COURT OF APPEAL FOR BRITISH COLUMBIA Citation: 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.The Honourable Mr. Justice Low The 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 Columbia June 21and 22, 2010 Place and Date of Judgment: Vancouver, British Columbia October 27, 2010 Written Reasons by: The Honourable Mr. Justice Low Concurred in by: The Honourable Madam Justice Levine The Honourable Mr. Justice Tysoe 2 0 1 0 B C C A 4 6 2 ( C a n L I I )
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[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
[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
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
[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
(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.
[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
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.”
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
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.
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
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
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.
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
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.
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
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.
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
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
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
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
[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
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
[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
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