HALIFAX — A court battle is set to unfold Tuesday over the release of key evidence explaining what led to the wrongful murder conviction of a Nova Scotia man who spent almost 17 years in jail.
The Canadian Press, CBC and the Halifax Examiner will ask a judge for access to federal documents with details of how 63-year-old Glen Assoun was improperly convicted of second-degree murder on Sept. 17, 1999.
It’s a case where Canada’s minister of justice has already declared there was “reliable and relevant evidence” that wasn’t disclosed during criminal proceedings that Assoun has said ruined his life.
On March 1, after a two-decade struggle by Assoun to overturn his conviction, Nova Scotia Supreme Court Justice James Chipman found him innocent in the 1995 knifing death of 28-year-old Brenda Way.
Outside of court, lawyers with Innocence Canada, a group that works to free the wrongfully convicted, told reporters that police didn’t disclose key evidence before Assoun’s unsuccessful appeal in 2006 — keeping him in jail for eight more years.
The struggle to release the information goes back to 2014, when the Justice Department determined in a preliminary report there may have been a of miscarriage of justice and Assoun was released on bail.
At the time, Chipman refused the CBC’s request to see the report, and sealed the hundreds of pages of information.
Now, media lawyer David Coles argues the original sealing of the federal assessment should end.
“There are no witnesses whose evidence may be impacted by the release of the contents of the preliminary assessment,” he wrote in a recent application for its full release.
But federal lawyers argue 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.
The report contains “highly sensitive information about witnesses, potential witnesses, and suspects, as well as information protected by privilege,” according to the federal attorney general’s submission. The Nova Scotia Crown took a similar position.
A lawyer for Halifax police goes further, arguing that because Assoun has been ruled innocent, the murder case has been reopened, and many policing details need to be sealed for up to 99 years.
In 2014, Assoun’s lawyers at Innocence Canada agreed with the publication ban. However, one of them, Philip Campbell, now says he believes the documents should be released, except for the identity of three people who provided confidential information to the federal investigator.
In an affidavit to Chipman, Campbell says issues of “public malfeasance,” such as police abuse of process, shouldn’t be protected by the courts.
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 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.