The Assoun wrongful conviction: How Halifax police, RCMP, and prosecutorial misconduct sent an innocent man to prison and kept him there for nearly 17 years

For background on this story, see my 2016 series, “Dead Wrong.”

Court documents released on Friday reveal how Glen Assoun was wrongfully convicted of the 1995 murder of his former girlfriend Brenda Way.

The documents detail two sets of police misconduct. The first set of misconduct was when Halifax police working on the investigation into the Way murder improperly threatened and cajoled witnesses to provide false testimony against Assoun and turned a blind eye to continued criminality from the witnesses. Testimony from those witnesses led to Assoun’s conviction for second degree murder in 1999.

The second set of police misconduct came from RCMP officers who destroyed information that would have established serial killer Michael McGray or two other suspects as the probable murderer of Brenda Way, and withheld knowledge of that information from Assoun during his 2005 appeal of his 1999 conviction. As a result, the Court of Appeal rejected Assoun’s application in January 2006, and he spent nearly another nine years in prison.

Along the way, the police misconduct was abetted by prosecutors who knew that crown witnesses were lying on the stand.

Michael McGray

I wrote about Michael McGray in Part 3 of the Dead Wrong series, as follows:

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, [in Moncton] 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.

Halifax police knew McGray was living in north Dartmouth at around the time of Way’s murder, but according to a 2005 memo written by Halifax police detective Wayne Hurst to crown prosecutor Dan MacRury, “David MacDonald, the primary investigator of the Brenda Way file, stated he did not consider McGray to be a suspect in the Way Murder.”

Part 1: Misconduct aimed at getting a conviction

Instead, MacDonald focused on Glen Assoun as the primary — indeed, only — suspect in Way’s murder. I won’t rehash all the evidence and testimony used against Assoun (you can read Part 2 of Dead Wrong for an exhaustive rundown of it), but a few examples illustrate how police behaved improperly in aligning that evidence against Assoun.

“Roberta”

Here’s what I wrote about Roberta (a pseudonym) in 2016:

Roberta testified on August 25 and 26 [1999]. She said that she had been working the stroll in Dartmouth, was picked up by man she later identified as Glen Assoun, and taken to a warehouse in Burnside where she was raped, beaten, and sliced with a knife.

During the assault, said Roberta, her attacker called out “Pit Bull,” the street name for Brenda. Roberta said she asked him if he had killed Brenda and he replied, “Yes, and I’ll kill you, too.”

Later, said Roberta, her attacker took her back to Windmill Road, and then, when he came back a few minutes later to deliver her coat, there was a note in the pocket that read, “And I’m going to kill you, too, you fucking bitch.”

Roberta said she recognized Glen as her attacker when Global TV aired a segment on Glen’s arrest for Brenda’s murder.

On cross-examination, Glen got Roberta to admit that she had told police the attack had happened about 18 months before police interviewed her in September 1998 — so in March 1997.

…

In fact, police documents record that Glen moved to British Columbia in July of 1996, eight months before Roberta said she was attacked by Glen in Dartmouth. No evidence was presented to suggest Glen travelled back to Dartmouth while living in British Columbia.

Last summer [that is, in 2015], Roberta appeared on an assault charge in the Halifax court. I attended the hearing.

…

After the hearing, I approached Roberta and asked her about Glen. She is a pretty woman, with her hair dyed red and an expression that is at the same time both world-wearied and inquisitive. Roberta insisted the man who attacked her in 1997 was Glen Assoun. I told her Glen had been released from prison, and she said no one had told her.

Roberta then told me that she was the victim in a high-profile attack four years before. On August 16, 2010, Roberta, then a sex worker, had a john named Steven Laffin. Through the course of their encounter, Laffin choked Roberta until she passed out, then bound her mouth, arms, and legs with duct tape. When Roberta came to, Laffin raped her, told her he was going to kill her, and threw her in the trunk of his car.

Incredibly, Roberta was able to free herself and managed to jump out of the trunk of the car as Laffin was driving down Old Sambro Road. Laffin was subsequently convicted of kidnapping, aggravated assault, uttering threats, and unlawful confinement.

