Artist’s arson conviction set aside
A former Niagara Falls artist has had her conviction for arson set aside, and a new trial ordered.
Jeannette Tossounian was found guilty of arson and being in possession of incendiary materials in 2012 in connection with a fire that destroyed her art gallery at 107 Welland Ave. in St. Catharines.
The appeal’s panel of three judges ruled that the Crown failed to provide Tossounian with a proper disclosure of all the evidence it had.
The appeal court also found that the trial judge didn’t provide Tossounian with adequate assistance — particularly in failing to make sure she understood her right to full disclosure and the remedies available for the infringement of that right.
“The whole basis of the appeal was she was in custody and representing herself at the trial, so she was already at a disadvantage,” said Kristen Bailey, the lawyer who represented Tossounian at the Court of Appeals. “It turns out she didn’t have all the disclosure, including the important parts of the witness statements. She didn’t have the fire report for an arson.
“Those are important parts of the disclosure. The court also found the trial judge didn’t offer her enough assistance. It comes down to the fact that Ms. Tossounian didn’t have a fair trial.”
Tossounian was arrested on Feb. 15, 2012, after the fire at what the trial heard was her art studio.
Three people in a passing car noticed the blaze and saw a female walking away from the site carrying a gas can.
They called police and followed the woman. When police arrived, they arrested Tossounian and found the empty gas can on the route she had taken. She had two lighters in her possession and smelled of gasoline.
She was sentenced to two years less a day. Tossounian spent 191 days in custody at the Vanier Institute in Milton.
She represented herself during her two-day trial. The Crown called 16 witnesses. Tossounian didn’t call any. The only real issue at trial was her identity.
“I’m in shock,” Tossounian said. “I thought the appeal would be successful but, for it to finally happened after five-and-a-half years of waiting, I’m speechless.
“I was in jail the entire time, two years minus six weeks. I spent from Feb. 16, 2012, to Dec. 27, 2013, in jail, two days after Christmas. A lot of it was in solitary confinement. It changes you.
“I was an innocent person, and there was no way I could express that or tell anybody about it. It was hard to deal with it.”
On appeal, the court ruled the Crown violated Tossounian’s charter rights by not taking adequate steps to ensure she received the full disclosure.
Tossounian was handed an initial 144-page package by the Crown in court in March 2012. The Crown also delivered an additional package of more than 500 pages of disclosure to the Vanier Institute on June 25 — only eight days before the beginning of the trial — and instructed staff to place the package in her personal property at the jail.
It consisted of transcripts of the witness statements, a transcript of the Tossounian’s statement to the police, and reports from the Centre of Forensic Sciences as well as notices to tender expert evidence.
The appeal panel ruled that the Vanier Institute did not tell Tossounian about the additional disclosure, and, although it was placed with her property, the Tossounian was not aware of it until the trial had begun.
The Crown’s position on appeal was that Tossounian was told at pretrial that additional material would be coming — and that she didn’t exercise due diligence by asking the Crown if it had been sent.
Justice Russell Juriansz of the Court of Appeal for Ontario wrote the decision for the three-judge panel. He acknowledged that while there are complications in making disclosure to an unrepresented accused person in custody, that doesn’t alleviate the Crown of its duty to make sure the relevant materials made it into her hands.
Juriansz also wrote that there was evidence in the disclosure that Tossounian could have used to cross-examine and “diminish the reliability” of the witnesses who identified her.
Tossounian, who now lives in the Ottawa area, maintains her innocence. People had been targeting her in Niagara by doing things like breaking her windows, she said.
She added she was lucky to escape the fire.
She said she continues with her art and was painting when reached by phone for comment on her appeal.
While in jail, she said she wrote nine books, three of which were selfpublished including Songs from the Slammer, The Human Kennel and Jail Essays.
In Niagara, Tossounian tried her hand at politics and ran unsuccessfully for Niagara Falls council in 2010 and as an independent in the October 2011 provincial election.
Bailey said she didn’t know if the Crown would re-try Tossounian.
“The decision was just released,” Bailey said. “I spoke to the appellant Crown. She doesn’t make that decision. She gave me the contact information for the Crown in Niagara. I would expect they would decide in the next few weeks.”