2009 BCCA 12 R. v. Henry

RESTRICTION ON PUBLICATION: AN ORDER HAS = BEEN MADE=20 IN THIS CASE PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE THAT=20 PROHIBITS ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR = WITNESSES BEING=20 PUBLISHED, BROADCAST OR TRANSMITTED.

THERE IS AN INTERIM = ORDER, WHICH=20 EXPIRES FEBRUARY 12, 2009,

THAT NO PERSON SHALL = PUBLISH IN ANY=20 DOCUMENT OR BROADCAST OR PUBLICLY TRANSMIT IN ANY WAY INFORMATION THAT = COULD=20 IDENTIFY THE =93OTHER OFFENDER=94 REFERRED TO IN THE = REASONS.

Before:

The=20 Honourable Madam Justice Saunders

The=20 Honourable Madam Justice Levine

The=20 Honourable Mr. Justice = Lowry

Oral Reasons for=20 Judgment

C.=20 Ward

M.=20 Sandford

D.M. Layton

Counsel for the = Appellant=20

M.D.=20 Shirreff

Counsel for the=20 Respondent

Place=20 and Date of Hearing:

Vancouver, British = Columbia=20

5 = January=20 2009

Place=20 and Date of Judgment:

Vancouver, British=20 Columbia

13 January=20 2009

[1] = ; =20 SAUNDERS = J.A.: This is an extraordinary application. = After over=20 26 years in jail Ivan William Mervin Henry is applying for a re-opening = of his=20 appeal. Procedurally this would be done by an order of this Court = setting=20 aside an order made in February 1984 dismissing his conviction appeal = for want=20 of prosecution. A similar application was heard and dismissed in = 1997, at=20 the same time as an application for appointment of counsel under s. 684 = of the=20 Criminal Code. That application too was=20 dismissed.

[2] = ; =20 The application developed for the re-opening of a criminal appeal = presumes the matter has not been disposed of on its merits, as is this=20 case. Where it has been dealt with on its merits an entirely = different=20 process, that engaging the Royal Prerogative of mercy, must be = pursued. =20

[3] = ; =20 Whether this Court has jurisdiction to set aside, rescind, so to = speak,=20 an order dismissing an appeal was settled by this Court in R. v. = Blaker=20 (1983), 6 C.C.C. (3d) 385. There Mr. Justice Craig, speaking for = the=20 majority of the Court, relied upon R. v. Jacobs (1971), 2 C.C.C. = (2d) 26,=20 [1971] S.C.R. 92, saying:

In R. v. Jacobs, the Supreme Court = upheld the=20 right of the Quebec Court of Appeal to rescind its order dismissing an = appeal=20 because of the failure of counsel to appear and to make an order = returning the=20 case to the list for a hearing on the merits stating that Jacobs = was=20 entitled to this as a debt of justice.

[4] = ; =20 This Court then considered whether the Supreme Court of = Canada=92s=20 reasoning applied where the order that stands in the way of the appeal = has been=20 entered and said:

However that may be, the Watson case = and the=20 Danielson case are authorities for the principle that an = appellate court=20 has jurisdiction to vary or to set aside an order disposing of an appeal = in a=20 criminal case if the order disposing of the appeal was made on a basis = other=20 than on the merits and if in all the circumstances the court thinks that = the=20 order should be varied or be set aside, that is, if it is in the = interest of=20 justice that the order should be varied or set aside. I hasten to = add that=20 the phrase =93interests of justice=94 involves a consideration of = several things,=20 not simply the interests of the accused. It involves, also, the = interest=20 of the State in insuring that people who commit offences are duly = convicted and=20 punished and the interest of the State in having finality to a = proceeding. =20

[5] = ; =20 I will say at the outset that I consider this situation highly=20 unusual. I know of no case before this one in which a second = application=20 to re-open has been successful when the applicant=92s earlier = application=20 failed. It seems to me the last point in the passage I have just = referred=20 to, the interest of the State in having finality to a proceeding, = requires an=20 even more rigorous analysis on a second application and either cogent = new=20 material produced or a sound explanation for a new approach advanced, or = both. However, where the applicant establishes it is in the = interests of=20 justice (in the full sense of those words), that the conviction or = convictions=20 be reviewed on the merits, it is open to this Court to make such an = order. =20

[6] = ; =20 The Crown takes the position it is in the interests of justice to = allow=20 the application, and cross applies for a ban of publication of the names = of the=20 complainants whose names might come up in the course of the appeal, and = on an=20 interim basis, the name of another person, who I will refer to as =93the = other=20 offender=94, who stands convicted of three offences committed in the = years just=20 following Mr. Henry=92s trial.

