Appeals Document 2010

COURT OF APPEAL FOR BRITISH COLUMBIA
R. v. Henry,
2010 BCCA 462
Date: 20101027
Docket: CA036773
Between:
Regina
Respondent
And
Ivan William Mervin Henry
Appellant
BAN ON DISCLOSURE
pursuant to s. 486(3) (now s. 486.4) C.C.C.
Before:
The Honourable Mr. Justice Low

The Honourable Madam Justice Levine
The Honourable Mr. Justice Tysoe
On appeal from: Supreme Court of British Columbia, March 15, 1983
(R. v. Henry, Vancouver Docket No. CC821614)
Counsel for the Appellant:
Counsel for the Respondent:
M.E. Sandford,
C. Ward,
D.M. Layton
E.D. Crossin,Q.C.,
M.D. Shirreff,
E. LeDuc
Place and Date of Hearing:
Vancouver, British Columbia

June 21and 22, 2010
Place and Date of Judgment:
Vancouver, British Columbia

October 27, 2010
Written Reasons by:

Concurred in by:
2010 BCCA 462 (CanLII)
Citation:
R. v. Henry
Page 2
Reasons for Judgment of the Honourable Mr. Justice Low:

[1]
A jury convicted the appellant on 15 March 1983 on each of ten counts
various dates from 5 May 1981 to 8 June 1982. The only issue at trial on each count
was the identity of the offender. Identity is the only element of the offences of
concern to this court.
[2]
All the offences were committed before 1983 amendments of the Criminal
Code of Canada that created the offence of sexual assault in its various forms. The
offences included five counts of indecent assault, two counts of attempted rape and
three counts of rape.
[3]
Each of the complainants was alone at night in a basement or ground-floor
suite when the perpetrator gained access. None of the complainants previously
knew her attacker. Each had a limited opportunity to record to memory the features
of her attacker. Therefore, the Crown had a difficult task of proving on each count
that the appellant was the person who committed the offence.
[4]
There was no reliable pre-court identification of the appellant by any of the
complainants. There was no forensic or other evidence linking the appellant to any
complainant or to any crime scene. The Crowns case depended on in-court
identification of the appellant by the complainants, at the preliminary inquiry and at
trial. This was decidedly not a strong case. There was a great deal for competent
defence counsel to exploit in order to attempt to at least raise a reasonable doubt on
the element of identification.
[5]
The appellant had counsel for the preliminary inquiry, John White. Later
Richard Peck (now Q.C.) represented him. However, the appellant decided that he
wished to act as his own counsel and a few weeks before the trial commenced Mr.
Peck withdrew.
charging sexual offences involving eight complainants. The offences occurred on
R. v. Henry
[6]
Page 3
It is a common experience of judges that self-represented accused persons
are at a substantial disadvantage. This is particularly so where, as here, the

defence is that the wrong person has been charged. These circumstances imposed
to instruct the jury correctly and completely, particularly with respect to the law that
applied to the element of identification and the evidence that related to that issue.
[7]
It is 27 years since these convictions were entered. However, this is the first
time an appeal has been heard on the merits. There were exceptional
circumstances in this case that led to the re-opening of the appeal by a division of
this Court. The procedural history of this case will be set out below, as will the
grounds of appeal argued on behalf of the appellant.
[8]
As I stated at the conclusion of the hearing of this appeal, legal errors were
made at trial and the appeal must be allowed.

[9]
The appellant asks this Court to enter acquittals on all counts pursuant to
s. 686(2)(a) of the Criminal Code.

[10]
At the conclusion of its factum, the Crown made the following submission with
respect to remedy:
Given the Crowns submissions, it is open to the Court to conclude that as
matters stand today, no reasonable jury could convict. In the event such a
determination is made, the appropriate remedy is to enter acquittals on the
counts at bar.
Procedural History
[11]
The Vancouver Police Department investigated more than 20 complaints of
sexual assaults that occurred in the City of Vancouver from 25 November 1980 to 8
June 1982, a period of just over 18 months. In many of these incidents, the
perpetrator told the female complainant he had been ripped off by someone who
owed him money and who was supposed to live at the residence to which he had
gained entry. Police investigators concluded that each of these assaults had likely
been committed by one man.
a duty on the trial judge to fully inform the appellant of his rights and his options and
R. v. Henry
[12]
Page 4
The appellant was arrested on 12 May 1982 and 11 of the complainants
viewed him that day in a police line-up, about which more is to be said. Six of those
complainants were named in the indictment that was before the jury. The appellant
[13]
On 8 June 1982, the complainant in counts 9 and 10 of the trial indictment
was sexually assaulted. On 27 and 28 July, Det. Harkema showed her an array of
photographs that included a photograph of the appellant taken by the police while he
was in custody in May. This complainant made a conditional identification of the
appellant as her attacker.
[14]
On the strength of this identification, the appellant was arrested again on 29
July 1982 on 17 sexual offence charges involving 15 complainants. A month later

he consented to a detention order.
[15]
The preliminary hearing took place over eight days in October and November
1982 on a new information containing 19 counts naming 17 complainants. Two of

these complainants did not testify and the appellant was committed for trial on the 17
counts that related to the remaining 15 complainants.
[16]
The jury trial commenced on 28 February 1983. We do not have a transcript
of the initial arraignment of the appellant on an indictment containing the 17 counts

on which he had been committed for trial. The court clerks notes indicate that he
pleaded not guilty on each count. From the notes, it appears the trial judge, before
jury selection, indicated that he wanted the Crown to proceed with only five counts.
It appears that he was invoking ss. 520(3) now ss. 591(3) of the Criminal Code.
That subsection permitted the court to direct that the accused be tried separately
upon one or more of the counts in the indictment. (The notes record s. 523(3) but
that is an obvious error.) The Crown made submissions on severance (similar fact
and identity). The appellant wanted the court to require the Crown to proceed on all
the counts in the indictment. If I interpret the clerks notes correctly, the trial judge
ordered severance of ten specific counts from the remaining seven.
was released from custody the following day.
R. v. Henry
[17]
Page 5
Later the same morning, the appellant was arraigned on a new ten-count
indictment naming eight complainants. Jury selection followed. The trial proceeded
[18]
As I have said, the appellant represented himself at trial. It appears that he
did so without the assistance of counsel, within the courtroom at least, and without
any consideration of the appointment of amicus curiae. The trial continued for 12
days with the jury verdicts being rendered on 15 March 1983.
[19]
The appellant did not have counsel during subsequent sentence proceedings
that concluded on 23 November 1983 and in which, on the application of the Crown,
the appellant was declared a dangerous offender and sentenced to an indefinite
period of incarceration.
[20]
The appellant brought an appeal in person which this court, on the Crowns
motion, dismissed on 24 February 1984 for want of prosecution. The court noted
that the appellant had not ordered appeal books and that he had refused to do so.
Seaton J.A. said [the appellant] has expressed an intention not to proceed with
these appeals in accordance with the only way in which they can be dealt with.
[21]
Later the Supreme Court of Canada refused an application brought by the
appellant for leave to appeal to that court. It declined a subsequent application for
reconsideration of that refusal: [1984] S.C.C.A. No. 262.
[22]
The appellant later brought several habeas corpus applications but these
were dismissed.
[23]
In 1997, this court dismissed an application of the appellant for an order
reopening his appeal and for the appointment of counsel under s. 684 of the
Criminal Code. As to the power of the court to reopen a criminal appeal, the court
said this:
[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
to verdicts on this indictment. This arraignment was in a different courtroom.
R. v. Henry
Page 6
[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.
The court stated the basis on which the appellant sought the order to reopen his
appeal:
[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 jurys conviction.
[24]
The court also noted that the appellant had been refused legal aid.
[25]
In 2002, Vancouver City Police began to re-investigate 25 unsolved sexual
assaults that had been committed from 12 April 1983 to 3 July 1988. This operation
was designated as Project Smallman. The first of these offences was committed
more than nine months after the appellants arrest on 29 July 1982. Because he
was in prison, the appellant could not have committed any of these offences.
[26]
Through the science of microbiology (DNA), a man with the initials D.M. was
linked to three of these offences. (His name is subject to a publication ban.) On 27

May 2005, D.M. pleaded guilty to these three offences and Kitchen P.C.J. sentenced
him on 15 June 2005 to five years in prison.
[27]
About this time, two senior prosecutors in the Vancouver Regional office,
including lead counsel at the appellants 1982 trial, became aware of certain
similarities between the case against the appellant and information generated by
Project Smallman. In the best traditions of prosecutorial fairness, they brought their
concerns to the attention of the Criminal Justice Branch of the provincial Ministry of
the Attorney General.
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.
R. v. Henry
[28]
Page 7
The Criminal Justice Branch appointed Leonard T. Doust, Q.C., a senior
counsel in private practice, to investigate a potential miscarriage of justice in the

convictions of the appellant. Mr. Doust conducted a detailed review of the
March 2008, he recommended that the Crown not oppose any application the
appellant might bring to re-open his appeal.
[29]
As reproduced in a Criminal Justice Branch media release dated 28 March
2008, Mr. Doust further recommended that:
[30]
1.
the Crown make full disclosure to Henry of the results of the

