R. v. Henry (I.W.M.), (1997) 100 B.C.A.C. 183 (CA)

• Judge: Finch, Donald and Hall, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 16, 1997
• Jurisdiction: British Columbia
• Citations: (1997), 100 B.C.A.C. 183 (CA)

R. v. Henry (I.W.M.) (1997), 100 B.C.A.C. 183 (CA);

    163 W.A.C. 183

MLB headnote and full text

Temp. Cite: [1998] B.C.A.C. TBEd. JA.027

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

(CA001505)

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

British Columbia Court of Appeal

Finch, Donald and Hall, JJ.A.

December 16, 1997.

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 dismissed both applications.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Power to re-open appeal - The British Columbia Court of Appeal stated that where an appeal was heard on its merits and finally disposed of by the issuance of an order, the statutory right of appeal was exhausted, and the court lacked jurisdiction to re-open that appeal - Where, however, an appeal was 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 required - In the latter instance, the applicant must demonstrate that the initial order was made in error or that the court operated under some mis­understanding of the material facts - See paragraphs 16 to 18.

Criminal Law - Topic 4989.5

Appeals - Indictable offences - Powers of Court of Appeal - Power to re-open appeal - Approximately 14 years after conviction, an accused sought to re-open his appeal, raising an issue of fact involv­ing the as­sessment of credibility - The British Columbia Court of Appeal held that it was not in the interests of justice to re-open the case.

Cases Noticed:

R. v. Hamilton (E.) (1997), 98 O.A.C. 363; 115 C.C.C.(3d) 89 (C.A.) refd to. [para. 16].

R. v. Rhingo - see R. v. Hamilton (E.).

R. v. Blaker (1983), 46 B.C.L.R. 344 (C.A.), refd to. [para. 17].

Counsel:

Ivan William Mervin Henry, appeared in person;

William F. Ehrcke, for the Crown, respon­dent.

These applications were heard at Vancouver, British Columbia, before Finch, Donald and Hall, JJ.A., of the British Col­umbia Court of Appeal.

On December 16, 1997, the following judgment was delivered by the Court of Appeal.