[7] = ; =20 It is, of course, for the Court to determine whether the = interests of=20 justice favour Mr. Henry=92s application, but the stance of the Crown is = to be=20 considered.

[8] = ; =20 I turn to the applications. In 1983 Mr. Henry was convicted = of 10=20 serious sexual offences against eight women. He was declared a = dangerous=20 offender in November 1983, his conviction appeal was dismissed in = February 1984=20 for lack of prosecution: the appeal books and transcripts had not been = filed,=20 and he has been in custody since the date of his arrest, July 29, 1982, = over 26=20 years.

[9] = ; =20 The trial was by judge and jury. Mr. Henry represented = himself by=20 choice at trial. Identification was virtually the only = issue. There=20 was no independent evidence and the prosecution relied virtually = entirely on the=20 eyewitness and voice identification evidence of the complainants. = Mr.=20 Henry testified, denying he had committed the offences. =

[10] = ;=20 After the convictions, Mr. Henry filed a notice of appeal = promptly but,=20 lacking funds, did not file appeal books and transcripts. On = February 24,=20 1984, this Court dismissed the appeal of Mr. Henry for want of=20 prosecution. There is no information before the Court to indicate = whether=20 Mr. Henry sought legal aid before his appeal was dismissed but some time = after=20 that, and on more than one occasion, Mr. Henry sought legal aid and = through it=20 the assistance of legal counsel, being rebuffed in that effort until=20 recently. Throughout his incarceration he has persisted in his = efforts to=20 have his convictions reviewed on their merits. His efforts over = the years=20 include an application in 1997 to this Court to reopen the appeal, and = for=20 appointment of counsel under s. 684. Those applications were=20 dismissed. (R. v. Henry [1997] B.C.J. No. 2792 (Q.L.), = leave to=20 appeal ref=92d [1998] S.C.C.A. No. 77).

[11] = ;=20 In his application before us, Mr. Henry, through his counsel, = present=20 grounds of appeal quite different from the grounds advanced in = 1997. His=20 counsel has filed extensive submissions and materials, including new = evidence,=20 setting out the basis upon which he says this Court should consider his=20 application.

[12] = ;=20 The application by Mr. Henry follows recent events that prompted = the=20 Vancouver Police Department to re-investigate approximately 25 unsolved = serious=20 sexual assaults in Vancouver in the mid to late 1980=92s, at a time when = Mr. Henry=20 was in jail on these convictions. This re-investigation is = referred to as=20 the Smallman Investigation. DNA evidence was available in only = three of=20 those assaults, and as to those assaults, the other offender pleaded = guilty in=20 May 2005. Subsequent to the Smallman Investigation the = Attorney=20 General appointed a Special Prosecutor, Mr. Doust, to review Mr. = Henry=92s=20 convictions. The Special Prosecutor gave attention to the = materials=20 generated by the re-investigation and the assaults with which the other = offender=20 was charged and to which he pleaded guilty. He gave attention also = to the=20 state of the record as it is, and information dating from the original=20 investigation that was not disclosed to Mr. Henry at the time of his=20 trial. He made recommendations including as to disclosure of the = new=20 information and of the old information. It is only after his=20 recommendations that Mr. Henry was able to obtain legal assistance and = received=20 the disclosure of the information not provided to him at the time of his = trial,=20 as well as disclosure of the Smallman Investigation information. =20

[13] = ;=20 Blaker requires the merits have not been reviewed by = the Court=20 of Appeal, and the interests of justice favour the application. = The first=20 criteria is established: Mr. Henry has not had an appeal on the = merits. =20 The issue is the interests of justice. Jurisprudence directs us to = a=20 number of factors relevant to the interests of justice such as the = reason the=20 appeal was dismissed without a hearing on its merits, whether the court = would=20 have dismissed the appeal had it known all the facts, any explanations = proferred=20 for the events, the degree of merit of the grounds of appeal, whether = the=20 applicant has maintained a desire to have the appeal heard on its = merits, the=20 seriousness of the deprivation of liberty faced by the applicant, and = the=20 position of the Crown on the application. I suggest that in = considering a=20 second application, as this one is, the differences between the contents = of the=20 application in the first and second go around, and the reasons for any=20 differences, will be a factor to be considered. The length of = delay=20 between the order that needs to be set aside to permit the re-opening = and the=20 date of the application will also be significant because of the = difficulty in=20 reopening any case long after events have faded from memory. That = may be=20 countered, however, by the length of time the person has had deprivation = of, or=20 restriction in, his liberty.

