Documenting police “malfeasance” in Glen Assoun’s wrongful conviction

Yesterday, Glen Assoun’s lawyer Phil Campbell filed a brief with the Supreme Court in response to a media application to unseal court documents related to his wrongful conviction. The media coalition consists of the Halifax Examiner, the CBC, and the Canadian Press.

Campbell’s brief wants a partial publication ban to be placed on three people who spoke with the Justice Department’s Criminal Conviction Review Group. More on that in a moment. The far more important point, however, is that Campbell is agreeing with much of the media coalition’s application, and in stark terms.

I’ve already reported that Campbell has said this orally, both in court and in an interview with me, but here it is in writing, in a court document:

The Court and certain parties to the application are aware of the background to the observation of the Minister of Justice [David Lametti] in his February 28, 2019 order that there was “relevant and reliable information that was not disclosed to Mr. Glen Assoun during his criminal proceedings.” That finding is, in itself, a matter of legitimate public concern and the continued suppression of the evidentiary foundation cannon be justified under the test in R. v. Mentuck, [2013 3 SCR] 442 at paras. 32-39.

In this regard, we noted that it is common for judicial proceedings to include detailed references to official malfeasance — including the naming of names — which are made available to the public under the open court principle and are explicitly discussed in court documents. The notion that the privacy or reputational interests of officials whose conduct may be exposed or even condemned should be protected ahead of the values embedded in the open court principle cannot be sustained. 

[emphasis added]

The brief submitted yesterday by the Public Prosecution Service argues against the release of some of the information, but in doing so gives more details:

(i) Assertions that others (named) may have committed this locally publicized murder. The information that could readily identify of these individuals is broad.

(ii) Intimations of previously undiscovered/undisclosed collusion and misleading by witnesses

(iii) Assertions concerning police officers’ conduct.

(iv) Allegations of confessions by a named third party to named persons which could place at risk such individuals 

Now we’re beginning to learn more. The story that is emerging involves multiple murderers, colluding witnesses against Assoun, and police malfeasance. Let’s take those in turn.

Multiple murderers

It appears that more than one person killed Brenda Way; this has never been stated in a court document before. I referenced two possible scenarios that involved multiple people in the murder in Part 3 of my Dead Wrong series, “If Glen Assoun Didn’t Kill Brenda Way, Who Did?” The first scenario involves other sex workers:

The court record reveals that in the days before she was murdered, Brenda had been threatened by two other woman working the Hollis Street stroll. It’s not clear what prompted the threats, but Brenda took them so seriously that she stayed on the Dartmouth side of the harbour.

One of those women was seen near Victoria and Albro Lake Roads the night of the murder. I think it’s likely that this is the woman who, a few weeks after the murder, Glen took a knife from and gave to police.

The woman still lives in Dartmouth, and judging by her Facebook page, she appears to be happily married and has children. I’ve been unable to speak with her.

The second scenario involves two men who were seen at the crime scene behind 109 Albro Lake Road the morning of the murder:

The day of the murder, Stephen Angle was delivering newspapers in the North End. As he made his way up Victoria Road, he saw Brenda, and then he saw two men in a gold-coloured car following Brenda.

Angle says he went into 109 Albro Lake Road at about 5:30am to deliver papers. While on the upper floors of the building he heard a man banging on the security door at the front of the building: “Let me in!” Angle ignored the man and kept delivering papers; by the time he was done with his deliveries in that building, the man was no longer at the front door.

Angle delivered papers to two more buildings on the street, and then went out to his own car, parked on the street near 109 Albro Lake Road. As he was getting in his car, he saw the gold car, with two men in it, driving quickly out the driveway from behind 109 Albro Lake — that is, from the area where Brenda’s body was discovered at 7:30am.

Recall that the police who charged Glen and the prosecutors who convicted him believed Robin’s [Hartrick] story that she ran into Glen at 4:15am in front of 109 Albro Lake Road, and that Glen told her Brenda was dead…

In my view, Robin was an unreliable witness, but police and prosecutors had their theory and they ran with it.

…

But Angle strikes me as credible. He was and is a decent family man, the kind of guy who holds down two or three jobs at a time to provide for his family, and who volunteers his time with his kids’ sports leagues. He didn’t use drugs, and had no connection to the neighbourhood beyond delivering newspapers. He knew Brenda and Glen in passing, but was not involved in their lives.

Angle brings remarkable information to the story: He saw Brenda, very much alive, as much as an hour and more after Glen supposedly told Robin that Brenda was dead. Moreover, Angle saw that Brenda was being followed by two men in a car as she walked up Albro Lake Road, one of those men was trying to get into 109 Albro Lake Road, and the two men fled from behind the building — the scene of the murder — in their car.

