Lawyer says client jailed on wrongful rape conviction

Updated Mon. Jan. 12 2009 6:09 PM ET

The Canadian Press

VANCOUVER -- A defence lawyer for a man who's spent 25 years in jail for a series of rapes says there is overwhelming evidence to suggest his client was wrongly convicted just like several other Canadians who struggled for decades to clear their names.

Ivan Henry was convicted in 1983 of raping eight women and then declared a dangerous offender.

But his lawyer, David Layton, told the B.C. Appeal Court on Monday that police botched the investigation, the trial judge wrongly instructed the jury and another man may have been responsible for the crimes.

A lawyer for the Crown also said he has serious concerns about the Appeal Court's dismissal of the case in 1984.

Layton said important evidence was not disclosed to Henry at his trial, where he represented himself, and that the womens' evidence contradicted their statements to police.

The rapes, which occurred between May 1981 and June 1982 in three Vancouver neighbourhoods, might have been committed by a man who lived nearby and was later convicted for several sexual assaults, Layton said.

Police investigated the other man, whose name can't be published under a court ban, in a probe called Project Small Man, Layton said.

The investigation occurred in 2002 while police were working on the case of Robert Pickton, who has since been convicted in the second-degree murder of six women. Pickton still faces trial on a further 20 cases involving missing women.

"This is a case where Mr. Henry has never wavered in asserting his innocence," Layton told the court, adding the case needs to be reopened because it mirrors other wrongful convictions including those against David Milgaard and Guy Paul Morin.

Milgaard spent 23 years in prison for the murder of a Saskatoon nursing aide and Morin was tried twice for the 1984 killing of a nine-year-old girl north of Toronto.

"This Small Man fresh evidence is such that were it available to the jury it may have reasonably affected the verdict," Layton said.

He said the eight women were raped in their homes in the middle of the night by a knife-wielding intruder who covered parts of his face after pretending he was looking for someone who ripped him or his boss off.

Layton said the process police used to identify Henry as the attacker was flawed in several ways.

He said some of the women had already identified someone else and that Henry was forced to participate in a police lineup while he was yelling and restrained but that the trial judge told jurors they could infer guilt from that behaviour.

One of the complainants identified Henry from a photo that showed him standing in a jail cell with a police officer in the foreground, Layton said.

He said the eight women, some of whom had bad eyesight, also identified Henry in court as the attacker even though the assaults occurred in the dark involving a man whose face was partly obscured.

Layton said the women also testified that the assailant had a gruff voice -- but only after that suggestion was made to them in court.

Crown lawyer David Crossin echoed some of the same concerns, saying a psychiatrist who assessed Henry as suffering from paranoid delusions had serious doubts about whether the man was even fit to stand trial.

"From my point of view, the circumstances of Mr. Henry's trial ought to be critically assessed by the court with a view to determine whether Mr. Henry received a fair trial," Crossin told the court.

He said there's no DNA evidence in the case.

One of the victims still has a pillow slip stained with semen from an assault but Crossin said the RCMP's forensic lab has determined it would be impossible to obtain any DNA because it has been repeatedly washed over the years.

Crossin said he's trying to determine if a private lab can help.

He also said the lack of disclosure material provided to Henry during the trial affected the outcome of his case.

"There is no doubt in my mind that Mr. Henry did not receive certain disclosure that, in my view, might well have been relevant in relation to the eye witness identification."

By choosing to be his own lawyer, Henry called police officers to the stand but they were later cross-examined by Crown lawyers and that wasn't helpful to the case, Crossin said.

Last year B.C. Attorney General Wally Oppal appointed lawyer Len Doust to review the conviction.

Doust's report in March 2008 suggested there may be a miscarriage of justice involved in Henry's conviction.