Vancouver Police Departments investigation in Project Smallman,
which evidence is in my view relevant and potentially exculpatory and
which the Crown is therefore obliged to disclose pursuant to its
ongoing disclosure obligations at common law;
2.
the Crown make full disclosure to Henry of the totality of the evidence
in its possession relating to the offences for which Henry was charged
and/or convicted, so as to ensure that Henry has the benefit of any
potentially exculpatory evidence which may not have been previously
disclosed to him;
3.
the Crown provide a copy of my report to Henry's counsel and make

full disclosure to Henry of the documents and information which I
collected in the course of my review; and
4.
the Attorney General appoint a Special Prosecutor independent of my

office and the office of Crown Counsel to represent the Crown in
response to any application which Henry might bring to re-open his
appeal and adduce fresh evidence on the basis of the conclusions in
my report.
The Crown followed these recommendations. E. D. Crossin, Q.C. was
appointed as a special prosecutor and the Crown made all the disclosure urged by
Mr. Doust.
[31]
Finally represented by counsel, the appellant applied again to re-open his
appeal. On behalf of the Crown, Mr. Crossin did not oppose the application.
[32]
On 13 January 2009, a division of this court, for reasons written by Madam
Justice Saunders, ordered that the appeal be re-opened and heard on its merits by
another division of this court. Those reasons are indexed at 2009 BCCA 12. The
appellants convictions and the evidence relating to D.M. In his report delivered in
R. v. Henry
Page 8
court considered whether there were exceptional circumstances that required a reopening of the appeal in the interests of justice and concluded there were. The
exceptional circumstances included the convictions of D.M. in 2005 and the
available to the appellant when he was tried that might have been relevant to the
reliability of the eyewitness identification; and concerns about, among other things,
the integrity of the pre-trial identification process, the jury instruction on the element
of identification and the treatment at trial of a count-to-count similar fact issue. After
discussing these matters, Madam Justice Saunders concluded, at para. 20: In this
highly unusual situation, it is, in my view, in the interests of justice that the order
dismissing [this] appeal in 1984 be set aside and [this] appeal thereby re-opened for
consideration on its merits.
[33]
In addition, the court mentioned a concern as to the fitness of the appellant to
stand trial in 1983 and noted that it had not yet been determined whether this would
be a ground of appeal. Fitness has not been made a ground of appeal before us.
[34]
On 12 June 2009, Mr. Justice Lowry ordered the appellant released on bail.
He remains at large pending disposition of this appeal.

[35]
The record of the trial proceedings is incomplete. We have a transcript of the
closing submissions made by the appellant to the jury but, for some reason, the
closing submissions made by Crown counsel to the jury are no longer available. It
would have been useful to know what was said by the Crown to the jury in order to
put the identification issue (and its impact on the important question of unreasonable
verdict) in a more complete context.
Grounds of appeal
[36]
The appellant raises numerous grounds of appeal. There is some overlap
among them. Some concern only specific counts. I find it necessary to discuss only
four of the grounds, as follows:
evidence related to the Smallman investigation; disclosure of information not
R. v. Henry
(1)
Page 9
that the trial judge erred by instructing the jurors that they could use
evidence of the appellants resistance to participation in a police line-up as
(2)
that the jury instruction on the element of identification was inadequate;
(3)
that the trial judge erred in failing to sever the counts and declare a
mistrial after the Crown abandoned an application for jury instruction on the
law of count-to-count similar fact evidence;
(4)
that the verdict on each count was not supported by the evidence and
was unreasonable.
[37]
Success by the appellant on any of the first three grounds of appeal would
result in an order for a new trial. Success on the fourth ground would lead to
acquittals. As will be seen, I am of the opinion that the fourth ground of appeal
should be sustained on each of the ten counts in the indictment. I think, though, that
discussion of the other grounds should give some context and provide a better
understanding of why acquittals should be entered.
[38]
As a separate ground of appeal, the appellant contends that the trial judge did
not give him adequate assistance thereby undermining his ability to bring out his
defence with full force and effect. It is my view that the judge did render adequate
assistance in explaining to the appellant the trial process and what options were
available to him from time to time. I would not give effect to this ground of appeal.
[39]
The appellant argues the Smallman issue only to support his submission that
the appropriate remedy is acquittal on each count in the indictment. He says that if
the court otherwise concludes that the only available remedy is a new trial, the court
should conclude that the impact of the Smallman material on the identification
reliability issue would render unreasonable any jury conviction at a retrial.
Therefore, the proper appellate remedy is acquittal on all counts. I will discuss this
issue after I have determined the four specific grounds of appeal listed above.
evidence of consciousness of guilt;
R. v. Henry
Page 10
Consciousness of guilt
[40]
The appellant refused to participate in the physical line-up conducted on 12
headlock as can be seen in a photograph in evidence. Eleven women who had

complained of home-invasion assault viewed the line-up. These included six of the
eight complainants who testified at trial. One trial complainant was assaulted after
the date of the line-up and was shown a photographic line-up, a matter to be
discussed below. The remaining trial complainant saw no line-up.
[41]
The Crown led evidence about the refusal of the appellant to participate in the
line-up. There was evidence that the appellant struggled and shouted and was
restrained by police officers. Detective Baker was the police officer who arranged
the line-up. He testified that the appellant refused to take a number tag and a
constable put one over his head. Another detective testified that five police officers
and two prisoners acted as foils in the line-up. Detective Baker testified that the
process lasted about three minutes. During this time, the appellant was moving his
head about and was very uncooperative. A uniformed constable put his arm around
the appellants neck to force his head up. Another officer took the photograph of this
scene.
[42]
The Crown did not tender the photograph as an exhibit.
[43]
During his cross examination of one of the complainants the appellant
tendered the photograph and it was received into evidence.

[44]
In the portion of the jury charge dealing with the element of identification, the
trial judge said two related things about the refusal of the appellant to participate in
the line-up and about the photograph:
Let me say something about the lineup photographs. Exhibit 1 is a
photograph of several men in what appears to be a police lineup, we are told
it is a police lineup. The accused put the photograph into evidence on crossexamination of [a complainant]. She said the lineup occurred on the 12th of
May 1982. Had the Crown attempted to lead the evidence of the photograph
with respect to the lineup I would probably have rejected the testimony and
May 1982. Police officers forced him into the line-up and one officer held him in a
Page 11
ruled it inadmissible; however the accused apparently had some reason to

place the photograph in front of you. I assume the inference he wishes you
to draw is that any identification of him at that time is a farce, since he is the
only one being restrained by the three police officers. On the other hand the
Crown suggests his obvious reluctance to participate in the lineup leads to an
inference of consciousness of guilt on his part. It is for you to draw the proper
inference upon considering all of the evidence.
[45]
As already noted, we do not have a transcript of Crown counsels jury speech.
But it is apparent from the above instruction that the Crown invited the jurors to
reason their way to guilt from the appellants refusal to participate in the line-up.
[46]
In my opinion, the above instruction about consciousness of guilt was wrong
in law when it was given.

[47]
In R. v. Marcoux, [1976] 1 S.C.R. 763, the issue was whether the trial judge
had erred in allowing evidence that the accused had declined a line-up. The trial
judge had charged the jury in that case as follows (at p. 766):
I have one other matter of law that I wish to refer to before reviewing the
evidence with you. There is no statutory authority to force an accused person
or a suspect or a person at a police station into a line-up. It will be for you to
decide on the totality of the evidence what significance you will attach to
Mr. Marcouxs refusal to participate in a suggested line-up.
[48]
In Marcoux, unlike the present case, the refusal of the accused to go into a
physical line-up was accepted by the police. Instead the police investigators in
Marcoux presented the accused to the identifying witness in an alternative process
called a showup. There was no discussion in the judgment of the third alternative
of a photographic line-up.
[49]
Dickson J. (as he then was) discussed the concept of self-incrimination as it
related to participation in a line-up. He said at p. 771 that such participation did not
violate the privilege against self-incrimination. Although forced participation in a lineup was not directly in issue, he said on the following page that the question [of
forced participation] will usually be of little practical importance, as the introduction of
a struggling suspect into a line-up might make a farce of any line-up procedure.
R. v. Henry
R. v. Henry
[50]
Page 12
Turning to the case before the court, Dickson J. (at p. 773) said that defence
tactics made this evidence [refusal to participate in the line-up] admissible beyond
any question. He then addressed the limited purpose of admissibility by adding
explain the failure to hold an identification parade and the necessity, as a result, to
have a showup. I take this to mean that the evidence was admissible because of
the conduct of the defence and not as direct evidence of guilt.
[51]
In the same passage, Dickson J. cited R. v. Brager (1965), 52 W.W.R. 509
(B.C.C.A.) at 511 without describing the case or quoting from it. In Brager, an
impaired driving case tried with a jury, the court found error in the refusal of the trial
judge to permit cross examination of the arresting officers as to whether they had
conducted any physical tests of the accused. However, the court found no prejudice
to the appellant because the explanation for no physical tests that would have
emerged was that the appellant had refused to submit to tests at the police station. I
expect that Dickson J. mentioned the case in Marcoux because he approved the
following comment of Davey J. A. (as he then was) at p. 511: While the evidentiary
effect of that refusal could have no bearing on guilt or innocence [my emphasis], it
might have made the jury somewhat sceptical about appellants defence.
[52]
It seems to me to be clear from the passages I have highlighted above that
had the trial judge in Marcoux charged the jury with respect to consciousness of guilt
as the trial judge did in the present case, the court would have found the instruction
to be wrong in law.
[53]
The instruction in Marcoux did not invite the jury to consider the refusal to
participate in the line-up as direct evidence of guilt. The evidence of refusal went
only to the assertion of the defence that the police had employed an unfair method
of determining whether the eyewitness could identify the perpetrator. That is
substantially different from the charge on consciousness of guilt given in the case at
bar in similar circumstances. The trial judge here permitted the jury to reason that
the appellants verbal and physical resistance to participation in the line-up was
these words: admissible, not for the purpose of proving guilt [my emphasis], but to
R. v. Henry
Page 13
tantamount to an admission of guilt. In my opinion, under Marcoux, the reasoning

