Is the Current Federal Government “Wrong on Crime”?

January 30, 2015: MP Joyce Murray’s “Breakfast Connections”

Thx to (wrongly convicted) Tom Sophonow for his presence here this morning….

Before addressing the topic at hand, let me tell you about one of the most egregious cases of wrongful conviction in Canadian history.

As I chronicle in my book, Innocence on Trial: The Framing of Ivan Henry, Henry was convicted in 1983 for 10 sex crimes; declared a dangerous offender six months later; spent the next 27 years in jail—-all of this for crimes he did not commit.

Acquitted in 2010, he has been waiting, going on five long years, for a dime in compensation. Instead of coming to grips with the inevitable fact that Henry, a senior citizen, is factually innocent, the federal and provincial governments continues to throw up legal roadblocks every step of the way. Meanwhile, Henry lives close to the poverty line.

Having tracked the injustices that befell Henry for almost four years, I conclude that every criminal justice stakeholder failed to protect and defend the “presumption of innocence” owed to every citizen—the police, the prosecutors, his own lawyer at the preliminary hearing; state-appointed psychiatrists, the parole board, Correctional Service of Canada; and the many politicians who were asked, over the years, to reopen his case.

The “presumption of innocence”, once lost, is almost impossible to restore. Absent DNA evidence, an iron-clad alibi, or the confession of the actual culprit, findings of “factual innocence” remain elusive. In Henry’s case, the state “lost” the semen samples and made no attempt to check out his alibi statement. As for the “actual culprit”, the state—for reasons I have yet to uncover—made Henry the scapegoat and let the real perpetrator go free.

For years, wrongful conviction inquiry commissioners have been recommending that, rather than treat claims of wrongful conviction on a piece-mail basis—as is happening with Henry—the British model should be adopted, namely the investigation of claims of wrongful conviction should be handled by a review agency independent of government. Further, it is that independent review agency, not the federal Minister, who should act as the gate-keeper.

“Change is needed,” said the commissioner in the David Milgaard case, “to reflect the current understanding of the inevitability of wrongful convictions and the responsibility of the criminal justice system to correct its own errors….

We are still awaiting the establishment of such an independent agency. Please do what you can to propel forward this important initiative.
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POLITICS OF FEAR

Is Canada’s new “punishment agenda” “wrong on crime?”

The philosopher Friedrich Nietzsche wrote:
But thus I counsel you my friends: Mistrust all in whom the urge to punish is powerful. They are people of a low sort and stock; the hangman and the bloodhound look out of their faces.

Sadly, the current Federal government is all hangman and bloodhound. To the best of my knowledge—I stand to be corrected—the word “rehabilitation” has never crossed the PM’’s lips.

What is the current policy, why is it wrong, and what can be done to convince Canadians to push back?

THE LEGAL FRAMEWORK

The Corrections and Conditional Release Act (CCRA), enacted in 1992, governs the Correctional Service of Canada (CSC).The CCRA strives—and this may surprise you—to, and I quote, “strike a fair balance between the two inter-related strategies of control and assistance—

“Control” meaning exercising reasonable, safe, secure, and humane control of offenders both in correctional institutions and under supervision in the community; and
“Assistance” meaning assisting and encouraging offenders to become law-abiding citizens.

The Act further provides:

The principal goal is public safety. This is promoted by proper control of offenders and with programs that help individuals rehabilitate. Rehabilitation programs are important because most offenders will complete their sentence and return to the community….

It is important to prepare inmates for a successful return to the community as law-abiding citizens. This strategy contributes to long-term public safety.

WAR ON CRIME

In 2011, the Tories removed the “faint hope” clause that allowed lifers to apply to a jury after 15 years for the right to an early parole hearing.

In 2012, they enacted Bill C-10: Safe Streets and Communities Act. As predicted, the Act has led to the need for more prisons; the incarceration of people for minor, non-violent offences; and poorer prison conditions including over-crowding, fewer “pro-social programs, and a higher incidence of “administrative” solitary confinement—Bottom line? Isolation of indeterminate duration.

The government, showing no signs of slowing down on its “war on crime”, has recently announced plans to make violent repeat criminals wait longer to achieve “statutory release.” As well, the Tories want to end the possibility of parole for some convicted killers.

Addressing the impact of Bill C-10 in his 2014 Annual Report, Correctional Investigator Howard Sapers said,

“Use of force interventions, inmate fights and assaults, offender grievances and segregation placements are all trending upward in recent years. Key indicators against which safe and humane custody may be measured show there is more crowding, more disease and more violence in federal institutions.
Prisons that are filled beyond their rated cell capacities are at higher risk of jeopardizing safety and security of the person. Unnatural or preventable deaths in custody (suicides, homicides, overdoses) are perhaps the most visible failing, but too many other lives either are cut short by premature death or are marked by injury.

An increasing proportion of the offender population is spending more of their sentence behind bars before first release…”

I have been asked to share this morning what I have learned—as a result of both my volunteer activities in prison and research for my book—about current prison conditions.

Increasingly, inmates are being deprived of educational and job training opportunities; hurdles are being erected to such things as creative writing classes, access to good quality books and book clubs. Access to programs, spiritual leaders and other mentors such as teachers and librarians is being restricted; prison farms are being shut down; access to independent psychologists is almost unheard of, etc.

After volunteering for 8 months, on Friday mornings, as a creative writing instructor at Matsqui Medium Security institution, one day I was “escorted”, out of the blue, off the property. Not a word of explanation; not a hint of an apology.

