“A tale of enormous suffering”

Takeaways from this story:

• after spending 16 and a half years in prison and four and a half years on strict parole conditions, Glen Assoun is exonerated of the 1995 murder of Brenda Way;

• Assoun’s lawyers say Halifax police failed to turn evidence over to Assoun that would have cleared him of the crime; that failure, say the lawyers, constitutes “police misconduct”;

• moreover, the evidence police withheld from Assoun points to the person or persons who actually killed Brenda Way;

• former Justice Minister and Attorney General Jody Wilson-Raybould sat on the recommendation to order a new trial for Assoun for a year and a half; after she was replaced by David Lametti, Lametti ordered the new trial for Assoun after just a month and a half

Glen Assoun is a free man.

Assoun was arrested in March of 1998 for the brutal murder of his former girlfriend, Brenda Way. Assoun was convicted of second degree murder in 1999 and sentenced to life in prison with no chance of parole for 18 years. Throughout, Assoun maintained his innocence.

The murder of Way and conviction of Assoun is the subject of the first three parts of the Halifax Examiner’s “Dead Wrong” series.

Assoun has been represented by lawyers associated with Innocence Canada, primarily Sean MacDonald, Phil Campbell, and James Lockyer.

On Thursday, a letter from federal Justice Minister and Attorney General David Lametti arrived at the Nova Scotia Supreme Court, vacating Assoun’s 1999 conviction and ordering a new trial on the charges.

Lametti’s letter resulted in a hearing and trial yesterday before Justice James Chipman. MacDonald and Campbell were present yesterday, as were Assoun’s family and other Innocence Canada representatives.

At court, first Chipman ordered a new trial, and then that new trial happened, lasting about five minutes because the crown offered no evidence. Chipman then found Assoun not guilty, and he was cleared of all charges.

While the mini-trial was extraordinary in itself, even more astounding were the comments from Assoun’s lawyer Phil Campbell, and those from Chipman himself. (I’ve provided a full transcript of the hearing below.)

In court, Campbell said that Assoun should have never been convicted in the first place. Having examined the case and the evidence for many years, Campbell and MacDonald had long had a “belief in the factual innocence of Mr. Assoun,” Campbell told Chipman. “That is a conclusion we reached — Mr. MacDonald and I — when we first looked at this case, by the trial record. I have to say that I thought many, many times I wished that Mr. Macdonald and I could have represented Mr. Assoun in those proceedings rather than having him struggle with the law and the evidence on his own. I believe that a different verdict could have been achieved on the record.”

Moreover, said Campbell, “there are issues of accountability, arising from that phrase in the minister’s [Lametti’s] order: ‘Relevant and reliable information that was not disclosed to Mr. Glenn Assoun during his criminal proceedings.’ Behind that phrase lies a sad, to some degree a shocking story, in the telling of which there will eventually be an acute public interest. And there is also a public interest, given the record that now exists, the evidence that has accumulated that is before the Minister, in attempting, still, these many years later to identify who did kill Brenda Way. We believe that to be an achievable goal and one that, the pursuit of which, will serve the public interest.”

Outside the courtroom, I asked Campbell who withheld the evidence that could have cleared Assoun. Campbell made clear it was not the crown prosecutors, but rather Halifax police. I asked if police investigator David MacDonald was at fault, and Campbell didn’t directly answer the question; rather, he said while there were faults with the original investigation, the most troubling withholding of evidence came when Assoun was before the Court of Appeal. Campbell would not further elaborate, telling me only to pursue the matter myself. I am.

In court, although he didn’t mention her by name, Campbell also offered implied criticism of former Justice Minister and Attorney General Jody Wilson-Raybould. “The case proceeded slowly, painstakingly…” Campbell told Chipman, “and the order that initiated today’s proceedings was signed by the Minister yesterday after he had been in office about a month and a half. The registrar thanks him for his swift, decisive action on it.”

Non-lawyers associated with Innocence Canada told me yesterday that the Justice Department lawyers who reviewed Assoun’s case — the Criminal Conviction Review Group — had a recommendation for an order for a new trial on Wilson-Raybould’s desk a year and a half ago, but she took no action on it. By contrast, Lametti moved on the file almost immediately — the “swift, decisive action” Campbell praised.

