In 1983, a struggling, yelling Ivan Henry was manhandled into a police lineup, and police officers restrained him so that women who'd been assaulted in a string of nighttime attacks could be asked whether they recognized their assailant.
Tuesday, after hearing that the judge in Mr. Henry's trial told jurors they could infer guilt from his behaviour in the lineup, and hearing about other questionable aspects of his conviction, the British Columbia Court of Appeal will decide whether to reopen his case.
Mr. Henry was convicted of rape and assault in connection with attacks on eight women in 1981 and 1982. He was declared a dangerous offender in 1983. He has spent the past 26 years in jail.
If the court agrees to reopen his case, it will launch a process that could add another name to the list of Canadians who have been wrongfully convicted.
"There is a very real prospect that there has been a miscarriage of justice in this case," David Layton, one of three lawyers representing Mr. Henry, told a three-judge panel Monday. "There is a very real prospect that a man has been convicted and spent 26 years in jail for a crime that he did not commit."
Mr. Henry had a criminal record before his trial in 1983.
Reopening the case would be a vindication of sorts for Mr. Henry, 62, who insisted on representing himself at his 1983 trial and has bombarded the courts with dozens of motions and letters since his conviction.
A previous appeal was dismissed in 1984. But in 2007, the B.C. attorney-general appointed special prosecutor Leonard Doust to review Mr. Henry's case. Mr. Doust submitted his report last year.
"The clear tenor of the Doust report, in my opinion, was that there may be a miscarriage of justice in this matter," Mr. Layton said.
Mr. Henry, whose grown daughters were in court yesterday, was in his mid-30s with two young children in the early 1980s when a string of sexual assaults occurred in Vancouver.
Women described late-night attacks by a knife-wielding assailant that in most cases involved what policed call a "rip-off m.o.", or method of operation, in which the intruder claimed to have broken into the woman's home looking for someone who had stolen from him or his associates.
Mr. Henry's conviction had a host of problems, Mr. Layton said Monday.
The women who had been assaulted all identified Mr. Henry in court, but there are questions about the reliability of those identifications: The attacks took place in the dark, sometimes the assailant's face or that of the victim was partly covered, and some women were shortsighted.
Mr. Henry was identified in the lineup, but "he was the only man in the lineup who was yelling and struggling while being restrained by three uniformed police officers."
One complainant identified Mr. Henry from a series of photos; six were of men in ordinary mug shot poses. Mr. Henry's photo showed him standing in front of a jail cell.
As well as problems with the original trial, Mr. Layton cited new evidence that could be relevant to Mr. Henry's case.
That evidence concerns an investigation into sexual assaults that began in 2002 as part of the Robert Pickton case. Mr. Pickton was convicted in 2007 of six counts of second-degree murder. He still faces trial in connection with another 20 missing women.
Investigators concluded that a string of sexual assaults between 1983 and 1989 were committed by the same person - in some cases using the same rip-off scenario, and in the same neighbourhood, as the attacks for which Mr. Henry was convicted.
Results from that investigation, dubbed Small Man by police, could help prove Mr. Henry's innocence, Mr. Layton said.
The crown does not object to the case being reopened.
A psychiatrist who assessed Mr. Henry before he was designated a dangerous offender said Mr. Henry was psychotic and suffering from paranoid delusions, and questioned whether he was fit to stand trial, Crown lawyer David Crossin said.
There is likely to be no new DNA evidence. One victim kept a pillow case that carried saliva and semen from the attacker.
But the RCMP's DNA specialists have said it likely would be impossible to extract DNA from the pillow slip, given the time that has passed and the fact the material has been washed, Mr. Crossin said.
"The circumstances of Mr. Henry's trial ought to be critically examined," Mr. Crossin said, adding that case relied almost entirely on eyewitness evidence, which is "notoriously unreliable."Report Typo/Error