The court documents released Friday show a more complex version of Roberta’s role as a crown witness against Assoun. In the documents, Justice Department lawyer Mark Green related what Roberta had told Assoun’s lawyers in a videotaped interview in 2010:

[Roberta] stated that before giving her first written statement to police on September 17, 1998, she recalls a series of events and conversations that happened at the Halifax Police Station. She remembers being picked up for public intoxication or prostitution and being locked up. Police officers brought her into an interview room and showed her a video with [Assoun] in it and said to her, “This was him, wasn’t it?” From that point on, she says police officers kept harassing her about [Assoun] being that one that assaulted her and admitted to killing “Pit Bull.” She said the police kept picking her up for insignificant things. She was told that if she didn’t tell the police everything she knew, she would sit in the cell and told she could be charged with withholding evidence. She said that she was not shown pictures of any other suspects.

[Roberta] said that her attacker told her he lived on Jackson Road. A few months prior to the trial in 1999, [Roberta] said she moved to Ontario to try and get away from negative influences in the Halifax area. She said she was arrested in Ontario and incarcerated. After being released, she learned that she had to get on the next plane back to Halifax for [Assoun’s] trial that had been scheduled for early June 1999. She said that police provided her accommodation in the Sheraton Casino Hotel where, known to the police, she did drugs and prostituted herself. As the trial did not go ahead at that time, she returned to Ontario and then came back to Halifax in August 1999 to testify. None of the above was mentioned during [Roberta’s] trial testimony.

As part of her [statement to Assoun’s lawyers in 2010, Roberta] was shown a photograph of Michael McGray… [Roberta] identified McGray as the person that abducted and raped her. She said that her attacker kept calling her “Pitbull”; he said he killed her, and that she would be next if she didn’t do what he said.

If true, Roberta’s claim that police first harassed her to get her to testify against Assoun and then put her up in a hotel and allowed her to use drugs and work as a sex worker so long as she would give that testimony against Assoun demonstrates very problematic behaviour on the part of the police. Had knowledge of that police behaviour been made available to Assoun’s defence lawyer or even to the crown prosecutor, it’s unlikely that Roberta’s evidence would have been allowed at trial.

A year later, in 2011, Roberta signed a confused affidavit, saying she thought since the police had charged Assoun with the murder of Brenda Way, he must have been the man who had attacked her as well. But even as Roberta testified against Assoun during his 1999 trial, she had doubts: “when I watched and listened to Glen Assoun I was very unsure that he was the attacker.”

While Roberta’s recounting of her attack in Burnside has changed over the years — recall that in 2015 she told me she was sure Assoun was her attacker — one detail remained steady: her attacker wore socks and sandals, even though there was significant snowfall on the ground.

Mark Green, the Justice Department lawyer, made much of the sandal wearing, as McGray at one point told a fellow prisoner that he always wore sandals. “I remember that Mike always wore sandals and socks at Renous, even outdoors,” wrote the prisoner in a signed affidavit. “He told me that his toes pointed inward and that he needed special shoes which he was always trying to have the institution give him. I teased him about this and he told me that he wears sandals on the street too.”

And Green, the Justice Department lawyer, made the obvious point that at trial, the crown suggested to the jury that even though Assoun was living in British Columbia at the time of Roberta’s attack, he could have flown to Nova Scotia, attacked Roberta, and then flown back to BC — but they produced no evidence of such a trip.

Wayne Wise and David Carvery, aka “Burger”

I wrote about David Carvery’s testimony against Assoun, as follows:

David Carvery was called to the stand on September 7 [1999] and testified that when the two men were housed together at the Halifax Correctional Centre, Glen had confessed to killing Brenda.

During cross-examination, Glen tried to establish that Carvery had been so interested in Glen’s case that he invaded Glen’s cell and read through confidential court documents while Glen was in the shower…

Glen did succeed, however, in establishing that Carvery had a direct connection back to Jane Downey, Brenda’s sister who found the knife. Carvery’s girlfriend was a close friend of Downey’s.

