I have recently been listening to the CBC podcast Uncovered and am using Season 7 as an inspiration for the next few blog posts. This most recent season looks at the wrongful conviction of Glen Assoun. Mr. Assoun was convicted of murdering his girlfriend and spent 17 years in jail.
While the entire season is interesting, episode two is of particular relevance as it covers the trial. Unfortunately, shortly after his trial began Mr. Assoun fired his lawyer and ended up trying to defend himself. Not surprisingly that did not go well. As the trial unfolds it is clear that Mr. Assoun was ill-equipped to get evidence he needed before the jury and challenge the admissibility of certain pieces of the Crown case. A number of issues came up and will be explored in the blog. They include:
- Third party suspects
- The admissibility of statements of witnesses who don’t testify at trial
- Vetrovec warnings (how courts deal with untrustworthy witnesses)
- The role of a trial judge when an accused represents themselves
The first issue is third party suspects. Prior to law school I would have assumed that someone could defend themselves by accusing any and everybody else of committing the crime. Not so. If you want to lead evidence to suggest that someone else did it then an application needs to be brought to the trial judge showing that there is some evidence to support the claim.
In Mr. Assoun’s case police had identified a number of other potential suspects. Not among them was a serial killer who the defence would later point to on appeal. In any event, there were other suspects but Mr. Assoun was unable to pursue this type of defence.
The Supreme Court of Canada has explained in a number of cases that while an accused can defend themselves by pointing to another person as being the guilty party, that evidence is only admissible if it is relevant and probative. In practice that means that the third person must sufficiently connected by other circumstances with the crime charged to give the proposed evidence some probative value. An accused must show that there is some evidence to support the argument of a third-party suspect and convince the court that it is not purely speculation. In R. v. Grandinetti the Supreme Court of Canada explained:
 The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine,  1 S.C.R. 702, 2004 SCC 27, at para. 70. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous,  2 S.C.R. 3, 2002 SCC 29.
While this may not sound like a large burden to get over, in practice it can be challenging. Of course if there was a large body of evidence that a third-party actually committed the crime then perhaps that person would have been charged instead. It is also questionable that a trial would be occurring if there was a lot of evidence someone else did it. This is where the extent of the police investigation. It is tough to tell from the podcast but it appears that in Mr. Assoun’s case there were a number of other possible suspects who police did not follow up on once they locked in on Mr. Assoun. Without investigation it is unlikely there will be much evidence located in relation to other suspects. In those circumstances it could fall to defence counsel to either involve a private investigator or prod the police to dig deeper. Any hope of being able to point to other suspects was long gone when Mr. Assoun fired his lawyer and defended himself. Given that he did not receive bail he was not in a position to be investigating these other potential suspects.
Unable to point to others Mr. Assoun was left to challenge the evidence lead by the Crown. A significant piece of that evidence was prior testimony from a witness who was deceased by the time of trial. How such evidence can be admissible at trial will be covered in our next instalment.