May 1, 2015
If I’m right, the Supreme Court of Canada will rule today that wrongly convicted Ivan Henry has the right to sue the Crown for a breach of the Charter—no-one can be deprived of life, liberty and security of the person “except in accordance with the principles of fundamental justice.”
Henry’s lawyers argued in November 2014 that the Crown failed to disclose at trial a raft of potentially exculpatory information, including contradictory victim statements; the recovery of spermatozoa from some of the victims; and the fact that Donald McRae, a prolific sexual predator, had been a suspect.
As the law now stands, a wrongly convicted person must prove “malicious prosecution”—namely, an intentional abuse or perversion of the system of criminal justice for ends it was not designed to serve. In setting the bar so high twenty-five years ago, the highest Court in the land said it would be sufficient to ensure that the Crown would not be hindered in “the proper execution of its important public duties.”
The Court was right—only one case has succeeded since then.
However, should the Supreme Court of Canada rule in Henry’s favour, the need for proving malice will, at least in cases of wrongful conviction, be gone. Instead, any wrongly convicted person will simply be required to establish, at the very most, a “marked departure” from the standards expected of prosecutors within the profession.
In practical terms, what if any impact would such a decision have on Henry himself? From a legal perspective, precious little. While lawyers wrangle about the law’s niceties, Henry remains penniless; hoping that justice—the hard, cold cash kind—will occur before he dies.
Sentenced as a dangerous offender in 1983 for ten sex crimes he did not commit (see my book Innocence on Trial: The Framing of Ivan Henry (Heritage House, 2014)), Henry spent 27 years in prison before being acquitted—found “not guilty”—by the B.C. Court of Appeal in 2010. Arguing that he has not proven his factual innocence, the state has yet to pay him a dime in compensation.
Yet who among us could establish—if charged with a serious crime—that we are innocent? Absent DNA (in Henry’s case, the police “lost” the semen samples); an iron-clad alibi (the police and Crown failed to investigate his alibi statement); and/or the confession of the actual perpetrator (a man who went on to commit a minimum of 25, as high as 50, reported rapes after Henry was behind bars), proving actual innocence is well nigh impossible.
So much for the presumption of innocence, that “golden thread” supposedly running through our criminal justice system. The problem is that, once lost, that state of innocence is seemingly impossible to recover—no matter how reprehensible the behaviour of police and Crown.
Now sixty-eight, Henry has no money—no pension, no savings (he’d spent the pittance he earned in prison trying to win his freedom), and no job. Virtually unemployable, his health affected by years of inadequate medical and dental treatment, he has dedicated himself to alleviating the suffering endured by his two adult daughters by reason of his longterm incarceration. Tragically, the younger daughter passed on earlier this year. Henry blames the state for her demise—not just for wrongly convicting him in the first place, but for their abysmal treatment of him post-release.
(As a disturbing aside, guilty offenders get treated better than the wrongly convicted. Once released, they have the benefit of a half-way house, including board and room and the camaraderie of a peer group; help with job searches, financial and psychological counseling; etc.)
Should Henry succeed, a small ray of hope might open for him—the possibility that the defendants might see the light and initiate serious settlement discussions.
In 1999, David Milgaard received a $10 million settlement for his wrongful conviction. The facts of the Ivan Henry case cry out for a sum well in excess of that.
As though any amount of money could compensate him for the life of pain and suffering he has endured.
Still and all, money is money, and a nudge from the Supreme Court of Canada in the right direction cannot hurt.
Vancouver’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.)
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  BCCA 462.