Appeals Document 2010

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COURT OF APPEAL FOR BRITISH COLUMBIA

Citation: R. v. Henry, 2010 BCCA 462

Date: 20101027Docket: CA036773Between:

Regina

Respondent And

Ivan William Mervin Henry

Appellant

BAN ON DISCLOSUREpursuant to s. 486(3) (now s. 486.4) C.C.C.

The Honourable Mr. Justice LowThe Honourable Madam Justice Levine

Before:

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: M.E. Sandford,C. Ward,

D.M. Layton

Counsel for the Respondent: E.D. Crossin,Q.C.,M.D. Shirreff,

E. LeDuc

Place and Date of Hearing: Vancouver, British ColumbiaJune 21and 22, 2010

Place and Date of Judgment: Vancouver, British ColumbiaOctober 27, 2010

Written Reasons by:The Honourable Mr. Justice Low

Concurred in by:The Honourable Madam Justice LevineThe Honourable Mr. Justice Tysoe



R. v. Henry

Reasons for Judgment of the Honourable Mr. Justice Low:

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

charging sexual offences involving eight complainants. The offences occurred on

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 Crown’s 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.



R. v. Henry

[6] 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

a duty on the trial judge to fully inform the appellant of his rights and his options and

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 Crown’s submissions, it is open to the Court to conclude that asmatters stand today, no reasonable jury could convict. In the event such adetermination is made, the appropriate remedy is to enter acquittals on thecounts 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 8June 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.



R. v. Henry

[12] 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

was released from custody the following day.

[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 clerk’s 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 clerk’s notes correctly, the trial judge

ordered severance of ten specific counts from the remaining seven.



R. v. Henry

[17] Later the same morning, the appellant was arraigned on a new ten-count

indictment naming eight complainants. Jury selection followed. The trial proceeded

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

[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 Crown’s

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 theCriminal 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 ofby the issuance of an order, the statutory right of an appeal has beenexhausted, 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



R. v. Henry

dismissed for want of prosecution, the Court may, in exceptionalcircumstances, set aside its previous order and re-open the appeal if theinterests 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. dismissedSeptember 18, 1997.

[17] The limited power to reopen an appeal which was not determined onits 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 appealwere re-opened the issue which he seeks to address is an allegation ofperjury on the part of a number of police officers in connection with line-upphotographs 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 whichwould merit this Court re-opening the appeal more than fourteen years afterthe jury’s 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 appellant’s arrest on 29 July 1982. Because hewas 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 appellant’s 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.



R. v. Henry

[28] 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

appellant’s convictions and the evidence relating to D.M. In his report delivered in

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:

1. the Crown make full disclosure to Henry of the results of theVancouver Police Department’s 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 itsongoing disclosure obligations at common law;

2. the Crown make full disclosure to Henry of the totality of the evidencein its possession relating to the offences for which Henry was chargedand/or convicted, so as to ensure that Henry has the benefit of anypotentially exculpatory evidence which may not have been previouslydisclosed to him;

3. the Crown provide a copy of my report to Henry's counsel and makefull disclosure to Henry of the documents and information which Icollected 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 inresponse to any application which Henry might bring to re-open hisappeal and adduce fresh evidence on the basis of the conclusions inmy report.

[30] 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



R. v. Henry

court considered whether there were exceptional circumstances that required a re-

opening 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

evidence related to the Smallman investigation; disclosure of information not

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:



R. v. Henry

(1) that the trial judge erred by instructing the jurors that they could use

evidence of the appellant’s resistance to participation in a police line-up as

evidence of consciousness of guilt;

(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 wouldresult 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.



