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

VANCOUVER – The provincial government could face paying a multi-million-dollar compensation package to Ivan Henry, who was acquitted Wednesday of raping eight Vancouver women after spending 27 years in prison.

Henry has always maintained he was wrongly convicted for the crimes.

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, who include Marilyn Sandford and Cameron Ward.

Based on the wrongful conviction case of David Milgaard, who got $10 million for serving almost 23 years in prison for a murder he didn’t commit, Henry could receive somewhere in the range of $15 million.

Milgaard, who lived in Vancouver for many years after his release from prison, spent almost 23 years in prison for the crime he didn’t commit.

Last week, the Ontario attorney general announced a $4.25-million award for William Mullins-Johnson, who was wrongly convicted in 1994 of murdering his four-year-old niece, Valin Johnson.

Mullins-Johnson spent 12 years in prison before he was released on appeal in 2005. A review of the autopsy found there was no evidence to charge him and his conviction was overturned.

Neil MacKenzie, a spokesman for the criminal justice branch, an arm of the attorney-general that oversees criminal prosecutions in B.C., said Wednesday that the Crown accepted the appeal court decision but could not comment when asked if compensation would be paid to Henry.

"It’s not something the criminal justice branch would deal with," he said.

He credited the Crown for passing along information about a possible miscarriage of justice when new information arose in another prosecution four years ago, which led to Henry being granted an appeal.

"Certainly the Crown recognizes we have an ongoing responsibility to make sure convictions have firm foundations," MacKenzie said.

Henry had been in custody since his arrest in 1982. He was convicted by a jury in 1983 on 10 counts of rape and indecent assault involving eight women. He represented himself at trial after his lawyer Richard Peck withdrew.

He filed 56 applications to have his appeal reopened and finally won a new appeal last year. The appeal was heard last June, when the court reserved judgment until Wednesday.

Minutes after the appeal court ruling Wednesday, acquitting Henry on all charges, he walked out of the Vancouver Law Courts with a big smile on his face and tears in his eyes.

Henry hugged his two daughters, Tanya Olivares, 37, a North Vancouver mother of two, and Kari Henry, 35, who were thrilled that their father finally won his 27-year battle to clear his name.

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

"And I have to thank 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," said Henry, who celebrated his 64th birthday last Friday.

He was released on restrictive bail conditions in June 2009, pending his appeal, and has been living with his daughter in North Vancouver. He had to surrender himself to custody Wednesday morning before the appeal ruling was announced.

Asked if he wished he would have had a lawyer at trial rather than representing himself, he grinned 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.

The daughters said they were "exhilarated but exhausted" after the ruling.

"It’s been a long road," Kari Henry said. "I’m really, really happy. This is a huge weight off our shoulders.

"He’s known since day one that he was innocent. He just knew it was a matter of time," the daughter added, fighting back tears. "This has taken a tremendous toll on all of us."

The daughters recalled that their mother, who believed in her husband’s innocence, died 20 years ago to the day, when the teenage girls went into foster care.

"This has been a sentence for my dad but it was also a sentence for my sister and I, and our children," Kari Henry said.

The daughters said it took a long time but justice finally prevailed.

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 Henry to participation in the line-up conducted by police on May 12, 1982.

The appeal court considered a shocking photo of the police line-up, which showed three police officers, dressed in civilian clothes, restraining Henry, who was in a head lock.

The other people in the line-up were believed to be police officers, who were all smiling.

"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 last June, when the court reserved judgment.

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

The lawyer said the government should create an independent body to investigate claims of wrongful conviction, similar to what has been established in England.

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

The appeal court found the trial judge made three crucial 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 concluded, 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 filed 56 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.

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 but 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.

The appeal court considered Henry properly convicted until January 2009, when Henry was granted a new appeal.

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

The investigation, dubbed Project Small Man, involved 25 unsolved sex crimes between 1983 and 1988 with uncanny similarities to the crimes Henry was convicted of.

A man, who can only be identified as D.M., whose identity remains protected by a publication ban, was identified by DNA as the perpetrator in three crimes.

D.M. pleaded guilty to the three offences in 2005 and was sentenced to five years in prison. He now is on parole.

Henry’s apparent miscarriage of justice 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 Project Smallman that rang a bell.

Connor recalled in an interview last year that she was surprised how similar the facts in the crimes were to the ones she remembered from the Henry case.

She took the document and walked down the hall to the office of her colleague, Mike Luchenko, who had prosecuted Henry 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 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 in 2006 a senior Vancouver criminal lawyer, Leonard Doust, to review the Henry case as a possible miscarriage of justice.

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

Henry’s lawyer, Cameron Ward, said he empathizes with the women who were attacked in the crimes Henry served time for.

"They were attacked by someone," he said. "I understand how they could have been mistaken in their identification. I feel that, hopefully, justice was done in their cases when the offender was subsequently punished for three of the [Smallman] offences."

He said the crime scene evidence from the rapes Henry was accused of no longer exists — it was lost or destroyed.

"If it still existed, we could know with certainty, through DNA testing, that it was the other offender," Ward said.

"It’s very unfortunate that the physical evidence accumulated by the police investigators, back in the day, wasn’t preserved."

nhall@vancouversun.com

Click here to read the full judgment

CANADIAN CASES OF WRONGFUL CONVICTION:

– Last week, the Ontario attorney general announced it would pay $4.25 million to William Mullins-Johnson, who was wrongly convicted of murdering his four-year-old niece, Valin Johnson, in 1993. Her served 12 years in prison before he was released on appeal in 2005. A review of the autopsy found there was no evidence to support the charges against Mullins-Johnson and his conviction was overturned.

– David Milgaard remains one the most well-known wrongful conviction cases in Canada. He was convicted at the age of 17 for the murder of Gail Miller, a 22-year-old nursing aide found raped and stabbed to death in a snow bank in Saskatoon. He was released from prison at the age of 40, largely as a result of his mother uncovering the fact that a number of witnesses had lied at trial. He was exonerated in 1997 as a result of DNA testing, which confirmed the killer was Larry Fisher, a rapist subsequently convicted of the crime. Milgaard and his family were awarded $10 million in compensation in 2003 — the largest in Canada for wrongful conviction.

– Norman Fox spent eight years in prison for a Vancouver rape in the 1970s. He was granted a pardon in 1984 after new evidence indicated he had been mistakenly identified. He was awarded $275,000 in compensation.

– Donald Marshall spent 11 years in prison before the appeal court quashed his conviction for the 1971 fatal stabbing of Sandy Seale. He was 17 at the time of the crime. A Royal Commission inquiry report released in 1989 concluded that the criminal justice system "failed Donald Marshall, Jr. at virtually every turn from his arrest and wrongful conviction for murder in 1971 up to, and even beyond, his acquittal by the Court of Appeal in 1983."

– Guy Paul Morin was convicted of the murder of his next-door neighbour, nine-year-old Christine Jessop. In 1995, almost 10 years after he was first arrested and two trials later, he was exonerated as a result of DNA testing not previously available. The real killer was never found. Morin and his parents received $1.25 million compensation.

– Thomas Sophonow was tried three times for the 1981 murder of 16-year-old Barbara Stoppel. After spending 45 months in jail, Sophonow was ultimately acquitted by the Court of Appeal in 1985.

– Gregory Parsons was convicted in 1994, of the murder of his mother, which occurred when he was 19. He was exonerated by DNA testing in 1998.