With very limited exceptions (national security, for instance), we do not have secret court evidence in Canada. We have the exact opposite: an Open Court Principle.

I wrote about the Open Court Principle after the Halifax Examiner, the CBC, and the Canadian Press prevailed in our effort to get court documents unsealed in the Glen Assoun wrongful conviction case:

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.

What the Open Court Principle means in practical terms is that anyone, not just reporters, can go to the courthouse and see the evidence that is presented at trial.

The Nova Scotia courts have been extremely good about fulfilling their obligations under the Open Court Principle, providing time and space for reporters to view trial evidence during the course of a trial, and even afterwards.

For instance, a few months ago I asked the courts’ communications officer, Jennifer Stairs, if I could see the evidence presented in the Randy Riley murder case. She helpfully arranged a time with me, and then escorted me to a boardroom at the courthouse where all the evidence was laid out on a table. I went through all the books of photos, and took my own pictures of the photos so I can refer back to them. I looked at police officers’ notebooks. I held the murder weapon. No problem at all.

As I say: we do not have secret evidence in Canada. We don’t convict people on secret evidence.

Well, unless your name is Glen Assoun.

In his case, the evidence that was used to wrongfully convict him is being held by the Halifax police department, which refuses to allow anyone access to it.

Let me back up and recount the long and absurdly strange journey I’ve taken to access what should be readily available public records.

Glen Assoun was convicted of the second degree murder of Brenda Way in 1999. At that time, any reporter who wanted to could have a look at the evidence presented in court. I don’t know if any reporter actually looked at it, but they could have.

I’m told that after Assoun was convicted, the evidence that was presented in open court was packaged up and sent for storage at the police department. Twenty years later, it’s still there.

I became interested in the Assoun case in November 2014, when Assoun was granted an extraordinary court-ordered parole. I soon realized that in order to tell the complete story, I needed to see and hear the evidence presented in court to convict Assoun, and so a few months later, in 2015, I asked the court to see the 1999 evidence. I was directed to the police department.

Then-deputy chief Bill Moore responded to my request, denying it. You can read his letter to me here. The gist of the argument that Moore laid out in the letter was that Assoun’s conviction was under review by the federal Department of Justice, and the Halifax Police Department had been ordered in 2014 not to discuss the case until the review was complete. Wrote Moore:

At Glen Assoun’s bail hearing [in 2014] the Preliminary Assessment [of Assoun’s case by the Justice Department] and its appendices were subject to a publication ban and sealing order. That publication ban and sealing order would apply to any of the exhibits included in the Preliminary Assessment and its appendices. …. The exhibits [i.e., the evidence] are protected under the Ministerial Review process and release of said documents would be a breach of that process, our undertaking and a court order, not to mention, release of the requested documents could very likely result in detriment to the Ministerial Review process.

This is nonsensical, and I said so at the time. The second paragraph cited above contradicts the first. The 2014 sealing order applied to the 2014 Preliminary Assessment — that is, to the investigation into the wrongful conviction, not the wrongful conviction itself. The 1999 evidence was not sealed by the 2014 sealing order.

But my lawyer told me he that while he could contest Moore’s denial of my request to view the 1999 court evidence, the police would probably appeal any ruling, and it would cost us a lot of money and a lot of time to get to a final ruling in our favour. Probably, the investigation into the wrongful conviction would take less time, so I decided to wait it out.

Actually, however, it took over four years before federal Justice Minister David Lametti ordered a new trial for Assoun, which led to Assoun’s complete exoneration on March 2, 2019.

At that point, the 2014 sealing order expired.

Well, it had, but we had to spend about $40,000 to force the documents ordered sealed by the sealing order to be unsealed. On July 2, Justice James Chipman ruled in our favour, and ordered that the documents covered by the 2014 sealing order be immediately released. That morning, we received all the documents sealed — that is, the 2014 Preliminary Assessment and all its attachments. I’ve been reporting on those documents ever since; among other things, the documents that were unsealed show how the RCMP destroyed evidence that may have exonerated Assoun in 2004.

Note what Justice Chipman’s July 2 ruling did not address: the 1999 trial evidence. That’s because the 1999 trial evidence was never sealed in the first place.

