File:R v Assoun 2019 NSSC 220.pdf


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between: supreme court nova scotia citation:r assoun,2019 nssc her majesty the queen glen eugene assoun date:20190712 docket crh registry halifax decision judge: heard: final written submissions: decision: counsel: honourable justice james l.chipman july 2,2019,in halifax,nova 5,2019 12,2019 david g.coles,q.c.for applicants,canadian broadcasting corporation,the canadian press and examiner philip campbell sean macdonald,for respondent, patricia macphee sarah drodge,for respondent attorney general ofcanada marian v.fortune-stone,q.c.and mark scott,q.c for respondent,the public prosecution service duncan read,for intervenor,halifax regional municipality page bythe court: introduction september 17,1999,glen assoun(mr.assoun)was convicted ajury ofthe second-degree murder ofbrenda way december 1999,justice hood sentenced mr.assoun life imprisonment with parole eligibility years.on january 17,2006,the scotiacourtofappealheard subsequently dismissed assoun's appeal leave was denied 14,2006 april 18,2013,the association defence wrongly convicted(now known innocence canada)filed application ministerial review under part xxi.1 criminal code,r.s.c.1985,c minister justice's conviction group ccrg) prepared preliminary assessment(pa)on august 29,2014 provided (with appendices)to counsel forthe service(pps thepa ofan undertaking that would kept confidential author pa,department lawyer green,concluded: view basis ofall this infon-nation,including new significantinfoiniation thathas been submitted your application,there maybe reasonable conclude miscarriage ofjustice likely occurred case therefore will advance investigation stage process. made judicial interim release 26,the ofcanada(agc) filed notice sealing order publication ban agc sought anorder: pa,including its appendices which applicant wishes file rely upon support ofhis release. banning ofanyinformationemanatingfromthejudicial proceedings reveal content assessment appendices. requests remain place until competition process code any subsequent proceedings. september29,2014,the courts'communications director email media advising pending october 2,2014,the corporation(cbc) advised ofits intention intervene oppose 3,the pps response,proposing that: testimonial,documentary physical evidence hearing forjudicial well representations parties reasons decision,shall not published,broadcast transmitted fonn conclusion arising therefrom; all documents,filings materials said shall sealed from ministerialreview therefrom shallremain full force effect unless varied ofcompetentjurisdiction. copy ban,mr.assoun bail hearing. agreement pps. reaching decision(r assoun,2014 stated para 55: [55 find green affidavit taken together form solid there real substantial risk poses serious threat proper administration such are only ways prevent dangerfrom being avoided. 23,2014the issued granted conditions were amended. after long delay,on march 1,2019,the federai directed should have trial pursuantto s.696.3(3)ofthe criminalcode. page4 also date,the crown offered charge against want ofprosecution. background preceding 2,2019application cbc appear crownside remedy unseal documents matter heardin crownsideon march7and again april4when examinerjoined applicants july2hearing scheduled. [10 12,a recorded telephone conference convened court, municipality(hrm)taking volunteered organize index produced soon thereafter. [11 may (collectively,the media)briefand book ofauthorities filed. [12 june consent permitting hrm become intervenor. [13 their brief authorities along affidavits deposed jared harding roger robbins received pps's date well,the briefalong actually day before)of police(hrp) detective justin sheppard owing exchanges between myjudicial assistant (ja)and counsel,detective sheppard's removed ultimately replaced his affidavitsworn 18,2019 14,the courtreceived media's reply brief. [14 17,i had follows: dear chipman has reviewed several briefs make references redactions(e.g ofmr counsel's ask each party(with exception ofmr.coles clients obviously does apply)to end ofthis week,the they propose redaction precise sections redacted. making request focus hearing;he clear interpreted rejection position material(unredacted)be disclosed.this remains determined 2,2019 [15 result,the following: 20,2019 letter appendix containing proposed redactions mr.assoun;along 2amendments ofappendix — latest 30th. attachment hrm; pps;and chart agc. [16 covering agc,counsel requested