Pub Bans and Sealing Orders

R v Assoun 2019 NSSC 220

On September 17, 1999, Glen Assoun was convicted by a jury of the second-degree murder of Brenda Way. On December 17, 1999, Mr. Assoun was sentenced to life imprisonment with no parole eligibility for 18.5 years. On January 17, 2006, the Nova Scotia Court of Appeal heard and subsequently dismissed Mr. Assoun’s appeal. Leave to Appeal to the Supreme Court of Canada was denied on September 14, 2006. On April 18, 2013, the Association in Defence of the Wrongly Convicted filed an Application for a Ministerial review under Part XXI.1 of the Criminal Code, R.S.C.1985, c. C- 46.

The Minister of Justice’s Criminal Conviction Review Group prepared a Preliminary Assessment (PA) on August 29, 2014 and provided the PA (with 131 appendices) to counsel for Mr. Assoun and to counsel for the Nova Scotia Public Prosecution Service (PPS). The PA was provided by way of an undertaking that it would be kept confidential.

On September 12, 2014, Mr. Assoun made Application to the Court for judicial interim release. On September 26, the Attorney General of Canada (AGC) filed a Notice of Application for a sealing order and publication ban.

On October 23, 2014 the sealing order was issued and Mr. Assoun was granted bail.

On March 1, 2019, the federal Minister of Justice directed that Mr. Assoun should have a new trial pursuant to s. 696.3(3) of the Criminal Code. Also on that date, the Crown offered no evidence and the charge against Mr. Assoun was dismissed for want of prosecution.

In his decision, Chipman J. had this to say:

I accept the Media’s overarching position that the landscape has considerably changed in the nearly five years since the initial sealing order and publication ban was imposed. The criminal judicial process, vis-a-vis Mr. Assoun, came to an end four months ago. There will not be a future jury trial. The Crown offered no evidence and the charge was dismissed for want of prosecution. In the result, the transcripts and exhibits from the original jury trial of nearly 20 years ago, along with the subsequent sentencing hearing and the 2006 Court of Appeal hearing, should be within the public domain. I hereby order that they be unsealed and opened in their entirety.

He goes on to state:

With respect to the PA and appendices, I have competing positions before me ranging from full disclosure to various forms of redaction. The parties resisting the Media’s application bear the burden; they must demonstrate that the redactions are necessary to prevent a serious risk to the administration of justice. Moreover, the salutary effect of any subsequent order requiring redactions must outweigh the deleterious effect on the rights and interests of the parties and public. Those rights include freedom of expression, freedom of the press and the efficacy of the administration of justice.

Chipman J. then states:

In my view, we have now reached a stage whereby the PA and appendices must be released. Mr. Assoun must be able to tell his story. The Media must be able to report on why the Minister made his decision and why the Crown had no evidence on the new trial. The public should know why Mr. Green said at the end of the PA that “there may be a reasonable basis to conclude that a miscarriage of justice likely occurred in your [Mr. Assoun’s] case”. Further, since the Minister of Justice said through his February 28, 2019 Order that there was “relevant and reliable information that was not disclosed to Mr. Glen Assoun during his criminal proceedings”, the evidentiary foundation for this statement should be made public. To the extent that this may refer to official malfeasance is neither here nor there given the case authority.

Chipman J. concludes:

The investigation that had to be protected for a time is now complete. Members of the general public must be able to appreciate why relevant and reliable information was not disclosed to Mr. Assoun when it should have been. The public should be able to appreciate why bail was granted. They must be able to see why the Minister made his decision. The public has the right to know why the Crown led no evidence at the new trial and why the second degree murder charge was dismissed. It is in the interest of Mr. Assoun and the general public that Mr. Assoun’s story be told. The open court principle compels me to lift the order and release the complete court file.