R. v. Henry

Consciousness of guilt

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

May 1982. Police officers forced him into the line-up and one officer held him in a

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 appellant’s 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 aphotograph of several men in what appears to be a police lineup, we are toldit is a police lineup. The accused put the photograph into evidence on cross-examination of [a complainant]. She said the lineup occurred on the 12th ofMay 1982. Had the Crown attempted to lead the evidence of the photographwith respect to the lineup I would probably have rejected the testimony and



R. v. Henry

ruled it inadmissible; however the accused apparently had some reason toplace the photograph in front of you. I assume the inference he wishes youto draw is that any identification of him at that time is a farce, since he is theonly one being restrained by the three police officers. On the other hand theCrown suggests his obvious reluctance to participate in the lineup leads to aninference 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 counsel’s jury speech.

But it is apparent from the above instruction that the Crown invited the jurors to

reason their way to guilt from the appellant’s 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 theevidence with you. There is no statutory authority to force an accused personor a suspect or a person at a police station into a line-up. It will be for you todecide on the totality of the evidence what significance you will attach toMr. Marcoux’s 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 line-

up 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

[50] 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

these words: “admissible, not for the purpose of proving guilt [my emphasis], but to

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 appellant’s 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 appellant’s verbal and physical resistance to participation in the line-up was



R. v. Henry

tantamount to an admission of guilt. In my opinion, under Marcoux , the reasoning

suggested in the jury instruction was wrong in law.

[54] 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 explainthe absence of an identification parade. It was incumbent, however, on thetrial 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 asevidence of guilt or of consciousness of guilt, but only and strictly for thelimited purpose of explaining the failure to hold a line-up or identificationparade and, hence, the need for the police to resort to less satisfactoryidentification 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, Shortreed’s 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 photographin ordinary circumstances, particularly where, as in this case, the refusal isbased on legal advice received by the suspect. But extraordinary efforts toprevent the taking of a photograph such as altering or concealing one's facialappearance by resorting to beards, disguises, camouflage or specialheadgear can, in the absence of a plausible explanation for such conduct,support an inference that the suspect has something to conceal. Such



R. v. Henry

measures are capable of supporting an inference of consciousness of guiltand hence of guilt.

[57] The court concluded that the error did not affect the verdicts. Upon

consideration of the balance of the evidence at trial identifying the accused as the

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 Crown’s 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 Crown’s 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 togo into any line-up. And the reason for no going into a line-up is because Idon't believe I have to prove I'm innocent. I didn't really know – other thanwhen I was a kid growing up in these places, I never did ever go into a line-up. I've always refused to go into a line-up.



R. v. Henry

What I had suggested to the officer on charge, I told him that I was notgoing into these line-up and he suggested – and he gave me a quote fromSaulman v. Marcoux (sic) in that Criminal Code book. That states thatnothing can be put to the jury that means that you have to be put into a line-up. In other words, a jury can't intercept a message. Like it's not my rights toplead – 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 beagainst the law, because the jury couldn't decide if the guy is guilty or notguilty.

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 Isaid is I am not – it's not a fair lineup. I did not suggest, or didn't, did I evertry 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 guydressed like this." The other guys were a bunch of slobs. Excuse theexpression. I might be a slob too, but the thing is that I was altogether – like ifI was to wear bell bottom pants and you were to wear bell bottom pants, and Iwas to have designer jeans, you mean you would say, well, gees, that's likenight and day, isn't it? I mean the style is like all we're in a different era.

[62] Although the appellant’s 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

[63] 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

process. Second, he considered the line-up to be unfair for the reasons he stated.

[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 appellant’s 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 Crown’s 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 appellant’s 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 didn’t have to go in

any line-up” and, much later in the evidence review, that “he didn’t co-operate

because he said he wasn’t 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 appellant’s 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



R. v. Henry

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

again referred to the appellant’s contention that the line-up was a farce. This was a

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 appellant’s 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 judge’s 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 ageneral way and not repeat it as it applies to a similar count in theindictment. Again I would remind you you must look at the evidenceon each count on an individual basis except where the counts relateto the same complainant. ... However, simply because you may findthe accused is identified by complainant such as [a namedcomplainant], it does not necessarily follow Henry is the man involvedin all of the other counts. You must be satisfied beyond a reasonabledoubt that the accused is properly identified by each complainantbefore 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 isidentification and the second is alibi. I will deal with them in that order. Firstas to identification. In this trial the identification of the accused Henry is inissue. For the Crown to succeed against him it must prove beyond areasonable doubt that he committed the crimes at the times and places



R. v. Henry

mentioned in the counts set out in the indictment. The accused says hisidentification was not made out on the evidence and he should be acquitted.