This is no small matter. Glen Assoun has suffered greatly throughout this ordeal. Besides the anguish of being wrongfully convicted, he suffered two heart attacks in prison, and while living through the legal limbo that was his parole — that is, while waiting for the Justice Minister to act — he suffered a mental health crisis.

Campbell also had a direct message to the people of Halifax. Assoun is an innocent man, Campbell told the courtroom. “And we hope — fervently hope — that the community in Halifax will welcome him back, embrace him as an innocent man. He needs to hear that, he needs to feel it, he deserves it.”

Justice Chipman movingly addressed Assoun, recounting Assoun’s tribulations and pain, and thanking him for “your courage and your resilience.”

In conclusion, Chipman simply declared: “Glen Eugene Assoun, you are a free man. I sincerely wish you every success as you begin what I hope will be a positive chapter in your life. Thank you very much.”

What follows is a transcript of the proceedings at Supreme Court yesterday — this is not a legal transcription, and although I listened to my recording several times, errors may have crept in. The speakers are Justice James Chipman; crown prosecutors Marian Fortune-Stone and Mark Scott; Glenn Assoun; Assoun’s lawyers Phil Campbell and Sean MacDonald; and the court clerk, Ms. Lewis.

Justice Chimpan: We’re a little late getting under way. Mr. Assoun, I would have to say you’re probably used to delays in the criminal justice system. So, I applaud your patience.

Justice Chipman: Alright. Today’s proceedings are open. They’re open to the public. There is no publication ban respective of what is taking place today. I know there was a relatively last minute request for a camera in court today. I did have the opportunity to review the request with counsel. And they were of the collective view, as I am, that filming today’s proceedings would not provide added value.

Justice Chipman: Now today’s matter was brought about by a letter received yesterday by Chief Justice Kennedy. And the letter was signed by David Lametti, the Minister of Justice and Attorney General of Canada. And the letter attached an order in the Supreme Court of Nova Scotia which I wish to read into the record. And it’s styled as follows: “In the matter of section six ninety six point one of the Criminal Code. And in the matter of an application for ministerial review. [miscarriages of justice] submitted by Mr. Glen Assoun in respect of his conviction in Halifax, Nova Scotia on September 17, 1999 for the murder of Brenda Way, and in the matter of the decision of the Minister of Justice to direct a new trial for Mr. Glen Assoun. Pursuant to section six ninety six point three some three sub A sub i of the Criminal Code.” 

Justice Chipman: The order reads as follows: “And whereas on September 17, 1999, Mr. Glen Assoun was convicted of second degree murder. And whereas on December 13, 1999, Mr. Glen Assoun was sentenced to life imprisonment, with parole ineligibility set at 18 and a half years by the Honorable Justice Suzanne M. Hood of the Nova Scotia Supreme Court in Halifax Nova Scotia. And whereas the Nova Scotia Court of Appeal dismissed Mr. Glen Assoun’s appeal on April 20, 2006. And whereas the Supreme Court of Canada dismissed Mr. Glen Assoun’s application for appeal on September 14, 2006. And whereas as having exhausted all his legal remedies, Mr. Glen Assoun applied to the Minister of Justice for a remedy under section six ninety six point one the criminal code. And whereas the Minister of Justice has determined upon investigation that there are new matters of significance, as well as relevant and reliable information, that was not disclosed to Mr. Glen Assoun during his criminal proceedings. And whereas as a result of the investigation the Minister of Justice is satisfied that there is a reasonable basis to conclude that a miscarriage of justice likely occurred. I hereby direct, pursuant to section six ninety six point three sub three sub a sub i of the criminal code, by this order, a new trial for Mr. Glenn Assoun before the Nova Scotia Supreme Court on a charge of second degree murder as described above.” And once again it’s dated yesterday and signed by the Honorable David Lametti, Minister of Justice and Attorney General.