suggested in the jury instruction was wrong in law.
This error irretrievably taints the verdicts. I repeat that the identification
evidence was weak. An astute juror would have recognized that to be so. With no
evidence to shore up identification on any count, conviction by the jury based on a
proper understanding and application of the law of identification was unlikely. The
legally wrong instruction on consciousness of guilt provided even the astute juror
with a comfortable and perhaps irresistible path of reasoning to guilt.
[55]
It might be useful to refer to R. v. Shortreed (1990), 54 C.C.C. (3d) 292 (Ont.
C.A.). There was evidence in that case that the accused refused to participate in a
line-up or have his photograph taken. While still at large, he foiled numerous
attempts by police officers to surreptitiously take his photograph which they
apparently wanted to include in a photo array. After his arrest, they took his
photograph and used it in a photographic line-up. After referring to Marcoux,
Lacourciere, J.A., for the court, said this at p. 302 :
In short, the evidence of refusal became relevant and admissible to explain
the absence of an identification parade. It was incumbent, however, on the
trial judge to give the jury a limiting instruction. He should have told them that
the appellant's refusal to participate in a line-up could not be used as
evidence of guilt or of consciousness of guilt, but only and strictly for the
limited purpose of explaining the failure to hold a line-up or identification
parade and, hence, the need for the police to resort to less satisfactory
identification procedures.
[56]
The above applied only to the refusal of the accused to participate in an
identification parade. In that respect, the court interpreted and applied Marcoux as I
have done. However, Shortreeds conduct went well beyond that of the appellant in
the present case. Lacourciere, J.A. explained the difference at pp. 304 to 305:
No adverse inference should be drawn from a refusal to provide a photograph
in ordinary circumstances, particularly where, as in this case, the refusal is
based on legal advice received by the suspect. But extraordinary efforts to
prevent the taking of a photograph such as altering or concealing one's facial
appearance by resorting to beards, disguises, camouflage or special
headgear can, in the absence of a plausible explanation for such conduct,
support an inference that the suspect has something to conceal. Such
[54]
R. v. Henry
Page 14
measures are capable of supporting an inference of consciousness of guilt

and hence of guilt.
[57]
The court concluded that the error did not affect the verdicts. Upon
perpetrator of a number of sexual assaults there was no substantial wrong or

miscarriage of justice occasioned by the error. The appeal was dismissed.
[58]
I agree with the reasoning in Shortreed that no adverse inference normally
should be drawn by the finder of fact from the refusal of an accused person to
participate in a line-up or to provide a photograph. I see this as a correct application
of Marcoux.
[59]
If I am wrong in concluding that there was no basis in law for charging the jury
as to consciousness of guilt, there was a serious error in the failure of the trial judge
to review the evidence capable of providing an innocent explanation for the refusal
of the appellant to participate in the line-up.
[60]
There was nothing in the Crowns evidence to suggest why the appellant
resisted participation in the line-up. The Crown apparently just invited an inference
that the resistance must have been the product of a guilty mind. It is also apparent
that the evidence of resistance was an integral part of the Crowns case. In these
circumstances, it was necessary for the trial judge to instruct the jury that the bare
fact of resistance was all the Crown could point to in the evidence in support of the
inference of a guilty mind that it was urging.
[61]
This omission was compounded greatly by the failure of the trial judge to
remind the jury of explanations offered by the appellant for resisting the line-up. In
his evidence-in-chief, the appellant gave this evidence:
I was not handcuffed in no line-up. I was at the door of the line-up. A
guy told me that I had to go to these line-up and I told them I did not have to
go into any line-up. And the reason for no going into a line-up is because I
don't believe I have to prove I'm innocent. I didn't really know other than
when I was a kid growing up in these places, I never did ever go into a lineup. I've always refused to go into a line-up.
consideration of the balance of the evidence at trial identifying the accused as the
Page 15
What I had suggested to the officer on charge, I told him that I was not
going into these line-up and he suggested and he gave me a quote from
Saulman v. Marcoux (sic) in that Criminal Code book. That states that
nothing can be put to the jury that means that you have to be put into a lineup. In other words, a jury can't intercept a message. Like it's not my rights to
plead like say I'm innocent. I don't have to do that. So line-up of that
nature wouldn't have to be put to the jury because it would be it would be
against the law, because the jury couldn't decide if the guy is guilty or not
guilty.
In cross-examination, the appellant testified as follows:

Q. Why didn't you let the police have you in a quiet lineup, whether you were
[in] handcuffs or not. Why A. I never refused no quiet lineup. I never refused anything to anybody. All I
said is I am not it's not a fair lineup. I did not suggest, or didn't, did I ever
try to intimidate anybody or threaten anybody by saying I'm not going in your
lineup. All I said to them and those people at that, that were with me is "I'm
this is not a fair lineup, I am only red headed person, I am the only guy
dressed like this." The other guys were a bunch of slobs. Excuse the
expression. I might be a slob too, but the thing is that I was altogether like if
I was to wear bell bottom pants and you were to wear bell bottom pants, and I
was to have designer jeans, you mean you would say, well, gees, that's like
night and day, isn't it? I mean the style is like all we're in a different era.
[62]
Although the appellants evidence was sometimes disjointed and difficult to
follow, he clearly denied that he was the man who committed any of the offences
charged in the indictment. That assertion was not shaken in cross examination.
The Crown did not suggest to the appellant that the reason he resisted the line-up
was that he knew that if he cooperated he risked being identified as the perpetrator
because he knew he was the perpetrator. Thus it was not put to the appellant that
the inference of fact the Crown later sought was the correct inference. It seems to
me that it is at least arguable that this failure by the Crown to confront the appellant
in this manner meant the Crown could not invite the jury to draw the inference the
Crown urged in its jury speech. The trial judge would not have erred if he had
pointed out to the jury that the Crown did not challenge the appellant about the
reasons he gave for his resistance to the line-up on the basis that he was a guilty
man attempting to avoid being identified.
R. v. Henry
R. v. Henry
[63]
Page 16
The appellant offered two reasons for his resistance to participation in the
line-up. First, he understood that the law did not require him to submit to the
[64]
The jury could not have properly considered the inference sought by the
Crown without being reminded of the explanations given by the appellant. If jurors
concluded that the appellants reasons for resistance might have been legitimate,
they would have had to reject the inference and consider the balance of the
evidence on the element of identification. In that event, the Crowns case against
the appellant would have been back on its shaky foundation.
[65]
The trial judge reviewed the defence theory with the jury only briefly. He did
not then mention the appellants explanations for not cooperating in the identification
process. Earlier, amidst a compendious chronological review of the evidence, the
judge said only that the appellant testified that (h)e told them he didnt have to go in
any line-up and, much later in the evidence review, that he didnt co-operate
because he said he wasnt going to get into any lineup with [as?] the only redhead.
[66]
This review was not given in the context of the instruction on consciousness
of guilt and it inadequately described the appellants explanations. It would not have
brought home to the jury the importance of weighing the explanations and
considering whether they marked paid to the inference of awareness of guilt sought
by the Crown and endorsed as a possible course of reasoning by the judge.
[67]
This error would also irretrievably taint the verdicts.
[68]
Whether the error under this ground of appeal is properly viewed as an
instruction that ought not to have been provided to the jury or as a permissible
instruction inadequately provided, I would give effect to it and order a new trial. I
would do so even if this were the only ground of appeal.
[69]
There is one thing to add. In the passage from the jury charge reproduced at
para. 43 above, the trial judge told the jury he probably would not have let the line-up
photograph into evidence if it had been tendered by the Crown. Then he said: I
process. Second, he considered the line-up to be unfair for the reasons he stated.
R. v. Henry
Page 17
assume the inference [the appellant] wishes you to draw is that any identification of
him at that time is a farce, since he is the only one being restrained by the three
police officers. During a very brief summary of the theory of the defence, the judge
faint presentation of a strong point for the defence, namely, that the pre-trial
identification process was flawed and seriously called into question the reliability of
all other identification evidence. There was some wisdom in the appellant putting
into evidence the physical line-up photograph and the trial judge appeared to treat
the appellants point quizzically rather than giving it the consideration it was due.
Jury instruction on identification
[70]
The appellant contends and the Crown concedes that the trial judges charge
on the element of identification was inadequate. I agree.

