VANCOUVER – A man imprisoned for nearly three decades on wrongful sexual assault convictions didn’t know another suspect had lived across the street, a British Columbia court has heard.
Ivan Henry’s lawyer said in closing arguments that the Crown failed to disclose crucial details about another suspect, and that would have been powerful to his defence at a 1983 trial.
“The evidence at the trial was that Henry lived in the heart of where the assaults were taking place,” Marilyn Sandford told B.C. Supreme Court on Tuesday.
“Well, here was someone else who not only lived in the heart, but had actually lived there for years.”
She said Henry moved to the neighbourhood in 1982, years after the assaults began. The other man, Don McRae, had been under surveillance as a suspect, had a history of sexual predation and more closely resembled a composite drawing, she added.
Henry was acquitted by the B.C. Court of Appeal in 2010 on 10 counts of sexual assault involving eight women and is suing the province for compensation.
The federal government and the City of Vancouver recently settled with Henry, leaving B.C. as the only remaining defendant. The province is expected to deliver its closing arguments next week.
Sandford argued that if more evidence had been disclosed to Henry during the trial in 1983 — when he defended himself — the outcome likely would have been different.
If Henry had known about McRae, he could have cross-examined police about their surveillance and entered evidence about his history of predatory behaviour, she said.
He also could have shed new light on testimony from a woman who said she saw her assailant on a bus shortly after her attack, Sandford said.
The woman testified the man was holding an envelope with Henry’s address on it, court heard.
But Henry’s address was similar to the other suspect’s address, Sandford pointed out.
While it’s not known why police stopped considering McRae, Sandford said officers moved away from him as they pursued their “tainted” investigation of Henry.
She said McRae was not eliminated through forensic or alibi evidence and was not shown to complainants in a police lineup.
In 2002, police re-investigated a number of unsolved sexual assaults and arrested McRae. He pleaded guilty in three sexual assaults and in 2005 was sentenced to five years in prison.
Other suspects were also considered by police but little is known about them, she added.
The Crown also failed to tell Henry that biological material, including semen and pubic hair, had not been examined, and didn’t disclose information gathered from a tracking device on his car, Sandford said.
She also told court that police held a “brainstorming” session with 12 complainants in the fall of 1981. The goal was to find similarities in their stories and to draw a picture of the accused, who had not yet been identified, Sandford said.
Though a complainant mentioned the meeting under cross-examination during a preliminary hearing, it was not discussed at Henry’s trial, she said.
The province has argued that even if the Crown had disclosed more evidence to Henry, he would not have known what to do with it.
Sandford said that on the contrary, her client showed considerable motivation and diligence for a poorly educated and unrepresented accused. He produced lengthy written alibis, brought court applications and wrote letters seeking disclosure, she said.
Henry didn’t need “Perry Mason courtroom skills” in order to receive the disclosure, Sandford said, referring to an old TV series about a master criminal defence lawyer.
She said the Crown’s argument was, “If the accused is ill-equipped enough, we somehow avoid liability for not disclosing.
“That cannot be the law. That simply cannot be the law.”