material record providing chipman's facilitate ofour report those signed undertakings group. [17 point simply say entirety inclusive stored office inaccessible anyone but july4,pursuantto 2,mr. peimitted file. [18 ofapplication seeks pen-nanentlysealingthe current courtrecord insofar specifically names identifies three individuals,two ofwhom currently incarcerated federal custody third whom face grave danger name publicly available. pen-nanently indentifying information regarding these individuals. [19 ten grounds enumerated application. [20 assessing positions parties,it least aggressive four opposition page6 completely lifted example states follows first two paras brief: accepts court's respecting variations order, now accessible rationale put longer applicable itselfappears spent much concluded arisen nor convincing further inhibiting access supports ms.assoun narrow exemption lifting available include identity witnesses anyinformation mighttend identifythem thisrequest communicated preliminarybrief,dated 11,2019and repeated call among concurrent filing 10,2019,a fon-nal lodged courtfor outlets. [21 says permitted receive redacted version respects open principle while preventing argue granting constitute six main reasons: contains vulnerable marginalized individuals; persons who expectation public; unverified opinions; inadmissible; disclosure mayjeopardize ongoing investigations privileged information. [22 thepps makes subject prohibiting recipients disclosing related acknowledges others acting behalf bound obligations imposed ccrg governed privacy act r.s.c p-21 independent ban. [23 points outthatthe effectively prohibits dissemination manner,foiin medium appendices,exceptin following circumstances: already domain; agents authorization prior execution and/or infolination shared. [24 goes state takes objection unsealing response original thereof,except where implicate certain interests. [25 ofmr.assoun,they assert: unusual unprecedented provides evidentiary could assess confidence,the nature extent ofa realistic risk,ifany bonafide police agency qualified carry out task step individuals either during review. [26 finally,pps concludes submission remarks: thesame similarinterests(e.g privacyinterest,vulnerable persons, personal professional reputations lordship's continue engaged relevant formal route challenge aspects investigative existed organizations person identified identifiable before word infon-nation minister. [27 hrm,their submissions focussed hrp briefthey offer summary: contain approximately dozen primary docuinents witness statements officer notes homicide wayfile)which obligated share intended waive ownership ofthem compromise right assert privilege over them hrm's unsolved active investigation,it potential one obtained, come forward case,the broad officers other unduly complicate investigation. lastly,the relatively small number ofreferences wiretap interview sensitive techniques largely irrelevant jeopardize future that,prior publication,these selections interest outweigh protection. [28 opposing raised arguments notsufficient satisfythe elements mentuck,2001 scc test particular,they say: intervener into ofms suggestion cannot satisfy mentuck justify respect mr. assounis limited scope seeking permanent confidentiality protectionforthree argument brief,however,there placed lordship can weighed challenged properly exercise discretion issuance extraordinary applicant's commend paragraphs43-59ofthe novascotiapublicprosecution service'sresponse whatever limitation given prosecution_service use_ofthe_preliminary appendices,as updated/supplemented restriction. court,and records presumed public. neitherthe canada evidenceact,r.s.c 1985,c c-5,northeprivacyact,r.s.c c.p-21,section 8(2 c)mandate nondisclosure even ifthey some canada,the same constraints. [29 main,the saysthatthe initiallyofthe anyjudicial proceeding resulting concluded. add thatthe order(decision)was predicated remaining obvious once evaporated accordingly,the arguments: however having flowing end,there whose impacted contents file/transcripts time threatto therefore,the situation akin thatin driskell follow decision. did possession its' pursuant merely'hold'the read instance. controls absent specific order/publication records, particularly relied decisions accompanying delivery assessmentreport cannot,in ofitself alter rules. event return documentation restricted orders withdrawn, application(s)was granted. [30 teims aforementioned agc's affiants when broughtthe host ofreasons