…

Carvery was facing charges for dealing cocaine. If convicted, he could have been sentenced to a total of 12 years in prison. In exchange for his testimony against Glen, prosecutors agreed to a plea deal that would see Carvery serve just two years in jail and three years on probation.

The court documents released Friday show how problematic Carvery’s testimony against Assoun was.

To begin, Carvery had a connection to another witness, Wayne Wise, who also testified that during a phone call, Assoun had confessed to killing Brenda Way.

Wise is Assoun’s nephew. I wrote about Wise’s testimony:

Wise was a career criminal, with repeat convictions for theft, fraud, drunk driving, assault, various drug charges, and other crimes. He also admitted to using false identities to avoid arrest.

Wise testified that in January 1997 he had called Glen in British Columbia. “I asked if there was any work out there and asked him what — first of all, what he was doing there and he said he was hiding,” testified Wise. “I asked why and he said he’s a suspect in a murder investigation…. I asked him if he did it and he said yes.”

On cross-examination, [Assoun’s then-lawyer Don] Murray got Wise to admit to being a “crackhead,” and to using crack the day of the supposed phone call — “maybe a gram,” said Wise.

…

Murray also pointed out that many months before the supposed phone call, Wise had heard both his father and his sister separately speculating that Glen had killed Brenda. That speculation, suggested Murray, was grabbed onto by Wise, as a means to have something to trade for a lighter sentence on fraud charges he was facing. And in fact, Wise was freed from custody immediately after testifying.

Moreover, Wise got favours in return for his testimony — he was allowed “contact visits” with his wife while he was in jail, and prosecutors agreed to fly his family from Ontario to Halifax.

“And then did you threaten to forget or forget your evidence if the Crown didn’t meet other demands?” asked Murray.

“My demands were simple,” replied Wise. “I wanted to come out the third week of June.… and, yes, I did threaten them.”

Wise’s wife was named Carla Jenkinson.

“Carla Jenkinson” is the spelling in the transcripts from the 1999 trial, but in the court documents released Friday, the spelling is Karla Jinkerson; she is also referred to as Wise’s “girlfriend,” and not as his wife.

In an affidavit, Jinkerson recalled that:

Sometime in January or February of 1997, Wayne was arrested and taken into police custody for cheque fraud. Shortly after his arrest he called me from jail and told me that the police offered him a deal to shorten the amount of time that he would have to spend in jail if he told them that his Uncle Glen had confessed to murder during a telephone conversation that the two of them had.

Jinkerson additionally said that in return for Wise’s testimony, police helped her move from a homeless shelter and into an apartment, although she can’t recall if they paid for the apartment or not.

In another affidavit, Jinkerson remembers that Wise used to buy crack from a black man by the name of “Burger.” Another man, who doesn’t know Wise or Jinkerson, signed an affidavit saying that Carvery’s street name was “Burger,” “which came from his fondness of hamburgers.”

The implication is exactly as defence lawyer Don Murray was leading up to; I wrote in 2016:

Murray was clearly laying the groundwork for a broad defence, which would show that many of the primary witnesses against Glen knew each other and, as Murray was prepared to argue, had conspired with each other to frame Glen.

The documents released Friday also provide a disturbing look at just how much time was cut off Carvery’s sentence in return for his testimony against Assoun. Justice Department lawyer Mark Green followed the document trail as federal crown prosecutors initially offered Carvery a six-year prison term in return for a guilty plea on three drug counts, then at the request of provincial crown prosecutors reduced that to four years if Carvery testified against Assoun, and finally to two years minus a day in prison plus three years’ probation. However, by the time Carvery actually testified, he was additionally credited for remand time. Green wrote:

By way of summary, Carvery was initially being considered for a sentence in the neighbourhood of between 4 and 6 years’ incarceration. He ended up receiving a sentence of 2 years less one day incarceration and three years’ probation (Note that the Agreement indicated a sentence of 2 years’ incarceration and 3 years’ probation) [the one day difference meant Carvery did time in a provincial jail rather than in a federal prison]. There is also a handwritten note on the PPSC file as well as the court record, suggesting that Carvery may have spent as much as 7 1/2 months on remand.