Justice Chipman: Now as a consequence of this, the matter was docketed and of course counsel are here and I understand there may be further developments. But perhaps for openers I know Ms. Fortune-Stone has handed up a directive or an appointment in respect of her attendance here signed by Mr. Herschorn, the Director of Public Prosecutions. So perhaps I’ll ask Crown Counsel to rise on that and any other related matters and then I’ll turn it over to Mr. Campbell and Mr. Macdonald on behalf of Mr. Assoun.

Marian Fourtune-Stone: Thank you, Justice Chipman. As you indicated, I have filed my delegation on behalf, for me to appear before the court today, on behalf of the Director of Public Prosecutions. As well, placed before the court is the original indictment upon which Mr. Assoun was tried and went through this very messy process of criminal proceedings. That indictment being before the court today, the Crown would invite the court, ask the court, to put Mr. Assoun to his reelection, having the original election been trial by judge and jury. So we would ask the court to have him put to a reelection, at that time. Mr. Assoun will enter his plea, after that reelection And the crown at the time, Mr. Scott, will have additional comments.

Justice Chipman: Alright. Thank you very much, Ms. Fortune-Stone. And with that and of course, Mr. Scott I know you’ll be rising later, but perhaps before we proceed in that manner I’ll call on Mr. Campbell.

Phil Campbell: Good morning my lord. We are Phil Campbell and Sean MacDonald for the record. And Mr. Assoun is prepared to be arraigned and enter his reelection to be tried before this court sitting without a jury and to enter his plea to the charges.

Justice Chipman: Alright thank you very much. And Ms. Lewis, perhaps if you would kindly… and Mr. Assoun if you would please stand.

Court Clerk: Glen Eugune Assoun, of Maple Ridge in the county of New Westminster, Province of British Columbia, you stand charged that you at or near Dartmouth, in the county of Halifax, province of Nova Scotia, on or about the 12th day of November, 1995, did commit second degree murder on the person of Brenda Leann Way, contrary to Section 235 subsection 1 of the criminal code. Mr. Assoun, how do you plead?

Glenn Assoun: Not guilty. 

Justice Chipman: Thank you very much. And a small point but I know Mr. Assoun’s current address is in Halifax Nova Scotia.

Justice Chipman: Now with that, I should say that I will be calling on Mr. Assoun, if you wish to say anything, at a later time, not just yet. Alright, Mr. Scott, over to you.

Mark Scott:  Thank you Justice Chipman. Of course [?] because of the Minister’s decision to order a new trial for Mr. Assoun, based on new and significant evidence. I can indicate to the court that we have spoken to the family of the victim, Brenda Way, and we’ve discussed with them the consequences of the minister’s decision on the prosecution of this case. The crown cannot begin to imagine the profound emotions that the Way family must be feeling in these circumstances. But we deeply empathize with what we, understandably, would perceive as disappointment. There is no closure for that family in relation to the murder of their daughter and sister.

Mark Scott: But our role as the crown is to assess the strength of the current Crown case as a consequence of the Minister’s decision that was released yesterday. That requires a balancing of factors and interests in order to objectively and fairly decide how the crown proceeds. As your Lordship knows, we have had this case for a considerable period of time, and a considerable period of time since the Minister’s decision has been pending. We have made our assessment.

Mark Scott: Here, factors including the passage of time and the current strength of the crown’s evidence have led us to the conclusion that there is no longer a realistic prospect of conviction for Mr. Assoun. In such circumstances the crown is obliged to cease the prosecution without undue delay. And in deciding our course of action for this matter, among our considerations have been the fact that Mr. Assoun has been incarcerated since 1998 until late November 2014, and then thereafter has been subject to strict release conditions until today. We have consented to Mr. Assoun’s reelection so that he can enter his plea, and the Crown offers no evidence and invites the court to dismiss the matter for want of prosecution.

Justice Chipman: Alright. Mr. Campbell?

Phil Campbell: Thank you Mi’Lord. I will move for the dismissal of the charges [?].

Justice Chipman: Certainly. Before, though, I dismiss the Crown’s case against you, Mr. Assoun, for want of prosecution, do you wish to say anything to the court?

