For decades, Ivan Henry was variously scorned, ignored and rejected as he fought desperately from behind bars for someone to listen to his cry of innocence.
Now, more than 25 years after his conviction of a string of violent sexual assaults against eight Vancouver women in the early 1980s, Mr. Henry, 63, appears close to vindication and the prospect of spending his remaining years free at last of incarceration and the stain of guilt.
"It seems to me that [his]appeal has to be allowed," B.C. Court of Appeal Mr. Justice Richard Low declared Monday, as an unusual hearing into Mr. Henry's case began.
The only remaining issue to be decided by the court, added Judge Low, is whether Mr. Henry should be tried again or receive an outright acquittal.
If he is acquitted, his nearly 27 years in jail would be one of the longest prison stretches in Canadian history by someone who was innocent.
"That is 27 years too long," his lawyer David Layton told the court. "This case is an almost perfect paradigm of an unsafe conviction."
There were "serious deficiencies" in the trial judge's charge to the jury, the Crown failed to disclose crucial information and Mr. Henry decided to act as his own lawyer, which, "to say the least, he was ill-prepared to do," Mr. Layton said. "It was … a perfect storm of weakness, flaws, mistakes and deficiencies."
As he listed the trial's alleged shortcomings in withering detail, Mr. Henry's daughters listened from the front row, often shaking their heads in dismay. A box of tissues was beside them.
Mr. Henry has been free on bail for the past 18 months, living with his daughter in North Vancouver, while undergoing psychiatric counselling and obeying a curfew imposed on him by the court.
The chances of a new trial succeeding are slim, given that the main evidence against him was his identification by some of the victims from a bizarre police line-up photo, derided by Mr. Layton as "egregiously flawed."
The photo shows half a dozen, mostly smiling stand-ins and Mr. Henry, grimacing from a headlock and other restraints from several police officers who are forcing him into the lineup.
"This made it clear [to the victims]that he was the police suspect … and a pretty strong suspect," said Mr. Layton, who noted nonetheless that three of the victims did not identify anyone in the lineup and one identified a stand-in. "Any competent defence lawyer would have made a big deal out of the line-up."
Upon his conviction in 1983, Mr. Henry was declared a dangerous sexual offender. Because he showed no remorse, insisted on his innocence and at times exhibited unusual behaviour, his many bids for parole were rejected.
Mr. Henry's case was reopened in 2006, after the Crown learned of new information pointing to another suspect. He was finally granted leave last year to appeal, despite the passage of time. The Crown did not contest the application.
Before new evidence surfaced, however, Mr. Henry got nowhere trying to have his case reviewed. Still acting as his own lawyer, he filed an initial appeal back in the 1980's, but it was never acted upon.
Over the years, he kept up a constant barrage of files and petitions, seeking medical records, DNA evidence and police records that might prove his innocence. In 2000, the B.C. Supreme Court dismissed his applications as "frivolous and inappropriate."
The Appeal Court hearing continues today.
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