Carvery made the point during his testimony that there was virtually no difference between 5 years’ incarceration and the 2 years’ incarceration and 3 years probation he actually received. This logic is highly questionable. As well, it is important to note the amount of time Carvery actually spent in custody. Carvery began his incarceration on December 11, 1998 and he received his full release on May 21, 1999, amounting to a total of just over 5 months. As well, it is possible that Carvery may have received temporary absences for part of that time. Attempts were made to determine this without success as the relevant records have been destroyed.

In short, in return for his testimony against Assoun, Carvery had his sentence reduced from a potential six years in prison to actual real-time spent in jail of just five months.

A memo from federal crown prosecutor Ray Mitchell to RCMP Cpl. Dave Roper and Cst. Paul Melon characterized the deal with Carvery as “lenient”:

I appreciate that the sentence imposed [against Carvery] is lenient. While neither the Federal Crown nor the RCMP had any direct interest in resolving these charges this way, Mr. Carvery’s co-operation was required by our colleagues at the Provincial Crown, and it is important that we all co-operate with each other to ensure that the ends of justice are met. The accused murderer [Assoun] is a person far more dangerous to society than Mr. Carvery. I am satisfied that the sentence imposed is appropriate in these unusual circumstances.

Green’s point about Carvery’s logic is illustrated by Carvery’s testimony at trial^[1]The court transcript is confusing as to who was questioning Carvery — at one point the transcript says he was being questioned by crown prosecutor Dan MacRury, and at another by crown prosecutor … Continue reading:

Q. Now, sir, did you subsequently have your charges dealt with by the Federal Crown?

A. Well, I was dealing with the Federal Crown, I had a sentence of five years in waiting, plus, with this remand here, I had five years. So, really, it was no difference. It was no real big deal agreement. I had five years either way I looked at it.

Q. Okay. But what sentence did you receive, though, from the Federal Crown?

A. A five-year sentence.

Q. But what was the breakdown in terms of —

A. I received a two-year jail time and three-year probation period.

Q. So why would you say that would be the same as a five-year jail sentence? Could you explain that?

A. Well, the jail time that I did, I did 15 months, I would have done that anyhow, 15 months, if I would have took the Federal deal. And I would have been on probation — or parole for three years. So either way you looked at it, it would have been the same way — scenario.

Q. Okay.

Carvery was then out of jail, having served just five months. That deal was arranged by the very same crown prosecutors who questioned Carvery at trial when he suggested he served 15 months in prison and that the arrangement was “no real big deal agreement.”

I look at this as a witness lying on the stand, and the crown prosecutor who knew the witness was lying doing nothing to intervene.

Corey Tuma

I wrote about Corey Tuma’s testimony against Assoun, as follows:

In 1995, Tuma was the front desk clerk at the Four Star [Motel, where Assoun was living]. He said he was “drinking buddies” with Glen, who had given him the nickname “Front Desk.”

Tuma testified that on November 11, 1995, the night she was murdered, Brenda stopped by the Four Star. “It was probably around ten o’clock,” he said. “She stopped by and asked me for a cigarette. Me and my buddy were watching a hockey game and she just came in and sat down for five or ten minutes and then she left.”

Then, continued Tuma, Glen came by at midnight. “He stopped by for about five or ten minutes.”

“Was that before or after you saw Brenda?” asked crown prosecutor Dan MacRury. “That was after I seen Brenda,” answered Tuma. “He [Glen] just asked me if I seen Brenda around and I said, ‘No’ — or I said, ‘Yes, she was here and she left.”

On cross-examination, however, Murray pointed out that Tuma gave three different versions of the night Brenda died.

In Tuma’s first version, given to police on December 4, 1995 (soon after Brenda was murdered), Brenda came by the Four Star at around 10pm for a half hour to 45 minutes. Tuma made no mention of Glen in that statement.

In Tuma’s second version, given to police on August 10, 1998 (soon after Glen became a suspect), Tuma said Glen had come by the Four Star first, sometime between 8 and 9pm, looking for Brenda, and he stayed for five or 10 minutes. Then, sometime between midnight and 1am Brenda showed up, looking for Glen, and stayed for 30 to 45 minutes.

