The Law in Denial by Beverley McLachlin

Be warned. In this post I discuss aspects of Beverley McLachlan’s legal mysteries, Full Disclosure and Denial that are spoilers in the sense that more information is provided than some potential readers of the books may want to have before reading them.

After reading McLachlan’s first legal mystery, Full Disclosure, I wrote a review and then a post about the meaning of full disclosure in the contexts of information from clients and the duty of the Crown in Canadian criminal prosecutions to fully disclose the Crown case to the defence. In particular, I focused on a peculiar trial ruling in the book. The judge found that the Crown had disclosed a statement of the accused to the defence through a comment of the Crown prosecutor’s wife to defence counsel at a party.

I said the trial judge was wrong and was surprised that the former Chief Justice of Canada, with extensive experience dealing with the principle of disclosure in criminal law, had her judge make such a bad decision.

When I read Denial I was surprised again because the conviction of Vincent Trusssardi in Full Disclosure had been successfully appealed by defence counsel, Jilly Truitt, on the ground that the statement had been wrongfully admitted because there had not been proper disclosure.

McLachlin had lured me in Full Disclosure into thinking she had made an inexplicable error in law when she was actually setting up an appeal to be revealed in the next book.

I am not sure how many readers beyond myself were aggrieved by the wrongful admission of evidence at trial but I am grateful McLachlin knew the decision was a major error at law.

In Denial there was also a significant error. A lawyer, when questioning a witness the lawyer has called cannot put leading questions on anything significant to the witness. Leading questions are for cross-examination.

In Denial a lawyer “suggested” to a witness he had called that a certain sum of money was being bequeathed to Dying with Dignity. It was an important issue. The answer was given before opposing counsel could complete an objection. In real life the trial judge would have been very upset with the questioning counsel. There was potential for a mistrial and certainly a ground of appeal.

I accept the leading question was undoubtedly more dramatic than properly asking the witness what was said about bequests.

There was a dramatic issue of admissibility of evidence concerning a witness that is important to the resolution for which I provide further warning.

I will skirt around the details but it was a Perry Mason moment in which a witness stands up in court to state the witness is retracting their evidence and confessing. In 49 years of practice I have never seen such a moment.

I was prompted to see what I could find in Canadian law. I found a case in which McLachlin discussed when the Crown could call evidence during or after the defence has presented evidence.

In R. v. G. (S.G.) in 1997 the Supreme Court of Canada was dealing with a case in which the accused, the mother of other defendants, was alleged to have incited three adolescents to kill another adolescent boy because he “ratted” to the police about either the illegal activities of herself or the other boys. There was no corroboration for the evidence of one of the killers who said she did incite them. The accused went on the witness stand to deny any incitement. After her evidence was given, a young woman who had given a statement that she was in the basement came forward and implicated the accused. She was allowed to testify and the accused was convicted.

For good reason the Crown is not to be allowed to call evidence during or after the defence case. It is fundamental to justice that the Crown cannot split its case. As inevitable in law there is an exception. At common law there was a colourful evocative latin phrase on when the Crown could produce such evidence. The situation would have to be ex improviso - “if some matter arose which no human ingenuity could have foreseen”.

The majority at the Supreme Court ruled the evidence should not have been admitted. I agree. McLachlin disagreed. She said the trial judge was correct to have admitted the evidence.

I believe there will be at least another Truitt book. While I know the trial judge was wrong in how she admitted the late evidence in Denial I do not expect an appeal. Unlike Full Disclosure, what happened after the trial ended in Denial would preclude an appeal. Still, with all the twists McLachlin tossed into Denial, I would not be surprised if there is an unexpected consequence in the next Truitt book related to Denial.

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McLachlin, Beverley - (2018) - Full Disclosure and Full Disclosure Within Full Disclosure; (2024) - Denial