Date: 19971216 Docket: CA001505 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: REGINA RESPONDENT AND: IVAN WILLIAM MERVIN HENRY APPELLANT Before: The Honourable Mr. Justice Finch The Honourable Mr. Justice Donald The Honourable Mr. Justice Hall Written Submissions by: Ivan William Mervin Henry In Person William F. Ehrcke Counsel for the Crown, Respondent Place and Date of Judgment Vancouver, British Columbia 16 December, 1997 WRITTEN REASONS OF THE COURT: Reasons for Judgment of the Court: [1] On October 1, 1997, the appellant filed four documents entitled "Notice of Motion", "Application for an Extension of Time in which to make Application for Leave", "Application for Court Appointed Counsel Pursuant to s.684 of the Criminal Code", and "Affidavit in Support of Notice of Motion". It appears from these materials that the appellant is seeking to re-open an appeal which was dismissed by this Court in 1984 and is also seeking to have counsel appointed for him for that purpose. [2] On March 15, 1983 the appellant was convicted by a Court composed of a judge and jury of all ten counts on Indictment No. CC821614. The incidents involved eight different complainants and occurred between May 5, 1981 and June 8, 1982. He was convicted of three counts of rape, two counts of attempted rape, and five counts of indecent assault. [3] On March 28, 1983, the Crown obtained the consent of the Attorney General of British Columbia to make application for the appellant to be sentenced to detention in a penitentiary for an indefinite period of time as a dangerous offender. [4] On April 6, 1983, the appellant filed a Notice of Application for Leave to Appeal against his conviction to the British Columbia Court of Appeal. [5] On September 16, 1983, the appellant brought a motion in the British Columbia Supreme Court before Chief Justice McEachern, as he then was, for certiorari, prohibition, habeas corpus, and mandamus. Chief Justice McEachern declined to grant the applications for prerogative relief. The appellant appealed that decision to the British Columbia Court of Appeal. That appeal was dismissed on November 18, 1983. [6] The sentencing proceedings then resumed on November 21, 1983. On November 23, 1983, the Honourable Mr. Justice Bouck found the appellant to be a dangerous offender, and pursuant to s.688 of the Criminal Code [now s.753] he sentenced him to an indefinite period of incarceration. [7] On November 29, 1983, the appellant filed a Notice of Application for Leave to Appeal against his sentence to the British Columbia Court of Appeal. [8] On February 24, 1984, the appellant's conviction and sentence appeals came before a division of this Court on an application to have the appeals dismissed for want of prosecution. The appellant was present in Court for that hearing. The Court dismissed the appellant's appeals for want of prosecution. [9] The appellant next brought an application for mandamus in the British Columbia Court of Appeal. The Court dismissed that application as frivolous on March 19, 1984. [10] The appellant applied to the Supreme Court of Canada for leave to appeal against the judgment of the British Columbia Court of Appeal dated November 18, 1983, and also against the judgment of the British Columbia Court of Appeal dated February 24, 1984. The application for leave to appeal to the Supreme Court of Canada was dismissed on April 24, 1984. [11] The appellant brought a further application for habeas corpus to the British Columbia Court of Appeal. That application was dismissed on May 29, 1984. [12] On July 26, 1990, the appellant filed in the British Columbia Court of Appeal an application for habeas corpus, an application for extension of time to appeal, and for relief under various sections of the Canadian Charter of Rights and Freedoms. Those applications all related to his 1983 conviction and sentence. The appellant filed extensive written submissions in support of those applications. The applications were dismissed by this Court on September 20, 1990. [13] The appellant applied for leave to appeal to the Supreme Court of Canada from the September 20, 1990 judgment of this Court. That application for leave to appeal was dismissed by the Supreme Court of Canada on June 20, 1991. [14] The appellant's appeal against conviction was dismissed more than thirteen years ago on February 24, 1984. Unless that order were set aside, this Court is functus officio to hear the appellant's appeal or his application to adduce fresh evidence. [15] We therefore propose to treat the appellant's application as being, in substance, an application to rescind the February 24, 1984 order dismissing his appeal against conviction and in effect re-opening that appeal. [16] Where an appeal has been heard on its merits and finally disposed of by the issuance of an order, the statutory right of an appeal has been exhausted, and the Court has no jurisdiction to re-open that appeal. Where, however, an appeal has not been heard on its merits but rather has been dismissed for want of prosecution, the Court may, in exceptional circumstances, set aside its previous order and re-open the appeal if the interests of justice so require. Regina v. H.(E.F.); Regina v. Rhingo (1997), 115 C.C.C. (3d) 89 (Ont.C.A.), Leave to Appeal to S.C.C. dismissed September 18, 1997. [17] The limited power to reopen an appeal which was not determined on its merit is a power which will only be exercised in exceptional circumstances: see Regina v. Blaker (1983), 46 B.C.L.R. 344 (B.C.C.A.) at 352. [18] Normally, the limited power to re-open an appeal dismissed for want of prosecution will not be exercised unless the applicant can demonstrate that the initial order was made in error or that the Court was operating under some misunderstanding of the material facts. [19] In the present case, there is nothing to suggest that the division of this court which dismissed the appellant's appeal against conviction on February 24, 1984 was operating under any misunderstanding of the facts. The appellant was present before the court on that occasion. [20] The appellant applied for leave to appeal to the Supreme Court of Canada from the order of this Court dismissing his appeal against conviction. The Supreme Court of Canada dismissed his application for leave to appeal on April 24, 1984. Now, more than thirteen years later, he seeks to reinstate the appeal in this Court which the Supreme Court of Canada refused leave to review. [21] It appears from the materials filed by the appellant, that if his appeal were re-opened the issue which he seeks to address is an allegation of perjury on the part of a number of police officers in connection with line-up photographs which were used at trial. That is an issue of fact, not law. It is an issue which involves the assessment of credibility. It is not an issue which would merit this Court re-opening the appeal more than fourteen years after the jury's conviction. [22] The appellant applied for legal aid to assist him on this matter and was refused. It appears that he asked for a reconsideration of that decision and legal aid confirmed its refusal. [23] In all the circumstances it would not be in the interests of justice for counsel to be appointed under s.684 of the Criminal Code or for this Court to re-open the appellant's appeal at this very late date. [24] The applications are dismissed. "The Honourable Mr. Justice Finch" "The Honourable Mr. Justice Donald" "The Honourable Mr. Justice Hall"