A wrongfully convicted Vancouver man didn’t just fall through the cracks of a broken justice system, he was pushed through those cracks by police and prosecutors, lawyers charged at B.C. Supreme Court Monday.
Authorities were under pressure to solve a series of brutal rapes in the 1980s, and pinned it on Henry even though they knew their methods – including a “farcical” lineup photo where Henry was held down by three officers – were flawed, lawyer John Laxton said in his opening statement.
“This should never have been necessary,” said Laxton. “We trust your lordship’s judgement will be so damning that a government will think twice in the future before they go on such a reckless disregard of a citizen’s rights.”
Henry is suing the City of Vancouver, the province and the federal government for wrongfully convicting him in 1983 of 10 sexual assaults involving eight victims. Those parties plan to argue that Henry is the guilty party, Laxton said.
Henry’s legal team hasn’t said how much money Henry is asking for, but another wrongfully convicted man, David Milgaard, was given $10 million for some two decades in prison. Henry spent 27 years behind bars.
Watching from the galley, Ivan Henry said he found hearing the facts laid out in the case “overwhelming.”
“I never knew all that stuff. Had I known that I would have had a better chance to defend myself, right?” he said.
More than 30 years ago police were on the hunt for the “rip-off rapist” – a man who climbed into basement apartments and raped women at night. Authorities had few leads until Henry came into their sights.
Police arrested Henry and forced him into a lineup, Laxton said. He was held down by three police officers, which was a hint to those who looked at the lineup who the suspect was.
They showed a photo of that lineup, as well as another photo where Henry appears to be in a jail cell. Laxton said women who initially could not identify Henry became more sure of his identity when showed those pictures.
One prosecutor wrote a memo that the photo is “disastrous” – but they used it in court anyway, Laxton said.
Even as the photo was allowed in court, prosecutors withheld lab reports, sperm samples that would have excluded Henry from one assault, surveillance reports – even the fact that similar rapes were still occurring while Henry was in custody.
“Those revelations should have caused an immediate halt to the proceedings,” Laxton said.
And prosecutor Mike Luchenko applied to dismiss Henry’s appeal of his conviction on the basis that he hadn’t supplied proper transcripts – even though he had those transcripts themselves, a requirement under the criminal code, he said.
“If this is required under the code, surely the Court of Appeal would be aware of that,” Chief Justice Christopher Hinkson said.
“You would think so,” Laxton said. “It’s as if he had them in his back pocket but he’s telling the Court of Appeal that Mr. Henry hadn’t provided them.”
Another strange development: Henry’s legal team only was recently given a letter that suggests an emotional involvement between a witness and a detective, Laxton said.
“The non-disclosure continued from 1983 to the eve of this trial,” Laxton said, adding that crucial evidence that could have freed Henry earlier was given up only recently. “We need a strong incentive to convey a real message to the Crown and the police.”
