VANCOUVER, BC - Ivan Henry deserves as much as $43M in compensation after being wrongfully imprisoned 27 years for rape, argued John Laxton, his lawyer, who is calling on B.C. Supreme Court Chief Justice Christopher Hinkson to send a "strong message" to deter the Crown [and police] from making such a devastating error in the future and to vindicate his client falsely labelled a serial rapist for decades.
Ivan Henry smiles as he speaks to the media outside the B.C. Court of Appeal in Vancouver, B.C. Wednesday, Oct. 27, 2010. Henry was acquitted on eight counts of rape that sent him to prison in 1983 for 27 years. THE CANADIAN PRESS/Jonathan Hayward
"There are few scenarios that can shake the public's confidence in the justice system more than those suffered by Ivan Henry."
Henry "will never escape the stigma" of being called a serial rapist, despite his acquittal, pointing to Vancouver Rape Relief's recent failed attempt to challenge Henry's "factual innocence" in court.
"The complainants should have been blaming the police and the Crown. But, and this is the problem, [an] Ivan Henry was and will always be the easier target."
John Laxton said that Hinkson has "almost unlimited discretion" in determining the amount BC should pay and outlined several wrongful conviction cases to establish a range from $20 million to nearly $43 million using math to translate to today's dollars.
One case was Steven Truscott, who was wrongly sentenced to death at age 14 in 1959 for the rape and murder of classmate Lynne Harper. In 2008 Ontario awarded him $6.5M.
Laxton said in 2015 dollars, that amount rises to over $7.2M, or $722,000 a year. Multiplying by 33 — the years Henry spent in prison plus 6 more of unnecessary litigation — would get his client nearly $24M
He applied similar math to several other cases: David Milgaard $10M, Thomas Sophonow $2.6M, and Guy Paul Morin $1.25M.
"No amount of money can restore to him the decades he has spent behind bars," Laxton told the court. "However, a monetary award may offer some compensation of his long period of wrongful imprisonment and the many lost life opportunities it entailed."
He endured beatings from fellow inmates, constant oversight by guards and a medieval parole system which would have forced him to confess to crimes he never committed in order to obtain his freedom, Laxton said.
Ivan Henry is suing the City of Vancouver, the British Columbia Crown and the federal government for 27 years of "hard time" as a result his wrongful conviction in 1983.
"The results for Henry and his family have been devastating," Lawyer Laxton told the court. "His release from custody did not release him from the demons that haunted him in jail".
The Crown and police knew they didn't have enough evidence to convict Ivan Henry, but found a way to pin a series of sexual assaults on him regardless, Laxton argued.
Laxton painted a picture of a flawed police investigation and a prosecution which hid evidence that could have exonerated Ivan Henry.
“The accused is so obvious in the photos. It's pathetic”
-- Crown lawyer
He pointed to a "farcical" police lineup picture [below] into which Henry was dragged kicking and screaming; one officer holds him in a headlock as others grin. "There's no question anybody looking at that would know immediately who the police suspect was". Even then, he said, not one of the victims identified Henry's face.
In a letter, not disclosed to Henry before his trial, a Crown lawyer wrote: "It is disastrous. The accused is so obvious in the photos. It is pathetic. But that's the way it is".
The trial judge, Justice Bouck, instructed the jurors that they could infer consciousness of guilt from [the] resistance of the appellant [Henry] to participation in the lineup conducted by police.
“traits would not have indicated Henry as suspect... Over time, they changed to match Henry”
Lawyer Laxton said: The Crown failed to disclose blood testing from sperm that would have excluded Henry in one of the assaults. They also hid results of surveillance that could have helped his defence. The police lacked identification, but managed to get it through a complainant with a strong emotional connection to the lead detective in the case.
In a letter only recently disclosed to Henry's lawyers, Laxton said, the complainant told the officer "I didn't want to let you down. I didn't want to disappoint you, and I guess I didn't want to risk never seeing you again".
The complainant identified Ivan Henry through what the Court of Appeal called a "polluted" array of pictures in which she was shown a photograph of Henry taken in front of a jail cell with the arm of a uniformed officer visible.
The Constitution Act 1982 section 11(d):
to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
OTTAWA - The Supreme Court of Canada has agreed to hear an appeal from Ivan Henry who wants to sue the Crown for the 27 years he spent in prison for crimes he didn't commit.
He was released on bail in 2009 and acquitted in October 2010 after the B.C. Court of Appeal heard the judge at Henry's original trial made several mistakes. The Crown conceded there was evidence that wasn't disclosed to Henry that would have led to a not-guilty verdict.
Henry's lawyer, Cameron Ward, said the man hasn't been compensated. "Three different attorneys general of the province have spoken about the provincial government's desire to do the right thing for Mr. Henry but thus far they haven't," Ward said Thursday.
Ward said Henry filed more than 50 court applications from prison in an effort to get the wrongful conviction quashed. "But nobody listened to him," said Ward. "So he's been through a tremendous ordeal."
In 2011, Henry filed civil lawsuits against the provincial and federal attorneys general, the City of Vancouver and three members of the city's police department.
Henry sought damages for malicious prosecution, abuse of process, misfeasance in public office and an award for charter damages for what he said were serious breaches of the Crown's disclosure obligations.