[14] = ;=20 In other words, the onus on the applicant here is a heavy = one. =20

[15] = ;=20 In my view, several aspects of this case weigh heavily in favour = of a=20 re-opening. In combination I consider they meet the interests of = justice=20 test.

[16] = ;=20 First, there is the conviction in 2005 of the other offender of = three=20 sexual assaults committed after Mr. Henry=92s arrest. The = information,=20 particularly the points of connection between the other offender and Mr. = Henry,=20 may be relevant to the reliability of the eyewitness = identification. The=20 fresh evidence relating to the Smallman Investigation is an important = aspect of=20 this application.

[17] = ;=20 Second, new disclosure of information not available to Mr. Henry = at the=20 time of trial is significant. The scope of disclosure today is = broader=20 than was commonly the practice in 1983. Disclosure on today=92s = standard has=20 produced statements of the complainants not seen before by Mr. Henry and = which=20 may have been relevant to the reliability of the eyewitness = identification, and=20 the voice identification. Disclosure has also produced forensic = and police=20 reports, and details of the revelation of photographs, all said to = potentially=20 affect the trial=92s fairness and outcome.

[18] = ;=20 Third, available to Mr. Henry to argue in 1997 but not advanced = then,=20 there are grounds relating to the circumstances of the trial. = These=20 include the trial judge=92s handling of evidence during the trial as to=20 identification, particularly the line-up identifications, his = instruction to the=20 jury on identification, his rulings as to the conduct of the trial, his=20 instruction to the jury on prior inconsistent statements, and his = treatment of=20 similar fact. In some of these areas, of course, there has been = refinement=20 of the law, the effect of which to this case is not for us to consider = at this=20 time, our task being to consider whether the issues identified are = worthy, when=20 bundled with the other issues, of consideration by this Court in the=20 circumstances.

[19] = ;=20 In addition the Crown properly raises with us its concern as to = Mr.=20 Henry=92s fitness at trial as that may bear upon the fairness of the = trial. =20 Whether this will be a ground of appeal has not yet been=20 determined.

[20] = ;=20 I consider the cumulative effect of the circumstances of Mr. = Henry=92s=20 trial, the fresh evidence relating to the re-investigation and the = convictions=20 of the other offender, and the newly disclosed but dated evidence, the = lack of=20 counsel for Mr. Henry until recently, the position of Crown, and the = nature of=20 the sentence imposed upon him satisfy the test set out in = Blaker. =20 In this highly unusual situation, it is, in my view, in the interests of = justice=20 that the order dismissing his appeal in 1984 be set aside and his appeal = thereby=20 re-opened for consideration on its merits.

[21] = ;=20 The next issue is Crown=92s application for a ban on publication = in=20 relation to all complainants who will be the subject matter of=20 submissions. There are 51 women on that list. Those include = the=20 complainants in the counts against Mr. Henry, and the complainants in = the=20 offences re-investigated in the Smallman Investigation. =

[22] = ;=20 Mr. Henry consents to the application.

[23] = ;=20 Crown says that 22 women were linked to Mr. Henry, although he = was=20 convicted only in respect of 8. The other offender pleaded guilty = in=20 respect to 3 complainants. There is still in place a publication = ban=20 protecting the identities of the 8 persons in respect to whom Mr. Henry = was=20 convicted. I understand that ban continues, but it is appropriate = for=20 those persons to be named in a comprehensive and fresh ban issued on = this=20 application, if one is.