Angle’s story completely contradicts Robin’s story.

The day of the murder, Angle finished his newspaper deliveries, went to his Eastern Passage home, ate breakfast, and went to his day job. When he got home in the evening, he turned on the television news and learned that Brenda had been murdered. He called the police, and the next day he drove to the police department and was interviewed by Constable Chris Friis.

So far as can be determined, police did nothing with Angle’s information. They had no follow-up interviews, didn’t take a written statement from him, didn’t conduct a KGB interview, and didn’t ask Angle to view a photo lineup of possible suspects. His evidence seems to have been ignored or forgotten.

Ten years later, in 2005, private investigator Fred Fitzsimmons found a reference to Angle in police notes, called him, and asked him to recount the story. Angle willingly joined Fitzsimmons for a tour of the area around the murder scene, and explained what he had seen the morning Brenda was killed.

I interviewed Angle in 2016 at the crime scene:

Colluding witnesses

It comes as no surprise to me that witnesses in Assoun’s murder trial were colluding; as I’ve said before, he appears to have been framed after-the-fact for the murder by people who very much disliked him. That is a theme in Part 2 of the Dead Wrong series, “Trial and Error.” There were many problematic issues with evidence in the trial, but by my reckoning the most absurd involved a knife. I wrote:

Jane Downey testified on August 31 and September 1. Downey explained how in the summer of 1996 she had attended a baby shower on Tulip Street, where she met a woman who claimed to be a psychic. Downey, who was disturbed that no progress had been made in the investigation into her sister’s murder, asked the psychic for help. Over the next few days the two women met in Downey’s Pinecrest Drive apartment, and the psychic had a revelation: Brenda had been killed with a knife with the tip broken off from it.

A few months later, on September 9, 1996, Downey said she just happened to be walking through the murder scene, along the shortcut between 109 Albro Lake Road and 252 Victoria Road, when she discovered a knife with a broken tip.

“It was in the path not too far from her body,” said Downey. “There was two trees there. I was walking through there one day with my son and I had stepped there and just happened to walk through. Something felt weird, so I moved the grass and I seen the brown handle. And I picked it up and I looked at it and I seen some — it looked like a rusty coloured stain on it. So what I’m thinking is this is the weapon that did do something to my sister.

“The next thing I did was walk into my father’s, picked up the phone and called the police, which was the day I first met Dave MacDonald. He came and retrieved the knife that I found.”

Downey was shown a picture of the crime scene on the day of the murder — the picture showed the scene cordoned off with police tape — and she was asked to mark where 10 months later she found the knife. Downey marked a spot between two trees, just past the area cordoned off by the tape.

Glen was understandably incredulous. From the court transcript:

GLEN: Don’t you find that a little coincidental? You talk to a psychic, she tells you this and then all of a sudden you find a knife?

DOWNEY: Not exactly.

GLEN: You don’t find that coincidental?

DOWNEY: No.

GLEN: Were you aware that the day that they found your sister’s body, the 12th of November 1995, the RCMP had a tracking dog in there and searched the area and they found nothing?

DOWNEY: No.

GLEN: Were you aware that the police did several searches of the area on foot and found nothing?

DOWNEY: They do that in most investigations.

GLEN: But I’m asking you were you aware of that?

DOWNEY: I have not seen it with my own eyes, if you want to know. No.

GLEN: In fact there were several searches of the area by several policemen, also a tracking dog…

[JUSTICE SUZANNE] HOOD: Mr. Assoun. That’s not in evidence.

GLEN: Pardon me?

HOOD: That’s not in evidence. You’re —

GLEN: It’s in the police report, Your Honour.

HOOD: But that’s not in evidence…

GLEN: Well, I think it’s very important, Your Honour.

HOOD: Well, then somebody should put — then you should — you might want to consider somehow getting into evidence. But you can’t get it into evidence by asking this question.

GLEN: How can I get it into evidence, Your Honour?

HOOD: We can discuss that in the absence of the jury.

But the court transcript doesn’t record such a discussion happening, and Glen never introduced the police reports about their search of the murder scene into evidence.

One thing was entered as evidence, however: the knife without a tip that Jane Downey says she found at the murder scene.

Besides supposedly being predicted by a psychic and then being found at the crime scene, there was nothing linking the knife to Brenda’s murder — there were no fingerprints on the knife, no blood, no DNA evidence. Still, it was allowed as evidence against Glen.

