The 1983 sexual-assault trial that put a wrongfully convicted man behind bars for nearly three decades is the most egregious example in Canadian history of the Crown withholding evidence from an accused, a court has heard.
Lawyer Marilyn Sandford described as "breathtaking" the scope of the material kept from Ivan Henry, which included witness statements, warrants, medical reports, surveillance information and police notes.
"Mr. Henry knew at the time of his trial that something was very wrong," Ms. Sandford told B.C. Supreme Court on Monday.
"He knew that he was entitled to a fair trial, that the justice system promised him that. … But Mr. Henry could not have been more mistaken."
Mr. Henry is suing the province for compensation after he was acquitted by the B.C. Court of Appeal on 10 counts of sexual assault involving eight women.
The federal government and the City of Vancouver have settled with Mr. Henry for undisclosed amounts, leaving B.C. as the only remaining defendant.
Ms. Sandford said the trial would likely have gone very differently had the Crown released more than just 66 disclosure documents to Mr. Henry.
She told the court about multiple instances when Mr. Henry had reached out to the Crown requesting additional material, including statements from complainants, the arresting officers and police notes. He received no response, she said.
"There's a whole history here of an accused who's unrepresented, writing letters to the Crown — very sensible straightforward requests — and those letters simply going unanswered," said Ms. Sandford.
"It shows an attitude of non-disclosure being the norm for the trial prosecutors."
Ms. Sandford referred to an argument the Crown made earlier in this trial. In that argument, the Crown said Mr. Henry's decision to represent himself meant disclosing more information would have made no difference in the outcome of the case.
"This attitude about disclosure – the notion that, 'Well, this is a guy who no one's going to believe, and anyways he wouldn't know what to do with the disclosure' – that attitude gives us insight into what happened in 1983," she said.
Forensic evidence collected from various crime scenes that failed to link to Mr. Henry was also not disclosed, said Mr. Sandford. Had Mr. Henry known that biological material recovered by police had not been examined, including semen and pubic hair, he would have been able to offer his blood to the Crown to test for a match or analyze the samples himself, she said.
She said he was not informed the evidence existed.
Police used a tracking device on Mr. Henry's car to monitor his movements, and also set up – though never used – a wiretap on his phone, the court heard.
Ms. Sandford lambasted the Crown for not pro-actively presenting the evidence in court.
"In a case with an unrepresented accused, the fairest way to make sure the trier of fact gets the evidence it needs is to lead it through the Crown," she said.
"Mr. Henry wouldn't have known what to do with it?" said Ms. Sandford, directing her comments to the judge. "You the Crown knew what to do with it."
Ms. Sandford and co-counsel John Laxton are expected to conclude their closing arguments before the end of the week, after which the province will have the opportunity to make its final case.