Months later, I was told the reason: I hadn’t taken a 3-hour volunteer training program, a program I had no idea existed…. I never went back. (I’ve talked to other volunteers who’ve had the same experience—the experience of not feeling wanted—especially among those who develop rapport with the inmates.)

When I developed pen-pal and “visitor” relationships with a number of prisoners, CSC treated me like an alien: On the one hand, to every appearance I was engaged in “pro-social” behaviour—behaviour aimed at assisting in the reintegration process. On the other hand, it was clear they believed I had some kind of ulterior motive.

I was once put on notice that I was writing to too many inmates; on another occasion, that I couldn’t be on more than one inmate’s visitor’s list, etc. When I threatened to go public, CSC backed down….

How many other families and loved ones would have the gumption to do likewise?

[One brief ray of light: Though I expressed frustration at the Joyce Murray breakfast that CSC appeared poised to reject my offer to donate my book to every federal correctional institution in Canada, they have now said I may. Needless to say, I would have gone public had they not.]
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LIGHTING A FIRE UNDER OUR CITIZENS

A. The Problem

By hyper-focusing on the rights and interests of the “victim”, our prime minister plays into what Dan Gardner has called the “science and politics of fear.”

In his excellent book, Risk (2008, Virgin), Gardner writes that humanity has never had it so good. Most people around the world are better off and will live longer than their ancestors.

But instead of being relaxed, we are scared that bad things will happen to us: nuclear war, cancer, child abduction.

Our brain anatomy, Gardner says, was fixed millennia ago—such that we are not equipped to process the complexity of modern living, especially where risk is concerned. We hear about a terrorist attack; we see the gruesome consequences on TV and, before we can calculate the probability that we personally will be blown up, our brains have reacted as if we are being charged by a rhino: no time to think! Run!

If you think you don’t believe everything you see on TV, he says, it doesn’t matter. Your Stone Age brain has processed the images and is using them to shape your opinions whether you like it or not.

“It could have been me” is a common response to news of a disaster, although usually the mathematical probability of it actually having been you is infinitesimal. FEAR SELLS.

The only solution, Gardner says, is to think more, think harder—The primitive part of our brains might be open to seduction by alarmist politicians, but, given enough time, the rational part can step in and stop us from going all the way.

Alas, if only re-programming were that easy…

Ask yourself: Are you a “free-range” parent or grandparent—content to give children as much freedom as possible, for example, play in the park or walk home from school alone; etc? Or do you catastrophize—worry about the ills could befall them—abduction, getting hit by a car, getting lost, etc?

B. The “Right on Crime” movement: Shifting the narrative

According to Texas Republican Representative Jerry Madden, “It’s a very expensive thing to build new prisons and, if you build them, I guarantee you they will come. They’ll be filled, OK? Because people will send them there.”

Texas and California, among other jurisdictions who had started down the same “punishment” road down which our government is leading us, are now—realizing it cost too much and made their justice system worse—reversing direction.

The topic today is whether Canada’s new punishment justice policy is ‘Wrong on Crime’? Ironically, this “Right on Crime” movement-led by Republicans, no less—is building momentum in the United States.

In an article entitled “The Conservative Case for Reform,” dozens of high-ranking Republicans including Jeb Bush and Newt Gingrich write as follows:

“Too often the lens of accountability regarding government services has not focused as much on public safety policies as other areas of government. As such, Corrections spending is now the second fastest growing area of state budgets—trailing only Medicaid.

“Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending…. A clear example is our reliance on prisons, which serve a critical role by incapacitating dangerous offenders and career criminals but are not the solution for every type of offender. And in some instances, they have the unintended consequence of hardening nonviolent, low-risk offenders—making them a greater risk to the public than when they entered….

“An ideal criminal justice system works to reform amenable offenders who will return to society…

“Because incentives affect human behavior, policies for both offenders and the Corrections system must align incentives with our goals of public safety, victim restitution and satisfaction, and cost-effectiveness, thereby moving from a system that grows when it fails to one that rewards results.”

Viewed in the light of a system that “rewards results”, what sense does it make to remove the “faint hope” clause? Lock up low-risk offenders? Increase the time virtually every offender must spend behind bars?

From an economic perspective, does it make sense to deny forever the opportunity–not the reality—of parole to those convicted of certain first-degree murder offences? [Since the Joyce Murray breakfast, the government, anticipating court blow-back, has amended the bill so as to give judges the right to preclude parole applications for 40 (from the current 25) years.]

This despite Correctional watchdog Howard Sapers’ statement that 99 per cent of offenders released on day parole or full parole last year did so without reoffending.

Since the abolishment of capital punishment in 1976, the murder rate in Canada has been cut in half. Further facts:

—Canada has 1115 (first-degree murder) offenders sentenced to life, minimum 25 years. 203 have been paroled;

—Average cost to keep a man in Maximum security is $148,000 v. $35,000 on parole;

—40 years in jail would cost nearly $6 million for one person in Maximum security; $6 billion for 1,000; and

—In recent years, the website of CSC has described those serving life sentences as “The most likely to succeed on parole.”

The authors of “Right on Crime” point to the need take a principled approach to public safety. As they wrote, “Our security, prosperity, and freedom depend on it.”
Who would have thought that our Republican friends south of the border could offer their neighbours north of the ’49—neighbours historically smug about our supposedly “superior” criminal justice system—such invaluable insights?

As a wonderful prison chaplain once said to me, “Let he who has ears hear.” Let’s hope that we Canadians do just that.

