Nova Scotia Supreme Court Justice James Chipman has indicated that he will grant a media request to gain access to sealed court documents in the Glen Assoun case.
Assoun is the man who was wrongly convicted for the 1995 murder of his former girlfriend Brenda Way. That murder and Assoun’s conviction were the subjects of the first three parts of the Halifax Examiner’s “Dead Wrong” series.
After serving over 16 years in prison (where he suffered multiple heart attacks), Assoun was released in an extraordinary court-orded parole in November 2014. His conditions for parole were so stringent that he suffered a mental health breakdown.
Finally, in March of this year, Justice Minister David Lametti ordered that Assoun’s 1999 conviction be overturned, and that a new trial be held. That trial lasted all of five minutes, as the crown submitted no evidence. Justice Chipman then ruled Assoun not guilty — Glen Assoun was fully exonerated.
But frustratingly, the circumstances that led to Assoun’s wrongful conviction were hidden because of a court-ordered seal on court documents. So the Halifax Examiner, the CBC, and the Canadian Press went to court to get the documents released publicly.
Specifically, we sought release of a document prepared by a federal Justice Department lawyer named Mark Green. Green works in the Criminal Conviction Review Group (CCRG), which is the agency charged with looking at possible miscarriages of justice in Canada.
When a convicted person makes an application to the CCRG, typically a lawyer is assigned to write a “Preliminary Assessment” of the file. Almost always, that Preliminary Assessment is a one- or two-page document that says, in effect, either “there’s no reason to think there’s a miscarriage of justice on this case” or “there may be something amiss here and we should investigate further.” In the latter case, a team of lawyers will conduct a more thorough investigation and then make a recommendation to the Justice minister.
But in Assoun’s case, Green went much further: the Preliminary Assessment he wrote was 86 pages long and had 131 appendices.
“I am of the view,” wrote Green to Assoun, “that on the basis of all this information, including the new and significant information that has been submitted with your application, there may be a reasonable basis to conclude that a miscarriage of justice likely occurred in your case.”
Green’s Preliminary Assessment was entered into the court file as reason for Assoun to be granted the extraordinary parole in 2014. It has been under a court-ordered seal ever since.
Today, Justice Chipman indicated that he will rule next Friday, July 12, that the entire Preliminary Assessment and all the appendices be made public.
Between now and then, Chipman will consider a request by Assoun’s lawyers to redact the names of three people who gave the CCRG evidence fingering someone else as Way’s murderer. Those three people are “vulnerable” and living in “marginal” circumstances, such that they could be at personal danger, argue Assoun’s lawyers.
In the main, then, the media group succeeded.
Open courts and police malfeasance
The Open Court Principle is well enshrined in Canadian law. Here’s what the Justice Department has to say about it:
Generally, the principle requires that court proceedings be open to the public, and that publicity as to those proceedings be uninhibited. No less than the legitimacy of criminal justices depends on it; the fairness of criminal process and public confidence in the system are at stake. Of signal importance as well, a free flow of information encourages feedback and debate among members of the public, thereby promoting the accountability of institutions which exercise coercive powers against individuals.
The gist of the Open Court Principle is that if the courts operate in secrecy, the public may lose faith in them; only transparency can maintain the public’s faith in the court system.
And that transparency is extended to other institutions which exercise coercive powers against individuals — that is, police and crown prosecutors.
No institution is perfect, no process faultless. But with transparency, bad actors can be held accountable, and that ultimately lends more faith to the system.
In the Assoun case, however, the lawyer for the Halifax police argued that unsealing the Preliminary Assessment would make public police investigative techniques, which would endanger current and future police investigations.
But the submissions we made to the court in the Assoun case relied heavily on R. v. Mentuck. In that case, the Winnipeg Free Press, the Brandon Sun, and the Canadian Newspaper Association went to court to get court files in the so-called “Mr. Big” case unsealed. The ruling dealt directly with the issue of police investigative techniques. In the unanimous decision of the Canadian Supreme Court, Justice Frank Iacobucci wrote:
It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a [publication] ban. Effective investigation and evidence gathering, while important in its own right, should not be regarded as weakening the strong presumptive public interest, which may go unargued by counsel more frequently as the number of applications for publication bans increases, in a transparent court system and in generally unrestricted speech on matters of such public importance as the administration of justice.
The police argued that the Preliminary Assessment will reveal information gleaned through something called the Violent Crime Linkage Analysis System (ViCLAS), which was described in an affidavit written by RCMP Corporal Roger Robbins as follows:
ViClAS information is not typically disclosed, even to an accused in a criminal matter. ViCLAS is a national database for tracking violent offenders and the offences they commit. More specifically, ViCLAS is an automated case linkage system designed to assist police agencies in identifying links between cases based primarily on the behaviour exhibited by an offender. ViCLAS helps police forces to identify violent crimes that may be serial in nature. The underlying premise of ViCLAS is that serial offenders follow similar patterns and often exhibit identifiable and predictable characteristics and motivation.