Glen Assoun: I’m grateful for the outcome, that the minister of Justice, that I finally proved my innocence in a court of law. I want to thank you Justice Chipman for always be fair with me in the proceedings that we’ve had in the past.

Justice Chipman: Thank you very much, Mr. Assoun, for your kind and your kind remarks. Alright. Now with that, I hereby dismiss the Crown’s case against you, Glen Eugene Assoun, for want of prosecution.

Glen Assoun: Thank you.

Justice Chipman: Alright. Mr. Campbell, did you wish to say anything and then I’ll return to the crown and then I do have some closing remarks.

Phil Campbell: Just a few observations. The Criminal Code, as the lawyers and judge in this courtroom know, provides for only two verdicts on an indictment, guilty and not guilty, in circumstances such as these. Dismissal for want of public prosecution is, under the criminal code and under our law, a conclusion of not guilty, and that in our submission, the [?].

Phil Campbell: I would like to thank Ms. Fortune-Stone, Mr Scott, and the Director of Public Prosecutions, Mr. Herschorn, for today’s outcome. An acquittal on this charge was a greatly comforting and deeply gratifying result for everyone involved — Mr. Assoun particularly. Other cases of this nature which Mr. MacDonald and I been involved with have ended on a note of less grace, less clarity, and less justice. I conveyed our appreciation to counsel out of court, but I wish to put it on the record now at the conclusion of proceedings against Mr. Assoun.

Phil Campbell: We’d also like to thank Mr. Lametti.

Phil Campbell:  The case proceeded slowly, painstakingly through the six 196 process, and the order that initiated today’s proceedings was signed by the Minister yesterday after he had been in office about a month and a half. The registrar thanks him for his swift, decisive action on it.

Phil Campbell: And we know that the minister had only three options under the Criminal Code. He could have dismissed Mr. Assoun’s application. That would have returned Mr. Assoun to prison. That he could have referred the case to the Court of Appeal where the conviction would have remained intact until the Court of Appeal upset it. And he had the power to direct a new trial which under Canadian law, and of course our Constitution, returned the presumption of innocence to Mr. Assoun. And for that swift, decisive resolution of the ministerial process. Again, we thank him.

Phil Campbell: Your Lordship has had some insight over the years between your original order releasing Mr. Assoun on a memorable day for all of us, November 24, 2014, into the toll this case has taken on him and to a lesser degree his loved ones. It is a tale of enormous suffering.

Phil Campbell: But, also, I think we should register our appreciation for the support that he has had commensurate with the suffering he has endured. And there is evidence of that in court today; it includes friends, family, and personnel — some of whom are here today but many of whom are not — from Innocence Canada. This support has extended literally coast to coast, as you know.

Phil Campbell: Mr. MacDonald and I are here as counsel for Mr. Assoun, but we characterize ourselves as working and representing him on behalf of Innocence Canada. And a condition, a necessary predicate, for our involvement in a case like this — bringing it to the minister and ultimately to the court — is a belief in the factual innocence of Mr. Assoun. That is a conclusion we reached — Mr. MacDonald and I — when we first looked at this case, by the trial record. I have to say that I thought many, many times I wished that Mr. Macdonald and I could have represented Mr. Assoun in those proceedings rather than having him struggle with the law and the evidence on his own. I believe that a different verdict could have been achieved on the record. 

Phil Campbell: In the years since the accumulation of fresh evidence, we have become ever more convinced of his factual innocence. And it is that fresh evidence that is captured under the vague and benign statutory language that the minister incorporated in his order.

Phil Campbell: He has determined upon investigation that there are new matters of significance. There are indeed. And, they point, those new matters of significance, sharply away from any role of Glen Assoun in the murder of Brenda Way. And some considerable, although not yet conclusively, we agree, in the direction of other perpetrators.

Phil Campbell: The law does not provide for a verdict of innocence in the legal proceedings, the criminal proceedings. But our closing submission today in the verdict for Mr. Assoun is that he is innocent. And what I would like to say is that beneath the terse statutory language incorporated by the minister in his order lives powerful evidence of his innocence. And we hope — fervently hope — that the community in Halifax will welcome him back, embrace him as an innocent man. He needs to hear that, he needs to feel it, he deserves it.

