Case Report – BCCA upholds ban on identifying third-party suspect

On February 26th, the British Columbia Court of Appeal upheld a ban on identifying a man linked to a series of sexual assaults that will be raised in Ivan Henry’s appeal from conviction.

Ivan Henry was convicted on several sexual assault charges in 1983 and served 26 years in prison. In mid-January the British Columbia Court of Appeal granted his application to reinstate a previously dismissed appeal. As part of the reinstated appeal, Mr. Henry will raise a series of sexual assaults that occurred after his arrest that involved a similar modus operandi to that used by the perpetrator of the assaults for which he was convicted. “Mr. X” was charged and convicted for perpetrating three of these assaults in 2005 and is now on parole. He has not been charged in respect of any of the other assaults.

The Court of Appeal applied the Dagenais/Mentuck test and upheld the publication ban, finding a continuation of the ban is necessary to protect Mr. X’s privacy interest and will have a minimal impact on free expression and open justice. Its reasoning is summarized in the following paragraph:

In this case, Mr. X is on parole and living in a half-way facility.  He has not been charged, and unless and until he is convicted, he is presumed to be innocent of the unsolved offences which were the subject of the Smallman investigation.  The publication of his name is not necessary in any way to Mr. Henry’s appeal.  The public interest in the openness of trials and the administration of justice is not, in my view, diminished by the withholding of his name.  All proceedings have been, and will continue to be, carried out in the open.  On the other hand, the reporting of Mr. X’s personal circumstances, combined with inflammatory demands by the media that his parole be revoked and statements that he is a “prime suspect” and a “dangerous sexual predator” being allowed to “live anonymously among us”, mean that Mr. X’s privacy and even security interests will be at risk if his name is published — more so than in the usual case of persons suspected but uncharged.  If our society takes seriously the proposition that a person in Mr. X’s position is presumed innocent until proven guilty, it seems to me that the deleterious effects, both on his privacy interests and on the administration of justice, of the publication of his name do outweigh the public interest in knowing that fact.

R. v. Henry, 2009 BCCA 86.

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