When a serious crime occurs that qualifies as a ViCLAS reportable case, an investigator completes a ViCLAS questionnaire or “booklet.” Once the booklet has been entered into the ViCLAS database, a ViCLAS specialist begins the analytical process. This involves conducting extensive background research on the victim and offender, if known. Once the ViCLAS specialist has conducted this research, he or she will conduct various structured queries on the ViCLAS database. These queries are intended to capture and compare relevant aspects of the case such as the offender, victim, modus operandi, behavioural and forensic data found at the scene for clues that may link cases to each other and/or reveal the identity of the offender.
It is the RCMP’s position that public disclosure of ViCLAS information, even a blank booklet, would be injurious to this sensitive and extremely important investigative technique, as it would educate the criminal element about the types of behaviour we find particularly important.
As we’ve seen, the courts have rejected this sort of argument in the past — the police can’t simply wave their hands and say investigative techniques must be kept secret. And Justice Chipman rejected the argument in the Assoun case as well. In fact, Chipman did not even entertain the idea, dismissing it out of hand.
But the argument raises a few issues.
First, ViCLAS has been the subject of considerable academic research, which has found ViCLAS wanting. One academic paper, which was co-authored by John C. House, the superintendent of the Royal Newfoundland Constabulary, concluded that:
Regardless of whether crime linkage systems are used for operational or academic purposes, the ability to use these systems to make valid inferences is dependent on the reliability of the data that are stored in them. Our results, and those of others (Martineau & Corey, 2008), suggest that the data contained in ViCLAS may be unreliable. Continued use of a system that may contain unreliable data is difficult to justify, especially given the many serious consequences attached to linkage decisions. For example, pursuing potential linkages derived from unreliable data can be a waste of valuable police resources and taxpayer dollars and may even result in individuals being improperly considered or even falsely accused of crimes they did not commit. Time spent on ViCLAS- related activities also takes investigators away from other important tasks that may be more pertinent.
I’ll look into this further, but my initial concern is that ViCLAS may at least partly or sometimes fall into the “junk science” category, or that it is oversold. I worry that it’s not simply a matter of a waste of resources, but also that innocent people may be fingered and sometimes convicted of crimes they had nothing to do with because the database says they did it.
Second, while the RCMP and other police agencies around the world have been remarkably successful in keeping even a blank ViCLAS booklet from getting out into the world, simple google searches reveal what kind of information is placed in the database. It’s quite the stretch to suggest that, say, a serial murderer is going change his behaviour because he has knowledge of what goes into the database.
Misgivings about ViCLAS aside, however, its use in the Assoun case is confounding.
So when was ViCLAS used — before or after Assoun was charged and wrongly convicted?
If ViCLAS targeted Assoun for the murder of Way, and that’s why he was charged, then obviously the usefulness of ViCLAS is called into question.
If ViCLAS targeted someone else for the murder of Way, and then Assoun was arrested, it calls into question the competency and, frankly, ethics of the police investigators.
Lastly, if ViCLAS was employed after Assoun’s conviction, and the database fingered someone else for the murder, then it’s apparent that police withheld that information from Assoun and he spent many more years in prison for a crime the police knew he didn’t commit.
I can’t envision any scenario in this case that doesn’t demonstrate either the failure of ViCLAS or police misconduct.
And that’s one of the many underlying issues that call for making the entire court file public, including the ViCLAS information. There must be accountability for the police.
The last remaining issue for Chipman to rule on is the issue of the three names that Assoun’s lawyers want redacted from the court file.
These are the names of three people who provided information to Innocence Canada, and then to Mark Green and the CCRG, which fingered someone else for the murder of Way. I have suspicions about who the actual murderer is, but I’ll wait to see if the information released on July 12 confirms my suspicions. (The Preliminary Assessment doesn’t convict anyone of murder, but it does name a “primary suspect.”)
When Assoun’s lawyers first said they wanted the names redacted, my initial reaction was to not oppose that motion. Even if the names are in the public court record, I thought I wouldn’t be inclined to publish them.
During the research for the Dead Wrong series, I came upon quite a few people living on the margins of society. There were drug addicts, alcoholics, sex workers, homeless people, and victims of domestic violence and violence from johns. Some of those people had to be named in order to tell the story properly, but when possible, I used pseudonyms or omitted their names.
I’m thinking particularly of a woman I called “Roberta,” a former drug addict and sex worker, who had been beaten severely several times by different johns. Roberta testified against Assoun, and my analysis of that testimony showed it was extremely problematic. Still, she is a vulnerable person trying to get her life together, and so I didn’t use her name.
I thought I’d have the same attitude towards the three people Assoun’s lawyers want to protect. The three, say the lawyers, are in vulnerable positions and fear for their lives should they be named. Well, I had no desire to cause trouble for some low-level criminal or marginal person.
But I’ve changed my mind. Well, at least about one of them.