Phil Campbell: And finally, for another day perhaps, there are issues of accountability, arising from that phrase in the minister’s order: “Relevant and reliable information that was not disclosed to Mr. Glenn Assoun during his criminal proceedings.” Behind that phrase lies a sad, to some degree a shocking story, in the telling of which there will eventually be an acute public interest. And there is also a public interest, given the record that now exists, the evidence that has accumulated that is before the Minister, in attempting, still, these many years later to identify who did kill Brenda Way. We believe that to be an achievable goal and one that, the pursuit of which, will serve the public interest.

Phil Campbell: And I believe that with those submissions, I’d like to turn this over briefly to Mr. Macdonald, who it should be said, is very high on the list of those who lent support to Mr. Assoun, who got him through this ordeal. Phone calls, visits, and dogged, relentless investigation of the facts. And I am personally very grateful to have been brought onto the case by Mr. MacDonald, who amongst the lawyers who participated…

Sean MacDonald: I want to briefly reiterate Mr. Assoun’s comments to the court and to thank you personally for your kindness to Mr. Assoun, who as you can imagine has not been treated very kindly by the justice system up to this point.

Sean MacDonald: I’d also like to thank your Lordship for always having an acute understanding of the extraordinary nature of this case — not only with respect for Mr. Assoun but with respect to the great public interest. Again, I’d like to reiterate Phil’s comments with respect to the crown. Thank them very much. Thank my friend very much. It’s been a great day. I appreciate it.

Justice Chipman: Thank you Mr. Macdonald. Does the crown wish to add anything at this point.

Mark Scott: Thank you Justice Chimpan, we have nothing else to say.

Justice Chipman: Well I do wish to say some remarks in closing. Firstly, to thank the Crown counsel, for the reasons stated by Mr. Campbell — Ms. Fortune-Stone, Mr. Scott for their diligence since this matter came back before this court in November of 2014. I also of course want to thank the Innocence Canada lawyers here today, Mr. Campbell, Mr. MacDonald. As well, at the risk of leaving out some, I know from reading the many documents that have been filed, there are certain supporters, family members of Mr. Assoun I will name — his daughter Amanda Assoun, her wife Shannon Huckle, and Reverend David Watt. And so I did want to single out those people and of course Mr. Assoun.

Justice Chipman: This is indeed a momentous day in the Supreme Court of Nova Scotia. Mr. Assoun, today is, I hope, I know, a joyous occasion for you, your family, your friends. However, the court is very much aware that the same cannot be said for the last 21 years in your life. In March of 1998, you surrendered and were placed in custody. On September 17 1999, you were convicted of second degree murder by a judge and jury of this court. You were sentenced to life imprisonment, but parole and eligibility set at 18 and a half years. You remained incarcerated up until November 24 of 2014. When you were granted bail before this court. This means that you spent, Mr. Assoun, over 16 and one half years of your life in jail. This was followed by stringent bail conditions that took effect on November 24 of 2014 and lasted until today, a period of four and a half years. Glen Eugene Assoun, during all of this time, you steadfastly maintained your innocence. And with the support of your lawyers, your friends and your family, you kept the faith with remarkable dignity and determination you presented before this court on several occasions, and at times since I first met you on November 24, 2014. You are to be commended for your courage and your resilience.

Justice Chipman: For an application for ministerial review to succeed, the Minister of Justice must be satisfied that there is “a reasonable basis to conclude that a miscarriage of justice likely occurred” and therefore a new trial or appeal is required. Today the Crown confirmed it would not offer evidence. And I was pleased to grant your counsel’s motion to dismiss the matter against you for want of prosecution.

Justice Chipman: Glen Eugene Assoun, you are a free man. I sincerely wish you every success as you begin what I hope will be a positive chapter in your life. Thank you very much.

The Halifax Examiner is an advertising-free, subscriber-supported news site. Your subscription makes this work possible; please subscribe.