Late disclosure prompts motion to exclude evidence in Tuck case

City police were criticized Monday for providing disclosure – documents outlining the evidence against an accused – late in the case of a city couple now on trial for defrauding the special-needs hockey team they founded out of thousands of dollars.

The judge hearing the case of David and Catherine Tuck added two more dates to the trial after defence lawyer Brad Allison filed an application to exclude the documentation, arguing the late disclosure spoiled his client’s right to a fair trial.

Three packages of disclosure were filed last week, another Monday morning with a fifth about to be given to the Mindemoya-based lawyer after his submissions. He said he hadn’t seen much of the material, let alone had the time to talk to his client about it.

“What the defence might make of it is yet to be determined,” he said, requesting an adjournment of “at least a couple of months,” if not four to six.

“The silence was deafening ” after two written requests for the disclosure, Allison said. It also “troubled” him that some of the material was dated Oct. 5, 2016, meaning it has been in police possession for 16 months.

He did not fault prosecutors, but said how he feels about how police have handled the case “is a separate affair.” Det. Const. Keith Calderwood, the officer in charge of the investigation, is expected to be among the witnesses to testify.

Allison also pointed out that he has done his best to move the matter along as quickly as possible, including scheduling a judicial pretrial – a meeting between the lawyers, police and a judge – three months after the Tucks’ Nov. 2, 2016 arrest.

In his submissions, assistant Crown attorney Sam Humphrey argued any unfairness could be remedied with an adjournment. Exclusion of evidence would be an atypical course of action, judging from other cases, he said.

Later, the prosecutor said an application under Section 11B of the Canadian Charter of Rights and Freedoms, which provides any person charged with the right to be tried within a reasonable time, would be the best way path for the defence to address its concerns.

He noted that while materials were provided late, the information they contain – such as banking and ice time records – are “not exactly a surprise.” Humphrey also pointed out that the Crown will not be relying on many of the documents provided in the fourth package.

Madam Justice Jennifer Broderick ultimately decided adding the dates weeks from now would give Allison time to review the newly-provided disclosure while maintaining the Tucks’ right to trial in a timely manner.

The Tucks, who launched a special-needs sports program called the Peterborough Huskies in 2013, are each charged with one count of fraud over $5,000. They both pleaded not guilty after being arraigned on the charges Monday.

The four-day trial in Peter borough Ontario Court of Justice was scheduled last May to take place Monday, Tuesday, Wednesday and Friday, but May 15 and 16 were added.

The lawyers jointly created a list of witnesses who could provide evidence this week for which the late disclosure does not have any bearing. Broderick told them she would be flexible this week with witnesses, because of any potential impact of the late disclosure.

Monday’s proceedings began with another application that saw Allison successfully remove himself from the record as David Tuck’s lawyer, to avoid any potential ethical conflicts that could arise from representing the Denne Cres. residents.

There is no secrecy between the accused – who share the same position – and while he couldn’t see them testifying against each other, he couldn’t rule that out as a possibility, he said.

Allison, who will continue to guide David Tuck during proceedings, said he has sought separate lawyers for both of them for months without success.

The trial continues Tuesday at 9:30 a.m.