HALIFAX - Lawyers for the federal Justice Department and a Nova Scotia man whose murder conviction may have been the result of a miscarriage of justice say a preliminary assessment of the case should not be made public because it is protected under privacy law and could create a "chilling effect" on an ongoing review.
The lawyers argued Tuesday against the release of the preliminary assessment of the second-degree murder conviction of Glen Eugene Assoun, who was sentenced to life in prison in 1999 for stabbing his former girlfriend. He has maintained his innocence.
The Justice Department has said the recently completed assessment shows there may have been a miscarriage of justice in the case and a more in-depth investigation has been launched.
Philip Campbell, Assoun's lawyer, said in Nova Scotia Supreme Court that the material is protected under federal privacy law and it could create a "chilling effect" on the review if it were released.
Campbell said he plans to use the assessment in a bail hearing for Assoun next month, but that is based on the understanding that its contents would be covered by a publication ban.
He said the information in the assessment is "highly confidential, highly personal and highly sensitive ... to the ongoing work of the investigation."
"It doesn't lend itself to selective publication."
Media lawyer Alan Parish, representing the CBC, argued in court that the application for a publication ban and sealing of the document goes too far.
Parish said it's possible an edited version of the preliminary assessment could be made public and he asked Judge James Chipman to go through the document and rule on what portions can be released.
Parish also said he didn't hear any evidence that the release of the information would violate privacy or could taint a future jury.
"There's no evidence here anybody here was promised confidentiality," he said. "Nothing."
Parish asked for a separate hearing that would allow him to review the report and make arguments on what portions could be public. But Chipman ruled against that motion, saying that Parish would have to rely on general statements filed in an affidavit about the contents of the document.
Patricia MacPhee, a lawyer for the federal Justice Department, said if the assessment became public it would have a "chilling effect on the process" and cause the federal government not to provide preliminary assessments in the future to lawyers representing people who are wrongfully convicted.
"There is a lot of information provided by witnesses that is kept confidential in order to protect the integrity of the next stage, which will be more in-depth," she said.
Marian Fortune-Stone, a lawyer for the Nova Scotia Crown, said in court she supports the motion to keep the investigation confidential. She said third parties such as the police who spoke to the Crown did so on the understanding it was for use in a preliminary investigation.
Fortune-Stone also said the information sent to the federal investigator was never intended to be used during a bail hearing for Assoun.
"This preliminary assessment was not bail-oriented," she said. "It was created for the purpose of a ministerial review.
She also argued that discussion of the assessment during the bail hearing should be in camera to prevent the media from following up with various witnesses to do interviews and probe further into the case.
Parish objected to that idea, saying in camera hearings are a "nuclear bomb" approach to preserving privacy.
Chipman said he expects to provide a ruling later this month or early next month.
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