Doubt cast on 1983 verdict

B. C. man jailed for rape might get a new trial

Brian Hutchinson, National Post 

Published: Tuesday, January 13, 2009

Ivan Henry has been jail for the past 26 years on convictions for a series of sexual assaults.

Ivan Henry already had a criminal history in 1983, a previous conviction for attempted rape. He also had a history of drug and alcohol abuse. According to a court-appointed psychiatrist, he was psychotic and suffered paranoid delusions.

Clearly, there was no advantage for him to defend himself on multiple sex charges in B. C. Supreme Court. But he did and despite a lack of reliable evidence -- and a host of other troublesome factors, unacknowledged at his trial but surfacing now -- Henry was convicted by a jury on three counts of rape, two counts of attempted rape and five of indecent assault.

A judge declared him a dangerous offender, which meant he might never experience freedom again.

He has spent the past 26 years in prison for crimes he has always maintained he did not commit.

The record now casts serious doubt on the prosecution's case against him and the process leading to it.

The province's highest court is expected to rule today on an application to reopen his appeal.

At a court proceeding yesterday, a lawyer representing the Crown allowed that Henry might not have received a fair trial in 1983.

He raised no objection to a defence application that would reopen the case.

Instead, independent special prosecutor David Crossin offered stunning concessions. He did so as cautiously as possible given the circumstances.

He did not wish to lay specific blame on those police officers who investigated a string of sexual assaults in Vancouver, or the team of Crown lawyers who prosecuted the case all those years ago, or the witnesses and complainants who came forward at Henry's trial and identified him as the perpetrator of rape.

But "relevant and potentially exculpatory" evidence had surfaced while Henry languished in prison.

He had, in the 1980s and 1990s, tried to initiate 55 proceedings, all on his own. None succeeded.

He had no means to hire a lawyer and no real shot at mounting an appeal.

Last year, however, another independent special prosecutor reviewed his case and recommended the Crown not oppose reopening an appeal. It was only then that he was granted access to legal aid funds. He hired good lawyers.

They have applied to have the courts set aside earlier orders dismissing Henry's attempts for an appeal. He may soon go back to trial.

Yesterday, lawyers for the defence and the Crown stood before a B. C. Court of Appeal panel and agreed on everything. Mr. Crossin outlined four specific areas of concern. Most disturbing, perhaps, was Crown counsel's failure to disclose material evidence to Henry before and during his trial. "There was, in fact, nondisclosure," Mr. Crossin said in court yesterday.

Defence counsel David Layton filled in the blanks. The Crown failed to disclose 27 statements taken from individual complainants leading to Henry's trial, court heard yesterday. "In many cases, these were the first descriptions [of their rape and assault] by complainants to police," he added.

These witness statements didn't always match witness testimonies at trial. Initially, not one of the complainants told police that her attacker had a raspy, rough voice. After hearing Henry speak in a police lineup, some complainants would describe their attacker's voice as raspy and rough.


Some complainants identified their attacker as someone other than Henry. That wasn't disclosed either, Mr. Layton said.

It wasn't the only issue that worked against the accused. Mr. Crossin suggested in court yesterday that the 1983 jury charge by B. C. Supreme Court Justice John Bouck was problematic, and that Henry's performance as self-counsel at his trial was "ineffective and counterproductive." His mental condition, as described by a court-appointed psychiatrist just after his trial, prior to his dangerous offender status declaration, indicated myriad problems.

Defence counsel Layton offered more. The 1983 trial judge, he told court yesterday, told jurors they could infer guilt by Henry's reluctance to appear in a police lineup. But the lineup techniques "were egregiously defective...[and] flawed."

Six complainants had watched Henry participate in a lineup with other men. He was the only one "yelling and screaming, while being restrained by policemen," Mr. Layton said in court yesterday.

And yet three of the complainants did not identify Henry in that lineup. The other three were unsure. A seventh complainant picked his photo from a lineup of still photographs; Henry was the only person posed in front of a jail cell, with a police office in the frame, Mr. Layton said.

Mr. Justice Bouck failed to assist Henry during his trial, the defence lawyer also said. Mr. Layton presented 10 instances

"of inadequate assistance" to the accused. "Each one on its own is grounds for appeal," he argued.

