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| Vanessa Lisa Kiraly |
Assoun has recently entered into an agreement for compensation with the government of Nova Scotia and the federal government of Canada. Systemic factors contributing to wrongful convictions and their relevance to Assoun’s case shall be discussed. This article was informed by Innocence Canada’s report to the Criminal Conviction Review Group (CCRG).
Decisions
On Sept. 17, 1999, Assoun was convicted of second-degree murder. According to s. 235(1) of the Criminal Code, everyone who commits second-degree murder is sentenced to imprisonment for life. The victim, Brenda Way, was Assoun’s estranged common law spouse and a prostitute who engaged in said occupation to support her drug addiction. Her body was found behind a Halifax apartment building around 7:30 a.m. on Sunday, Nov. 12, 1995.
Assoun acted as a self-represented litigant at his trial, which ran for 36 days. Since no one witnessed Way’s murder, the main issue to be determined was the identity of the killer. The Crown argued that the “volatile relationship between Mr. Assoun and Ms. Way had been deteriorating for several months” and that he was “motivated primarily by anger and jealousy … concerning her relationships with other men.” Four Crown witnesses testified against him. Assoun was found guilty despite having a witness testify that he was with said witness throughout the night.
In R. v. Assoun [1999], N.S.J. No. 479, Justice Suzanne Hood of the Supreme Court of Nova Scotia determined the length of Assoun’s parole ineligibility to be 18 and one-half years.
The court considered whether the preliminary testimony and videotaped (KGB) statement of a key witness, Margaret Elizabeth Hartrick could be entered into evidence at trial. Hartrick provided a written statement to the police on Nov. 14, 1996, had her KGB statement filmed in January 1998 and testified at the preliminary hearing on Aug. 18, 1998. Hartrick stated that she saw Assoun on Albro Lake Road at 4:15 a.m. on the day of the murder and that Assoun told her that Way was dead.
Hartrick died on Sept. 18, 1998, before Assoun’s trial. She was “prone to relating her ‘psychic visions’ as evidence to the police” and was known to provide inconsistent statements. On June 1, 1999, prior to Assoun’s trial, the court concluded that Hartrick’s evidence passed the test of the principled exception to hearsay rule. Thus, the court admitted her evidence. The exception to hearsay rule, according to R. v. Smith [1992] 2 S.C.R. 915, allows the admission of hearsay “on a principled basis, the governing principles being the [threshold] reliability of the evidence and its necessity.” Justice Hood concluded that the criteria of necessity were satisfied not only because she has passed away, but because her evidence was crucial to the case. Police Const. Randy MacDonald of the Halifax Regional Police testified that only Hartrick could provide evidence about the whereabouts of Assoun at the time of Way’s murder, that Assoun refers to himself as a suspect, and that Assoun was avidly searching for Way.
The preliminary hearing evidence and the KGB statement also met the requirements of threshold reliability set out in the exception to hearsay rule because several safeguards of reliability were present. Although Hartrick could not attend the trial, her statement was taken under oath and was videotaped. This allowed the jury to assess reliability as if she was present in the courtroom.
In 2004, Jerome Kennedy was appointed as Assoun’s counsel and represented Assoun for the appeal of his conviction and sentence. On Jan. 17, 2006, the Nova Scotia Court of Appeal heard Assoun’s case. According to Innocence Canada, Kennedy had requested Crown disclosure of the criminal profiling information related to Way’s murder.
The criminal profiling was conducted by RCMP Violent Crime Linkage Analysis System (viCLAS) Unit criminal profiling specialist Const. David Moore. Kennedy also questioned the Crown about viCLAS’s work relating to Michael McGray, a suspect who was recently discovered to be a serial killer based in Nova Scotia.
Kennedy’s requests for disclosure were returned with “incomplete and misleading answers.” At the appeal, Assoun requested that fresh evidence relating to potential suspects, including McGray, be considered. In R v. Wolkins 2005 NSCA 2, the court stated that “an appeal court may … accept fresh evidence in support of a ground of appeal that the accused was denied a fair trial.” Assoun alleged that if the trial judge advised him properly as a self-represented litigant, the evidence of these third-party suspects would have been provided to the jury.
The court stated that Assoun’s evidence was not a basis to demonstrate that the trial was unfair because the trial judge “was not privy to the Crown’s pre-trial disclosures to Assoun and his counsel” concerning these suspects, and the trial judge provided proper assistance respecting the rules of evidence on third-party suspects. Thus, if Assoun sought to tender fresh evidence related to the issues decided at trial, his only recourse would be to challenge the trial result. To do so, he must satisfy the criteria set out in the Palmer test: R. v. Palmer, [1980] 1 S.C.R. 759.
Assoun’s argument to tender fresh evidence did not satisfy the Palmer criteria. According to R v. McMillan (1975), 7 OR (2d) 750 and R v. Grandinetti [2005] 1 S.C.R. 27, demonstrating third-party involvement requires a “sufficient connection between the third party and the crime … without this link, the third-party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.”
The first reason why the court rejected the fresh evidence provided by Assoun is because of its inadmissible form; without a statement or confession from a suspect, their evidence would be considered “multi-tiered hearsay.” The mere opinions of a private investigator hired by Kennedy were also inadmissible. Concerning the third factor, the credibility of the evidence could not be tested because cross-examination of the private investigator cannot be used to determine the credibility of the sources in his affidavit. Finally, the tendered fresh evidence could not have affected the result of the trial because the connections between the four suspects and Way’s murder were even weaker than the connections in Grandinetti.
Although these suspects were located in the same neighbourhood, the evidence would still be inadmissible and thus could not affect the result under the fourth Palmer factor. For these reasons, Assoun’s application to tender fresh evidence was rejected. His appeal was dismissed on April 20, 2006.
Despite exhausting his appeal options, Assoun never gave up on his innocence. On April 14, 2013, Innocence Canada submitted a memorandum and application record to the minister of justice, which detailed Innocence Canada’s re-examination of the evidence and key witnesses. According to Innocence Canada, two individuals who knew McGray in prison revealed that McGray confessed to killing Way. The findings of their investigation were provided to lawyer Mark Green of the minister’s Canada’s Criminal Conviction Review Group, who uncovered new information unknown to the Crown and Assoun’s counsel. In September 2014, the CCRG completed its preliminary assessment, concluding that “there may be a reasonable basis to conclude that a miscarriage of justice likely occurred in [Assoun’s] case,” hence it became the basis for a full CCRG investigation.
On Oct. 23, 2014, the Nova Scotia Supreme Court granted Assoun’s bail, albeit with strict conditions. Five years later, Assoun was finally freed. The federal minister of justice quashed Assoun’s conviction and ordered a new trial pursuant to s. 696.3(3) of the Code. On March 1, 2019, just over 21 years after his conviction, Assoun was exonerated at the same Halifax courthouse where he’d been found guilty.
This article is an adaptation of “The Causes of Wrongful Conviction and the Challenges Involved in Convincing Courts to Reopen Cases of Wrongful Conviction,” originally published in (2021) 2:2 Wrongful Conviction Law Review 155.
This is the first installment of a three-part series.
Since designing her first collection at the age of 16, Vanessa Lisa Kiraly has worked as a designer, fashion event co-ordinator, creative director, photograph retoucher and photographer. She graduated from U of T with an honours bachelor of science degree and is a law student at the Lincoln Alexander School of Law at Ryerson University. She is the recipient of the Gardiner Roberts LLP scholarship for female law students with a business focus. Learn more at her LinkedIn profile.
Photo credit / rodnikovay ISTOCKPHOTO.COM
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