I should stress that I can’t be certain of the identity of the three people.
I can guess who one is — I think, a woman who was some time ago living in Dartmouth, but I don’t know where she is now.
I have no idea who the second is. All I know about him is that he was tied up in the criminal justice system, but is not now in jail and faces no charges.
As for the third, yesterday during court arguments, crown lawyer Mark Scott pretty much outted him — not by name, but by description. Scott was arguing that the names of the three people should not be redacted, as they haven’t submitted affidavits or any evidence proving that they are at risk. In relation to the third person, Scott said:
While one person is in jail, what we can say is that person testified as a jailhouse informant for the crown in a case that was publicized in the 1990s, and was described in that case as having testified as a jailhouse informant before. He survives. Indeed, the person is not only alive but if we recall correctly has also been convicted for murdering his cellmate.
This describes serial killer Michael McGray.
McGray knew Brenda Way and at the time of her murder appears to have been living in an apartment about 100 metres from the site of the murder. Here’s what I wrote about McGray in Part 3 of “Dead Wrong”:
McGray, who grew up in Argyle, near Yarmouth, started killing in 1985, at age 19. His first victim was a 17-year-old Halifax girl named Elizabeth Gale Tucker, who was hitchhiking through the Weymouth area on her way to her first day at a job at a fish plant in Church Point.
“McGray picked her up on a rural road, drove her to a remote area and then, after she refused to provide oral sex, stabbed her repeatedly, finally dragging her lifeless body into the woods,” reported Alison Auld of the Canadian Press.
Tucker’s murder would remain unsolved for 16 years. McGray moved on to Saint John, where in 1987 he robbed a cab driver and murdered his co-conspirator, Mark Gibbons. McGray fingered another man for the stabbing murder, but was himself charged and convicted for his part in the robbery. He was sentenced to five years in prison.
In 1991, while on a weekend pass from prison, McGray murdered Robert Assaly and Gaétan Ethier, two gay men in Montreal. Both men were stabbed. As with McGray’s earlier murders, the Montreal murders remained unsolved for many years.
McGray was released from prison in February 1995, and moved to Dartmouth.
Three years later, McGray murdered a 48-year-old woman named Joan Hicks by slitting her throat. McGray had met Joan Hicks through his girlfriend, at a local homeless shelter. Hicks’ 11-year-old daughter, Nena, was also killed — strangled and hung in a closet — but McGray was not charged in her death.
After his conviction for Hick’s murder, police around the country started looking at their unsolved cases, and McGray was charged with the 1985 murder of Tucker in Weymouth, the 1987 murder of Gibbons in Saint John, and the 1991 Montreal murders.
In prison, McGray started talking, and claimed to have had killed 11 other people across Canada and in the US
“McGray said he killed a prostitute in Halifax, but that he couldn’t remember her name or the date it happened,” reported Alison Auld. Could the “prostitute in Halifax” be Brenda? We don’t know.
McGray offered to give police details of each of the killings, but had three conditions: he wanted treatment for his urge to kill, he didn’t want to be charged with any more murders as he would already live out his life in prison, and he wanted two accomplices given immunity from prosecution.
Prison and justice officials rejected the deal.
Then in 2010, for some reason McGray — a man who had been convicted of five murders, who claimed to have killed 11 other people, and who spoke of a compulsion to kill still more — was transferred from the maximum security Renous Prison in New Brunswick to the medium security Mountain Institute in British Columbia. A few weeks later, McGray murdered his cellmate, a 33-year-old Moncton man named Jeremy Phillips, who was serving a sentence on an assault charge.
I contacted McGray a few months ago, but he declined to be interviewed for this article.
The details of the informant described by Scott appear to fit McGray. McGray was a crown witness when he testified against Norman Frederick Warren for the 1987 murder of Saint John taxi driver Mark Gibbons. And McGray murdered his cellmate.
I suppose it’s possible that there is another man who would be familiar with Brenda Way and also testified as a crown witness and also murdered his cellmate, but it seems extremely unlikely.
I understand Assoun’s lawyers’ desire to protect the identity of the three informants who helped get their client out of jail.
But for myself, I have no problem naming the man who has been convicted of multiple heinous murders.
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Tim, I probably disagree with your opinions 3/4 of the time, but work like this is why I subscribe to the Examiner. Keeping info on how our justice system works in the public view is critical. Keep digging!
Oh and kudos Tim for doggedly pursuing this. It shows the power of serious journalism. Halifax is pretty lucky to have you and the staff at the Halifax Examiner.
Exactly. Nobody else is doing this sort of work, that I’m aware of at least. Thanks, Tim.
Fantastic news. I’m assuming these documents won’t provide any of the reason’s this file sat on Minister Wilson-Raybould’s desk for 18 months, so I don’t think we will ever have a full picture of what happened here. A tiny part of me is still optimistic enough that someone will be held to account for this injustice but even if no one is, it is important to have the full story told.