Fallibility of Eye-Witness Testimony (Megan Cassidy; The Republic)

Three decades ago, a victim’s imperfect memory sent Larry Youngblood to prison.

DNA evidence would later clear the Tucson man of involvement with a 1983 child abduction and rape, but not before he would languish for a total of nine years behind bars.

Advocates are pointing to this case and a growing number of others to discredit the sanctity of one of the legal system’s most cherished prosecutorial tools: eyewitness testimony.

Last week, the National Academy of Sciences released a report evaluating the scientific research on memory and eyewitnesses, underlining key variables that can lead to flawed identifications.

The report recommends various best-practice procedures, including blind testing, (when the officer performing the lineup is unaware of the suspect), videotaping the procedure, developing standardized witness instructions and asking the witness to rate his or her level of confidence at the time of the lineup.

The Innocence Project, a national litigation and public-policy organization that lobbies for freedom of the wrongfully convicted, has pushed for states to uniformly adopt these techniques, to mixed results.

Ten states so far have enacted the recommendations by law, policy or court action. Arizona is not one of them, but some jurisdictions have voluntarily embraced the reforms.

Innocence Project officials have advocated presenting photos or suspects in sequential order instead of simultaneously. Supporters say research shows the method helps prevent wrongful convictions by reducing the pressure to “pick one.”

The Tucson Police Department was one of four agencies to participate in an Innocence Project and American Judicature Society field study using sequential testing. The agency adopted the method following the study’s report, said Tucson police legal adviser Lisa Judge.

“The impetus for us was doing what we could to rely on the most credible evidence available,” she said. “Certainly you can’t ignore that across the nation, there’s evidence that points to wrongful convictions based on bad IDS.”

Youngblood’s saga began in 1983, when a 10-year-old boy was kidnapped from a Pima County carnival, molested and held for more than an hour. The boy received a rape examination and told investigators his assailant was a Black man with a bad right eye.

But when police presented a photo lineup to the boy nine days later, it was Youngblood, a Black Tucson man with a disfigured left eye, who stood out. Youngblood was arrested four weeks later.

Youngblood’s chief defense in trial was that the boy had been mistaken, but a jury disagreed. He was convicted in 1985 and sentenced to 10½ years in prison. In a crucial misstep, Tucson police failed to properly store DNA evidence collected from the boy at the time, rendering it useless for emerging forensic technology.

Legal battles over Youngblood’s right to DNA would free and reincarcerate the man until more sophisticated DNA testing became available for the evidence. In 2000, Youngblood’s claims of innocence were at last scientifically validated. He was not the assailant.

Instead, the evidence led investigators to Walter Cruise, a Black man who was blind in his right eye, and serving time in a Texas prison for unrelated charges of sex assaults against children. Cruise later pleaded guilty to the Arizona crime.

Carol Wittels, Youngblood’s public defender who fought for his freedom, said the prosecution’s case hinged nearly entirely on the victim’s identification, despite conflicting evidence.

Several people vouched for Youngblood’s alibi — that he was baking lemon meringue pies at the time of the abduction, Wittels said.

The victim had also noted there were tufts of gray in his assailant’s hair, while a hair expert testified that Youngblood’s black locks had never been dyed.

“Larry’s case always haunted me — he was such a sweetie,” she said. “I knew he was innocent.”

Eyewitness misidentifications have contributed to 72 percent of the 318 convictions that were later overturned by DNA evidence, according to the Innocence Project.

The true perpetrators were later identified in 39 percent of those cases, but were free to commit 98 additional violent crimes while the innocent were locked up, the organization says.

Experts say most of the mistaken eyewitnesses aren’t intentionally lying. While no single factor shoulders the blame for the human error, researchers say police practices often fall short on their efforts to ensure accurate eyewitness identification.

“(I)nsufficient training, the absence of standard operating procedures and the continuing presence of actions and statements at the crime scene and elsewhere may intentionally or unintentionally influence eyewitness identifications,” the report states.

Scientists have long understood memory to be malleable by time and outside variables, but advocates say jurors still place too much trust on the brain’s accuracy.

Amshula Jayaram, a state policy advocate for the Innocence Project, explains the recommended reforms as a cost-benefit analysis.

Defenders are getting trained on how to litigate using current sciences, she said, and officers using best practices are also protecting themselves from accusations of wrongdoing during an unreliable process.

“These practices are designed to improve accuracy, but you’ll never have 100 percent accurate eyewitness identifications,” she said. “Memory is fundamentally fallible.”

Maricopa County Attorney Bill Montgomery said today it would be a rare case that rises or falls on the basis of an eyewitness alone without any other evidence.

Montgomery and Innocence Project officials have disagreed on the subject of sequential versus simultaneous eyewitness identification testing.

Montgomery said he has resisted the reform because scientific evidence has not backed up the claim that the sequential method is preferable. He pointed to a recent case in which a Pennsylvania man’s murder charges were dropped after a mistaken sequential identification.

Wrongful Convictions in Plea Bargaining

Wrongful Convictions in Plea Bargaining

  • Anthony Conference
    Author: Kristin Smyth, Law Student, Osgoode Hall

    In 1989, Anthony Hanemaayer plead guilty to a sexual assault Paul Bernardo later confessed to. With AIDWYC’s help, Hanemaayer was exonerated in 2008.