Again, like any other fact identification may be proved by orcircumstantial evidence or a combination of both. You heard the testimony ofthe complainant saying that Henry was the man who attacked them. When it

comes to examining the evidence of these witnesses should look at it withspecial care. Experience shows that some of the greatest miscarriages of justice occur through mistaken identification. This is particularly so where awitness has never seen an accused in his or her lifetime. When decidingupon the reliability of identification evidence you should consider amongstother things the following:

“a) What outstanding features or characteristics didthe purported criminal possess so as to makesubsequent identification free from reasonable doubt?Identification evidence is opinion evidence and anopinion 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 thenan opinion is of little value.

b) Under what circumstances were those observationsmade by a witness? In each instance was the witness able tosee the person clearly or was her ability to identify the personhampered by other factors.

c) What care and trouble did each complainant take inobserving the characteristics of the individual at the time of theincident.

d) What method was used by the witness torefresh her memory of the identification of the accused.Was she coached or improperly guided in her reachingher conclusion that the accused was the guilty man, ordid she form her opinion as a result of her ownobservations. All these matters are for you to keep inmind in deciding whether the accused Henry is theguilty man.”

Again I should warn you that there have been a number ofinstances in the past where responsible witnesses whose honestywas not in question and whose opportunity for observation wasadequate in positive identification of police lineups or throughphotographs, and that identification subsequently turned out to be

erroneous. But if after careful examination of such evidence in light ofall the circumstances and with due regard to all the other testimony inthis case you feel satisfied beyond a reasonable doubt of theaccuracy of the identification of the accused Henry, you are at libertyto act on it. Of course you must look at the identification as it appliesto each count. Simply because he was identified as the man in one ormore counts does not mean he was the man in every count.



R. v. Henry

Besides a description of physical characteristics the witnessesidentified the accused from his voice. Again you must remember that voiceidentification by itself is subject to error. All of us have been mistaken at onetime or another about a voice on the phone, nonetheless you may act onsuch evidence by itself or together with other evidence if you are satisfiedbeyond a reasonable doubt that Henry is the correct person.

[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 man’s 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 makereference. In his charge to the jury the trial Judge approached the case bysetting out at the beginning the law relating to the care that must be exercisedin the acceptance of identification evidence. He then proceeded tosummarize the evidence of each witness who had testified. And finally, at theend of the charge, the frequent frailty of identification evidence was againpointed out.

Although most of the requisite elements are present in this charge, themethodology employed was certainly not as helpful to the jury as it mighthave been. There were two basic issues in this case, namely, that of alibiand that of identification. In my opinion, these issues should have beendelineated and then the evidence relating to each one presented in somelogical manner, thus juxtaposing the evidence both for and againstidentification and for and against the accused's alibi. At the same time theJudge could comment upon the strengths and weaknesses of the portions ofevidence being discussed. If this formula were followed then there could beno doubt or confusion in the minds of the jurors as to the pertinent issues tobe decided and the evidence relating to them. It is always the responsibilityof the trial Judge to ferret out the important pieces of evidence and present



R. v. Henry

them in a logical manner so that the jury will be equipped to reach a judicialdecision on each issue. To my way of thinking, the presentation of all theevidence given at trial in a chronological fashion will frequently fall short ofproperly emphasizing the information available both for and against the caseof the Crown and the case of the accused.