[24] = ;=20 The jurisdiction of this Court to order a ban on publication as = an=20 ancillary order, to ensure the orderly management of the appeal was = discussed by=20 the Alberta Court = of Appeal=20 in R. v. White, 2006 ABCA 54, and the Nova Scotia Court of Appeal = in=20 R. v. G.D.S. 2007 NSCA 94, (2007), 226 CCC (3d) 196. = Other=20 cases bearing upon this issue include R. v. Budai, 2000 BCCA 266, = and R. v. FM, 2007 BCCA 393. =20

[25] = ;=20 The test, as noted by Mr. Justice Donald in Budai at = para.=20 28 is that set out in Dagenais v. CBC [1994] 3 SCR 835 at=20 838:

A publication ban should only be ordered=20 when:

Such a ban is necessary in order to = prevent a=20 real and substantial risk to the fairness of the trial, because = reasonably=20 available alternative measures will not prevent the risk; and =

The salutary effects of the publication ban = outweigh the=20 deleterious effects to the free expression of those affected by the=20 ban.

[26] = ;=20 In considering the salutary effects of the proposed = publication=20 ban, the object and purposes of the ban provided for by s. 486, as = described by=20 Justice Sopinka in R. v. Adams [1995] 4 S.C.R. 707, is=20 germane:

24 = The =93object=20 and purpose=94 of the s. 486 publication ban were considered by this = Court in=20 Canadian Newspapers Co. v. Canada (Attorney General), [19881 2 S.C.R. = 122.=20 In that case, the Court held that the object of the predecessor to = the=20 relevant subsections was to encourage the reporting of sexual = offences. In=20 addition, the subsections were held to pursue the broader objective of=20 suppressing criminal activity. According to Lamer J. (as he then = was) for=20 the Court, at p. 130:

Encouraging victims to come forward and = complain=20 facilitates the prosecution and conviction of those guilty of sexual = offences.=20 Ultimately, the overall objective of the publication ban ...is to = favour=20 the suppression of crime and to improve the administration of=20 justice.

These objectives were held to be =93pressing = and=20 substantial=94 within the meaning of s. 1 of the Canadian Charter of = Rights and=20 Freedoms.

[27] = ;=20 Although section 486 referred to is not applicable to many of = these women=20 named on the list, the general policy of encouraging the testimony of = witnesses,=20 encouraging the reporting of sexual offences and protecting vulnerable=20 witnesses, applies here.

[28] = ;=20 I would grant the order in the terms sought in respect to the 51 = women=20 listed, an order that no person shall publish in any document, or = broadcast or=20 publicly transmit in any way any information that could identify the 51=20 complainants listed in Appendix =93A=94 to the Notice of = Application for a=20 ban on publication as amended yesterday with the addition of two names = that we=20 discussed.

[29] = ;=20 The application as it relates to the other offender stands on a = somewhat=20 different footing =96 the interest in encouraging the reporting of = sexual=20 offences, for example, does not apply. Privacy concerns and the=20 extraordinary nature of Mr. Henry=92s application have prompted the = Crown=92s=20 application in respect to the other offender. The other offender = is not=20 before the Court and the Crown wishes an opportunity to contact him = before his=20 name is broadcast in connection with the re-opening, thereby to provide = him an=20 opportunity to address the issue if he wishes to do so. The Crown=20 therefore seeks a ban, time limited to one month, with liberty to=20 reapply.

[30] = ;=20 We have not had submissions on our jurisdiction to make this = ban. =20 Accepting for the purposes of this order that we have jurisdiction to = make the=20 order sought, as an order ancillary to the appeal and as a term of the = order=20 re-opening Mr. Henry=92s appeal, I would make an interim order, in the = terms=20 sought. That is an interim order that no person shall publish in = any=20 document, or broadcast or publicly transmit in any way any information = that=20 could identify the other offender, with the name of that person inserted = in=20 place of the words =93the other offender=94 as in the Notice of = Application for ban=20 of publication. That ban shall expire on February 12, 2009, with = liberty=20 to the Crown to reapply.

[31] = ;=20 In summary, I would allow the application of Mr. Henry and set = aside the=20 order of February 24, 1984, dismissing Mr. Henry=92s conviction appeal, = and I=20 would order a publication ban in the terms described. =

[32] = ;=20 In ending, I must express to counsel the Court=92s appreciation = of their=20 professional and helpful conduct of this application.

[33] = ;=20 LEVINE = J.A.: I agree.

[34] = ;=20 LOWRY = J.A.: I agree.

[35] = ;=20 SAUNDERS = J.A.: The order shall go in the terms I have=20 described.

=93The = Honourable Madam=20 Justice Saunders=94