why peimanently example,at para.7 deposes: ifour reports public,ifcould stifle our work cases entirely foreseeable befar morehesitantto participatevoluntarilyinthe released believe thatindividuals more reluctant speak openly past events difficulties securing held parties. subpoena powers think resist production far often ifthere allow use detailed set moving process,duringhisbail thefittureimplicationsofthis decision, including maintaining notforeseen involving mr.assoun's alleged involvementin death brenda concerns about ofmy assessment. supporting large amount infonnation deserve protection need interviewed re- partofanew criminalinvestigation see hear broadcasts earlier impact thus integrity ifthe entire without evidenceimplicating public,putting safety risk. [31 sgt.harding,he states: preliminaryreport collected rcmp via joint operation initiated investigate homicides missing files includes implicating multiple suspected committing crimes charges laid efforts resolve alerting thatthey suspects. myreview thereport,i noted appears informants comesfrom identities require putthe ofthose describing used,or considered releasing alert suspects generalto tactics,therebyimpeding efficacy both cases. personnel records,including performance reviews fonner member aware inclusion unaware [32 affiant corp.robbins rcmp's viclas blank booklet injurious extremely important technique educate element types ofbehaviour important. [33 fulfilled given"accessto generally adds best knowledge det.sheppard itemize which: .discuss alternate suspects,all committed acts,including prejudice investigations. techniques,the ofwhich couldjeopardize success offuture similar operations. legalprinciples [34 refer 35-41 tetnis jurisprudence nearly five years since cromwell's words endean british columbia,2016 42at para.66: theopen courtprinciple embodies t]heimportance ofensuringthatjustice done whichis"oneofthe hallmarks democraticsociety corp brunswick [1996 s.c.r c.b.c ,at para.22,quoting southam inc (no.1 o.r 2d)113(c.a vancouver sun(re 2004]2 332,at 23;namedperson sun,2007 2007]3 253,at 31;and (attorney previously remarked p]ublicity very soul 21,quoting scott a.c 417(h.l 477; sun named wilson summarized edmonton journal alberta [1989]2 s.c.r. 1326,at 1361,the rooted maintain effective evidentiaryprocess 2)to ensure ajudiciary andjuries behave fairly values espoused society promote shared sense courts operate dispensejustice;and(4)to provide opportunityfor community learn how system operates law applied daily affects them. [35 ialso referto(then)justice wagner'scomments respecttothe 83-91. [36 tern's ofrecent caselaw,i comments ofnow chief wood revenue fundamental confidence judiciary judges must manner accountable transparent.people entitled know what decided secrecy permissible justification demonstrated. raises openness context ofdeciding usually case, representative [37 wood's helpful analysis above finally note beveridge's opening ofnova scotia(attorney general)v cameron,2019 nsca 58: present common constitutionally embedded freedom expression 2(b)ofthe charter ofrights andfreedoms. disposition [38 acceptthe overarching landscape considerably changed initial criminaljudicial vis-a-vis assoun,came months ago jury ofprosecution result transcripts exhibitsfrom originaljury ofnearly20 ago,along sentencing ofappeal hearing,should within domain hereby unsealed opened entirety. [39 respectto appendices,i competing ranging various forms ofredaction resisting bear burden;they demonstrate necessary moreover,the salutary requiring deleterious rights interests ofjustice. [40 initially distinguished 2003] blush like features prompting denied.on closer examination, however,i driskellis significantly distinctfrom reason brought motion seal due accordingly surprising associate chiefjustice oliphantfound fell short ofmaking here,we described carefully scrutinized read. below satisfied theironus ofproducing sufficientevidence persuade appropriate thatis say, ifind thatthepa affidavit,taken together,fon-n thatthere suchthatthe [41 went explicitly the"highly infoimation revealed ofcourse, proceedingsinthe fall of2014 waslong beforethe ultimate notto lead indeed most compelling ordering prospect second criminaljury thatreason distinguished. [42 fastforward summer of2019,and marshalled through continuing parts keptfromthe public,whichihave carefullyconsidered ihave,ofcourse,conducted consideration dagenais/mentuck ever mindful fact onus keep anything domain. [43 notion reputational officials conduct