Judge calls for release of evidence in wrongful murder conviction of N.S. man
Published Tuesday, July 2, 2019 10:15AM ADT Last Updated Tuesday, July 2, 2019 7:27PM ADT
HALIFAX -- Key evidence explaining what led to the wrongful murder conviction of a Nova Scotia man who spent almost 17 years in prison should be released later this month, a senior judge decided Tuesday.
The Canadian Press, CBC and the Halifax Examiner had asked Justice James Chipman for access to federal documents that include details of how 63-year-old Glen Assoun was improperly convicted of second-degree murder on Sept. 17, 1999.
On March 1, 2019, after a two-decade struggle by Assoun to overturn his conviction, a judge found him innocent in the 1995 stabbing death of 28-year-old Brenda Way.
Canada's justice minister has already declared there was "reliable and relevant evidence" that wasn't disclosed during the criminal proceedings.
On Tuesday, Chipman said in an oral decision the Justice Department assessment should be released on July 12, when he will provide the full reasoning behind his judgment.
However, he added he may still order the removal of the names of three people who lawyers for Innocence Canada had argued could be put at risk if their identities are revealed.
"I have determined the entirety of the file will be released on or about July 12 in the wake of my decision with the possible exception of the redactions requested by Mr. Assoun's counsel," said Chipman.
During opening arguments Tuesday in Nova Scotia Supreme Court, Chipman said the onus falls squarely on the federal government and other interveners to show why the open court principle shouldn't be applied.
Media lawyer David Coles took aim at the position taken by the federal Justice Department and the police, saying there wasn't enough evidence to support the argument that the privacy of some witnesses and police information should be protected.
"It's not enough to say the individual may have a privacy interest. You have to establish the privacy interest," Coles told the judge.
"None of this evidence is before you in a compelling manner."
Phil Campbell, a lawyer with Innocence Canada, has said police didn't disclose key evidence before Assoun's unsuccessful appeal in 2006.
"It's appropriate in this case that the truth be revealed," Campbell told the court.
Campbell, whose group works to free the wrongfully convicted, argued the only information that should be protected is the identities of three informants.
The struggle to release the information goes back to 2014, when the Justice Department determined in a preliminary report there may have been a miscarriage of justice in the Assoun case.
Assoun was released on bail, but Chipman refused a media request to see the report.
Federal lawyers have argued there are legitimate privacy interests at stake, and only an edited version of the assessment should be released.
They argue that would strike a balance between the open-court principle and the need to protect the review system Ottawa has set up to examine cases of wrongful conviction.
Patricia MacPhee, the lawyer for the federal Justice Department, said the confidentiality of sources helps the work of the lawyers who review cases of potential wrongful conviction.
She said they are looking for the protection of another three or four witnesses.
"We are trying to be responsible custodians of information in the preliminary assessment process ... and to protect the interests of those who participated in the process," said MacPhee.
A brief from the lawyer for Halifax police went further, arguing that because Assoun has been deemed innocent, the murder case has been reopened, and many policing details need to be sealed for up to 99 years.
Campbell countered that argument, saying, "There is no ongoing investigation ... at least not in a meaningful way."
Assoun has told The Canadian Press he believes police worked obsessively to prove a case that was badly flawed, and that he's seeking accountability for the actions of the police and prosecution.
Way's partially clad body was discovered at 7:30 a.m. on Nov. 12, 1995, in a parking lot behind an apartment block in Dartmouth's north end.
She had suffered multiple stab wounds, her top had been pulled up and her throat was slashed. Court documents say she had been spotted earlier in the evening visiting a crack cocaine dealer.
At the time, Assoun was facing charges of assaulting Way and was slated to appear in court about a month later.
He was arrested and jailed in March 1998.
The case against him was based largely on the testimony of witnesses whose evidence has since been questioned by lawyers who work to free the wrongfully convicted.
During his trial, Assoun fired his lawyer. Though he told the judge he felt he needed counsel, he ended up defending himself in the complex proceedings -- often failing to have key evidence admitted.
Key to Assoun's defence was his alibi.
At one point during his 36-day trial in Nova Scotia Supreme Court, witness Isabel Morse testified that Assoun was staying with her on the night of the murder.
She testified she saw him in her apartment at 5 a.m. and that he was there when she awoke in the early afternoon.
Assoun's nephew, Wayne Wise, who had a lengthy criminal record, testified that he asked Assoun during a telephone conversation if he had murdered Way. Assoun had replied "yes," he said.
The trial judge, Suzanne Hood, reminded the jury there was evidence that Wise had used crack on the day he'd called Assoun in British Columbia. There was also testimony that Wise, who was described as a "career criminal and cocaine addict," couldn't recall the correct area code and that "he requested favours in exchange for his testimony."
Another Crown witness, an 18-year-old prostitute, testified she was cut and raped by a man who admitted to killing Way. The woman said this was between March 1996 and November 1997, though she couldn't provide an exact date.
She identified the man as Assoun, based on seeing his photo on a television newscast the day after he was arrested and brought back to Nova Scotia from British Columbia on April 8, 1998.
However, the woman's account had to be weighed against evidence from Assoun's sister-in-law, who testified Assoun was living in British Columbia at the time of the alleged rape.
Assoun began fighting for his freedom while in jail, initially sending letters to American-Canadian boxer Rubin Carter -- who was wrongfully convicted of murder and exonerated -- and later having his case taken up by Innocence Canada lawyers.