Wrongful Convictions.pdf - Robson Hall Faculty of Law

34 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1Henry was charged with and convicted of 10 counts of sexual assaultinvolving eight complainants. The Crown’s case was razor-thin; perhapsnon-existent. Henry had insisted on representing himself. Afterconviction, he was declared a dangerous offender, and sentenced to anindefinite period of imprisonment.For the next three decades, Henry asserted his innocence in a batteryof applications before the trial court, Court of Appeal, and the SupremeCourt of Canada. He was unsuccessful in all of them. 106 But theevidentiary sands started to shift in 2002. Police re-investigated his case.Prosecutors started to believe that he may have been innocent. BritishColumbia appointed an independent counsel to investigate the case; herecommended that the Crown not oppose a motion to re-open the case—even though the verdict had literally been etched in stone for 25 years.In 2010, the British Columbia Court of Appeal ruled that despite anintensive judicial examination of the case during the preceding threedecades, including two unsuccessful appeals to the Court of Appealitself, 107 the interests of justice required “that the order dismissing (this)appeal in 1984 be set aside and [this] appeal [be] re-opened forconsideration on its merits.” 108Because a miscarriage of justice appeared to have occurred, the Courtwas prepared to overlook what might otherwise have been significantprocedural impediments, including the principle of finality, and provide aroute back into the court system in circumstances that it described as“exceptional”. 109Put simply, as in the Truscott case, process was not allowed to outweighconsiderations of fairness. After a full hearing before the Court of Appeal,the appeal launched in 1984 was re-opened 26 years later, the convictionswere quashed, and acquittals were entered on all counts. 110106Ibid at paras 20-23.107The first, in 1984, was dismissed for want of prosecution; the second, in 1997, wasdismissed on the basis that the notice of appeal raised issues of fact, not law: ibid atparas 20 and 23. See also R v Henry, 100 BCAC 183 (available on WL Can).108Supra note 105 at para 32.109Ibid at paras 23 and 32.110Ibid at para 155. It should be noted that this is not a case where forensic sciencechanged; rather, the case is cited to provide an illustration of how the courts can finda route to provide a remedy where the facts call out for one. It should also be notedthat this case resulted in an acquittal—not just a new trial, as often occurs despite