him throughout the trial in such a way that his defence is brought out
    with its full force and effect.

[37]

The responsibilities of judges in respect of unrepresented accused
    persons are also described in the Statement of Principles on Self-represented
    Litigants and Accused Persons (the Statement) issued by the Canadian Judicial
    Council in September 2006. The Supreme Court of Canada endorsed the Statement
    in
Pintea v. Johns
, 2017 SCC 23, at para. 4, as did this court in
Moore
    v. Apollo Health & Beauty Care
, 2017 ONCA 383, at paras. 42-45.


[38]

The
Statement
, at p. 7, offers specific advice to judges about
    how to meet their duties to self-represented persons in the courtroom
    environment:

Judges have a responsibility to inquire whether
    self-represented persons are aware of their procedural options, and to direct
    them to available information if they are not.
Depending on the circumstances and nature of the
    case, judges may explain the relevant law in the case and its implications,
    before the self-represented person makes critical choices.

In appropriate circumstances, judges should consider providing
    self-represented persons with information to assist them in understanding and
    asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are
    not used to unjustly hinder the legal interests of self-represented persons.

[39]

The
    trial judge in this case failed to carry out these duties to the unrepresented
    accused. On this ground too, a new trial is necessary.

(3)

Other issues

[40]

The appellant raises three additional issues in her factum: (i) the
    trial judge erred in using the demeanour evidence relating to the appellants
    appearance in finding her guilty of the offence; (ii) the fairness of the trial
    was compromised by having the same trial judge preside who had previously found
    the appellant guilty; and (iii) the trial judge materially misapprehended the
    evidence and used that evidence in grounding the findings of guilt. Having
    determined a new trial is required due to a violation of the appellants right
    to disclosure and inadequate assistance by the trial judge, I find it unnecessary
    to address these issues.

D.

Conclusion

[41]

For
    these reasons, I would allow the appeal, set aside the finding of guilt, and
    order a new trial.

Released: SP July 25, 2017

R.G. Juriansz J.A.

I agree. S.E. Pepall J.A.

I agree. Trotter J.A.





[1]

Within this package, some of the pages were duplicates.
    However, the majority were unique pages that differed in substance from the
    initial 144-page disclosure.