But let’s follow the police “logic,” such as it is. In 2015, Deputy Chief Bill Moore told me the 1999 trial evidence was sealed by the 2014 sealing order. Necessarily, then, Justice Chipman’s July 2 ruling reversing the 2014 sealing order would unseal that 1999 evidence, no?

No.

After Justice Chipman’s July 2 ruling, I again asked for the 1999 trial evidence. After a bit of back and forth, I was told to file a Freedom of Information request for it.

I actually filed three Freedom of Information requests. Two related to other aspects of the Assoun case I won’t go into here. The third was for the 1999 trial evidence.

In response, city lawyer Duncan Read sent my lawyer an email. It reads:

From: “Read, Duncan”

Date: August 22, 2019 at 3:24:44 PM ADT

To: “David Coles, Q.C.”

Subject: BULK – RE: Assoun, FOIPOP Good afternoon Mr. Coles, Per our recent phone call; HRP has received your client’s FOIPOP application for: 1. All exhibits and evidence in the 1999 trial of Glen Assoun,

2. [unrelated material]

3. [unrelated material] Points number two and three above are being addressed by the team that normally handles such requests, and their response will follow in due course. But they have asked for my assistance with the first point. It is not disputed that your client is entitled to all exhibits and evidence from the original trial. However, much of it is already on the public record as a result of the application which was heard (and, I trust, has already been provided to your client by the Registrar). Additionally, much of the remaining evidence is physical – for example, tissue samples and swabs. For the sake of speeding the processing of the request; does your client have a list of exhibits / evidence still outstanding, of which they require copies; and/or direction as to the manner of access required (if any) in re: physical exhibits? In the hope that it is of use to you, I attach a list of the exhibits and evidence returned into the custody of the HRP after the trial. I look forward to hearing from you at your convenience. Best, DUNCAN READ

SOLICITOR

LEGAL SERVICES HΛLIFΛX [emphasis added]

I was happy to receive this email; it was completely reasonable. Read said straight out: “It is not disputed that your client is entitled to all exhibits and evidence from the original trial,” but asked me to compile a list of what I wanted most. This made sense. I had no interest in looking at bunch of vials of blood or hair samples; I was mostly interested in audio and video recordings (and, if you’ve been following this story closely, that knife).

So, I dutifully compiled a list of the evidence I wanted, and offered to pay for the conversion of old VHS video tapes and cassette audio recordings to digital formats.

After 30 days, I got the now-expected perfunctory letter saying the police department would take another 30 days to respond to the request. I made a courtesy call to the police department’s Freedom of Information officer, Patty McKelvey, again offering to pay for the digital conversion.

Thursday, however, I received a letter from Halifax police Superintendent Colleen M. Kelly telling me that my Freedom of Information request for the 1999 trial evidence is denied. You can read that letter here.

I don’t know how we got from city lawyer Duncan Read telling my lawyer on August 22 that “It is not disputed that your client is entitled to all exhibits and evidence from the original trial” to Superintendent Kelly disputing exactly that on October 11. But I can speculate that in those seven weeks people in positions of power became freaked out by where my reporting was going, and want to shut it down.

If required, I could unpack and refute in detail Superintendent Kelly’s justifications for denying the request, but the basic response is this: court evidence is always public; moreover, this particular evidence in the Assoun case would have been public in 1999, and given the extraordinary circumstances of a wrongful conviction, it’s even more important that the evidence be public now. There’s no legal justification for sealing it after-the-fact.

I’m now weighing my options. I can ask the Freedom of Information office for a review of the denial, but that could take two or three years, and even then the police could simply reject the review’s conclusion and I’d have to go to court to get it enforced. My inclination is to go straight to Justice Chipman right now and ask for a court order requiring the police department to give me the damn evidence already. But of course that will take time and money.

After spending a hell of a lot of money on getting the Preliminary Assessment documents unsealed, I don’t know if the Halifax Examiner can afford yet another court battle to establish the obvious.

At the very least, however, I want the public to know that the Halifax police department is going to great lengths to prevent you from knowing how Glen Assoun was wrongfully convicted.