[71]
After reviewing the evidence in the order in which the witnesses were called
and before discussing with the jury the law on each of the three offences (rape,
attempted rape and indecent assault) found in the indictment, the judge said
something about the need to consider each count separately:
THE COURT: Occasionally I will relate the law on the three crimes in a
general way and not repeat it as it applies to a similar count in the
indictment. Again I would remind you you must look at the evidence
on each count on an individual basis except where the counts relate
to the same complainant. ... However, simply because you may find
the accused is identified by complainant such as [a named
complainant], it does not necessarily follow Henry is the man involved
in all of the other counts. You must be satisfied beyond a reasonable
doubt that the accused is properly identified by each complainant
before you can convict on that particular count.
[72]
Much later in the charge we find the following general instruction on
identification:
Two main defences arise from the evidence it seems to me; one is
identification and the second is alibi. I will deal with them in that order. First
as to identification. In this trial the identification of the accused Henry is in
issue. For the Crown to succeed against him it must prove beyond a
reasonable doubt that he committed the crimes at the times and places
again referred to the appellants contention that the line-up was a farce. This was a
R. v. Henry
Page 18
Again, like any other fact identification may be proved by or

circumstantial evidence or a combination of both. You heard the testimony of
the complainant saying that Henry was the man who attacked them. When it
comes to examining the evidence of these witnesses should look at it with
special care. Experience shows that some of the greatest miscarriages of
justice occur through mistaken identification. This is particularly so where a
witness has never seen an accused in his or her lifetime. When deciding
upon the reliability of identification evidence you should consider amongst
other things the following:
a)
What outstanding features or characteristics did
the purported criminal possess so as to make
subsequent identification free from reasonable doubt?
Identification evidence is opinion evidence and an
opinion of a person to the effect that is the man
should be supported by additional facts in order to
make it reliable. If these facts are not forthcoming then
an opinion is of little value.
b)
Under what circumstances were those observations
made by a witness? In each instance was the witness able to
see the person clearly or was her ability to identify the person
hampered by other factors.
c)
What care and trouble did each complainant take in
observing the characteristics of the individual at the time of the
incident.
d)
What method was used by the witness to
refresh her memory of the identification of the accused.
Was she coached or improperly guided in her reaching
her conclusion that the accused was the guilty man, or
did she form her opinion as a result of her own
observations. All these matters are for you to keep in
mind in deciding whether the accused Henry is the
guilty man.
Again I should warn you that there have been a number of
instances in the past where responsible witnesses whose honesty
was not in question and whose opportunity for observation was
adequate in positive identification of police lineups or through
photographs, and that identification subsequently turned out to be
erroneous. But if after careful examination of such evidence in light of
all the circumstances and with due regard to all the other testimony in
this case you feel satisfied beyond a reasonable doubt of the
accuracy of the identification of the accused Henry, you are at liberty
to act on it. Of course you must look at the identification as it applies
to each count. Simply because he was identified as the man in one or
more counts does not mean he was the man in every count.
mentioned in the counts set out in the indictment. The accused says his
identification was not made out on the evidence and he should be acquitted.
R. v. Henry
Page 19
[73]
In a very brief discussion of the theory of the defence, the judge did not
emphasize the obvious defence position that the evidence of identification was weak
and replete with difficulties. He only said that the defence position was that the
identification evidence was inadequate and that any identification of the appellant
in the line-up was a farce. He merely added to the summary these features of the
evidence: In most cases the room was dark, the mans face was partially covered
and the complainants were so upset by the assaults they could not properly identify
anyone. At least two of them had vision problems ...
[74]
Much more should have been said about the theory of the defence with
reference to the many weaknesses in the identification evidence on each count in

the indictment.
[75]
In R. v. Blackmore, [1971] 2 O.R. 21 (C.A.), Gale C.J.O. made these useful
observations about organization of a charge when identification is in issue:

There is only one other matter to which I would like to make
reference. In his charge to the jury the trial Judge approached the case by
setting out at the beginning the law relating to the care that must be exercised
in the acceptance of identification evidence. He then proceeded to
summarize the evidence of each witness who had testified. And finally, at the
end of the charge, the frequent frailty of identification evidence was again
pointed out.
Although most of the requisite elements are present in this charge, the
methodology employed was certainly not as helpful to the jury as it might
have been. There were two basic issues in this case, namely, that of alibi
and that of identification. In my opinion, these issues should have been
delineated and then the evidence relating to each one presented in some
logical manner, thus juxtaposing the evidence both for and against
identification and for and against the accused's alibi. At the same time the
Judge could comment upon the strengths and weaknesses of the portions of
evidence being discussed. If this formula were followed then there could be
no doubt or confusion in the minds of the jurors as to the pertinent issues to
be decided and the evidence relating to them. It is always the responsibility
of the trial Judge to ferret out the important pieces of evidence and present
Besides a description of physical characteristics the witnesses

identified the accused from his voice. Again you must remember that voice
identification by itself is subject to error. All of us have been mistaken at one
time or another about a voice on the phone, nonetheless you may act on
such evidence by itself or together with other evidence if you are satisfied
beyond a reasonable doubt that Henry is the correct person.
R. v. Henry
Page 20
[76]
The charge we are considering did not follow these suggestions. There was
no connection between the warning about the frailties of eyewitness identification

and the specific weaknesses, of which there were many for the jury to consider, in
the identification evidence on each count. The judge did not point out in detail those
features of the evidence that tended to weaken on each count the identification of
the appellant as the assailant.
[77]
To give some examples, the charge did not remind the jurors of specific
concerns about the identification evidence count by count, such as: poor lighting;
limited opportunity to see and remember the features of the assailant; steps taken by
the assailant to hide his identity; the emotional stress of the situation including focus
on a weapon held by the assailant; the absence of needed eyewear; problems with
the conduct of both line-ups; the failure to identify the assailant pre-court either at all
or more than tentatively; the passage of time between the assault and the
opportunities to identify the assailant; and, perhaps of most significance, the
complete absence of evidence capable of confirming eyewitness identification.
[78]
In R. v. Canning (1984), 65 N.S.R. (2d) 326, 147 A.P.R. 326 (C.A.), a robbery
case in which it appears there was somewhat more evidence of identification than
on any count in the present case, the trial judge instructed the jury generally on the
frailties of eyewitness identification and canvassed the evidence. On appeal, the
court found the instruction on identity to be sufficient. However, on further appeal
the Supreme Court of Canada found the instruction to be inadequate: [1986] 1
S.C.R. 991. The Courts entire judgment is as follows:
We are all of the view that while there was some evidence of
identification of the accused, and while the trial judge did instruct the jury that
caution should be exercised in approaching the identification evidence, he did
not relate that need to the facts of this case. The result is that his charge on
the issue of identification was inadequate particularly with regard to the
identification procedures adopted at the detention centre.
them in a logical manner so that the jury will be equipped to reach a judicial
decision on each issue. To my way of thinking, the presentation of all the
evidence given at trial in a chronological fashion will frequently fall short of
properly emphasizing the information available both for and against the case
of the Crown and the case of the accused.
R. v. Henry
Page 21
We would, accordingly, allow the appeal, set aside the conviction, and
direct a new trial.
[79]
Although the Court cited no authority, I consider its judgment to be a logical
it seems to me what the Court said in Canning is merely an example of how a

charge given in a chronological fashion will frequently fall short of properly
emphasizing the information available both for and against the case of the Crown
and the case of the accused.
[80]
It cannot be said that all charges that fall short of the guidance found in
Blackmore will be found on appeal to be inadequate. It will depend on the