But in his third version of events, his court testimony, Tuma reversed the order of Glen’s and Brenda’s appearance: now, Brenda came by the Four Star at 10pm for five or 10 minutes, looking for Glen. And at midnight, Glen came by for five or 10 minutes, looking for Brenda.

The documents released Friday convey the context of Tuma’s testimony. In 2012, Tuma signed an affidavit, which was summarized by Green as follows (Green was directing his comments to Assoun):

He [Tuma] confirmed the first statement he provided to police a few weeks after the murder in 1995. He said he didn’t mention you coming to the motel the night before the murder as he didn’t remember you being there. However, sometime between 1996 and 1998 he says he was contacted by a detective from the Halifax police. The police officer told him that you were a cold blooded killer and that you killed Brenda Way. The police officer claimed to have solved the murder. Relying on what he had been told, Tuma, all of a sudden, thought that he may have seen you at the motel the night before the murder. Tuma went to the police sation in August, 1998 and gave a new statement that talked about seeing you at the motel that night even though he was not sure that was the case.

As previously stated, Tuma testified for the Crown at your trial. Although he was told by the Crown not to drink prior to testifying, he did just that. Tuma is a self-proclaimed alcoholic. He says in his affidavit that he was extremely hung over when he testified at trial. In thinking back to when he gave his evidence, he believed that Brenda was at the motel sometime between 10  P.M. and 1:00 A.M. the night before her murder and that you were not there any time between 9 P.M. and 1:00 A.M. He says he has never been sure that you came by the motel any time prior to the murder.

In his affidavit, Tuma put it bluntly:

I was not asked by the police officer during my first statement if I was drinking the night that I said I saw Brenda. If I was asked whether I was drinking that night I would have told the police officer that I was drinking heavily. I have been an alcoholic since I was a teenager…. I quite my job at the Four Star in 1996 mostly because of my drinking…

In June of 1998 I was flown to Halifax to testify at Glen’s trial. A day or so before I was supposed to testify I remember meeting with the prosecutors and the police to talk about my statement. I had been drinking heavily before this meeting and one of the men in the room, I think it was the prosecutor, said that I cannot have anything to drink before I came to court to testify.

On the day I testified I had been drinking heavily late into the night and into the morning before I left the hotel to go to the courthouse. I was extremely hung over and still suffered the effects of the previous night and early morning’s drinking spree when I arrived at the courthouse and sat in the witness chair in front of the jury… My trial testimony was confused.

Although I tried, I was unable to contact Tuma. However, in 2012 Tuma was charged with drunk driving in Fort MacMurray after he drove his pickup truck into a car near the Boomtown Casino; Tuma had four times the legal limit of blood alcohol content.

Throughout the investigation into Brenda Way’s murder, police and prosecutors were dealing with a marginalized community of drug addicts and alcoholics. Tuma was one of them. Telling Tuma that Assoun was definitely a “cold blooded killer,” then unquestioningly accepting Tuma’s changed story as truth, and then allowing him to testify in court while possibly drunk reflects a shocking indifference to proper process.

That indifference, I would argue, amounts to police and especially prosecutorial misconduct, as the Crown should be concerned foremost not with a successful prosecution, but with justice.

Green, the Justice Department lawyer, outlined many more problems with the testimony that led to Assoun’s conviction, most notably the “evidence” of Robin Hartrick, a crack addict who had “psychic visions” supposedly related to Brenda Way’s murder. (I examined Hartrick’s evidence in detail, here.)

Her story was so ludicrous that the first low-level cops who dealt with Hartrick essentially laughed her out of the interview room. She was only reconsidered when police investigator Dave MacDonald was trying to build a case against Assoun, but even then Hartrick’s subsequent dealings with police included a drug-addled interview where someone forgot to push the “record” button on the video equipment, and just general incomprehensible blather.

Rightly, taking her testimony seriously was its own form of police and prosecutorial misconduct.

Next, Part 2: Misconduct that kept Assoun in prison.

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