    It is becoming increasingly apparent in Canadian society that the justice system is not perfect and that innocent people can and are convicted of crimes that they did not commit. The wrongful convictions of individuals like Guy Paul Morin and David Milgaard have received considerable attention in the media and legal community. The concept of innocent people who plead guilty during “plea bargaining” is receiving more attention amongst legal commentators and laymen alike. Much of the concern stems from the contested role that a “bargain” should play in a judicial system dedicated to due process. It has been argued that the use of the word bargain implies that the justice system is a commodity that can be bought by those who understand how to work the system.[1] Canadian citizens have a right to the presumption of innocence and a right to a fair trial. “Backroom negotiations” with prosecutors call into question the fairness of the system.

    Why would an innocent person plead guilty?

    The question you have probably been asking is why would anyone in their right mind plead guilty to a crime that they did not commit? While it may be difficult to imagine, there are many reasons. First, going to trial is scary. For an accused, going to trial means uncertainty. Their lives are in the hands of the judge, and sometimes a jury, and no one can know for sure what either will do. On the other hand, if they negotiate with a Prosecutor, it is more likely they will receive a more lenient sentence than were they to go to trial and lose. This perceived security can be enough for an innocent person to plead guilty and admit to the crime, rather than risk a trial where the outcome can be much worse. Professor Ellen S. Podgor argues that “our existing legal system places the risk of going to trial…so high, that innocence and guilt no longer become the real considerations.”[2]

    Another reason someone may plead guilty is to avoid the significant financial, psychological and opportunity costs of going to trial. Not only can the trial process be terrifying to an accused, it’s expensive and stressful. Going to trial means usually means paying a lawyer for countless hours of work for a trial which could last months or even years. Furthermore, the accused cannot typically work while a trial is ongoing, costing them even more money.

    Psychological studies have assessed the decision making process that occurs when an innocent person is accused of something that they did not do. In one such study, college students were left in a room with one other “student” to complete logic problems. One of the students was then, wrongly, accused of cheating and given the option of either accepting a plea bargain or having to appear before the Academic Review Board (where 80-90% of students were found guilty). 56.4% of the innocent participants falsely admitted guilt in order to reduce the punishment given. Admittedly, the situation just described cannot capture the pressure and gravity of the choices that an innocent accused must make when standing before the criminal justice system. Nevertheless, the anxiety experienced while anticipating punishment is similar and the study can offer important preliminary insights.

     Why is the problem largely unrecognized?

    In 1973, the Ontario Law Reform Commission described plea bargaining as “an unhealthy philosophy quite alien to our concept of an open, fair and public administration of justice.”[3]Despite Canada’s historical unease with how plea bargaining interacts with judicial fairness, we have scant answers to our many questions concerning wrongful convictions in plea bargaining. Why don’t we know how many people plead guilty to crimes that they did not commit? The simple is because we rarely hear of the cases again. They don’t appeal. They don’t cause a fuss. Nobody asks questions. Wrongful convictions often only come to light as a result of the significant effort and resources expended by individuals in a search to uncover the truth.[4] It is often only the most serious of cases that benefit from those efforts and resources because the pay-off from success is greatest.[5] It is possible that many of the cases which involve innocent people who plead guilty were lesser offences and the convicted either did not have, or felt that it was not worth, the resources that would have been required to discover the truth. Based on these factors, it is likely that any study which looks at the problem of plea bargaining and false self-condemnation will significantly underestimate the true extent of the issue.[6]

    What is to be done?

    If Canada did not allow plea bargains, the justice system would come to a near standstill. Following the Supreme Court of Canada’s decision in R v Askov,[7] approximately 50,000 cases, in Ontario alone, had to be dismissed due to unreasonable delay. In response, the Martin Committee was assembled to review and make suggestions regarding pre-trial procedures in the criminal courts. The Martin Committee gave plea bargaining their stamp of approval to increase expediency. Today, a much higher proportion of convictions result from guilty pleas than from trials.[8]

    With the awareness that plea bargaining is not leaving the system anytime soon, how do we ensure that wrongful convictions do not occur? According to Judge H. Lee Sarokin, the only solution is “vigilance by all those involved.”[9] It is unclear whether this is the only solution. This is a question that needs to be asked by the legal community and more thorough research and discussion must occur if we ever hope to reach an acceptable answer.


    [1] G. A. Ferguson and D.W. Roberts, “Plea Bargaining Directions for Canadian Reform” (1974), 52 Can Bar Rev 497 at 550.

    [2] Ellen S. Podgor, “White Collar Innocence: Irrelevant in the High Stakes Risk Game” (2010) 85 Chicago-Kent L Rev 77 at 77.

    [3] The Law Reform Commission of Ontario, Report on Administration of Ontario Courts, Part II(Toronto: Department of Justice, 1973) at 119.

    [4] Ibid  at 4

    [5] Samuel Gross et al, “Exonerations in The United States 1989 Through 2003″ (2005) 95 J Crim L & Criminology 523.

    [6] Lucian E Dervan & Vanessa A. Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem” (2013) 103 J Crim L & Criminology 1.

    [7] R v Askov, [1990] 2 SCR 1199.

    [8] Christopher Sherrin, “Guilty Pleas from the Innocent” (2011) 30 Windsor Rev Legal Soc Issues 1 at 2.

    [9] Judge H. Lee Sarokin, “Why do Innocent People Plead Guilty?” The Huffington Post (29 May 2012), online: Huffington Post <http://www.huffingtonpost.com/judge-h-lee-sarokin/innocent-people-guilty-pleas_b_1553239.html>.