circumstances of each case, particularly whether there is circumstantial evidence
capable of confirming identification. I do not consider Canning to be a change in the
law. It is merely an application of the law. As in that case, the trial judge in the case
at bar did not relate the need to approach eyewitness identification with caution to
the evidence on each count. Therefore the charge was inadequate.
[81]
This error by itself would give rise to the ordering of a new trial.
Severance Mistrial
[82]
As described in paras. 16 and 17 above, the original indictment was replaced
by the trial indictment. During the submissions that led to the Crown filing the trial
indictment, the Crown argued that under the law of similar fact, the jury should be
instructed to consider the evidence count-to-count on the element of identity. During
its opening to the jury Crown counsel stated:
It is the Crowns theory that in each of these instances the man who stealthily
came into these various premises, and who perpetrated these crimes, had to
be the same man, and that that is Ivan Henry.
[83]
During the defence evidence, the Crown confirmed that it was seeking similar
fact jury instruction. After the defence case closed, Crown counsel provided the
court with numerous authorities on the issue of similar fact and argument was to be
heard after the lunch break. The transcript for that part of the trial is unavailable but
reflection of the passage from Blackmore cited above. To borrow from that passage,
R. v. Henry
Page 22
it appears from the clerks notes that the Crown made submissions on the topic for
the better part of an hour. The appellant opposed the application but his
submissions took only four minutes. The judge reserved his decision over the
be instructed on similar fact law. The trial judge told the appellant he would charge
the jury simply on the basis that it must consider the evidence in each count
separately. As set out in para. 71 above, he did give a brief instruction to that effect.
[84]
The appellant argues that, on his own motion, the trial judge should have
declared a mistrial. He should have been concerned that the jury would use
impermissible propensity reasoning from count to count even if careful instruction
was given to the contrary. At the very least, says the appellant, the judge should
have informed the appellant that he could bring an application for a mistrial.
[85]
The Crown does not disagree. It says that, as the law stands today, where
there is no compelling reason for having a joint trial, it is a reversible error to not
sever multiple counts of sexual offences as they relate to multiple complainants
where each count turns on the reliability of eyewitness identification and where there
is no basis for the evidence to be admissible from count to count. Both counsel cite
R. v. Last, [2009] 3 S.C.R. 146, 247 C.C.C. (3d) 449 at paras. 44-47.
[86]
The Crown notes that the Last decision is a modern statement of the law but
that the principles on which it is based were part of the law at the time of the
appellants trial. Therefore, if this appeal had been heard in 1984 on the merits,
there was a basis on which this court could have found error in the failure of the trial
judge to consider severance and, if severance was required, a mistrial. The Crown
concedes that there was a high risk of count-to-count prohibited reasoning by the
jury resulting in prejudice to the appellant and rendering the trial unfair.
[87]
The law in this area was well understood at the time of the trial, although its
application was difficult on a case-by-case basis. I need make reference to no more

than the oft-quoted passage in Boardman v. DPP, [1974] 3 All ER 887 at 910g-911d
(HL):
weekend and on the Monday Crown counsel withdrew the application that the jury
Page 23
Before I come to the particular facts of this case there is one other
matter to which I wish to refer. When in a case of this sort the prosecution
wishes to adduce similar fact evidence which the defence says is
inadmissible, the question whether it is admissible ought, if possible, to be
decided in the absence of the jury at the outset of the trial and if it is decided
that the evidence is inadmissible and the accused is being charged in the
same indictment with offences against the other men the charges relating to
the different persons ought to be tried separately. If they are tried together
the judge will, of course, have to tell the jury that in considering whether the
accused is guilty of the offence alleged against him by A, they must put out of
mind the fact which they know that B and C are making similar allegations
against him. But, as the Court of Criminal Appeal said in R. v. Sims, it is
asking too much of any jury to tell them to perform mental gymnastics of this
sort. If the charges are tried together it is inevitable that the jurors will be
influenced, consciously or unconsciously, by the fact that the accused is
being charged not with a single offence against one person but with three
separate offences against three persons. It is said, I know, that to order
separate trials in all these cases would be highly inconvenient. If and so far
as this is true it is a reason for doubting the wisdom of the general rule
excluding similar fact evidence. But so long as there is that general rule the
courts ought to strive to give effect to it loyally and not, while paying lip
service to it, in effect let in the inadmissible evidence by trying all the charges
together.
[88]
There is substantial danger that the jury engaged in forbidden propensity
reasoning. Accordingly, I would also give effect to this ground of appeal.

Unreasonable verdict
[89]
Under s. 686(1)(a)(i) of the Criminal Code, this court may allow an appeal
from conviction where it is of the opinion that ... the verdict should be set aside on
the ground that it is unreasonable or cannot be supported by the evidence ... Under
s. 686(2), where we allow an appeal we must quash the conviction and direct a
verdict of acquittal to be entered or order a new trial. It is common ground between
the parties that if we allow the appeal on the basis of unreasonable verdict, the
appropriate remedy is acquittal under s. 686(2).
[90]
These provisions of the Criminal Code were worded the same in 1984 when
this court dismissed the appeal for want of prosecution. They were in s. 613.
R. v. Henry
R. v. Henry
[91]
Page 24
Before I describe the trial evidence on the issue of identification, I will state
the positions of the appellant and the Crown on the issue of unreasonable verdict as
[92]
The appellant says that under current authorities the verdicts obtained by the
Crown in the present case were clearly unsupported by the evidence and
unreasonable. The evidence of identification was so flawed and weak that no jury
properly instructed could reasonably convict. The appellant says that under pre1985 law the same result is only slightly less clear.
[93]
The Crowns position is not very different. It agrees that on the application of
up-to-date authorities the verdicts were unreasonable. The Crown says it is unclear
whether the test for unreasonable verdict would have been met under pre-1985
authorities.
[94]
These positions potentially raise the question as to whether current law or
pre-1985 law is to be applied. There can be a tension between the societal interest
in finality in criminal cases and the interest of the accused in having the greatest
benefit the law might afford him.
[95]
The question is discussed in R. v Wigman, [1987] 1 S.C.R. 246. When is an
appellant in the appeal process entitled to the benefit of changes in the law that
occur in post-trial authorities that are binding and cannot be distinguished? This
question can be difficult in a case like this where the appeal is heard decades after
the convictions. In addition, it might be unclear whether a more recent authority
represents a change in the law or merely a restatement and application of the law as
it existed at the time of the trial.
[96]
Wigman was convicted of attempted murder. The trial judge charged the jury
that the intent to kill and the second intent in murder both applied. Wigman
unsuccessfully argued another issue in this court. After he obtained leave to appeal
to the Supreme Court of Canada, that court decided R. v. Ancio, [1984] 1 S.C.R. 225
in which the intent in attempted murder was restricted to the specific intent to kill.
I understand their positions to be.
R. v. Henry
Page 25
The question in Wigman was whether the appellant was entitled to rely on Ancio.
The court made reference to the res judicata principle that a matter once finally
judicially decided cannot be relitigated. The court held, however, that the appellant
the judicial system.

[97]
The appellant in the case at bar was not in the judicial system from February
1984 when this court dismissed his appeal for want of prosecution to January 2009
when this court ordered that his appeal be re-opened. The Crown says that perhaps
this case does not fit within the Wigman framework and therefore the appellant is not
entitled to the benefit of any material changes in the law. Since he was convicted,
we have the better part of thirty years of development of the law concerning trial
fairness. What might be a basis for finding on appeal today that a trial was not fair to
the accused would not necessarily have been a basis for the same finding in 1984.
[98]
In my opinion none of these matters arise when considering the issue of
unreasonable verdict. This is because the law has not changed in the lengthy
interim period at play here. The applicable Criminal Code section is the same. Its
interpretation and application by the court are also the same. The post-1984 cases
do no more than reaffirm and apply the pre-1985 case law. If later cases do not
change the existing case law, reliance on them by an appellant does not give him
the benefit of new law and there is no tension with the societal interest in finality.
[99]
In R. v. Biniaris (2000), 143 C.C.C. (3d) 1 (S.C.C.), Arbour J., for the court,
determined that there was no need to modify the appellate standard of review under
s. 686(1)(a)(i) of the Criminal Code. At para. 42, she said that the test in [R. v.
Yebes (1987), 36 C.C.C. (3d) 417 (S.C.C.)] continues to be the binding test that
appellate courts must apply in determining whether the verdict of the jury is
unreasonable or cannot be supported by the evidence.
[100] At para. 36 of her reasons, Arbour J. stated the test as given in Yebes by
McIntyre J. at p. 185. He had repeated the test as stated by Pigeon J. in Corbett v.
The Queen, [1975] 2 S.C.R. 275, at p. 282: The function of the court is not to
was entitled to rely on Ancio because when that case was decided he was still in
R. v. Henry
Page 26
substitute itself for the jury, but to decide whether the verdict is one that a properly
instructed jury acting judicially, could reasonably have rendered.
case were unreasonable is as stated by the Supreme Court of Canada in 1975.

