Lawyers waiting for further disclosure in child pornography case

Posted By Bruce Urquhart, SENTINEL-REVIEW

Updated 23 days ago

With the expectation of a significant amount of additional disclosed evidence in the coming weeks, the lawyers for the two Burgessville men accused of possessing child pornography will wait to schedule preliminary hearings.

Instead, William Duncan and Joshua Theobald will be back in court in early January, an adjournment that justice of the peace F. Michael McMahon suggested would allow their lawyers to "receive and review the additional disclosure."

"It's important to move these things along for Mr. Duncan and Mr. Theobald ... but we can't run before we walk," McMahon said.

At the outset of Tuesday's appearance, Moishe Reiter, Duncan's Toronto-based lawyer, had some questions about the provided evidence, asking the Crown if the slender "preliminary report" submitted to his office represented the extent of the disclosure.

Reiter was adamant that a preliminary hearing date was premature without the release of any additional evidence, hinting that further disclosure would help him answer some lingering questions and help frame Duncan's defence.

"My understanding is, there is a good deal more information," Reiter said.

Reiter and Roman Wolyniak, Theobald's lawyer, were informed that additional disclosure would be provided after OPP investigators concluded their extensive analysis of a computer associated with the case.

"It sounds like there will be further disclosure coming out at intervals," McMahon said. "It might be early to set a preliminary date."

After the two lawyers conferred during a brief recess, they agreed that a relatively lengthy adjournment would be preferable to provide the Crown additional time to prepare the disclosure.

"We don't have all the disclosure yet," Wolyniak said. "If that is the case, I don't know if I can properly inform my client."

While assistant Crown attorney Erica Sass couldn't "guarantee" the additional evidence would be "ready" by the Jan. 5, 2010, return date, she said the six-week adjournment would limit "unnecessary appearances" for the two accused.

Theobald and Duncan were arrested on April 29 after police searched their Burgessville home and seized computers and related equipment that allegedly contained images of "child sexual abuse." Both men were charged with two counts of possession of child pornography and one count of making available child pornography.

As part of the same investigation, police also arrested and charged a 15-year-old "young person" with two counts of possession of child pornography and one count of making available child pornography.

The three arrests were the culmination of a joint investigation between the OPP's child sexual exploitation section, the Oxford Community Police Service and the Toronto Police Service. Duncan was released on bail in early May under the supervision of his sister-in-law, brother Robert and employee Duncan McLaughlin. Theobald was finally released on bail in late August after spending almost four months in custody at the Elgin-Middlesex Detention Centre. As part of their bail releases, the two men must abide by a list of strict conditions that restrict computer access and prohibit any interaction with children under the age of 16.

burquhart@bowesnet.com