The knife came up previously during testimony from another witness, Tina Cameron:

The first crown witness after the trial resumed on August 23 was Tina Cameron, who testified that she was at Cathy Valade’s house a few weeks after Brenda’s murder when Glen, who she had only met once before, arrived.

“He said, ‘I did it,’” testified Cameron. “And she [Cathy] said, ‘Who, Brenda?’ And he said ‘Yes’…I heard him [Glen] say that he got her [Brenda] from ear to ear and that the tip of his blade was broke off.”

Cameron said she overheard Glen confessing to killing Brenda soon after the murder, in November of 1995. But Cameron didn’t report the conversation to the police until 16 months later.

As Cameron explained it, in March 1997 she just happened to be accompanying her friend Carla Jenkinson to the police station, but she didn’t know why Jenkinson was going to the police station. “[Jenkinson] said she had to go to the police station,” testified Cameron. “So I went with her. She wanted me to go with her. And then when we got there, she started to go talking about something that Wayne was involved in — something that Wayne was involved in. And she mentioned Brenda Way. I know about Brenda.”

Cameron then and there decided to tell police investigator Dave MacDonald about overhearing the conversation 16 months earlier, the conversation in which Glen said he had killed Brenda.

Let’s consider: Jane, Brenda’s sister, who with good reason disliked Glen, talks to a psychic who tells Jane that Brenda was killed with a knife, and then some months after the murder just happens to be walking through the crime scene and finds a knife somehow missed by police investigators, a knife with the tip missing, and then, 16 months after the murder another woman in the circle of witnesses tells police that she overheard Glen confessing to killing Brenda with a knife — specifically with a knife with the tip missing, an odd comment to make while supposedly confessing.

This knife evidence is simply not credible. If they had cared about actual justice, the crown prosecutors should have never presented it; the judge should have disallowed it; the jury should have laughed it out of court. It has all the makings of a kangaroo court, a malicious and indeed framed prosecution.

I attempted to view the knife so I could photograph it and show it to readers, but the police department refused to make the evidence presented at trial available, citing the publication ban which the media coalition is now attempting to overturn.

As I say, the knife isn’t even the only example; there are still more pieces to what appear to be collusion among witnesses.

Police malfeasance

Campbell told me that this official malfeasance involves evidence the Halifax police department withheld from Assoun’s then-lawyer Jerome Kennedy during an appeal of Assoun’s murder conviction. That evidence seems to have implicated other people in the murder of Brenda Way. And the brief filed by Campbell yesterday reiterates those statements.

I’ve said this before, but it bears repeating: the police knew that someone else (or elses) killed Brenda Way, and that Glen Assoun did not kill Brenda Way, and yet they let Assoun rot in prison for the crime. Malfeasance indeed.

Yesterday, the city submitted to the court an affidavit sworn to by Detective Constable Justin Sheppard. It reads in part:

Brenda Way’s murder is now an unsolved homicide file, HRP General Occurrence number (GO#) 99-14409.

It is HRP’s official file retention policy that homicide files remain open for 99 years, unless solved.

While as of today’s date no homicide detective is actively investigating the Way homicide; HRP is prepared to investigate any new information which might come to light, in which case one or several detectives would be assigned to the file.

It is not unusual for an inactive file to be reactivated and further investigated on the receipt of new evidence.

It’s an open murder investigation, don’t you know?

This is outrageous.

Police malfeasance and misconduct led to the wrongful conviction of Glen Assoun for murder, and Assoun therefore spent 16-plus years in prison and another four-and-a-half years on strict parole conditions, and now the police are saying the details of their department’s malfeasance and misconduct cannot be made public until 2098 because there is an open murder investigation.

Where we go from here

The positions of the various parties are as follows, as best I understand them:

Media coalition: The publication ban should be entirely lifted. The public has every right to know how Glen Assoun was wrongfully convicted, and indeed, making that information public is an imperative of the open court principle. It is necessary for the information to be public so the public can have better confidence in the court and in the justice system’s ability to correct police misconduct.

Assoun’s lawyers: Nearly all the information should be made public, with the exception of the identity of three people involved in the criminal justice system who fingered the actual murderers. Their names should be kept secret in order to protect their safety. However, the details of the police malfeasance should definitely be made public.

Public Prosecution Service: We take no position on the bulk of the court documents, but there should be no publication ban on the identity of the three people who Assoun’s lawyers want protected.

Halifax police: There’s an open murder investigation so all the information should remained sealed.

