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Full Disclosure: Setting the (fictional) record straight

Former Chief Justice Beverley McLachlin published her first novel this spring, a legal thriller set in Vancouver. "Full Disclosure" is the story of a female criminal defence lawyer named Jilly Truitt who takes on a high profile case of first degree murder, despite warnings from her family and friends that she should let this case go. The novel follows the case of Richard Trussardi, who is accused of killing his wife, from his arrest through to the trial with many twists and turns along the way.

Of course, as a criminal defence lawyer and avid reader, I was excited to pick it up and combine my day job with my love of literature. After all, who better to pen a novel about the Canadian justice system than someone with such intimate knowledge of the courts and practice of criminal law? It will be both entertaining and legally accurate!

Well, it was entertaining. But not quite accurate.

Now, I understand that novels are fiction, and that authors take some creative licence to keep their audience engaged. I know that readers aren't picking this book up for the purposes of legal advice or education. Still, there were some details that grated at me. And since this blog is all about legal education, I've decided to take the opportunity to set the record straight on a few points.

1. You don't have the right to have a lawyer present during a police interview.

When Jilly first takes on the case, she bemoans the fact that the client first called his family's lawyer, who then sent down a junior litigation lawyer to hold Trussardi's hand during the police interrogation. While this image might be familiar from American TV shows, in Canada there is no right to have a lawyer present during an interview. And the former Chief Justice, who decided many cases on the right to counsel and voluntariness of statements to the police, would know this fact well.

2. People charged with first degree murder are not released from custody quickly, on their own recognizance.

Once Trussardi is arrested, Jilly has her junior associate take care of his bail. While he initially grumbles that bail won't be easy, he returns to the office the next day declaring that securing Trussardi's release was a 'piece of proverbial cake.' In real life, securing bail on a first degree murder charge is a much more difficult endeavour, and does not happen without disclosure, a long hearing and often, sureties.

3. Preliminary hearings are usually not waived in first degree murder cases.

As Jilly discusses the case with the Crown Cy Kenge, her former mentor, she tells him that she'll push the case along as fast as he wants, and is happy to cancel the preliminary inquiry. The problem here is that she doesn't even have disclosure yet! She hasn't received any of the police reports, civilian statements, forensic evidence or other evidence from the Crown. Even if she had, there's no reason in a case like this not to have a preliminary hearing. (Unless of course this is a veiled message that the former Chief Justice supports the Liberal's proposal to abolish the prelim!!)

4. Disclosure no longer comes in boxes.

Once Jilly finally receives the disclosure, it is in boxes that clutter her office, delivered from the Crown's office. When I read this passage, I thought to myself, "when is this book even set?!" My best guess is that it's around 2013 or 2014, based on references to other books like "The Rosie Project" and "The Goldfinch" as well as a nod to a mention to a Supreme Court case about getting warrants to search cell phones. While I acknowledge that the legal profession is far behind the rest of the world when it comes to technology, even in 2013, disclosure was provided on disc or hardrive.

5. Parole eligibility is not determined by the courts.

Before the trial starts, Cy makes an offer to Jilly that he's willing to accept a plea to second degree, "release on parole after 10 years if he behaves himself." This statement is not technically wrong, but the nuance is that Cy is determining the parole. In effect, parole is only decided by the Parole Board, and courts can only impose eligibility for parole. Either way, in a case where the Crown thinks they have a slam dunk on first degree murder, it doesn't make much sense for Cy to offer a resolution that is the lowest possible parole eligibility for second degree murder.

Despite my whining about some creative liberties taken by the author, Full Disclosure was actually a fun read. It included some subtle commentary on sexism in the profession and delays in the courts, and presents a smart protagonist and an engaging plot. And while some have said that the character of Jilly Truitt is based on Marie Henein, I know a lot of spunky thirty-something female defence lawyers who could have just as easily inspired this story, and will hopefully inspire more entertaining (and legally accurate) stories to come. 

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