Court to decide on reopening case of Vancouver man jailed for 26 years

There is overwhelming evidence to suggest a Vancouver man who has spent 26 years in jail for a series of rapes was wrongly convicted just like several other Canadians who struggled for decades to clear their names, his defence lawyer says.

Ivan Henry, now his early 60s, was convicted in 1983 of raping eight women and then declared a dangerous offender.

But his lawyer, David Layton, told the B.C. Court of Appeal on Monday that police botched the investigation, the trial judge wrongly instructed the jury, and another man might have been responsible for the crimes.

A lawyer for the Crown also said he has serious concerns about the Court of Appeal's dismissal of the case in a 1984 appeal.

The appeal court is expected to make a decision Tuesday on whether or not to reopen the case.

New evidence

Layton said important evidence was not disclosed to Henry at his trial, where he represented himself, and that the women's evidence contradicted their statements to police.

The rapes, which occurred between May 1981 and June 1982 in three Vancouver neighbourhoods, might have been committed by a man who lived nearby and was later convicted for several sexual assaults, Layton said.

Police investigated the other man, whose name can't be published because of a court ban, in a 2002 probe called Project Small Man, Layton said.

"This is a case where Mr. Henry has never wavered in asserting his innocence," Layton told the court, adding the case needs to be reopened because it mirrors other wrongful convictions including those against David Milgaard and Guy Paul Morin.

Milgaard spent 23 years in prison for the murder of a Saskatoon nursing aide and Morin was tried twice for the 1984 killing of a nine-year-old girl north of Toronto.

"This Small Man fresh evidence is such that were it available to the jury, it may have reasonably affected the verdict," Layton said.

He said the eight women were raped in their homes in the middle of the night by a knife-wielding intruder who covered parts of his face and pretended he was looking for someone who had ripped off him or his boss.

Layton said the process police used to identify Henry as the attacker was flawed in several ways.

He said some of the women had already identified someone else and that Henry was forced to participate in a police lineup while he was yelling and restrained, but that the trial judge told jurors they could infer guilt from that behaviour.

One of the complainants identified Henry from a photo that showed him standing in a jail cell with a police officer in the foreground, Layton said.

He said the eight women, some of whom had bad eyesight, also identified Henry in court as the attacker even though the assaults occurred in the dark involving a man whose face was partly obscured.

Layton said the women also testified that the assailant had a gruff voice — but only after that suggestion was made to them in court.

Crown argues for fresh scrutiny

Crown lawyer David Crossin echoed some of the same concerns, saying a psychiatrist who assessed Henry as suffering from paranoid delusions had serious doubts about whether the man was even fit to stand trial.

"From my point of view, the circumstances of Mr. Henry's trial ought to be critically assessed by the court with a view to determine whether Mr. Henry received a fair trial," Crossin told the appeal court.

He said there's no DNA evidence in the case. One of the victims still has a pillow slip stained with semen from an assault, but Crossin said the RCMP's forensic lab has determined it would be impossible to obtain any DNA because it has been repeatedly washed over the years.

Crossin said he's trying to determine whether a private lab can help.

He also said the lack of disclosure of evidence to Henry during the trial affected the outcome of his case.

"There is no doubt in my mind that Mr. Henry did not receive certain disclosure that, in my view, might well have been relevant in relation to the eyewitness identification."

Last year, B.C. Attorney General Wally Oppal appointed lawyer Len Doust to review the conviction.

Doust's report in March 2008 suggested there might have been a miscarriage of justice involved in Henry's conviction.