R. v. Henry (I.W.M.), 2009 BCCA 86

• Judge: Newbury, J.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 20, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 86;(2009), 270 B.C.A.C. 5 (CA)

R. v. Henry (I.W.M.) (2009), 270 B.C.A.C. 5 (CA);

    454 W.A.C. 5

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MR.015

Regina (respondent) v. Ivan William Mervin Henry (appellant)

(CA036773; 2009 BCCA 86)

Indexed As: R. v. Henry (I.W.M.)

British Columbia Court of Appeal

Newbury, J.A.

February 26, 2009.

Summary:

The accused was convicted in 1983 of three counts of rape, two counts of attempted rape and five counts of indecent assault. After various appeals and applications by the accused, he was found to be a dangerous offender and sentenced to an indefinite period of incarceration. In 1984 both the accused's conviction and sentence appeals were dismissed for want of prosecution. Further applications and appeals by the accused followed. More than 13 years after conviction, the accused sought to re-open his appeal and to adduce fresh evidence. The accused also sought the appointment of counsel under s. 684 of the Criminal Code.

The British Columbia Court of Appeal, in a decision reported at 100 B.C.A.C. 183; 163 W.A.C. 183, dismissed both applications. After over 26 years in jail, the accused applied again for a re-opening of his appeal. The Crown, with the accused's consent, sought a publication ban respecting all complainants who would be the subject matter of submissions. The Crown also sought a time limited (one month) ban respecting another offender whose conviction in relation to other unsolved sexual assaults had prompted a Special Prosecutor to review the accused's convictions. The other offender was not before the court and the Crown wanted to contact him before his name was broadcast in connection with the re-opening, to give him an opportunity to address the issue if he wished to do so.

The British Columbia Court of Appeal, in a decision reported at 264 B.C.A.C. 244; 445 W.A.C. 244, allowed the applications. The other offender applied to extend the ban respecting the publication of his name.

The British Columbia Court of Appeal, per Newbury, J.A., allowed the application and extended the publication ban until further order of the court.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - The accused successfully applied, based on fresh evidence, to reopen an appeal from his 1983 conviction on several sexual assault charges - No date had yet been set for the hearing - Much of the fresh evidence had been turned up in a Vancouver police investigation ("Project Smallman") into approximately 25 unsolved sexual assaults believed to have been perpetrated by one person in the 1980s - These offences occurred after the accused's arrest - Eight of them involved a similar modus operendi to that used by the perpetrator of the assaults for which the accused was convicted, and took place in the same Vancouver neighbourhoods - The Vancouver police were able to obtain DNA profiles from three of the "Smallman" cases - Each profile matched that of "Mr. X" - The complainants in those three cases selected Mr. X's picture from a photo array and he was charged on those offences in 2005 - He pled guilty, served approximately 40 months in jail and was now on parole - Evidently, DNA evidence was not available respecting the remaining unsolved sexual assaults committed while the accused was in prison - Given the long time that had elapsed since the assaults and the fact that the victims were attacked in their beds at night and pillows or pillowcases placed over their heads, it was questionable whether it would be possible to charge and convict the perpetrator - However, the similarity of these assaults to those for which the accused was convicted, and other evidence and legal arguments by counsel, might permit him to cast doubt on the jury's verdicts in 1983 - At the time it granted the application to reopen, the Court of Appeal granted the Crown a publication ban on Mr. X's name - Mr. X applied to continue the ban - The British Columbia Court of Appeal, per Newbury, J.A., allowed the application - Mr. X was on parole and living in a half-way facility - He had not been charged, and unless and until he was convicted, he was presumed to be innocent of the unsolved offences which were the subject of the Smallman investigation - The publication of his name was not necessary in any way to the accused's appeal - The public interest in the openness of trials and the administration of justice was not diminished by withholding his name - All proceedings had been, and would continue to be, carried out in the open - On the other hand, reporting Mr. X's personal circumstances, combined with inflammatory demands by the media that his parole be revoked and statements that he was a "prime suspect" and a "dangerous sexual predator" being allowed to "live anonymously among us", meant that Mr. X's privacy and even security interests would be at risk if his name was published, more so than in the usual case of persons suspected but uncharged - If society took seriously the proposition that a person in Mr. X's position was presumed innocent until proven guilty, the deleterious effects, both on his privacy interests and on the administration of justice, of publishing his name outweighed the public interest in knowing that fact.

Civil Rights - Topic 1859.2

Freedom of speech or expression - Limitations on - Publication bans - [See Civil Rights - Topic 1444 ].

Civil Rights - Topic 2490.1

Freedom of the press - Limitations - Criminal matters - Publication ban - [See Civil Rights - Topic 1444 ].

Cases Noticed:

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 4].

R. v. Budai (M.K.) et al. (2000), 137 B.C.A.C. 26; 223 W.A.C. 26; 185 D.L.R.(4th) 510; 2000 BCCA 266, refd to. [para. 8].

R. v. White (M.J.) (2006), 380 A.R. 188; 363 W.A.C. 188; 2006 ABCA 65, refd to. [para. 8].

Church of Scientology Toronto et al. v. R. (No. 6) (1986), 27 C.C.C.(3d) 193 (Ont. H.C.), refd to. [para. 8].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 9].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 11].

R. v. Dean (F.) (1997), 102 B.C.A.C. 81; 166 W.A.C. 81 (C.A.), refd to. [para. 11].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203; 2002 SCC 41, refd to. [para. 11].

Phillips v. Vancouver Sun et al. (2004), 192 B.C.A.C. 250; 315 W.A.C. 250; 182 C.C.C.(3d) 483 (C.A.), refd to. [para. 12].

MacIntyre v. Nova Scotia (Attorney General), Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, refd to. [para. 13].

R. v. Eurocopter Canada Ltd. (2003), 180 C.C.C.(3d) 15; 233 D.L.R.(4th) 114 (Ont. Sup. Ct.), refd to. [para. 13].

R. v. Baltovich (R.) (2000), 131 O.A.C. 29; 144 C.C.C.(3d) 233 (C.A.), refd to. [para. 16].

R. v. Hanemaayer (A.) (2008), 239 O.A.C. 241; 234 C.C.C.(3d) 3 (C.A.), refd to. [para. 16].

Counsel:

J. Blazina, for the applicant Mr. X;

E.D. Crossin, Q.C., for the respondent, Her Majesty the Queen;

A.C. Ward and D. Layton, for the appellant, Ivan William Mervin Henry.

This application was heard at Vancouver, B.C., on February 20, 2009, by Newbury, J.A., of the British Columbia Court of Appeal, in Chambers, who delivered the following decision on February 26, 2009.