exposed condemned protected ahead sustained official malfeasance naming discussed courtjudgments examples prosecutorial non-disclosure documented courtofcanada include:r.v.dixon, [1998 scr 244;r taillefer 2003]3 307;r ahltavalia(2000 ccc(3d)193(ont c.a watt,2008 [44 receptive putting proposition significant lies beneath terse directing followed arraignment elected landmark life, sixteen half ofimprisonment rigorous temis ofbail yet matters stand,he tell own story evaluate claim factual minister's crown's verdict ofaffairs,this nottolerable notfair applicants. [45 reached whereby mustbe able whythe that"there your[mr february reliable disclosed foundation statement neither here authority. [46 moreover essentially lapsed according terms since,after 1,2019,there underway willthere acriminaljudicialproceeding the2014judicialinterim allowed formed explored. [47 because over,it recollections testimony tainted materials. [48 sole issue whether redact identifying originally witnesses,as • career communications third-party suspect ccrg. serving sentence conversations residence third- party [49 close hearing,i reserved judgment aspect asked noted: referred beprotected counsel'sreview court'sfile july4,2019, capable ofidentifying bylifting than previouslyidentified accepted. [50 result,i a,the ofredactions pertaining witnesses. [51 addition reviewing brieffiled 5,i referenced handed campbell's argumentfrom last day: toronto star newspapers rightofcanada,2005 canlii47737(on interrelated canliidocs 179(grace hession david) [52 pps,i scott's oral article [53 gist ofmr.assoun's saythatthe potentialthreatto thetwo witnessesis riskto outweighs principle. [54 pps,apart stating motion,they anonymization. course oftheir submits judge,situated am,can summary ofcounsel ofrelevant facts practical required rule caselaw applying dictates kind analytical approach atpp.3-4 brief,mr.assoun asks record;namely: gave beat,strangled cut throat way. supported suspect's history modus operandi admitted proclivities whereabouts murder,and auniquefeature favoured footwear together,itsuggestthat dangerous man good suspectin killing ofms. includesthe victim herfrom itincludes deceitfiil attempt blame partner crime performed personally that,ifhe way,this him,in ofprison,is real,not speculative. reach prison street, frustrated desire take vengeance ally iru-nate risks evaluated expert ifsuch amenable evaluation,the recent sharing cell him. [56 briefconcludes pitch: courthas enoughinformation unquestionable jurisdiction thatinfonnation urge courtto focused rather procedural shortcomings misplaced alarmist consequences hypothetical king almost always low incapable quantification ignoring miscalculating potentially dreadful sometimes fatal intrusion many illustrate ofprotecting inimical free expression,the requested. posits sacrificed amorphous speculative negligible interference secured 2(b)since substance still existence ofcatastrophic harm caseforrefusing ofminimal han-n asthe illustrates solicitude infon-nants priority balancing avoidance ofcatastrophe. [57 distilled well-grounded "real 2012; unable availability ofother alternatives seek restrict possible sacrificing prevention was/is assured met ccrg; thereis ascintillaofevidence suggestingthat oftheseindividuals concerned presumably so,it reflected intheirinterviews thepreliminary reported correctional discharge duties; instance ofinmates cooperating a"rat moniker accurate; jail conflict thelaw further,having prison,no agencies ofthreats violence property giving publicized track ofbeing ajailhouse informant 1990s,and survived seemingly meaningful consequence ofthat involvement,or 2012, assisted murdering cellmate; carvery jailhouse info taut protection; informer analogy protections afforded in-custodyinformant witness; informers assist cannotform acquittal stake create precedent mischief truth-seeking functions reviews. [58 arriving bears emphasis anonymity establish absolute nile hesitation ifwitness sought,one noi'bally expect acquainted background,certainly counsel(iffor tremendous incredibly import deteimined considers advanced,in bythepps media. [59 cited pps;for example,r sipes,2011 bcsc smarts [60 theresult,i soughtby viewing [61 conclusion,it istime surrogates public,the media,be opportunity complete requires scrutiny help explain peers exonerated twenty later. [62 complete. members appreciate hasthe rightto led degree told compels lift costs [63 circumstances,i decline award chipman,j.

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