The Assoun and the Furey

Will Justice Minister Mark Furey do right by wronged Glen Assoun, or will he join the likes of Len Pace in the crowded dark pantheon of Nova Scotia’s injustice system?

Justice Minister Mark Furey. Photo: Jennifer Henderson

Justice Minister Mark Furey is about to assume his own dishonourable place in the dark pantheon of Nova Scotia’s injustice system. He joins many unworthy worthies. Consider Leonard Pace, a former Liberal justice minister from the 1970s who had been Nova Scotia’s attorney general during Donald Marshall, Jr.’s infamous 1971 murder trial and then gone on to become a 1978 pre-election, patronage-appointed-and-tainted Nova Scotia Supreme Court Justice. Despite his connection to the Marshall case, Pace refused to recuse himself from a 1982 Court of Appeal panel that had been asked to reconsider Marshall’s conviction — and the 11 years he spent in prison — based on clear evidence of a botched police investigation overseen by a biased and racist justice system.

That panel did reluctantly quash Marshall’s conviction. There was too much evidence not to. But it also “inexplicably” — in the words of the royal commission eventually set up to look into the affair — “chose to blame Marshall for his wrongful conviction.”

The reference panel’s decision, which many suggest was written by Pace, claimed any injustice was “more apparent than real,” and that Marshall, whom the panel “convicted” of a robbery with which he was never charged and whom it accused, without evidence, of committing perjury, was “the author of his own misfortune.”

Countered the 1989 report of the royal commission into the matter:

“We have concluded that the Court’s decision amounted to a defence of the criminal justice system at the expense of Donald Marshall, Jr. in spite of overwhelming evidence that the system itself had failed.”

We’ll come back to that royal commission.

Last week — four months after the courts exonerated Glen Assoun, another Nova Scotia man who spent 17 years behind bars for a murder he didn’t commit, and two weeks after a Nova Scotia court unsealed documents that not only exposed how the Halifax Regional Police botched the initial murder investigation in the 1990s but also demonstrated that RCMP officials later destroyed evidence pointing to another probable killer — Justice Minister Mark Furey refused to even offer Assoun a modest public apology.

“An apology,” he told reporters last week, “would be premature at this time until I have an opportunity to review the full scope of the file. It’s a complex file and I need to understand all of the circumstances.” Uh… The courts have spoken, and the documents speak for themselves. All of what circumstances?  Is Furey about to claim Glen Assoun was also the author of his own misfortune?

Furey had initially refused to comment on the case while the province’s conflict of interest commissioner determined whether Furey — as a former RCMP officer in Nova Scotia, but one who had no direct involvement in the Assoun case — should recuse himself from dealing with the latest developments.

Even though the commissioner cleared him, Furey continues to dance around offering an official Nova Scotia government response to this travesty of justice.

It’s past time for the Nova Scotia justice minister to offer Assoun a full and fulsome apology for his suffering and for the years we cannot now give him back. Not to mention providing immediate interim compensation to help Assoun, who is currently “penniless and living off the kindness of others,” cope with his unfamiliar new life beyond bars.

It is also past time for Furey to appoint a public inquiry to figure out what went wrong in the Assoun case and why, and to determine if changes need to be made to make sure such injustices don’t happen again to someone else.

Who me, Furey asked last week? “I don’t have oversight of the RCMP as some people believe,” he declared. “That is federal jurisdiction. The RCMP are the responsibility of the federal Minister of Public Safety. We have a working relationship with the RCMP; they are our provincial policing service.”

Uh… Again. Still.

As the Examiner’s Jennifer Henderson correctly pointed out on Friday:

The Police Act of Nova Scotia gives the Justice Minister all the authority he needs to order a review of the Assoun file. Under the Police act of Nova Scotia , section 19 (1) “The Minister may direct the [Police] Review Board to investigate, inquire into and report to the Minister upon any matter relating to (a) the extent, investigation or control of crime; (b) the enforcement of law; (c) the operation and administration of a police department, and the Minister shall define the scope of the inquiry in the direction.”

Not everyone believes a public inquiry or a royal commission, especially one appointed by the Nova Scotia government, would serve any good purpose.

Dave Moore, for example, the former RCMP officer whose files pointing to another killer in the Assoun case were destroyed without his consent by his superiors, says he would refuse to participate in a Nova Scotia-based inquiry. “Going back to the same people who were involved in the corruption in the first place is a mistake.”

While that’s true, it’s also worth noting the Nova Scotia government appointed three outside judges to investigate Donald Marshall’s wrongful conviction and gave them broad powers to turn over whatever rocks they discovered:

The Royal Commission on the Donald Marshall, Jr., Prosecution was not established… just to determine whether one individual was the victim of a miscarriage of justice, or even to get to the bottom of how and why that miscarriage occurred. The Nova Scotia Government, which appointed this Royal Commission on October 28, 1986, also asked us to “make recommendations” to help prevent such tragedies from happening in the future. As a result, our final Report contains not only findings of “fact” concerning the Marshall affair, but also specific recommendations dealing with everything from the role of police and Crown prosecutors in the criminal justice system, ways to ensure more equitable treatment of Blacks and Natives in the criminal justice system, and new mechanisms to deal with cases in which there are allegations of wrongful conviction.

The Nova Scotia government again can — and should — appoint untainted outsiders to investigate and provide them with both the mandate and also the tools to take the investigation where — and to whom— it leads.

It would be a mistake, of course, to suggest that the Marshall royal commission solved all the injustices in the justice system. It didn’t. Otherwise, we wouldn’t be talking about the need for another one now. But that’s not to suggest the exercise was a waste of time. The Marshall judges reached their conclusions only…

… after sifting through 16,390 pages of transcript evidence given by 113 witnesses during 93 days of public hearings in Halifax and Sydney in 1987 and 1988; after examining 176 exhibits submitted in evidence during those hearings; after listening to two-and-one-half days of presentations by experts on the criminal justice system’s treatment of Blacks and Natives and on the role of the office of Attorney General in that system; and after examining five volumes of research material prepared for the Royal Commission by leading academics and researchers.

That very public process was part of what made the inquiry so meaningful. It ultimately forced us all to look into a mirror and see a system in which there was one justice for the rich and well-connected and another for those who weren’t, including, most obviously, African Nova Scotians and Indigenous citizens.

Some significant systemic changes were made as a result of the Marshall inquiry. Not enough. Obviously.

But my own sense is that most outside observers still consider the Marshall inquiry to have been an important and worthwhile moment in our political, legal and racial history. (Full disclosure: I was the general editor of the Marshall report. I wasn’t responsible for the judges’ conclusions, of course, but I did have the privilege of watching their principled process unfold.)

If there was ever another case that cried out for such a full and complete and public outside inquiry, it is the Glen Assoun wrongful conviction.

Time to step up, Mr. Justice Minister. Or permanently take your seat in the crowded hall of shame.

This column first appeared in the Halifax Examiner August 6, 2019.

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