Full Disclosure Within Full Disclosure

In my last post I reviewed Full Disclosure by Beverley McLachlin. The title is a clever play on words for a legal mystery. There are multiple issues of full disclosure within the book.

While I do not reveal the ending in this post it does have spoilers for potential readers of the book.

Every defence counsel seeks “full disclosure” from their client with regard to the case. It rarely happens. In the book Jilly Truitt’s client, Vincent Trussardi, is less forthcoming than most criminal clients. He clearly has secrets that he is keeping from his lawyer. I appreciate Truitt’s frustration. I continually tell clients, civil and criminal, to provide me with full information. Let me decide what is important for the case.

A murder case where the accused denies killing the victim will mean “full disclosure” of the victim’s life. It is hard to know what may have provoked murder without delving deeply into the life of the deceased. There is no privacy in murder.

In the book the victim, Laura Trussardi, had been carrying on an affair. Was it over as she proclaimed? Had her distraught lover, who created a scene at the funeral by chasing after the hearse, killed her in anger over the end of the affair?

“Full disclosure” also applies to important witnesses. The life of the family housekeeper, Carmelina, will be carefully scrutinized to establish her relationship with both the accused and the victim. When she holds back a secret, until questioned by the Crown Prosecutor Cy Kenge, that is embarrassing to her and damaging to Trussardi there is reason to suspect the reliability of her evidence.

Carmelina is not alone in her futile attempt at privacy. All the main characters are maintaining secrets for personal motives.

For Canadian lawyers the title evokes the Crown duty to provide “full disclosure” of its case to the defence. The Crown is obligated to produce witness statements, forensic reports, police occurrence statements, photos and copies of evidence.

The requirement of “full disclosure” was absent when I started my legal career after in 1975. Crown prosecutors were inconsistent in the information they would provide to defence counsel. Trial by ambush was not uncommon.

In the 1991 Supreme Court decision of R. v. Stinchcombe, a decision referred to in the book, our highest court made “full disclosure” by the Crown mandatory. McLachlin does not mention in the book that she was a member of the unanimous panel of judges who made that decision.

The judgment by Mr. Justice Sopinka does include a reference to McLachlin writing about disclosure:

       In R. v. C. (M.H.) (1988), 46 C.C.C. (3d) 142 (B.C.C.A.), at p. 
       155, McEachern C.J.B.C. after a review of the authorities stated
       what I respectfully accept as a correct statement of the law.  He 
       said that:  "there is a general duty on the part of the Crown to 
       disclose all material it proposes to use at trial and especially all 
       evidence which may assist the accused even if the Crown does 
       not propose to adduce it".  This passage was cited with 
       approval by McLachlin J. in her reasons on behalf of the Court 
       ([1991] 1 S.C.R. 763).  She went on to add:  "This Court has 
       previously stated that the Crown is under a duty at common law 
       to disclose to the defence all material evidence whether 
       favourable to the accused or not" (p. 774).

Through the rest of her 37 year career on the bench the author periodically dealt with the implementation of “full disclosure” in Canadian criminal cases reaching the Supreme Court.

Within the book "full disclosure" by the Crown becomes a major issue.

Shortly before the trial Truitt attends a party at Cy's home. While there his impaired wife, Lois, blurts out that Cy has a police occurrence report:

       Something about Laura Trussardi crying in the street outside  
       her house a couple of days before the murder.

Truitt downplays the significance of the report to Lois because she rightly states 

     "Cy can't use the report in evidence unless he gives me
     disclosure."

Even if the Crown never intended to use the report it is important evidence that should have been part of the initial disclosure or, if not known to the Crown at that time, immediately upon it coming into the possession of the Crown.

Disclosure of the report by Cy is only made at the end of the trial when Trussardi has testified on cross examination that his wife had no reason to fear him and would not have been crying in the street shortly before her murder afraid to return home.

Cy wants to use the report in rebuttal in an effort to show Trussardi was lying. Treat objects on several grounds including the failure to disclose.

Cy asserts she had been told the report may exist. Truitt says the information came from Cy's wife at a party.

To my surprise and dismay the trial judge admits the report stating:

      "You knew that this report might exist before you put your 
      client on the stand, and now you complain that using it to bring
      forth the truth is unfair."

To have indirect disclosure through the prosecutor's wife works well in the story but I cannot see any real life judge admitting the report.

Cy's actions in using his wife's statements as disclosure are unethical and contrary to the legal principles of disclosure. They would invite the trial judge to refer the matter to the Law Society for investigation on whether he should be disciplined for conduct unbecoming a member of the Law Society.

Thus it is ironic that that author, the just retired Chief Justice of Canada, has a judge commit the one clear legal error in the book.

As a defence counsel I would have loved to have seen her write the scene in the courtroom with the trial judge sternly rebuking the Crown Prosecutor for gross misconduct and refusing to admit the report. There would have been a wonderful opportunity for the trial judge to have righteously upheld the sanctity of "full disclosure". Maybe in her next book.