B.C. man who spent 27 years in prison acquitted

VANCOUVER – A 64-year-old man who served 27 years for sex crimes he said he didn’t commit has been acquitted on all counts.

Ivan Henry was convicted in 1983 of 10 charges of rape and indecent assault involving eight women. After filing 55 applications to the court seeking an appeal, claiming he was wrongly convicted, he was granted an unprecedented appeal last June, when his legal team argued he should be acquitted and set free in light of new police investigation involving similar crimes.

A three-judge panel of the B.C. Court of Appeal ruled Wednesday that the trial judge made three errors in his instruction to the jury.

"The evidence as a whole was incapable of proving the element of identification on any of the 10 counts and the verdicts were unreasonable," Appeal Court Justice Richard Low wrote in the unanimous decision, with Justices Risa Levine and David Tysoe agreeing.

"The appropriate remedy under second. 686(2)(a) of the Criminal Code is acquittal on each count," the ruling said. "I would allow the appeal, quash the convictions and enter an acquittal on each count."

Henry likely would seek financial compensation from the B.C. government for wrongful conviction.

David Milgaard, who spent almost 23 years in prison for the 1969 sex murder of Saskatoon nursing aide Gail Miller, was awarded $10 million after a DNA test confirmed what he had claimed for years – he wasn’t the killer.

One of Henry’s lawyers, David Layton, said outside court that Henry holds the record in Canada of the longest-serving man who was acquitted.

He said Henry wants to enjoy his first day of freedom with his family before discussing compensation with his lawyers, which include Marilyn Sandford and Cameron Ward.

Layton said the appeal court cannot declare innocence but came close to exonerating him by saying the evidence was "polluted" and should not have resulted in a conviction in 1983.

His daughters told reporters that they are thrilled that justice finally prevailed after almost three decades.

Henry was released on bail last June 2009, and has been on bail under electronic monitoring under very restrictive conditions.

He has been living with his daughter in North Vancouver but had to surrender himself to custody this morning, pending the appeal court decision.

Minutes after the court ruling, Henry came outside court and hugged his daughters with tears welling in his eyes.

"I certainly have to thank my good lawyers," he told reporters.

"And I have to thanks the good judges, because it was them who propelled this into acquittal.

"And I have to thank my family because if it wouldn’t have been for my family, I don’t think I would have made it," Henry said.

"It was really hard to get out."

He said he still is adjusting to life outside prison, saying the world has changed since 1982.

"So many people, so many cars," he said.

"I come from ’82, we didn’t have the same amount of people and stuff, eh," he explained. "The world changed, big time, right."

Henry said he was "not at all" angry that it took so long to get released.

"It wouldn’t heal me if I was angry," he said. "That wouldn’t do any good. I’d just walk around and start drinkin’," he added.

"I’ve got (three) grandkids I’m so proud of."

He said he would like to send a message of "don’t give up" to others in prison like him.

He recalled thinking when he was first convicted it was a cruel joke but always believed he would overturn his conviction.

Asked if he wished he would have had a lawyer at trial rather than representing himself, he smiled and said; "That’s like a boat without oars, eh."

He then walked off with his daughters, who planned to go out to dinner with their dad to celebrate..

Henry was convicted solely on identification by the victims.

The appeal court found the identification was weak and the trial judge erred by instructing the jurors that they could infer consciousness of guilt from the resistance of Ivan to participation in the line-up conducted by police on May 12, 1982.

The appeal court also found the trial judge’s instruction on the element of identification was inadequate.

And, the ruling said, "There should have been severance of the counts and a mistrial when the Crown abandoned its application for jury instruction on count-to-count similar fact evidence," the appeal court panel decided.

Henry was convicted in 1983 of raping and indecently assaulting eight Vancouver women. He was declared a dangerous offender and sentenced to an indefinite prison term.

Now 63, Henry has claimed for years he was wrongly convicted. His protests fell on deaf ears.

He filed dozens of court application to try to reopen his case, at times asking officials to compare the forensic evidence from the crime scene to his own blood type.

His applications, made without the aid of a lawyer, were dismissed as frivolous.

Unfortunately, the physical evidence from crime scene that may have contained DNA to help exonerate him was not kept by police or the Crown. It was destroyed.

Henry’s appeal offered a shocking piece of evidence used to convict him – a 1982 photograph showed Henry in a headlock by a police officer during a lineup, held to see if rape victims could identify their attacker.

The lineup was made up of police officers in civilian clothes. Most were smiling.

The only one not happy in the photo was Henry, who yelled and struggled as he was brought in for the police lineup.

"If this had been disclosed, it would have been a gold mine for a defence lawyer," Appeal Court Justice Richard Low said of the photo during Henry’s appeal hearing in June, when the court reserved judgment.

The Crown now admits that the identification process used by the police completely undermined the value of the victims’ identification of Henry as the assailant.

The Crown’s conviction was based almost solely on identification.

Many of the women victims could not provide enough detail to identify Henry as the rapist until the police lineup.

Some of the victims identified Henry only by his voice, which was heard during the police line-up.

The day of the lineup, Henry was interrogated and released from custody by Vancouver police. He was not charged. He was arrested again in 100 Mile House on July 29, 1982 and was initially charged with a 19-count indictment, later reduced at trial to 10 charges involving eight women.

Henry complained for years that he was an innocent man. He made a total of 55 applications trying to get the appeal court to reconsider his case.

The appeal court considered him properly convicted. It changed its mind in January 2009, when Henry was granted an appeal.

The reversal partly stemmed from a Vancouver police department review of old sex cases spurred by the Robert (Willie) Pickton murders.

The investigation, dubbed Project Small Man, led to the 2006 appointment of special prosecutor Len Doust, who was asked to find out if a miscarriage of justice might had occurred.

His report in 2008 led to the unprecedented order that Henry’s appeal be reopened.

Henry’s apparent wrongful conviction might not have come to light if it hadn’t been for the sharp memory of a veteran Crown prosecutor, Jean Connor, who was reading a memo about an accused serial rapist that rang a bell four years ago.

Connor recalled in an interview last year that she was surprised how similar the facts in the memo were to the ones she remembered from a sex case more than two decades earlier.

She took the document and walked down the hall to the office of her colleague, Mike Luchenko, who had prosecuted the Henry case in 1983.

She read out details of the crimes contained in the memo, then asked: "Who’s that?"

"Ivan Henry," Luchenko replied.

Connor told him it was another man facing similar charges involving more than 20 women.

Connor said she and Luchenko then went to their boss at the time, Mike Hicks, now a judge, and told him about the similarities in the cases.

That meeting led to then attorney-general Wally Opal appointing Doust to review the Henry case as a possible miscarriage of justice.

Henry’s daughters, Tanya Olivares, 37, a North Vancouver mother of two, and Kari Henry, 35, were optimistic their father would be exonerated after a 27-year battle to clear his name.

Click here to read the full judgment