Finally, the "new," potentially exculpatory evidence. In fact, it is not new; it is a few years old. But it is explosive.

In 2002, police in B. C. launched "Project Small Man," an investigation of serious sex crimes connected to the Robert Pickton-missing women file.

Police examined a set of 27 serious sex offences committed in Vancouver between 1983 and 1989. Police determined they probably were committed by one person.

In about half of the 27 cases, the perpetrator used an identical "rip off" modus operandi, police found. The perpetrator entered a female victim's home at night, pretended to be looking for goods stolen from his "boss," and then attacked the woman. He covered part of his face, and sometimes part of her face, during the assault. The assaults all took place in the same neighbourhods in Vancouver's west side.

Henry was in custody between 1983 and 1989, so he could not have committed any of these "rip-off" style assaults. But "at least" seven of the eight individual complainants at his sex crime trial in 1983 described enduring the same distinct "rip-off" assault technique. The clear inference is that someone else committed the previously committed crimes ascribed to Henry, his lawyer said in court yesterday.

Police, Mr. Layton added, eventually identified a "Project Small Man" suspect. He lived in Vancouver when and where the Henry offences took place.

The suspect was identified during yesterday's proceedings, but his name cannot be published under court order. He pleaded guilty to three sex offences in 2005 and received a five-year prison sentence. He has since been released.

Henry, on the other hand, remains in prison. "A man has been convicted and has served 26 years in prison for crimes he did not commit," David Layton told the panel of B. C. Court of Appeal judges yesterday. The Crown ventured almost as far.

The same panel of judges convenes this morning; it is expected to accept Henry's application. His case will be reopened.



Some of the Canadians who have been exonerated after being wrongfully convicted


Truscott, 14 at the time, was charged with the rape and killing of 12-year-old Lynne Harper in 1959. He was sentenced to hang, but instead spent 10 years in prison. In 2007, the Ontario Court of Appeal called his incarceration and the subsequent 40 years of being labelled as Ms. Harper's killer "a miscarriage of justice." He was to receive $6.5-million in compensation.


Found guilty of the 1969 murder of Gail Miller. Spent 23 years in prison. Received $10-million in compensation, including $750,000 payment to his mother.


Found guilty of the murder of a 16-year-old Winnipeg waitress. Spent four years in jail before being freed in 1985. Received $2.5-million in compensation.


Found guilty of the 1971 murder of acquaintance Sandy Seale, who was actually killed in a robbery attempt. Spent 11 years in prison before being acquitted. Received a lifetime pension of $1.5-million.


Found guilty in 1993 of murdering his wife when she had actually fallen down the stairs. Spent five years in prison before the conviction was overturned. Received $2.5-million.


Found guilty of murdering his girlfriend in 1993. Spent nearly six years in prison before a jailhouse informant recanted his testimony. DNA evidence later implicated his brother. Received $2.1-million.


Tried for the 1984 murder of nine-year-old neighbour. Released in 1986, retried in 1992. Finally cleared in 1995 based on DNA evidence. Received $1.2-million in compensation.


Convicted of murder in 1994 deaths of two Edmonton-area factory workers. Spent 22 months in jail before charges dismissed, based on case mismanagement by RCMP. Awarded nearly $765,000 damages.


Charged with strangling his wife in 1988 and spent almost nine years in a Newfoundland jail. A retrial in 2000 found him not guilty. Paid $750,000 in compensation.

National Post




Comments by Prof. Donald Dutton


13th January 2009
The Editor: 
National Post 
Dear Editor,
It comes as no surprise that nine of the eleven wrongful convictions you described in your January 13 article (Line-up techniques defective) involved crimes against women. While wrongful convictions are mercifully rare, they too indicate the rush to judgment aspect of the Canadian criminal justice system when issues of gender are triggered.  When women's' groups and some of the press keep telling us that spousal homicide is exclusively male perpetrated- the real incidence by gender of perpetrator is 3:1 in Canada and 2:1 in the US)- no wonder there is a rush to judgment in some cases.  In the US the term "Black and nearby" became synonymous with the tendency to wrongfully convict African-American men. In Canada the term should be "male and nearby".
Don Dutton
Professor of Psychology
University of British Columbia