Is a botched Halifax police investigation being hidden behind a proposed publication ban?

Note: This article contains descriptions of violence that may upset some readers.

There was an all-day hearing at the Law Courts building in Halifax yesterday, as Justice James Chipman heard an application for a publication ban on a report written by a lawyer at the Criminal Convictions Review Board. That CCRB report found that “there may be a reasonable basis to conclude that a miscarriage of justice likely occurred” in the case of Glen Assoun, who was convicted of the second degree murder of Brenda Way. In 1999, Assoun was sentenced to life in prison, with no chance of parole for 18 and a half years. He has always maintained his innocence.

Brenda Way

I hope to do a lot of reporting on this case in coming months, for reasons that will become clear as we move along. But I hope never to lose sight of the most important thing here: a life was ended.

Brenda Way was a 28 year old mother of two children. She had the nickname “Pit Bull,” which, alas, is all I’ve been able to learn of her so far, except that she was murdered in a most hideous fashion. As Justice Suzanne Hoodwrote in her sentencing ruling:

It is difficult to imagine any murder not being described as brutal but this one was particularly so. The photographs in evidence, the autopsy report and the evidence of the doctor who performed the autopsy tell of the severe beating Glen Assoun inflicted upon Brenda Way. He struck her many times, he kicked or otherwise delivered blows to her torso, including one which ruptured her liver.  As well, he stabbed and/or slit her throat and killed her with one of these throat wounds which pierced a vein.  This caused her to slowly bleed to death after he left her lying, partially clothed, on the ground in a parking lot in the early morning hours of a  cold November morning four years ago.

A life was brutally cut short. We should keep that foremost in mind, throughout.

The hearing

The CCRB report itself is a fascinating development. First, though, the people involved in yesterday’s hearing:

• Assoun is represented by Philip Campbell, a lawyer working with the Association in Defence of the Wrongfully Convicted, or AIDWYC for short. Campbell repeatedly made clear that his only concern (rightly) is that his client’s bid to be released from prison moves along as swiftly as possible.

• Halifax lawyer Alan Parish represents the CBC, which filed a motion opposing the publication ban. In the past CBC has often been joined by the Chronicle Herald in opposing such publication bans, which makes sense: they are the two media organizations with the resources to hire lawyers and commit meaningful staff to cover such stories. So the Herald’s absence is notable. I’d never seen Parish in action before yesterday. He struck me as the most intelligent person in the room, by far.

• Patricia MacPhee is a federal Department of Justice lawyer representing the CCRB. Her job does not usually take her into criminal matters, so it’s perhaps understandable that she seemed in over her head. What’s surprising is that the Department of Justice didn’t send a lawyer better suited to the task at hand. The lawyer who actually wrote the CCRB report is Mark Green; Green wasn’t at the hearing, but he submitted an affidavit in support of the publication ban.

• Marion Fortune-Stone is a lawyer representing the Nova Scotia Public Prosecution Service (PPS), i.e., “the crown” prosecution for criminal matters.

• Reporters: In the courtroom for the entirety of the hearing were Michael Tutton with the Canadian Press, Blair Sanderson with the CBC, Mary Ellen McIntyre with the Chronicle Herald, and myself. ATV’s Jacquie Foster dropped by for a while, as did News 95.7’s Hillary Windsor. 

• Others: each of the lawyers brought colleagues with them, and there were three people in the gallery whom we reporters did not know. My best guess is they were lawyers for other people or organizations who are watching the Assoun case unfold with trepidation.

CCRB’s Preliminary Assessement

The CCRB is charged with reviewing criminal convictions and determining if the cases merit a full investigation by the Justice Department. Typically, the CCRB issues a “Preliminary Assessment,” PA for short, which according to Campbell, “are just one line: Yes, this merits an investigation, or no further action is required.” If the report says there should be further investigation, then a formal investigation is undertaken, which may at a later date result in a hearing to overturn or stay the conviction.

The CCRB’s PA, however, is a big exception to the rule. The report itself is 86 pages, and then there are 131 appendixes.

Why was such a massive Preliminary Assessment written? Because there were publication ban issues, the participants in yesterday’s hearing rarely spoke plainly, and so we reporters were left trying to figure things out through the hints and cryptic statements made throughout. No one at yesterday’s hearing directly addressed the issue of why the PA was so detailed, but there was a suggestion (I think it came from Fortune-Stone) that the PA’s author, Mark Green, was trying to make a name for himself.

Whatever the reason for the unusually detailed and lengthy Preliminary Assessment, we learned that early in the process the CCRB approached Campbell, Assoun’s lawyer, and made an extraordinary offer: If Assoun could hold off from filing for release, the CCRB would take an extra six months reviewing the evidence. In return for the delay, the CCRB would make the detailed PA available to Campbell, and he could use it in his application to have Assoun’s conviction reversed, but only if he agreed ahead of time to a publication ban on the document. That agreement resulted in yesterday’s hearing.

