Rape Relief will not be heard in Henry case
Judge says group doesn’t meet test for amicus status
B.C. Supreme Court Chief Justice Christopher Hinkson has rejected the attempt by Vancouver Rape Relief and Women’s Shelter to be heard at Ivan Henry’s trial for compensation over his wrongful conviction.
With the support of B.C. Attorney General Suzanne Anton, the women’s group wanted to argue for the appointment of an amicus curiae — “a friend of the court” — to put Henry’s “factual innocence” on trial.
On Tuesday, Hinkson concluded Rape Relief had not met the test for standing set by the Supreme Court of Canada and said Henry has already been acquitted by the courts. He refused to hear Rape Relief’s argument.
“The applicant does not have any real stake or genuine interest in the proceedings more than any member of the public may have in connection to this litigation,” Hinkson said.
“I find that a grant of standing … would undermine the effective operation of the process chosen by the parties in this litigation and impose an unnecessary burden upon scarce judicial resources.”
It was a rebuke of Anton, who issued a statement: “Our government certainly respected (Rape Relief’s) right to bring that request forward and we respect the court’s decision to decline it.”
Rape Relief spokeswoman Louisa Russell, a crisis worker, said the group was disappointed.
“We have to remember that Ivan Henry was not exonerated in the B.C. Court of Appeal,” she said outside the courtroom. “Rape Relief decided to bring this application forward because throughout this lengthy process the victims did not have an opportunity to be heard and they will now seek other platforms to speak. The public deserves a right to hear from these women.”
Hinkson disagreed: “In my view, the charter rights of the 1980s complainants are not engaged in these proceedings.”
The City of Vancouver and the federal government reached a settlement with Henry within the last two weeks, leaving only the provincial government
The role of an amicus is not to be an advocate, Hinks on explained. They are to be appointed sparingly, with caution and only when the court needs help to assure the orderly conduct of proceedings and the availability of relevant submissions.
defending his suit.
Henry was wrongfully convicted in March 1983 of 10 sexual offences against eight women and declared a dangerous offender. He spent nearly 27 years in prison before he was released and the province’s highest court in October 2010 acquitted him of the charges.
Henry then sued the three levels of government for their roles in his ordeal — the city for shoddy police and forensic work, the province for prosecutorial conduct and Ottawa for federal officials who had a role in reviewing his convictions.
Only the city argued that Henry committed the assaults of which he was acquitted and it withdrew those allegations Nov. 16 as part of its settlement.
Although it never levelled them, the federal government, too, “absolutely disavowed” any connection to such allegations in its Nov. 26 deal.
The province, which closed its case Friday, also did not raise the issue of Henry’s guilt.
The judge was especially concerned about the powers Rape Relief wanted for the amicus — the ability to call witnesses, present evidence and re-litigate Henry’s guilt.
The role of an amicus is not to be an advocate, Hinkson explained. They are to be appointed sparingly, with caution and only when the court needs help to assure the orderly conduct of proceedings and the availability of relevant submissions, he added.
“The applicant has not referred me to any case where an amicus has been permitted to adduce evidence,” Hinkson said.
Access to the courts must be restricted as well to those who have a personal interest in the litigation, he continued, and public interest standing must be granted only when a party satisfies a three-pronged test.
Rape Relief did not qualify, Hinkson concluded.
“The term ‘busybody’ is an unfortunate one that is more pejorative than I consider necessary … while I don’t wish to minimize the important work of the applicant, I am unable to find the applicant’s work … (includes) intervening in cases of claims for charter damages by the wrongfully convicted. In a sense, all Canadians might be said to have a genuine interest in such claims, but the applicant has no greater interest in such claims than other Canadians.”
He said appointing an amicus was not “a reasonable and effective” proposal — especially one who could call evidence, have access to sensitive information that is the subject of a privacy protection order, and litigate an irrelevant issue.
“Mr. Henry’s guilt has been determined in the most reasonable and effective way by the vehicle of the criminal law process that culminated in the decision of the B.C. Court of Appeal which acquitted him of all the charges underlying the convictions for which he was incarcerated,” Hinkson said.
Final arguments in the trial begin Monday.