    Conviction: The AIDWYC Blog is written by volunteer authors. The opinions expressed herein do not necessarily represent AIDWYC’s position or policies.
“Ivan Henry and the Lineup Photo”: THE VERDICT; Issue 138; Fall 2013

“Ivan Henry and the Lineup Photo”: THE VERDICT; Issue 138; Fall 2013

Page 1Vancouver’s Ivan Henry spent almost three decades in jail for ten sex crimes he did not commit. But for his stubborn – call it obsessive – insistence that the lineup photo had been doctored by the Vancouver Police Department, he would not have fired his then Legal Aid lawyer Richard Peck (now, Peck QC, one of Canada’s preeminent criminal lawyers) just before the trial and opted to represent himself.

Whether one views Henry as Everyman caught up in a nightmare not of his own making; a “mentally disordered offender” (despite its inherent vagueness, the term has a certain currency); or, as the defendants in his civil lawsuit contend, the author of his own misfortune, he was most certainly not afforded the right to a fair and relevant judicial process.

After dropping out of school in Regina in Grade 9, and fleeing a series of abusive homes at age 15, Ivan Henry led a shiftless life of petty crime. Besides convictions for break-and- enter and theft, his record includes a three-year prison term for stealing a colour television and a five-year term for attempted rape. In 1980, out on mandatory supervision, he ended up in Vancouver with a drug-addicted wife and two young daughters. To support them, he worked construction jobs and sold designer jean knock-offs from the trunk of his car.

In early 1982, Canadians were appalled that the RCMP had cut a deal with Clifford Olson, a child molester and serial killer. The police having released him from jail four times while the VPD and the RCMP argued over “jurisdiction,” the govern- ment, desperate to close the case, caved in to his “bodies-for- cash” offer. “Eleven bodies for $100,000.” he said, posing for the cameras, “Consider the first one a freebie.”

At the same time, a serial rapist was at work in Vancouver. Dozens of women were being victimized and police were making no progress identifying the perpetrator. They needed a public-relations win. Thirty-five year old Henry, already on the law-enforcement radar, was a perfect scapegoat. Detained in May 1982 for a supposed break-and-enter, he soon found himself facing 17 sexual assault charges.
By November, the preliminary hearing was underway. Though Michael Luchenko, reputedly a prosecutor of the gunslinger ilk, initially fudged the question of whether a lineup photo even existed, he finally produced it. Rather than “build a record” of tainted identification – eleven of the original group of complainants had been exposed to it – John White, Henry’s then Legal Aid lawyer simply marked it as an exhibit and moved on to another line of questioning. Meanwhile, Henry, who’d caught only a glimpse of it, was a volcano ready to blow: As ludicrous as the photo was on its face – his head in a chokehold surrounded by laughing plainclothes police officers, the truly sinister part was that he’d refused to go into the lineup, and he’d absolutely not been handcuffed.

He reached the only conclusion he could: Not only was the photo someone’s idea of a sick joke; it was fake.

Convinced that White was part of the conspiracy to frame him – Why else didn’t he raise Cain not just about the lineup photo, but also a photo in which he’s supposedly standing in front of a jail cell with a police elbow stuck in his face? – Henry fired him directly after the preliminary hearing judge, Judge Wallace Craig, committed him to trial on all counts.

When the preliminary hearing transcripts arrived in Henry’s Oakalla jail cell several weeks later, the (5 X 7) lineup photo slipped out of the package and fell to the floor. No covering letter; not a word of explanation….

Finally, a chance to examine it up-close. Nothing about it was real – not the weird, vest-like thing on the mannequin; not the dummy handcuffs; not the floating head positioned askew from the torso.

When Richard Peck showed up at Oakalla, a Legal Aid employee in tow, Henry sought to elicit a promise: “I demand that you prove,” he said, “starting with the sham photo, that forces unknown are conspiring to frame me….”

After saying nothing for the longest time, Peck, steepling his forefingers, looked down at the ground. “To win, Mr. Henry,” he said, delivering each word slowly, deliberately, “it is not necessary to prove conspiracy. I’m here to discuss realistic strategies regarding how best to achieve an acquittal.”

At which point Henry asked the guard to return him to his cell.

Representing himself, Henry asked each of the seven trial complainants (the preliminary hearing evidence of the eighth, an American, was read into the record) the following question: “I suggest you were never raped, you’re making the whole thing up.” One can only imagine the victim’s reaction, let alone that of Mr. Justice John Bouck, the trial judge. Indeed, the transcript is studded with instances wherein the judge’s contempt for the accused is apparent.

From the outset, it was clear that Henry required assistance in mounting an effective defence. For example, when the judge castigated him for insisting that one of the women produce her social insurance number so as to prove her identity, the accused asked her, “Are you really saying that, when the guy poked his pecker through the hole in the sheet, you didn’t know the mean- ing of ‘giving head’?”
When she said, “yes,” he said, “Well, if John the Baptist were here, he’d probably give you his head.” When he asked how she could be certain that the man left through the backyard rather than the front-yard, she said she’d have noticed someone passing by her window, situated as it was little more than eight inches above the ground.

MR. HENRY: Oh, I see, it’s the cat we’re dealing with now.
A: No, we’re dealing with the man.
Q: So your fish died, poor thing. Did you give it to the cat?
THE COURT: You’d better get on to something
that is relevant.

