HALIFAX — The RCMP chose not to disclose an investigator’s theories about other suspects to a wrongfully convicted Halifax man fighting to prove he was innocent of murder, federal documents revealed on Friday.
Not only that, but the Mounties digitally erased or destroyed most of this potential evidence — including the possibility a serial killer, Michael McGray, was a suspect, says the report.
The August 2014 federal report, released Friday by Nova Scotia Supreme Court, was a key to the release on bail of 63-year-old Glen Assoun almost five years ago.
By then, Assoun had spent almost 17 years in prison for his 1999 conviction in the killing of Brenda Way — whose throat was sliced on Nov. 12, 1995, in a Halifax back alley.
“There is a host of new information suggesting links between Michael McGray as well as other suspects, and the murder of Brenda Way,” Justice Department lawyer Mark Green wrote in the preliminary assessment.
He pointed to an analysis done in 2003 by former RCMP Const. Dave Moore using a police database system, referred to as ViCLAS, that led the analyst to believe McGray — who has been convicted of seven murders — was a suspect in the Way murder.
Asked for info in appeal
Green noted that Assoun’s lawyer in his unsuccessful 2006 appeal — Jerome Kennedy — had specifically asked for the Crown to disclose this type of information, but never received it.
It’s been 21 years, and it’s destroyed my life. The time gone is time I’ll never get back.Glen Assoun
Moore’s analysis also raised the prospect that a violent sexual offender, Avery Greenough, may have picked up Way in his vehicle on the night of the murder.
“Const. Moore certainly considered both McGray and Greenough as strong suspects in the Brenda Way murder,” wrote Green in his conclusion.
Outside court on Friday, Assoun said the revelations are startling.
“It’s been 21 years, and it’s destroyed my life. The time gone is time I’ll never get back ... It affected me and my kids, and I can’t get back the time they took from me for something I didn’t do.”
An RCMP news release says the force did an internal investigation and concluded the files were deleted for “quality control purposes,” but the actions were “contrary to policy and shouldn’t have happened.” It says it was done without malicious intent.
Superiors should be ‘ashamed’: Moore
However, in an email on Friday, the now-retired Moore, who no longer lives in the province, says the actions of his superiors should be further examined.
“Those individuals in a position of power to do something failed miserably and should be ashamed of themselves and held accountable. They knew right from wrong.”
Green’s report was released in its entirety Friday after a provincial supreme court judge ruled in favour of a case launched by The Canadian Press, CBC and The Halifax Examiner.
Earlier this year, Justice Minister David Lametti declared there was reasonable basis to believe a miscarriage of justice had occurred and that “reliable and relevant information” was never provided to the defence.
Justice James Chipman declared Assoun innocent on March 1 after the Nova Scotia Crown dropped its case.
Assoun’s lawyers Phil Campbell and Sean MacDonald say with the release of the hundreds of page of documents, the public is finally learning the full reasons behind “a tragic loss to the administration of justice.”
“Glen’s lawyer and the Nova Scotia Court of Appeal were deliberately denied highly probative information, from an objective expert analyst,” said Campbell in an email.
“If the Court of Appeal had known in 2006 about the profiling of Michael McGray ... it would never have upheld Glen’s conviction and life sentence.”
Assoun remained in custody for eight more years following the denial of his appeal.
The preliminary assessment says the RCMP superiors told Moore to stop working on the file, and two of his direct superiors told him to “stop wasting his time.”
He then brought his findings to the attention of Insp. Leo O’Brien, the head of the ViCLAS unit. Other documents in the file indicate O’Brien was aware of the request for disclosure by Assoun’s lawyer for the appeal case.
Officer’s job evaluation scores dropped after opposition
The senior officer told Moore it was the Mounties’ policy not to disclose information from the analytical system to defence counsel “since all of the information that the analysis was based on was otherwise available from other sources.”
Green wrote that Moore objected. He was later taken off the ViCLAS unit.
His job evaluations went from very positive in 2003, the year of his work on the file, to negative the following year.
In his response to his job evaluation, Moore wrote there was “no consideration given to the information or the fact that there was a possibility an innocent man was in prison.”
He continued that while he recognized there was “sensitivity” from the Halifax police — who were leading the investigation — “there was a legal responsibility to bring this information forward.”
Green says in his report that McGray told the RCMP, “I had nothing to do with it,” in an interview during the review of Assoun’s conviction.
Mr. Assoun is unable to work, his health is poor, he lives in near-penury, and the blame lies squarely with those who are responsible for the failings of the police and Crown from 1995 until today.Phil Campbell, lawyer
In his conclusions, Green says there are strong arguments that some of the evidence used for the conviction was now “discredited,” or “at the very least, called into question.”
He notes that in the initial year after Way’s murder, police had accepted Assoun’s alibi that he had stayed overnight with his friend, Isabel Morse, which was corroborated by her two housemates.
No physical evidence, at the time or since the 36-day trial in 1999, has tied Assoun to Way’s murder, though he had faced a prior charge of assaulting her.
One of the two key witnesses, 18-year-old Melissa Gazzard, told the jury she was attacked in an industrial park by a man who admitted he had killed Way.
She identified Assoun to police as her assailant in April 1998, after watching a television report of him being brought back from British Columbia to face charges.
Green says in his conclusion that “Gazzard has now identified McGray as her likely attacker,” rather than Assoun.
The report summarized fresh statements given in 2010 and 2011, where Gazzard says police were pressuring her to confirm Assoun as the culprit.
“Gazzard reiterated being picked up by the police and threatened with charges if she did not co-operate,” wrote Green in his summary of her recanting of her trial testimony.
Assoun’s lawyers say that had Moore’s evidence about McGray emerged, it might have allowed further questioning of her original story.
For example, the young woman had testified that even though it was winter at the time, the man who had cut and beaten her was wearing socks and sandals, footwear that was characteristic of McGray, according to Assoun’s lawyers.
Meanwhile, the report says there’s now evidence McGray was living within a few blocks of the murder scene.
Green also says Innocence Canada provided him with affidavits from two inmates stating that McGray had confessed to killing Way.
During Assoun’s failed appeal effort, the judges discounted the theories about McGray, saying there wasn’t enough evidence.
The Supreme Court of Canada dismissed Assoun’s application for leave to appeal on Sept. 14, 2006.
Campbell says the most frustrating part of Assoun’s wrongful conviction is that there were so many opportunities to bring an end to the process.
He says the time has come for governments to consider compensation, and to further probe why evidence wasn’t disclosed.
“Mr. Assoun is unable to work, his health is poor, he lives in near-penury, and the blame lies squarely with those who are responsible for the failings of the police and Crown from 1995 until today,” he wrote.
With Michael MacDonald in Halifax
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