[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 Court’s entire judgment is as follows:

We are all of the view that while there was some evidence ofidentification of the accused, and while the trial judge did instruct the jury thatcaution should be exercised in approaching the identification evidence, he didnot relate that need to the facts of this case. The result is that his charge onthe issue of identification was inadequate – particularly with regard to theidentification procedures adopted at the detention centre.



R. v. Henry

We would, accordingly, allow the appeal, set aside the conviction, anddirect a new trial.

[79] Although the Court cited no authority, I consider its judgment to be a logical

reflection of the passage from Blackmore cited above. To borrow from that passage,

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 evidencecapable 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 Crown’s theory that in each of these instances the man who stealthilycame into these various premises, and who perpetrated these crimes, had tobe 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



R. v. Henry

it appears from the clerk’s 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

weekend and on the Monday Crown counsel withdrew the application that the jury

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

appellant’s 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):



R. v. Henry

Before I come to the particular facts of this case there is one othermatter to which I wish to refer. When in a case of this sort the prosecutionwishes to adduce ‘similar fact’ evidence which the defence says isinadmissible, the question whether it is admissible ought, if possible, to bedecided in the absence of the jury at the outset of the trial and if it is decidedthat the evidence is inadmissible and the accused is being charged in the

same indictment with offences against the other men the charges relating tothe different persons ought to be tried separately. If they are tried togetherthe judge will, of course, have to tell the jury that in considering whether theaccused is guilty of the offence alleged against him by A, they must put out ofmind the fact – which they know – that B and C are making similar allegationsagainst him. But, as the Court of Criminal Appeal said in R. v. Sims, it isasking too much of any jury to tell them to perform mental gymnastics of thissort. If the charges are tried together it is inevitable that the jurors will beinfluenced, consciously or unconsciously, by the fact that the accused isbeing charged not with a single offence against one person but with threeseparate offences against three persons. It is said, I know, that to orderseparate 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 ruleexcluding similar fact evidence. But so long as there is that general rule thecourts ought to strive to give effect to it loyally and not, while paying lipservice to it, in effect let in the inadmissible evidence by trying all the chargestogether.

[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

[91] 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

I understand their positions to be.

[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 pre-

1985 law the same result is only slightly less clear.

[93] The Crown’s 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.



R. v. Henry

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

was entitled to rely on Ancio because when that case was decided he was “still in

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 notchange 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



R. v. Henry

substitute itself for the jury, but to decide whether the verdict is one that a properly

instructed jury acting judicially, could reasonably have rendered.”

[101] Thus the test we are to apply in determining whether the jury verdicts in this

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 basedon eyewitness identification reveals that the concerns about thereasonableness of such verdicts are particularly high where the personidentified is a stranger to the witness, the circumstances of the identificationare not conducive to an accurate identification, pre-trial identification

processes are flawed and where there is no other evidence tending toconfirm 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 mistakenvisual identification lies in the fact that the identification comes fromwitnesses who are honest and convinced, absolutely sure of theiridentification and getting surer with time, but nonetheless mistaken. Becausethey are honest and convinced, they are convincing, and have beenresponsible for many cases of miscarriages of justice through mistakenidentity. The accuracy of this type of evidence cannot be determined by theusual tests of credibility of witnesses, but must be tested by a close scrutinyof other evidence. In cases, where the criminal act is not contested and the



R. v. Henry

identity of the accused as the perpetrator the only issue, identification isdeterminative of guilt or innocence; its accuracy becomes the focal issue attrial and must itself be put on trial, so to speak. As is said in Turnbull [63Cr.App.R. 132, [1976] All E.R. 549], the jury (or the judge sitting alone) mustbe satisfied of both the honesty of the witness and the correctness of theidentification. Honesty is determined by the jury (or judge sitting alone) by