[102] It is also my opinion that the same view should prevail on the issue of
identification. The law has always required a high standard of certainty on this
element of any criminal offence and the later cases are merely applications of this
standard in the particular circumstances. Although this area of the law is not
governed by a particular Criminal Code section, I do not perceive any shift in the law
since 1984. Therefore, the appellant is not seeking the benefit of any change in the
law by asking the court to rely on cases decided post-1984.
[103] I consider the following general observation by Doherty J.A. in R. v. Tat
(1997), 117 C.C.C. (3d) 481 (Ont. C.A.) to be particularly apt in the present case:
[100] The extensive case law arising out of the review of convictions based
on eyewitness identification reveals that the concerns about the
reasonableness of such verdicts are particularly high where the person
identified is a stranger to the witness, the circumstances of the identification
are not conducive to an accurate identification, pre-trial identification
processes are flawed and where there is no other evidence tending to
confirm or support the identification evidence. All four factors exist here.
[104] All four factors exist here.

[105] This is not new law. It is fundamental and few authorities need to be cited to
support it. However, to make it clear that such a statement of the law would have
governed prior to 1985 (and assuming it is necessary to do so), I cite a frequently
quoted passage from R. v. Atfield (1983), 25 Alta. L.R. (2d) 97 (C.A.):
[3]
The authorities have long recognized that the danger of mistaken
visual identification lies in the fact that the identification comes from
witnesses who are honest and convinced, absolutely sure of their
identification and getting surer with time, but nonetheless mistaken. Because
they are honest and convinced, they are convincing, and have been
responsible for many cases of miscarriages of justice through mistaken
identity. The accuracy of this type of evidence cannot be determined by the
usual tests of credibility of witnesses, but must be tested by a close scrutiny
of other evidence. In cases, where the criminal act is not contested and the
[101] Thus the test we are to apply in determining whether the jury verdicts in this
Page 27
identity of the accused as the perpetrator the only issue, identification is

determinative of guilt or innocence; its accuracy becomes the focal issue at
trial and must itself be put on trial, so to speak. As is said in Turnbull [63
Cr.App.R. 132, [1976] All E.R. 549], the jury (or the judge sitting alone) must
be satisfied of both the honesty of the witness and the correctness of the
identification. Honesty is determined by the jury (or judge sitting alone) by
observing and hearing the witness, but correctness of identification must be
found from evidence of circumstances in which it has been made or in other
supporting evidence. If the accuracy of the identification is left in doubt
because the circumstances surrounding the identification are unfavorable, or
supporting evidence is lacking or weak, honesty of the witnesses will not
suffice to raise the case to the requisite standard of proof and a conviction so
founded is unsatisfactory and unsafe and will be set aside. It should always
be remembered that in the famous Adolph Beck case, 20 seemingly honest
witnesses mistakenly identified Beck as the wrongdoer.
[106] In R. v. Smierciak (1946), 87 C.C.C. 175 (Ont. C.A.), we find a passage that
is often cited as a reminder of the frailties of eyewitness identification evidence (at p.
177):
The weight of evidence of identification of an accused person varies
according to many circumstances. A witness called upon to identify another
person may have been so well acquainted with him or her as to make the
identification certain and safe. The person to be identified may possess such
outstanding features or characteristics as to make an identification
comparatively free from doubt. The conditions under which an observation is
made, the care with which it is made, and the ability of the observer, affect
the weight of the evidence. In addition to such matters, and of the utmost
importance, is the method used to recall or refresh the recollections of a
witness who is to be relied upon to identify a person suspected of wrongdoing
or who is under arrest. If a witness has no previous knowledge of the
accused person so as to make him familiar with that persons appearance,
the greatest care ought to be used to ensure the absolute independence and
freedom of judgment of the witness. His recognition ought to proceed without
suggestion, assistance or bias created directly or indirectly. Conversely, if
the means employed to obtain evidence of identification involve any acts
which might reasonably prejudice the accused, the value of the evidence may
be partially or wholly destroyed. Anything which tends to convey to a witness
that a person is suspected by the authorities, or is charged with an offence, is
obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny
after arrest is unfair and unjust. Likewise, permitting a witness to see a single
photograph of a suspected person or of a prisoner, after arrest and before
scrutiny, can have no other effect, in my opinion, than one of prejudice to
such a person.
[107] The issue before us is whether the evidence supports the verdicts or whether
the verdicts were unreasonable due to the weaknesses in the eyewitness
R. v. Henry
R. v. Henry
Page 28
identification evidence, there being no other evidence connecting the appellant to

the crimes, to the scenes of the crimes, or to any of the complainants.
to put the appellant at risk and for the case to go to the jury with careful and proper
instruction. However, in my opinion, the evidence against the appellant on the
critical element of identification was not sufficient on appellate review to sustain a
conviction on any of the counts in the indictment.
[109] The Crowns case on the element of identification rests entirely on the in-court
identification made by the complainants at the preliminary hearing and at trial. Precourt identification was fraught with problems that I will discuss in due course.
[110] The investigating police officers and the Crown recognized the inadequacy of
the physical line-up conducted on 12 May 1982. The appellant called as a defence
witness Detective Marilyn Sims who had attended the line-up. In cross examination,
Crown counsel led the following evidence from this witness:
Q
With regard to the line-up itself, its fair, isnt it, that Mr. Henry was
released because the identification or what identification was gained
through that line-up was, in your view, questionable?
Yes. It wasnt strong enough identification for me to, I didnt feel, lay
charges at that time.
In your view, charges would have been inappropriate both to the

accused and to the women who would have to testify based on that
identification?
Yes. I felt we may well lose the case and everyone would have been
through that for nothing.
[111] In my opinion, these identification problems were not overcome by

subsequent in-court identification.
[112] It is not necessary to review the evidence of each complainant as to the
details of the attacks. Each complainant was subjected to a terrifying experience at
the hands of a dangerous man. However, the evidence of eyewitness identification
was not capable of establishing to the standard required by law that the appellant
was that man.
[108] The evidence at trial on each count in the indictment was probably sufficient
R. v. Henry
Page 29
[113] The evidence on each count, of course, must be considered independently of

the evidence on all the other counts. I will discuss the counts briefly and in
[114] The offence in count seven was committed on 5 May 1981. The complainant
lived in a ground floor apartment with a door leading to a patio outside. She was
awoken around 4:30 a.m. by a man standing at the foot of her bed. He said he had
a knife but she was unable to see it until he rested it on her shoulder. It was pretty
dark in the room. The witness was myopic and not wearing her glasses. During the
fifteen minutes the man was in the room and assaulted her she often had her eyes
closed. Her physical description of the man was limited. At the line-up, she marked
number 12 with a question mark and testified that this was conditional because as I
say a lot of it was on the voice. At trial, she testified that she was sure that the
voice of number 12 was that of the intruder. She based her trial identification on the
voice of the appellant as she heard him speak during a voir dire. However, this was
qualified by her acknowledgement that the voir dire voice was more in control as
opposed to having an agitated sound. It was not entirely the same voice, but the
husky and hoarse part was evident to her.
[115] Two days after the attack, this complainant saw a man on a bus who was not
the appellant but who so closely resembled the man who attacked her that she
thought it was the man. She reported this sighting to the police.
[116] The complainant in count two was awoken around 2:30 a.m. on 16 June 1981
by a male intruder with a knife. He was in her residence for 20 to 30 minutes. He
wore a turtleneck sweater and held it up with his teeth so his face was visible from
only the nose up. The attack was in the living room. No lights were on but there
was some light through a window. At trial, the complainant gave some particulars of
the mans appearance. She did not mark her line-up ballot because she was only
80% sure that number 12 (the appellant) was her attacker. She identified the
appellant at trial based on his appearance and his voice. She did not say what was
chronological order.
R. v. Henry
Page 30
distinctive about his voice. She did not hear his voice at the preliminary hearing but
identified him then based on his appearance.
was alone in her ground floor apartment. Just after 2:00 a.m. she was awakened by
the bedroom door being opened. A short time later a man was by her bed. He
claimed to be looking for a woman named Yolanda who had ripped him off for some
money. He claimed his bosses had sent him there to recover the money. The
complainant believed she persuaded the man that she was not Yolanda. He said he
had to do something to persuade her not to call the police. He put a pillow on her
face and sexually assaulted her. He held something to her throat and claimed it was
a scalpel.
[118] This witness was hampered by limited light in the room and because she was
not wearing her glasses. Identification was made difficult also because the man held
his arm over the lower half of his face. She was able to provide only limited
particulars with respect to the mans appearance. She understood at the line-up that
she was to indicate any person we felt would be the person and to give the police
an idea. She chose number 18 but without much conviction. She also chose
number 12, the appellant, because she was sure of the voice. The voice was the
same sound with the same hoarseness. At trial, she identified the appellant based
on hearing his voice during a voire dire.
[119] The complainant in count six apparently did not attend the line-up of 12 May
1982. That offence occurred on 17 October 1981. The complainant lived in a
basement suite. She fell asleep in her living room with the television on. There
were lights on in that room and in the adjacent kitchen. About 5:45 a.m. she awoke
to find a man standing in the room she was in. He stayed for approximately an hour
and a quarter.
[120] Initially, this complainant saw the intruder for six to eight seconds before he
ran into the kitchen from where he conversed with her, apparently unobserved, for at
least twenty minutes. The kitchen lights were off. The complainant eventually
[117] The offence date in counts four and five was 5 August 1981. The complainant
R. v. Henry
Page 31
turned off the living room lights and the television. Dawn was approaching and the
curtains allowed some light to filter through. The intruder claimed that he was
seeking to recover $25,000 from a woman named Suzanne. He came into the living
toque. He peered at her within inches of her face.