The media coalition is speaking today with our lawyer, David Coles, and will decide how to proceed. All this will be vetted by Justice James Chipman at a hearing on July 2. We are expecting to prevail; it is our expectation that much, if not all, of the information will be released at that time.

Obviously, this story is top of mind for me, and it is my intention to devote the first week of July to doing nothing else but telling readers the entire story of Assoun’s wrongful conviction.

This legal battle is costing us plenty. Readers have very generously contributed to the Halifax Examiner’s legal fund, and I’d now be panicking were it not for your financial help. Still, those contributions have covered about two-thirds of our costs so far, and we haven’t even gotten to the most expensive part, the July hearing. So, if you have a little coin to spare, we’d much appreciate your contribution to the legal fund. To contribute, please contact Iris. Thanks so much.

Government

City

Tuesday

Cornwallis Commemoration Task force – Public Engagement Session (Tuesday, 6pm, in the theatre named after a bank, Saint Mary’s University) — info here.

Halifax and West Community Council (Tuesday, 6pm, City Hall) — here’s the agenda.

Wednesday

Public Information Meeting – Case 21946 (Wednesday, 7pm, Lebrun Recreation Centre, Bedford) — WSP Canada Inc. wants to build a five-storey, 73-unit apartment building at the corner of the Bedford Highway and Southgate Drive.

Province

Tuesday

No public meetings.

Wednesday

Public Accounts (Wednesday, 9am, Province House) — Auditor General Michael Pickup will appear.

House of Assembly Management Commission (Wednesday, 11am, One Government Place) — the commission doesn’t meet that often; it sets finances for the operation of the legislature, including MLA salaries and the like.

On campus

Dalhousie

Tuesday

Thesis Defence, Pharmacology (Tuesday, 9:30am, Room 3107, Mona Campbell Building) — PhD candidate Qianni Hu will defend “Extracellular Mitochondria Released from Liver Ischemia Reperfusion Injury Act as Alarmins to Evoke Innate Immune System and Trigger Inflammation​.”

Unmanned Aerial Vehicles for Precision Agriculture (Tuesday, 11:30am, in the auditorium named after a bank, Goldberg Computer Science Building) — Jefferson Souza from the Federal University of Uberlandia, Brazil, and director of the Artificial Intelligence & Robotics – AiRLAB, will talk. Someone tell him to come up with non-gendered description of what is, after all, an entirely mechanical vehicle.

Webinar: Canadian Partnership for Tomorrow Project (CPTP) ‑ Canada’s Living Population Laboratory (Tuesday, 12pm) — register here.

Wednesday

Modeling Term Associations for Searching and Analyzing Large‑Scale Text Data (Wednesday, 10am, Room 430, Goldberg Computer Science Building) — Jimmy Huang from York University will talk. His abstract:

Traditionally, in many probabilistic retrieval models, query terms are assumed to be independent. Although such models can achieve reasonably good performance, associations can exist among terms from human being’s point of view. There are some recent studies that investigate how to model term associations/dependencies by proximity measures. However, the modeling of term associations theoretically under the probabilistic retrieval framework is still largely unexplored. In this talk, I will introduce a new concept named Cross Term, to model term proximity, with the aim of boosting retrieval performance. With Cross Terms, the association of multiple query terms can be modeled in the same way as a simple unigram term. In particular, an occurrence of a query term is assumed to have an impact on its neighboring text. The degree of the query term impact gradually weakens with increasing distance from the place of occurrence. We use shape functions to characterize such impacts. Based on this assumption, we first propose a bigram CRoss TErm Retrieval (CRTER2) model as the basis model, and then recursively propose a generalized n-gram CRoss TErm Retrieval (CRTERn) model for n query terms where n > 2. Specifically, a bigram Cross Term occurs when the corresponding query terms appear close to each other, and its impact can be modeled by the intersection of the respective shape functions of the query terms. For n-gram Cross Term, we develop several distance metrics with different properties and employ them in the proposed models for ranking. We also show how to extend the language model using the newly proposed cross terms. Extensive experiments on a number of TREC collections demonstrate the effectiveness of our proposed models.

A novel model of increased mitochondrial cholesterol (Wednesday, 4pm, Theatre B, Tupper Medical Building) — Luke Hattie will talk.

In the harbour

The only scheduled ship activity today involves the Oceanex Sanderling, the workhorse that shuttles back and forth between Halifax and St. John’s. Today, the ship arrives at Pier 41 from St. John’s at 6am, moves to Autoport at 11:30am, and then departs at 6pm back for St. John’s.

Footnotes

Another busy day.

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Legal fund

To contribute to the Halifax Examiner’s legal fund, please contact Iris.