observing and hearing the witness, but correctness of identification must befound from evidence of circumstances in which it has been made or in othersupporting evidence. If the accuracy of the identification is left in doubtbecause the circumstances surrounding the identification are unfavorable, orsupporting evidence is lacking or weak, honesty of the witnesses will notsuffice to raise the case to the requisite standard of proof and a conviction sofounded is unsatisfactory and unsafe and will be set aside. It should alwaysbe remembered that in the famous Adolph Beck case, 20 seemingly honestwitnesses 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 variesaccording to many circumstances. A witness called upon to identify anotherperson may have been so well acquainted with him or her as to make theidentification certain and safe. The person to be identified may possess suchoutstanding features or characteristics as to make an identificationcomparatively free from doubt. The conditions under which an observation ismade, the care with which it is made, and the ability of the observer, affectthe 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 awitness who is to be relied upon to identify a person suspected of wrongdoingor who is under arrest. If a witness has no previous knowledge of theaccused person so as to make him familiar with that person’s appearance,the greatest care ought to be used to ensure the absolute independence andfreedom of judgment of the witness. His recognition ought to proceed withoutsuggestion, assistance or bias created directly or indirectly. Conversely, ifthe means employed to obtain evidence of identification involve any actswhich might reasonably prejudice the accused, the value of the evidence maybe partially or wholly destroyed. Anything which tends to convey to a witnessthat a person is suspected by the authorities, or is charged with an offence, isobviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny

after arrest is unfair and unjust. Likewise, permitting a witness to see a singlephotograph of a suspected person or of a prisoner, after arrest and beforescrutiny, can have no other effect, in my opinion, than one of prejudice tosuch 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

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.

[108] The evidence at trial on each count in the indictment was probably sufficient

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 Crown’s case on the element of identification rests entirely on the in-court

identification made by the complainants at the preliminary hearing and at trial. Pre-

court 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, it’s fair, isn’t it, that Mr. Henry wasreleased because the identification or what identification was gainedthrough that line-up was, in your view, questionable?

A Yes. It wasn’t strong enough identification for me to, I didn’t feel, laycharges at that time.

Q In your view, charges would have been inappropriate both to theaccused and to the women who would have to testify based on thatidentification?

A Yes. I felt we may well lose the case and everyone would have beenthrough 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.



R. v. Henry

[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

chronological order.

[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 notthe 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 man’s 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



R. v. Henry

distinctive about his voice. She did not hear his voice at the preliminary hearing but

identified him then based on his appearance.

[117] The offence date in counts four and five was 5 August 1981. The complainant

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 man’s 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 “thesame 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



R. v. Henry

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

room with his turtleneck sweater rolled up to just below his eyes and wearing a

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 man’s 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 man’s

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 line-

up 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.



R. v. Henry

[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

through curtains that were thin and partly open. Street lights were 50 to 60 feet

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.



R. v. Henry

[128] 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

his hand. Within ten seconds the man made her put a pillow over her head.

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 motionedto 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.



R. v. Henry

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

individual’s appearance, she wanted to see another photograph if available. She

was “fairly certain of this one”, but wanted to see a larger photograph of the same

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 appellant’s 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 usethe 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



R. v. Henry

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

supporting the identification made in court. In addition, pre-court and in-court

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.



R. v. Henry

[145] In 2002, police re-investigated 25 home-invasion sexual assaults that were

committed between 12 April 1983 (more than eight months after the appellant’s

second arrest) and 3 July 1988. As noted above, a DNA match from preserved

crime-scene exhibits made a case against D.M. with respect to three of the assaults.

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 appellant’s 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 appellant’s trial



R. v. Henry

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

ruse does not appear in the particulars of the Smallman offences.

[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.



R. v. Henry

Summary and conclusion

[154] To summarize:

(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-to-

count 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.

“The Honourable Mr. Justice Low”

I agree:

“The Honourable Madam Justice Levine”

I agree:

“The Honourable Mr. Justice Tysoe”

Appeals Document 2010

Documents

Transcript of Appeals Document 2010