[121] Eventually the man appeared to accept that the complainant was not
Suzanne. But he said he needed assurance that she would not go to the police.
The sexual attack followed.
[122] This complainant was able to give some evidence about the mans general
appearance and features but, obviously, her ability to be accurate was hampered by
the limited opportunity she had to note these things. She identified him by
appearance at the preliminary hearing and by appearance and voice at trial.
[123] This complainant testified that she encountered her assailant two or three
months later in a store. He was in line two places ahead of her. He asked if he
knew her. She turned and replied that he did not and ran from the store. She did
not report the incident to the police because she had previously reported people
hassling her and had been told that it was just in her head, or that somebody was
playing a joke.
[124] The complainant in count eight was attacked on 22 February 1982. The
intruder was outside when she opened her patio door at night. He was in her
residence for over an hour. For two minutes there was a lit reading light between
them. She turned it out on his demand. She could more or less see what was
happening by some reflecting outside light. She gave some particulars of the mans
appearance in her evidence. She testified that she could not get a good look at the
appellant during the line-up because he was thrashing about. She thought the lineup was not to be taken seriously because the participants were laughing. She did
not mark her ballot because she could not be absolutely positive. She identified
the appellant at the preliminary hearing and at trial based on his appearance and
voice.
room with his turtleneck sweater rolled up to just below his eyes and wearing a
R. v. Henry
Page 32
[125] The offence charged in count one was committed on 10 March 1982. At 2:55
a.m. the complainant was awoken by a voice and a hand on her throat. He had a
weapon and threatened to cut her. No lights were on but some outside light came
away. The intruder was there about 15 minutes. He made her stay on the bed with
a pillow over her face. He told her a woman named Valerie had taken money from
his boss and he was there to get it back. She seemed to persuade him that she was
not Valerie but he said that he would have to make her embarrassed so she would
not call the police. He made her sit on the side of the bed. She was able to study
his face for four or five seconds because, if she lived, she wanted to remember his
face forever. Then the man put his collar up over his cheeks apparently obscuring
his face. After the man left, she called 911. She was definitely in shock. She said
that it was like being in a dream.
[126] This complainant gave some description of the man at trial and, based on his
appearance, identified the appellant as she had done at the preliminary hearing,
where she also based the identification on his voice. She said the man had a stilted
way of talking during the attack which changed in the course of the conversation.
She thought he was affecting a Chinese accent. At the line-up, a police officer told
her not to be prejudiced about the manner in which the line-up was conducted. She
could not see the face of the man being restrained. She concentrated on other men
in the line-up. Then she heard the same growl coming from the man being
restrained as she had heard during the attack. She had no doubt that it was the
same voice. But the face of the man under restraint was red and distorted and she
was not sure that the man was the attacker.
[127] This witness gave curious evidence about her reaction to the line-up. She
said that she was in shock and wrote down on her ballot the number of the man with
the darkest hair, number 18, not the appellant. She testified that she did not know
why she marked her ballot in this manner, that maybe she was just terrified.
Whatever the reason, it has to be noted that this witness at the line-up made a
positive identification of a man other than the appellant.
through curtains that were thin and partly open. Street lights were 50 to 60 feet
R. v. Henry
[128]
Page 33
The crime in count three was committed on 19 March 1982. The
complainant lived in a ground floor suite with a door leading to an outside patio. She
was awoken around 2:30 a.m. by a man sitting on the end of her bed with a knife in
Although no lights were on, there was some outside light in the room. The
complainant had only a very limited opportunity to see the intruder who was there for
about five minutes. She saw only the outline of his face during the ten seconds. His
voice was slow, gruff and quite controlled, with a maintained pitch. Otherwise, she
was able to provide only a limited description of the man. She marked on her line-up
ballot that number 12, the appellant, matched the general description and that his
voice was the voice or appeared to be the voice of the perpetrator [my emphasis].
[129] The final complainant (counts nine and ten, offence date 8 June 1982) was
out of the country during the trial and the Crown read in a transcript of her evidence
under the section of the Criminal Code that permitted that procedure.
[130] This complainant testified that she lived alone in a basement suite. Around
2:00 a.m. she fell asleep with a lamp on. The lamp had a bright bulb and no shade.
She next recalls sitting up in bed because a man was in her room a few feet away,
facing her. As she woke up, she tried to figure out who he was. The man motioned
to his left hand in which he held a knife. He told her not to move or make a noise or
he would cut her. She followed his direction to lie down.
[131] The intruder told a story similar to that told to other complainants. He said
that a woman named Debbie had ripped him off for drugs and he understood that
was where she lived. The complainant denied being Debbie. The intruder turned
the light out. The complaint closed her eyes and the man put a pillow on her head.
He seemed to accept that he had the wrong place but he said he had to be sure that
she would not go to the police. He said he was going to humiliate her so she would
not do that. The sexual attack ensued. The complainant estimated that the man
stayed in her residence for about one hour.
his hand. Within ten seconds the man made her put a pillow over her head.
R. v. Henry
Page 34
[132] This witness was able to give a description at the preliminary inquiry of the
perpetrators features. She described a voice that was low with a gruff or rasping
quality. She identified the appellant at the preliminary hearing based on his physical
[133] Eight weeks later, on 26 July 1982, this complainant was hypnotized by a
police detective at the police station. The detective did not testify at the trial. The
complainant said she was hypnotized or there was an attempt to hypnotize her and
that it didnt really reveal anything more than I had as a conscious experience and I
found it to be rather an emotional experience because it brought back a lot of
feelings of the event. There does not appear to have been any other evidence as to
the effect of hypnosis on this witnesss ability to identify her attacker.
[134] On 27 July 1982, police showed this witness a folder of photographs,
including a photograph of the appellant taken while he was in custody in May. There
were head and shoulder photographs of six other men included in the array.
[135] In my opinion, the photographic line-up was unfair. In particular, the
photograph of the appellant, from the waist up, shows him standing in front of a jail
cell with the arm of a uniformed police officer in the foreground. None of the foils is
shown in this manner. The backgrounds in the other photographs are either blank or
otherwise neutral. In addition, each of the six foils is, by appearance, at least ten
years younger than the appellant. The appellant is the only one with a full
moustache, and the appellant is the only one with curly hair. In addition, the foils all
have hair length that is at least to the collar and over the ears, by a substantial
amount with respect to three or four of them. The appellants hair is cut back and
higher on the forehead.
[136] It appears to me that the photograph of the appellant stands out unfairly and
would have focused the viewer of the array on him.
[137] This complainant testified that some of the foils were just completely not at
all my description. The photograph of the appellant concerned the witness because
appearance.
R. v. Henry
Page 35
the hair was different and there was facial hair. The witness told the detective who
had brought the photographic array to her apartment that, because of changes in the
individuals appearance, she wanted to see another photograph if available. She
person at a different time and without the changes in physical appearance. After the
detective left, she discussed the situation with a friend. At the time she was pretty
sure of the identification and the reasons that I had wanted to see another
photograph. The following day, the detective returned and the two of them looked
at the photographs again for approximately 10 to 15 minutes.
[138] Although this witness signed the array opposite the photograph of the
appellant, because of the singling out of the appellants photograph among the other
photographs and the evidence of this witness as to her reaction to the array, it must
be said that her pre-court identification was tentative.
[139] Eyewitness identification of a stranger is inherently frail for the reasons given
in the cases. Pre-court identification of the appellant by the complainants in the
present case ranged from tentative to non-existent. One complainant did not
participate in pre-court identification exercise. The photographic line-up was fatally
unfair. The physical line-up should not have been conducted at all because, to use
the description given in Marcoux, it became a farce. There is no telling what
influence the prominent display of the appellant by the police officers during that
event ultimately had on the six complainants when they were asked in court if they
could identify the assailant. Police investigators should have prepared a proper and
fair photographic line-up instead of forcing the appellant to participate in the physical
line-up. Had they done this there might have been arguably reliable identification by
one or more of the eight complainants. In that event, if the case had otherwise
unfolded as it did, the appropriate remedy on this appeal likely would have been a
new trial rather than acquittal.
[140] On each count, the intruder was a stranger to the complainant; the encounter
was in poor lighting, the circumstances were extremely stressful, the intruder took
was fairly certain of this one, but wanted to see a larger photograph of the same
R. v. Henry
Page 36
steps to obscure his visage and two of the complainants were without their eyewear;
the pre-trial identification procedures were seriously flawed and unfair; and there
was no evidence independent of the complainant capable of confirming or
identifications were made by the complainants often months after the traumatic
event.
[141] The process of identification was polluted so as to render in-court
identification of the appellant on each count highly questionable and unreliable on
the reasonable doubt standard. I consider the verdicts to be unsafe.
[142] In my opinion, the verdict on each count was not one that a properly
instructed jury acting judicially could reasonably have rendered.
Smallman Evidence
[143] It is not necessary for the disposition of this appeal to determine the potential
use of the evidence of sexual assaults that occurred after the appellant was
permanently in custody (the Smallman evidence). However, that evidence forms
such a large part of the material before us that it should not be left without comment.
[144] The Smallman evidence is not presented to this court as fresh evidence. We
are asked to consider it on a basis similar to that on which certain evidence was
considered by the court in R. v. Truscott (2007), 225 C.C.C. (3d) 321, 50 C.R. (6th) 1
(Ont. C.A.). It is said that this potentially admissible evidence might be of some
assistance in determining the appropriate remedy in this appeal. Because the
Crown concedes that the convictions cannot stand and that there should at least be
a new trial, the substantial volume of material is not presented in a form that would
qualify it as fresh evidence under R. v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.).
Presenting the material in fresh evidence form under Palmer would have been time
consuming and would have delayed the hearing of the appeal. The Crown
consented to the form in which the material was presented to support the remedy
argument.
supporting the identification made in court. In addition, pre-court and in-court
R. v. Henry
Page 37
[145] In 2002, police re-investigated 25 home-invasion sexual assaults that were