Further, the CCRB’s agreement with Campbell was conditional: If a publication ban was not applied to the Preliminary Assessment, then the the CCRB would withdraw its approval for Campbell to use it in his application to have Assoun’s conviction reversed. This put Campbell in a difficult position, but in the end, he’s working for his client, so he agreed to the terms. He told Chipman yesterday that next month he intends to submit the PA with his application for judicial review of Assoun’s case. “Having it, we want to use it,” he said.

Complicating the issue even further was that in order to judge the merits of the proposed publication ban, the judge was given a copy of the Preliminary Assessment, and he told the room that he has read the entire thing. Both Campbell and Chipman noted that none of the parties could force Chipman not to release the document to the public if he didn’t want to—it’s already a court document.

So what’s in the PA? Fortune-Stone most strenuously objected to making the document public because, she said, it contains opinion not admissible as court evidence, and that several “other interests” should have a say in whether the PA is released. She specifically mentioned the Halifax Regional Police Department and the RCMP, and made reference to “other federal interests,” saying “at least two other federal interests” were involved.

As the day progressed, however Parish challenged why police departments should be shielded by a publication ban—they were never promised confidentiality by Green, noted Parish, and furthermore “opinion” is always part of court evidence. Then Fourtune-Stone’s argument morphed into protecting “vulnerable witnesses”—sex workers and others who might conceivably be approached by reporters.

Who’s being protected by a publication ban?

There’s a big problem with Fortune-Stone’s argument, however, and Chipman stated it explicitly: the names of the sex workers and others involved as past witnesses are already public, as they’re contained in the court record of Assoun’s conviction, and in his 2006 appeal of that conviction. In fact, after spending a few hours in the courthouse reviewing the files, I have the names of the sex workers and other witnesses myself. I used those files to write this article, which detailed that serial killer Mike McGray lived just blocks from Brenda Way. With the same files, I have built a database of each of the players and what the files reveal about them, including their criminal records and other potentially embarrassing information.

Trying best I could to parse the cryptic statements of the judge and the lawyers, as the day progressed I began to realize that the PA probably doesn’t contain much, if anything, in the way of facts that aren’t already in the public record. Chipman repeatedly said that the file contained much of what is already in the record, and that thanks to a recent Supreme Court ruling even exhibits used as evidence in the previous trials are now public record. “Do you want me to place a publication ban on the court files?” he asked Fortune-Stone rhetorically.

I gathered that besides facts already in the public record, what the PA contains is embarrassing opinion about the Halifax Police Department’s investigation into the murder. As I’ve already reported, a retired RCMP officer hired as a private investigator has already testified that “I was attempting to convince the HRP to review the case but I was told that the right man had been convicted and the case would remain closed.” I think the PA must contain many more such statements, and evidence to back them up.

I’m speculating here, but my guess is that those three lawyer-looking spectators in the gallery yesterday were working on behalf of the police departments (both HPD and RCMP). The police departments probably are looking at this quite narrowly—if Assoun’s conviction is overturned on the basis of a botched police investigation, then the police and the city could very well be subjected to a huge wrongful conviction lawsuit.

It will be a long time, if ever, before we get to that point. Next month, Assoun’s lawyer, Campbell, will argue based on the PA that Assoun should be released from prison until the Justice Department concludes its full investigation of the matter. Chipman has already agreed that Assoun should be transferred from his BC prison cell to Halifax so that he can regularly talk with his lawyer as the pair prepare for the late November hearing. But even if Assoun is released, it will be years before his conviction is overturned.

It’s true that publication ban or no, the information in the PA will eventually become public, but the agencies fearing a wrongful conviction lawsuit will want to delay that day as far into the future as possible. Memories fade. Potential witnesses die or otherwise become unavailable. The claimant himself may die. Delay makes sense, for the police agencies.

But does it make sense for the rest of us? We still don’t know that Assoun’s case involves a miscarriage of justice. A lawyer for the federal government says it sure looks like one, and he’s written an 86-page report with 131 appendixes to support his case. But he’s one guy, with one opinion. The Department of Justice hasn’t fully investigated, and a judge hasn’t weighed the evidence. As of right now, Assoun is guilty, and serving a life sentence for a horrific murder.

Still, consider this in a broader context than Assoun’s conviction. There are dozens of unsolved murders in Halifax, and the Halifax police have been accused of mishandling many of the investigations. Does the Preliminary Assessment in the Assoun case shed any light on the overall abilities or tactics of the investigators? We just can’t know until the PA is public.

And the issue is not just academic: the very same police department continues to investigate murders, with a continued low conviction rate.

Chipman has scheduled a November 24 hearing to announce his decision on the publication ban, and the hearing on Assoun’s motion for release will begin the next day.