Subject: 2009 BCCA 12 R. v. Henry
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Date: Mon, 19 Jan 2009 22:21:10 -0800

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Henry,

2009 BCCA 12

Date: 20090113

Docket: CA036773

Between:

Regina

Respondent

And

Ivan William Mervin Henry

Appellant

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

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

THAT NO PERSON SHALL PUBLISH IN ANY DOCUMENT OR BROADCAST OR PUBLICLY TRANSMIT IN ANY WAY INFORMATION THAT COULD IDENTIFY THE “OTHER OFFENDER” REFERRED TO IN THE REASONS.

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Levine

The Honourable Mr. Justice Lowry

Oral Reasons for Judgment

C. Ward

M. Sandford

D.M. Layton

Counsel for the Appellant

M.D. Shirreff

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

5 January 2009

Place and Date of Judgment:

Vancouver, British Columbia

13 January 2009

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

[2]                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 case.  Where it has been dealt with on its merits an entirely different process, that engaging the Royal Prerogative of mercy, must be pursued.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[22]            Mr. Henry consents to the application.

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

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

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

A publication ban should only be ordered when:

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

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

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

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

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

These objectives were held to be “pressing and substantial” within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms.

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

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

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

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

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

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

[33]            LEVINE J.A.: I agree.

[34]            LOWRY J.A.: I agree.

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

“The Honourable Madam Justice Saunders”