Yet, through that entire two-week trial, the judge failed to so much as mention the appointment of an amicus curiae – a lawyer appointed by the court to ensure that a party’s legal rights and interests are adequately protected.1

Judge Bouck made, as found by the 2010 Court of Appeal,2 several errors in law – errors surprising, to say the least, for a jurist with his reputation – a man reputed to be an expert in criminal law. To name just a few, he failed to sever the counts at the outset; his charge to the jury regarding identification evidence was fatally flawed; and he erred in instructing the jury that failure to participate in a lineup is evidence of guilt. Such was the judge’s attitude that, more than once, he teetered on the brink of saying that it was Henry who bore the onus of proof; more than once in his charge he conflated the words “the attacker” with “the accused.”

Not that any of this registered on Henry. His fixation remained constant: If only he could prove the photo to be counterfeit, the corruption of the state would be revealed; the conspiracy against him exposed.

To that end, when his old pal, Colin Bradbury, took the stand, he sprung on him a volley of unrehearsed questions. Initially called to give alibi evidence – at least three of the victims had been assaulted in Mount Pleasant when Henry was helping him build his home, several miles away, in West Vancouver – Bradbury would have had no idea what was coming…. Not, that is to say, unless he’d already discussed the lineup photo with Luchenko. Given that the Crown had undertaken to subpoena Henry’s witnesses on his behalf, Luchenko may well have had a word with him before he testified.

“I want nothing to do with that trial, Henry,” he’d said, when Henry finally got ahold of him. “You say you’re innocent, but I’ve got my children to protect.”
“Come on Colin, just talk about the weeks I stayed overnight with you at the house. It’s important. That’s when they say some of the rapes went down. In Mount Pleasant – miles away. During a bus-strike. My car was busted, out of commission. You must remember….”

“Don’t make me get involved….”

When Henry finished up with his “alibi” questions, he asked Madam Court Clerk to hand Bradbury Exhibit One; instructed him to hold it close to the light. Confident that a man who got paid for taking wedding pictures would know fake from real, he asked him whether it was phony.

“I wouldn’t think for a minute it’s been doctored.”

Reeling; unable to collect his thoughts, Henry proceeded to veer from question to question like a drunk trying to walk a straight line.

MR. HENRY: So there’s no way I could cut the negative out and put a head in there, and do it that way?

A: That hasn’t been done….

Q: What about that little chest protector thing he’s wearing? You know, like the kind umpires wear so that don’t get hit with a baseball?

Holding it up to the light, Bradbury shook his head. “I know what it is.”

(Never once did it occur to Henry that the photo in Bradbury’s hands was different from the one in his. More than that, it never occurred to him that everyone in the courtroom, save for him, was in possession of that very same 8 X 10.)

Lineup photos

….

In charging the jury, Judge Bouck said that Henry’s own “expert” – Bradbury was far from being an expert in photography, let alone forensic photography – had put the lie to his tampering claim.

As the trial stumbled to its end, Henry, worried that he’d made a mess of things, begged the trial judge for the appointment of counsel:

MR. HENRY: I think I should, Your Honour, for my own sake…. I said to myself downstairs that I’m really into this over my head. I’d rather make my own submission to the jury than have someone else control my life but, when it comes to dealing with the law, about different identifications and whatever, in that respect I should have someone speak for me.” THE COURT: You should have thought about that before. I gave you ample chance to get a lawyer. You had a lawyer, and you fired him.
MR. HENRY: Well –
THE COURT: I said you should have a lawyer. You turned it down. You elected to represent yourself. You take your chances.
MR. HENRY: What I need right now is a little guy over there, sort of a friend – researching new caselaw, getting my ideas across.
THE COURT: A lawyer isn’t going to be able to do anything for you. He wasn’t here during the evidence. He has no idea what the case is about, no transcript of the proceedings. These are all the chances you took when you decided to defend yourself.
MR. HENRY: Yes, but –
THE COURT: And that’s a difficult decision you’ve put yourself in, nobody else. Now we’ve given you a copy of Martin’s Criminal Code. Were we to turn you loose in the library, you’d have no idea what to do. Perhaps the Crown can help – there’s an article by Salhany in Canadian Criminal Procedure on “Identification”. You might photocopy that for him if you would.
MR. LUCHENKO: Yes, My Lord.
MR. HENRY: I’ve dug up other stuff for the past eight months. I’ll use that too.
THE COURT: Oh, you won’t be arguing law to the jury.

Just weeks before Henry’s dangerous offender hearing, Legal Aid sent another lawyer his way; a man young enough to be his son. “If you can find your way to pleading guilty to one count only,” the pink-cheeked man said, “we might be able to assist you with your appeal.” Resisting the urge to box him behind his ears, Henry showed him the door.

On November 22, 1983, Judge Bouck, the very picture of high-brow decorum, sentenced Henry to jail indefinitely, meaning that he had a zilch-to-zero chance of ever being paroled. In his reasons, he said:

The jury had no difficulty convicting him, partly because he unknowingly put into evidence testimony and exhibits that tended to prove his guilt.

Six of the eight complainants testified in these proceedings about how the attacks affected their lives. It is devastating enough to be assaulted, but it must be equally repulsive for them to endure cross- examination, at trial and on this application, by the very person who committed these deplorable acts. They are to be commended for seeing this matter through to the bitter end….

