R. v. Henry (I.W.M.), (2009) 264 B.C.A.C. 244 (CA)

• Judge: Saunders, Levine and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 05, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 264 B.C.A.C. 244 (CA);2009 BCCA 12

R. v. Henry (I.W.M.) (2009), 264 B.C.A.C. 244 (CA);

    445 W.A.C. 244

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JA.056

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

(CA036773; 2009 BCCA 12)

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

British Columbia Court of Appeal

Saunders, Levine and Lowry, JJ.A.

January 13, 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 allowed the applications.

Civil Rights - Topic 1859.2

Freedom of speech or expression - Limitations on - Publication bans - The accused was convicted in 1983 of 10 serious sexual offences against eight complainants - 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 his conviction and sentence appeals were dismissed for want of prosecution - Further applications and appeals by the accused followed - More than 13 years after conviction, he sought to re-open his appeal and to adduce fresh evidence - He also sought the appointment of counsel under s. 684 of the Criminal Code - Both applications were dismissed - After over 26 years in jail, the accused applied again for a re-opening of his appeal - The application followed a recent reinvestigation (the Smallman Investigation) into approximately 25 unsolved serious sexual assaults in Vancouver in the mid to late 1980's, when the accused was in jail - DNA evidence was available in only three of those assaults, to which another offender pled guilty in May 2005 - After the Smallman Investigation, a Special Prosecutor reviewed the accused's convictions - He recommended, inter alia, disclosure of the new information and of old information that had not been provided to the accused at the time of his trial - It was only after his recommendations that the accused was able to obtain legal assistance and received the disclosure - The Crown, with the accused's consent, applied for a publication ban in relation to all complainants who would be the subject matter of submissions - The British Columbia Court of Appeal granted the order - The general policy of encouraging the testimony of witnesses, encouraging the reporting of sexual offences and protecting vulnerable witnesses applied - See paragraphs 21 to 28.

Civil Rights - Topic 1859.2

Freedom of speech or expression - Limitations on - Publication bans - The accused was convicted in 1983 of 10 serious sexual offences against eight complainants - 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 his conviction and sentence appeals were dismissed for want of prosecution - Further applications and appeals by the accused followed - More than 13 years after conviction, he sought to re-open his appeal and to adduce fresh evidence - He also sought the appointment of counsel under s. 684 of the Criminal Code - Both applications were dismissed - After over 26 years in jail, the accused applied again for a re-opening of his appeal - The application followed a recent reinvestigation (the Smallman Investigation) into approximately 25 unsolved serious sexual assaults in Vancouver in the mid to late 1980's, when the accused was in jail - DNA evidence was available in only three of those assaults, to which another offender pled guilty in May 2005 - After the Smallman Investigation, a Special Prosecutor reviewed the accused's convictions - He recommended, inter alia, disclosure of the new information and of old information that had not been provided to the accused at the time of his trial - It was only after his recommendations that the accused was able to obtain legal assistance and received the disclosure - The Crown sought, inter alia, a one month publication ban respecting the other offender - The Crown wanted to contact the other offender before his name was broadcast in connection with the re-opening, to give him an opportunity to address the issue if he wished to - The British Columbia Court of Appeal granted the order - See paragraphs 29 and 30.

Civil Rights - Topic 2490.1

Freedom of the press - Limitations - Criminal matters - Publication ban - [See both Civil Rights - Topic 1859.2 ].

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Power to re-open appeal - The accused was convicted in 1983 of 10 serious sexual offences against eight complainants - The accused 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 complainants' eyewitness and voice identification evidence - The accused testified, denying that he had committed the offences - 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 his conviction and sentence appeals were dismissed for want of prosecution - Further applications and appeals by the accused followed - More than 13 years after conviction, he sought to re-open his appeal and to adduce fresh evidence - He also sought the appointment of counsel under s. 684 of the Criminal Code - Both applications were dismissed - After over 26 years in jail, the accused applied again for a re-opening of his appeal - The application followed a recent reinvestigation (the Smallman Investigation) into approximately 25 unsolved serious sexual assaults in Vancouver in the mid to late 1980's, when the accused was in jail - DNA evidence was available in only three of those assaults, to which another offender pled guilty in May 2005 - After the Smallman Investigation, a Special Prosecutor reviewed the accused's convictions - He recommended, inter alia, disclosure of the new information and of old information that had not been provided to the accused at the time of his trial - It was only after his recommendations that the accused was able to obtain legal assistance and received the disclosure - The British Columbia Court of Appeal allowed the application in the interests of justice - See paragraphs 1 to 20.

Criminal Law - Topic 5403.1

Evidence and witnesses - Witnesses - Publication ban re witness's name - [See first Civil Rights - Topic 1859.2 ].

Cases Noticed:

R. v. Blaker (1983), 6 C.C.C.(3d) 385 (B.C.C.A.), appld. [para. 3].

R. v. Jacobs, [1971] S.C.R. 92; 2 C.C.C.(2d) 26, refd to. [para. 3].

R. v. White (M.J.) (2006), 380 A.R. 188; 363 W.A.C. 188; 2006 ABCA 65, refd to. [para. 24].

R. v. G.D.S. (2007), 258 N.S.R.(2d) 185; 824 A.P.R. 185; 226 C.C.C.(3d) 196; 2007 NSCA 94, refd to. [para. 24].

R. v. Budai (M.K.) et al. (2000), 137 B.C.A.C. 26; 223 W.A.C. 26; 2000 BCCA 266, refd to. [para. 24].

R. v. F.M., [2007] B.C.A.C. Uned. 108; 2007 BCCA 393, refd to. [para. 24].

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. 25].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161, refd to. [para. 26].

Counsel:

C. Ward, M. Sandford, and D.M. Layton, for the appellant;

M.D. Shirreff, for the respondent.

This application was heard at Vancouver, B.C., on January 5, 2009, by Saunders, Levine and Lowry, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following oral decision for the court on January 13, 2009.