Ivan Henry and the “Open Court Principle”

Today, Irwin Nathanson, QC argued before the Supreme Court of BC that I, as petitioner, should, applying the “open court principle”, have access to the report of the Special Prosecutor appointed to determined whether a miscarriage of justice occurred in the 1983 conviction of Ivan Henry on 10 counts of sexual assault.

Chief Justice Robert Bauman reserved his decision, saying he would first like to review the Special Prosecutor’s Report, as well as the transcript of proceedings before appellate court Madam Justice Mary Saunders in 2009 regarding the application to reopen Henry’s appeal.

The arguments advanced on my behalf were these: I have the same “standing” as the media to compel the release of matters pertinent to court proceedings (counsel for the AG did not argue to the contrary); the Report, though not made an exhibit, formed the very foundation of the appellate court proceedings; and the Report itself is not (solicitor/client) “privileged”in that the Special Prosecutor was not offering advice to the Attorney-General but, rather, was making a determination, as well as recommendations pertinent thereto.

On behalf of the Attorney-General, David Crossin, QC argued that, because the Report had not been formally introduced into the Court proceedings, the “open court principle” is not triggered; the Report is privileged; and there has been no waiver of that privilege.

No idea when a judgment will be rendered, or what the decision will be.

What is known, though, is that, should I be successful, counsel for the AG will be making submissions based on “privacy considerations” regarding the participants thereof. All I can hope is that, at the end of the day, the Government’s position in this regard will not result in a Pyrrhic victory for the principle of “open court”….

More to follow….

 

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