Society must be permanently protected from this man’s predatory behaviour. There are no redeeming features to rule otherwise. I therefore sentence him to detention in a penitentiary for an indeterminate period. …

When Henry couldn’t pay the $4000 fee quoted by Court Services for the Appeal Books, the Crown brought on a “want of prosecution” motion. Incredibly, appellate Justices Seaton, Anderson and Carrothers acceded thereto in February 1984:

“No appeal books have been filed or ordered. Mr. Henry says if we want to get them he will write some notes in them for us, but that he will not get them, that they are, I think his word was, “garbage,” and he would throw them away. He refused legal aid at his trial and he either does not want legal aid now, or he cannot get legal aid now, maybe both. He has expressed an intention not to proceed with these appeals in accordance with the only way in which they can be dealt with.
Under those circumstances, I would grant the mo- tions quashing the appeals for want of prosecution.”

Though Henry’s use of the term “garbage” doubtless offended their Lordships, his claim was not without substance: The transcripts he had received – the complainants’ evidence, in preparation for the dangerous offender hearing – were shoddy in the extreme.

As well, the then Criminal Appeal Rules provided that, where an appeal is not “diligently pursued,” the respondent “may apply to the court for an order dismissing the appeal for want of prosecution,” and the Court may make such order as it “deems just” (Section 9 (1)). How could it be said that the failure of an incarcerated, indigent man to come up with $4000 amounted to him not “diligently (pursuing)” his appeal – all of that within three months of his being sentenced?

And, finally, no mention was made of Henry’s lengthy, remark- ably cogent, appeal submission; nary a thought given to asking Legal Aid to cover the cost of the Appeal Books.

Many years later, Justice Barbara Reed of the Saskatchewan Queen’s Bench dismissed Henry’s latest in an endless line of court applications. Towards the end of her lengthy judgment, she said, “Your own expert said the photo was legitimate. You say the photo’s been doctored, but where’s the proof?”

Her words struck a chord. Rising to the challenge, Henry began scouring the pages of the Prince Albert Yellow Pages.

Weeks later, after multiple security checks and reams of red-tape, Mr. Lee Atkinson, a photographer who’d spent a decade retrieving and analyzing remote satellite images for the Federal Government, attended at the Saskatchewan Penitentiary. Twenty years later, Atkinson described that visit as follows:

“The warden called me, said I was to bring with me lighting and other paraphernalia – tripod, camera, flash units. Other than that, I was told very little. I met up with everyone near the Infirmary. When I saw the photo, it seemed surreal. That, and not knowing what was going on, why I was there.

“I took pictures with a Hasselblad camera, 70 mm film. There wasn’t much discussion with either the guards or with Henry. I understood that one of the guards had offered to analyze the photo, but Henry had said no.

“At some later point, he wanted an affidavit. I was objective, I knew very little. I thought the photo was odd. Initially, I looked at it like it was a story, a puzzle.
Among the things that don’t make sense are the shield, the wrists of the guy at the end. There’s a centre of light, yet the shadows on the numbers are all wrong. I didn’t know light sources or trajectory of light. I had no idea why he was incarcerated, or what he wanted to do with my affidavit.

“I wondered whether images had been combined through physical cutting and pasting. Another possibility was the creation of false imagery–e.g., three different negatives of the same image, taken at different wavelengths. Expose them through 3 colours – false colour.

“There’s a yellow area – the straight line has yellow side alongside it. If the arm is “blooming” – washed out – why not the number? The white placard should wash out before the arm. In the printing industry, they use ruby lithographs to, for example, hide an area, then add new elements over the top. It’s part of the mechanical process.

“For a couple of years after that, Henry called or wrote me, told me what sizes he needed. I charged him what he could afford, and I took his collect calls.”


In 1995, Henry finally landed a lawyer, Peter Ryan, prepared to take on his cause. In a letter to Legal Aid, Ryan wrote:

“Please find attached the Affidavit containing the expert analysis of the lineup photo…. The highly qualified expert, Mr. Lee Atkinson,
makes observations in his Affidavit that lead to the conclusion that the photograph was altered, fabri- cated or doctored.

“As this was strictly an identification case, and given the strong character of the Affidavit evidence, the applicant very likely would be successful in the BC Court of Appeal using the Palmer test for fresh evidence.”

In summary, Ryan was prepared to argue first, that the photo was fake and, secondly, that the many police officers who had attested to its accuracy had perjured themselves.

(My efforts to track down Ryan have, to date, proved futile. The last I heard, from his mother in England, is that he is “somewhere on the high seas, unreachable.” When she said that she hadn’t heard from her son in months,” I asked her to pass on a message. Considering the (unrelated) personal difficulties facing him should his whereabouts become known, I am not sanguine about my chances of interviewing him.)

When Legal Aid refused funding for Henry’s appeal, he did the appeal himself. In a judgment rendered in December 1997, appellate Justices Finch, Donald and Hall, describing the issue before them as one of “fact, not law,” said that Henry should have raised it at trial:

“(T)he issue which he seeks to address is an allegation of perjury on the part of a number of police officers in connection with lineup photographs which were used at trial.”

Had Henry been represented by counsel, the Court may have had a point. However, not only did the Court pay no heed to the salient fact that he represented himself; it ignored the question of why, if the state had a valid case against him, would they resort to dummying up a lineup photo.

For years after that, Henry filed countless more applications protesting his innocence; applications now featuring, front and centre, enlarged copies of the lineup photo – 20” X 28”s mounted on cardboard – together with the Atkinson affidavit.
For every copy sent out, the same pro forma answer, smack- ing of institutional indifference, came back: “We’ve heard it all before. Thanks but no thanks.”