In April 2013, a judge allowed him to amend his pleadings on the topic of charter damages and include an allegation that the Crown's actions were an unacceptable departure from the reasonable standards expected.
The defendants appealed, arguing Henry shouldn't be allowed to seek compensation for conduct that was negligent, and the B.C. Court of Appeal agreed.
The Supreme Court of Canada has agreed to examine the B.C. Court of Appeal decision.
Ward said his client can't work and needs counselling. Neither the federal or provincial government have offered to pay him any money, said Ward.
Last month, the Supreme Court of Canada agreed to hear the case of a wrongfully convicted man from Quebec who was awarded $5.8 million in compensation by the Quebec Superior Court, only to have the federal government appeal the decision.
Ward said Rejean Hinse's case, which involved a nearly 50-year fight to clear his name, is expected to be heard in the fall and it's possible Henry's case could be heard at the same.
"If, as sometimes is the case, the Supreme Court decides to put Mr. Henry's case together with Mr. Hinse's, that would be in November." Ward said that would delay Henry's civil trial date by about a year.
VANCOUVER - Lawyers for a B.C. man who spent 27 years in prison for a series of rapes he didn't commit are now turning their eyes toward financial compensation, but they don't believe there is any need to hold a public inquiry into the miscarriage of justice. Ivan Henry spent 27 years in prison after he was convicted of raping eight women in Vancouver between May 1981 and June 1982.
Last week, the B.C. Court of Appeal acquitted him on all counts nearly three decades after a deeply flawed trial that was riddled with errors by prosecutors and the judge. Henry joins a growing list of Canada's wrongfully convicted, many of whom have received multimillion-dollar settlements for wasting away for years in prison. Several have seen their injustices examined at public inquiries.
Marilyn Sandford, one of Henry's lawyers, says it's too early to say what exactly will happen next, but she and her colleagues are exploring the possibility of compensation, either through a settlement or litigation.
"Our focus in the criminal case was on getting the result in the criminal case, that was really the main thing on our plates at that time because until we had the decision, we weren't aware of whether it was even a case where it was appropriate to seek compensation," Sandford said in an interview.
"I think it's fair to say now we're at the stage of assessing all of that." B.C.'s attorney general wasn't available for comment but has said an apology wouldn't be enough to make up for Henry's lost years in prison, suggesting the province may be willing to offer him a settlement.
The Vancouver Police Department would only say it regrets the mistakes "at all levels of the justice system" that led to Henry's conviction.
While other wrongful conviction cases have prompted public inquiries to get to the bottom of what happened - most notably the case of David Milgaard, who spent 23 years in prison for murder before his conviction was overturned - Sandford said she doesn't see the need for such hearings to investigate what happened to Henry.
Other public inquiries have already dealt with some of the issues in Henry's trial, Sandford said, such as how courts should consider eyewitness identification, and the laws around disclosure have changed significantly since the early 1980s.
"I don't see the need for a public inquiry to look at that again, I think that would be an enormous expenditure of public money with probably very little to be gained," said Sandford.
"We know pretty well what happened in our case and the Crown in our case pretty much agreed. . . . It's rare for a lawyer to say, 'I don't think there should be a public inquiry,' but our team hasn't been saying there has to be an inquiry and I think that's for a reason." Henry, now 63, had proclaimed his innocence since his 1983 conviction for rape and indecent assault involving eight women, and the Appeal Court concluded he should never have been found guilty.
At his trial, in which Henry represented himself, the Crown failed to disclose statements from police and witnesses that would have cast doubt on his guilt. Victims picked Henry out of a police lineup as officers held him in a choke hold, then the judge told the jury they could infer guilt based on Henry's resistance during the lineup.
The judge Mr. Justice John C. Bouck also gave inadequate instructions to the jury about how they should consider eyewitness identification. As for a potential settlement, Sandford said it's difficult to predict how much Henry could receive or how quickly it might be sorted out. Settlements for other cases have varied widely, explained Sandford, and courts and governments have yet to settle on a standard criteria for calculating how much a wrongfully convicted person should receive.
"If you look at cases where compensation is given - and it's not every case where there is an agreement for compensation - the time period ranges enormously and the process also ranges enormously," she said.
"It's a young area of law. Compensating people for wrongful convictions is relatively new." David Milgaard, whose case was the subject of a public inquiry that recommended changes to how the justice system reviews allegations of wrongful conviction, received $10 million from Saskatchewan and Ottawa.
Steven Truscott of Guelph was awarded $6.5 million after being acquitted by the Ontario Court of Appeal of the 1959 murder of 12-year-old Lynne Harper. At the age of 14, he had been sentenced to hang, although his sentence was later commuted to life in prison and he was paroled in 1969.
And just a week before Henry's acquittal, William Mullins Johnson of Ontario reached a $4.25-million settlement with the provincial government after he was wrongfully convicted of raping and murdering a four-year-old girl [his niece] based in part on evidence from disgraced pathologist Dr. Charles Smith.
[In October 2007 it was determined his niece died from natural causes [her own vomit] and in fact no crime had ever been committed --injusticebusters.org].
Mullins-Johnson spent 12 years in prison [for nothing].