committed between 12 April 1983 (more than eight months after the appellants
second arrest) and 3 July 1988. As noted above, a DNA match from preserved
This led to the guilty pleas entered by this offender in May 2005.
[146] No useful purpose would be served by a discussion of the details of the
Smallman evidence. It is enough to say that there are some geographical and
modus operandi similarities between the circumstances of the Smallman assaults
and the circumstances of the offences for which the appellant was convicted. There
is also some evidence of night prowling by D.M. during the time period of some of
the subject offences and nearby some of the locations at which they were
committed.
[147] The appellants factum contains argument to the effect that the Smallman
evidence, particularly the three counts to which D.M. pleaded guilty, strongly
suggests that the appellant did not commit any of the ten offences of which he was
convicted.
[148] I agree with the submission of the Crown in its factum ... that there are
substantial uncertainties associated with attempting to determine the extent to which
the material, that forms an investigative police file, will translate into admissible
evidence; and what weight might ultimately be afforded that evidence. The Crown
says that the commonalities between the D.M. or Smallman offences are not as
strikingly similar as the appellant suggests. In addition, there is an expert report that
contains the opinion that identity often cannot be established by modus operandi
because many of the common characteristics relied upon by the appellant in this
case are common among power reassurance rapists.
[149] In addition, in considering similarities it is also necessary to take
dissimilarities into account. There is at least one dissimilar circumstance here that
would be potentially significant to a trial judge ruling on admissibility or to the trier of
fact if the evidence were admitted. Four of the complainants at the appellants trial
crime-scene exhibits made a case against D.M. with respect to three of the assaults.
R. v. Henry
Page 38
testified that the assailant used the term ripped off and a fifth said that the intruder
told her that a woman named Valerie had taken money from his boss. This specific
[150] The Crown points out that the Smallman material contains evidence of the
propensity of another suspect. If this evidence were admitted, it would open up the
possibility of the Crown leading reply evidence as to the circumstances of certain
criminal conduct by the appellant in Manitoba in 1976. It would also possibly lead to
the admissibility of an affidavit sworn by the appellant in 2006 referencing a letter he
wrote in 1994 in which he admitted breaking into a house in Vancouver on 14
January 1982, confronting a woman present and telling her that he was looking for
someone who had ripped me off on a drug deal ... but with no assault ensuing.
[151] In my opinion, it cannot be said that the Smallman evidence, whether viewed
in broad focus or in narrow focus by being confined to the known conduct of D.M.,
leads one to conclude that the appellant is innocent of the offences for which he was
convicted. It does not exonerate him. At best, it is evidence that might be admitted
at a new trial under the law relating to other suspects, not on the basis that it
disproves the element of identity, but on the basis that it is capable of raising a
reasonable doubt on that issue.
[152] The Smallman evidence has not been tendered and tested in the crucible of a
trial. It is not at all clear that a trial judge would find it to be relevant and admissible,
in whole or in part, as other suspect evidence employing the test found in R. v.
McMillan (1975), 23 C.C.C. (2d) 160 (Ont. C.A.), affirmed (1977), 33 C.C.C. (2d) 360
(S.C.C.) and in other cases.
[153] Preparation for this appeal involved extensive review of the record, including
difficult archival research. The court is indebted to counsel and to those who
assisted them in this substantial endeavour. There was a co-operative effort that
resulted in the presentation of a well-organized appeal.
ruse does not appear in the particulars of the Smallman offences.
R. v. Henry
Page 39
Summary and conclusion
(1)
The trial judge erred by instructing the jurors that they could infer
consciousness of guilt from the resistance of the appellant to
participation in the line-up conducted by the police on 12 May 1982;
(2)
The instruction on the element of identification was inadequate;
(3)
There should have been severance of the counts and a mistrial when
the Crown abandoned its application for jury instruction on count-tocount similar fact evidence;
(4)
Any of these errors, standing alone, would require this court to order a
new trial;
(5)
The evidence as a whole was incapable of proving the element of

identification on any of the ten counts and the verdicts were
unreasonable;
(6)
The appropriate remedy under s. 686(2)(a) of the Criminal Code is

acquittal on each count.
[155] I would allow the appeal, quash the convictions and enter an acquittal on
each count.

I agree:

I agree:
[154] To summarize:

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COURT OF APPEAL FOR BRITISH COLUMBIA

The Honourable Mr. Justice Low

Counsel for the Appellant:

Counsel for the Respondent:

Place and Date of Hearing:

Vancouver, British Columbia

Place and Date of Judgment:

Vancouver, British Columbia

Written Reasons by:

2010 BCCA 462 (CanLII)

Reasons for Judgment of the Honourable Mr. Justice Low:

A jury convicted the appellant on 15 March 1983 on each of ten counts

Each of the complainants was alone at night in a basement or ground-floor

There was no reliable pre-court identification of the appellant by any of the

2010 BCCA 462 (CanLII)

charging sexual offences involving eight complainants. The offences occurred on

It is a common experience of judges that self-represented accused persons

are at a substantial disadvantage. This is particularly so where, as here, the

made at trial and the appeal must be allowed.

s. 686(2)(a) of the Criminal Code.

The Vancouver Police Department investigated more than 20 complaints of

2010 BCCA 462 (CanLII)

The appellant was arrested on 12 May 1982 and 11 of the complainants

On 8 June 1982, the complainant in counts 9 and 10 of the trial indictment

On the strength of this identification, the appellant was arrested again on 29

July 1982 on 17 sexual offence charges involving 15 complainants. A month later

1982 on a new information containing 19 counts naming 17 complainants. Two of

The jury trial commenced on 28 February 1983. We do not have a transcript

of the initial arraignment of the appellant on an indictment containing the 17 counts

2010 BCCA 462 (CanLII)

was released from custody the following day.

As I have said, the appellant represented himself at trial. It appears that he

Later the Supreme Court of Canada refused an application brought by the

In 1997, this court dismissed an application of the appellant for an order

2010 BCCA 462 (CanLII)

to verdicts on this indictment. This arraignment was in a different courtroom.

In 2002, Vancouver City Police began to re-investigate 25 unsolved sexual

linked to three of these offences. (His name is subject to a publication ban.) On 27

2010 BCCA 462 (CanLII)

dismissed for want of prosecution, the Court may, in exceptional

The Criminal Justice Branch appointed Leonard T. Doust, Q.C., a senior

counsel in private practice, to investigate a potential miscarriage of justice in the

As reproduced in a Criminal Justice Branch media release dated 28 March

2008, Mr. Doust further recommended that:

the Crown make full disclosure to Henry of the results of the

the Crown provide a copy of my report to Henry's counsel and make

the Attorney General appoint a Special Prosecutor independent of my

The Crown followed these recommendations. E. D. Crossin, Q.C. was

Finally represented by counsel, the appellant applied again to re-open his

On 13 January 2009, a division of this court, for reasons written by Madam

2010 BCCA 462 (CanLII)

In addition, the court mentioned a concern as to the fitness of the appellant to

He remains at large pending disposition of this appeal.

The record of the trial proceedings is incomplete. We have a transcript of the

The appellant raises numerous grounds of appeal. There is some overlap

2010 BCCA 462 (CanLII)

evidence related to the Smallman investigation; disclosure of information not

evidence of the appellants resistance to participation in a police line-up as

that the jury instruction on the element of identification was inadequate;

2010 BCCA 462 (CanLII)

evidence of consciousness of guilt;

The appellant refused to participate in the physical line-up conducted on 12

headlock as can be seen in a photograph in evidence. Eleven women who had

The Crown did not tender the photograph as an exhibit.