Rape Relief wants say in Henry trial

Attorney general supports group’s right to be heard in wrongful conviction case

On the eve of the close of Ivan Henry’s trial for compensation for his wrongful conviction, Rape Relief is threatening to throw the case into procedural chaos. In a move Chief Justice Christopher Hinkson called “disappointing,” B.C. Justice Minister Suzanne Anton backed the Vancouver organization’s right to be heard.

“I was hoping for some assistance from the attorney general,” Hinkson scowled at government lawyer Jonathan Penner.

Vancouver Rape Relief and Women’s Shelter wants to apply for the appointment of an amicus curiae — “a friend of the court” — to put Henry’s “factual innocence” on trial.

His lawyers were outraged that this could result in more witnesses, in particular victims of the 1980s sex crimes of which Henry was acquitted.

Renowned lawyer Joseph Arvay had difficulty containing his anger, calling one of the country’s oldest women’s rights groups “a mere busybody.”

He said it was trying to get involved in litigation that was none of its business while foisting the cost on the public.

Hearing the organization would be “a complete waste of time” and appointing an amicus will not only delay the trial but also be highly prejudicial to Henry, Arvay added.

“This is an unprecedented application,” he fumed. “I know of no case, no authority, no practice in which a stranger to the litigation would have standing to ask the court to appoint an amicus.”

Both parties remaining in this suit are fully represented, he said, no one is asking for help and an amicus does not traditionally call witnesses or lead evidence.

The veteran counsel was almost apoplectic.

“Calm down, Mr. Arvay,” the judge said.

“There has never been a case that I know of where the court has entertained an application for standing by a stranger to the litigation,” Arvay repeated.

The B.C. Court of Appeal in 2010 said there was no evidence against Henry and acquitted him of 10 sexual offences against eight women.

Henry had been declared a dangerous offender in 1983 and spent 27 years behind bars.

The City of Vancouver, responsible for police and forensic analysts, and the federal government, representing national officials responsible for reviewing his convictions, have already settled with the 69-year-old. Only Victoria, which closed its case last week, continues to defend prosecutors.

Though the evidentiary stage of the trial is over, Rape Relief wants it reopened.

Arvay ridiculed the suggestion the organization was there to defend the interests of victims in the 1980s attacks when its lawyer said she didn’t represent any of the women. For Rape Relief, Gwendoline Allison said the 42-year-old organization wanted to raise the question of “factual innocence.”

She acknowledged it was an “unusual” move, but a route to the witness box was needed for a handful of witnesses, including two women scheduled to testify who were dropped because the city withdrew claims Henry committed the attacks in its settlement two weeks ago.

Hinkson looked askance, saying Henry’s innocence was not a question.

“The issue has been abandoned. No one is asserting presently that Mr. Henry committed the acts — you want to parachute in and tell the court to address issues the parties have no wish to litigate,” he said.

“This is not a matter of public law; it’s a dispute between now two parties.”

Allison maintained Rape Relief had a right to intervene because the lawsuit was “public-interest” litigation involving the award of charter damages.

Government lawyer Penner added the attorney general thought the group should have standing to more fully argue its case. Hinkson was not amused.

“Mr. Penner, presently, I don’t need to decide Mr. Henry’s innocence or guilt,” he reiterated. “The Court of Appeal has done that. The applicant wants to reopen all of that and ask me to find, in spite of what the Court of Appeal had to say, that he actually did all these things: That’s a sea change in this litigation.”

“That goes to the merits of their application,” Penner replied. “The attorney general doesn’t take a position with respect to the application.”

“Telling me you take no position doesn’t assist me at all,” Hinkson snapped.

Arvay accused the attorney general of being “a little disingenuous.”

“By inviting this court to hear Rape Relief apply for standing for an amicus seems to suggest the attorney general may be trying to do through the back door what it is not allowed to do and is not claiming to do through the front door (say Henry is guilty and) that suggests to me perhaps an inappropriate stance by the attorney general.”

He said this was a private lawsuit and not public-interest litigation:

“There are no complainants’ charter rights involved in this case. … Whether the court gives Mr. Henry $1 or $100 million it doesn’t implicate the complainants’ charter rights one bit. This is Mr. Henry vindicating the violation of his charter rights. He’s not trying to trounce on anybody else’s charter rights.”

The judge said he will decide today whether Rape Relief can argue for an amicus.