R v Tossounian

R. v. Tossounian

2017 ONCA 618
Court of Appeal for Ontario — Juriansz, Pepall and Trotter JJ.A. | July 25, 2017

Background

On February 15, 2012, Jeannette Tossounian's art gallery went up in flames. Three strangers driving by saw a woman walking away from the fire carrying a gas can, called police, and followed her. When police arrived, they arrested Tossounian — she had two lighters, smelled like gasoline, and they found an empty gas can along her route.

Tossounian spent 191 days in custody at the Vanier Institute before and during trial. She represented herself throughout, refusing legal aid because she didn't want to "waste taxpayer money." After a two-day trial, she was convicted of arson and possession of incendiary material. The only issue at trial was identity — did the three civilian witnesses correctly identify her as the woman with the gas can?

Issues

1. Did the Crown's failure to properly disclose evidence violate Tossounian's Charter rights?
2. Did the trial judge fail in his duty to assist an unrepresented accused?

The Disclosure Disaster

The Crown made disclosure in three stages, but botched the most important one. First, they handed Tossounian a 144-page package in court. Second, they personally served her with an expert report. But third — and critically — they couriered over 500 pages of additional disclosure to the Vanier Institute, including witness statement transcripts and 165 photographs from the Fire Marshal.

Here's the problem: the jail received the package and put it in Tossounian's property, but never told her it had arrived. She had no idea this crucial evidence existed until after her trial was over. When the Crown tried to show photographs to a witness during trial, Tossounian said she'd never seen them — because she hadn't.

The Court of Appeal found this was a clear Charter violation under section 7. The Crown argued Tossounian should have been more diligent in asking whether additional disclosure had arrived, but the court rejected this. An unrepresented person in custody faces "institutional rules that are inhospitable to accessing disclosure" and "unpredictable events, such as lockdowns." The standard of diligence for someone in jail must be "necessarily minimal."

The Judge's Failure

When it became obvious during trial that disclosure had gone wrong, the trial judge should have stepped in. Instead, he let the trial continue after giving Tossounian a brief recess to look at six photographs. The Court of Appeal was clear: "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."

The court referenced R. v. McGibbon and the Canadian Judicial Council's Statement of Principles, emphasizing that trial judges must "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."

Why This Mattered

The undisclosed witness transcripts contained crucial inconsistencies that could have destroyed the identification evidence. In their police statements, witnesses said the woman appeared "calm" and made no gestures. But at trial, both witnesses suddenly testified that she "shrugged" at them — details that appeared nowhere in their original statements or the summaries Tossounian had received. This suggested possible collusion between witnesses, exactly the kind of cross-examination ammunition that could have created reasonable doubt on the only issue at trial: identity.

Key Takeaway

Disclosure failures can sink a prosecution even when the evidence seems overwhelming.

This case shows that courts take disclosure violations seriously, especially when dealing with unrepresented accused persons in custody. If you're self-represented and suspect disclosure problems, raise the issue immediately — don't assume the court will figure it out on its own.