The chain of circumstances that resulted in the reopening of Henry’s appeal began with the investigation regarding Robert Pickton, pig farmer and now-notorious serial killer.
After years of investigating unsolved rape and murder cases with little success – in 2005, a Donald James McRae pleaded guilty to three counts of rapes, the only three wherein DNA matches had been made – the VPD alerted Administrative Prosecutor Jean Connor (now, QC) to its findings. Of the roughly fifty, post-Henry-incarceration, rapes under investiga- tion, a minimum of twenty-five (including the three “McRae crimes”) involved an MO virtually identical to that found in the “Henry crimes.”
As Vancouver Sun reporter Neal Hall wrote in January 2009, soon after the Court of Appeal’s decision to reopen the Henry appeal:

“The horrendous injustice suffered by Ivan Henry might never have come to light if not for the in- vestigation into the heinous crimes of serial killer Robert Pickton.
The BC Court of Appeal buried Henry more than a decade ago [sic] – and Tuesday’s extraordinary historic reversal by the province’s high bench would not have occurred without a Vancouver Police Department review of old sex cases spurred by the Pig Farm murders.

“A subsequent investigation, dubbed Project Smallman, led directly to the 2006 appointment of special prosecutor Len Doust over fears a miscarriage of justice might have occurred. His report last year on Henry’s case was the catalyst for this week’s unprecedented order it be reopened….”

Quoting Connor, Hall said that the pieces fell into place for her in 2006, while reading a memo about McRae:

“Nothing the similarities between those crimes and the ones two decades earlier, she walked down the hall and read out the details to colleague Mike Luchenko. When she asked, ‘Who’s that?’ he said, ‘Ivan Henry….’
Once Wally Oppal, the then Attorney-General, had been alerted to this potential miscarriage of justice, he appointed Special Prosecutor Leonard Doust QC to review the case.

‘It was just a total coincidence that I read the new file and recalled the Henry case, because I was here when that was prosecuted,’ said Connor, a prosecutor for 33 years who plans to retire in July….

“Connor pointed out that Henry’s name was not in the other suspect’s file, or vice versa.”

At the reopening hearing, much of the evidence and argument
was advanced by way of joint submission. Given that Henry’s lawyers did not allege that the lineup photo had been fabricated, that issue was not before the Court of Appeal and played no part in the acquittal decision.

Though Henry pressed the Special Prosecutor to at least consider the issue, Mr. Doust made no mention of it in his Report. When I asked him about this, he emailed me back as follows:

“I was provided with a copy of the photograph almost at the outset of the matter by way of the Crown (Luchenko) file. Henry himself (not the Crown) put the photograph into evidence at his trial despite a very strong caution with respect to potential harm to his case by doing so from the trial judge.

“I cannot confirm or deny whether Henry actually provided me with a copy of the photograph but, indeed, he did provide approximately 2 boxes of documents, all of which have long since been delivered, at their request, to the Crown. As to the authenticity of the photograph, any consideration of that issue in the report would of course be privileged.

“I did not consider it necessary to interview Henry for any purpose and was well aware that he had legal counsel and if they felt it necessary for me to interview him they could have so advised and I would have done so.”

[Regarding paragraph two, there is nothing in the transcript to indicate that the trial judge cautioned Henry against introduc- ing the photo. Secondly, the (2010) Court of Appeal said that, notwithstanding the trial judge’s view that Henry was to blame for putting it into evidence, the photo was key in showing that the pre-trial identification process was flawed and seriously called into question the reliability of all other identification evidence. Instead of giving Henry’s point the consideration it was due, the trial judge appeared to treat it quizzically.]

As happy as Henry is to have regained his freedom, it rankles him not to have been declared “innocent.” As hopeful as he is that, eventually, he will receive just and reasonable compensation, he remains concerned that the lawyers in his civil suit have declined to include the “fake photo” allegation.

“If ever a case for malicious prosecution has been made out,” he says, “that photo’s got to be it.”

The Ivan Henry case is by no means over. Whether inspired or simply dogged, Henry is not about to give up. For three decades, he kept the dog-eared lineup photo close at hand. Cutting out part of a Michigan State law book when sent to serve a four- month stint in segregation in 1990, he stashed the lineup photo in it.

“That was the hardest part of all,” he told me, “not knowing whether it would go missing.”

Though working with Ivan has its challenges – the man’s trust quotient is understandably low – I remain committed to peeling away the layers of truths and untruths underlying his wrongful conviction.

For thirty years, Henry’s argument regarding the lineup photo’s authenticity or otherwise fell on deaf ears. It is my hope that this article will, in its own small way, cause people in positions of authority to take, at long last, a second look.

1 “Self-Represented Accused: A Judge’s Duty of Fairness;” Joan McEwen; The Advocate; July 2012 Vol. 70, 537.
2 R. v. Henry [2010] BCCA 462.

Catch-22: Parole Remote for Inmates Proclaiming Innocence

Sam Eilfing’s article in today’s Tyee online news magazine is well worth the read: http://thetyee.ca/News/2013/10/23/The-Innocence-Trap/

In it, he discusses the catch-22 facing all innocent prisoners: If you refuse to acknowledge guilt, the parole board will say you haven’t taken the first step to rehabilitation. Hence, you remain a danger to society, etc etc.

Sadly, that’s only one of the ways innocent “offenders” are disadvantaged over those who are guilty. Another is that, when released, as was wrongly convicted Ivan Henry (@iwmh_Ivan) in 2009, they are simply kicked out onto the street–without, for instance, any of the benefits the guilty receive, such as a community of people afforded by halfway-houses, room and board, financial and employment assistance, etc.