Both Crown and defence lawyers agree there is little chance a man who spent most of the last 27 years behind bars for a series of violent sexual assaults in Vancouver would ever be convicted today.
Ivan Henry has proclaimed his innocence since his 1983 conviction for rape and indecent assault involving eight women.
The B.C. Court of Appeal also agreed, ruling Tuesday that "the appeal must be allowed."
But Mr. Justice Richard Low said the three-judge panel hearing his case would reserve its decision on whether Mr. Henry should get a new trial or an acquittal.
Mr. Henry's lawyer, David Layton, laid out for the court a litany of mistakes made by police and prosecutors in his case, and asked for an acquittal.
Mr. Layton said at least 30 statements made by police and witnesses were never disclosed at trial to Mr. Henry, who served as his own lawyer at the time.
Many of the statements were from early in the investigation, some said the attacker was five-foot-six, or had brown hair and one said he had a long beard. None of those applied to Mr. Henry, Mr. Layton told the court, but over time they changed to match Henry.
"Ultimately there was a convergence from all of the women where the evidence becomes the same," he said.
But Mr. Henry, who's now 63 and did not attend the hearing, never saw those early reports, his lawyer said.
"Your point is that if this had been disclosed, it would have been a gold mine for a defence lawyer," Judge Low said.
The court has also seen a police line-up photo showing three officers holding Mr. Henry, one of them with a choke hold around his neck, while several of the other men in the line smile for the camera.
Even Crown prosecutor David Crossin called the picture being used for identification purposes "problematic."
Sperm samples taken from some women weren't disclosed and, while DNA evidence wasn't available then, Mr. Layton said science could have eliminated Mr. Henry as a suspect with a blood test.
Mr. Layton said the evidence may have exonerated his client and given all the mistakes made the only solution should be to acquit Mr. Henry now.
"No reasonable jury could convict at retrial," he said.
Mr. Crossin offered little argument.
"Crown is not in the position to disagree with many of the major points my friend makes," he said, referring to Mr. Layton.
He told the judges that there was evidence that Mr. Henry, who was allowed to represent himself, was suffering from a mental disorder at the time.
In fact, the prosecution lawyer said, it was the Crown that, in the interest of justice, reopened the case last year. Mr. Henry has been free on bail since then.
Mr. Crossin agreed that in relation to the evidence a jury likely couldn't convict Mr. Henry.
He told the three judges on the panel that this is the type of case where many cautions would have been issued about the evidence, where the eight victims were attacked in the dark or near dark.
"The assaults were violent, traumatic and terrifying. That's quite apparent from the evidence," he said. "The description fits the accused, but it could also fit any number of white males."
He also agreed that there was "less than fulsome" disclosure on the evidence.
But he said the Crown at the time of the trial proceeded in good faith and in the best of its ability.
Both of Mr. Henry's adult daughters attended the two-day appeal court hearing.
When it was over, Tanya Olivares and Kari Henry said they were relieved the appeal had been heard and would await the verdict.
"Everybody's doing well. This part of our life is over - at least for today," Ms. Olivares said.Report Typo/Error
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