A family secret that's been hidden away for 26 years no longer has a hold on two sisters who believe their father was wrongfully convicted of sex offences involving several women.
On Tuesday, the B.C. Appeal Court ruled that Ivan Henry's appeal will be reopened to hear evidence that suggests a miscarriage of justice occurred during his 1983 trial.
Outside court, Cari and Tanya Henry said they've always believed in the innocence of the father who was put behind bars when they were seven- and nine-year-old girls.
Justice Mary Saunders, one of three Appeal Court judges hearing the case, said the appeal was reopened in the interest of justice for Mr. Henry but also for the state.
"This is an extraordinary application," she said.
A review of the case suggests there were problems with the police investigation, the trial judge's instructions to the jury and lack of disclosure of evidence that could have changed the outcome for Mr. Henry, who represented himself.
In 1983, Mr. Henry was convicted of three counts of rape, two counts of attempted rape and five counts of indecent assault in attacks on eight women in Vancouver.
The Appeal Court dismissed Mr. Henry's application to examine the verdict in 1984.
Ms. Saunders said Mr. Henry promptly filed a notice of appeal after his conviction but because he didn't have the money to hire a lawyer, he didn't include other documents including transcripts.
Mr. Henry filed another application in 1997 and that was also dismissed, Ms. Saunders said.
In December 2006, B.C. Attorney General Wally Oppal appointed a lawyer to review the case, resulting in a report last year that suggested a miscarriage of justice may have occurred.
"I consider this situation highly unusual," Ms. Saunders said. "I know of no case before this one in which a second application to reopen has been successful where the applicant's earlier application failed."
Tanya Henry told reporters outside court that her father's sex convictions and a dangerous-offender designation have taken an emotional toll on the family.
"It's been a huge family secret," Mr. Henry, now 35, said. "We were kicked out of neighbourhoods, moved around many times to try and hide who we were.
"My father's been without love; he's been denied affection and family. We have children who don't know their grandfather."
Mr. Henry was arrested in July 1982 in 100 Mile House, B.C., and has been in prison ever since, said his lawyer, Cameron Ward.
Mr. Henry spent the first 12 years of his indeterminate sentence in a Saskatchewan prison, away from his daughters and wife, who died in 1990, Mr. Ward said.
The appeal will likely be heard later this year but Mr. Ward said he will try to have Mr. Henry released in the meantime.
Ms. Saunders said that despite repeated attempts to get legal aid, Mr. Henry was rebuffed and only received funding last year after lawyer Leonard Doust's report.
Mr. Henry now has three defence lawyers who have pored over documents that were never disclosed to him during the trial.
They also point to a flawed process police used in having the victims identify Mr. Henry.
Ms. Saunders said there was no independent evidence during the trial and that prosecutors relied on complainants' physical and voice identification of Mr. Henry.
On Monday, David Layton, who also represents Mr. Henry, told the court the eight women were attacked in the middle of the night in their homes between May 1981 and June 1982 by an assailant who covered part of his face, making identification difficult.
Mr. Henry had a previous criminal record and lived in the neighbourhood where the sex assaults occurred.
Mr. Layton also said police showed some of the women a photo of Mr. Henry in a jail cell with an officer in the frame.
During the trial, the Crown said Mr. Henry was linked to 22 sexual assault cases.
Ms. Saunders told the court new evidence that surfaced during the 2002 police investigation of serial killer Robert Pickton involved another offender who was implicated in 29 cases. He also lived in the neighbourhood and his build resembled Mr. Henry's.
In 2005, the man, whose name can't be released under a publication ban, was convicted of sexually assaulting three women in the mid to late 1980s when Mr. Henry was in jail.
The court also heard that the trial judge told jurors they could infer guilt because Mr. Henry refused to participate in a police lineup, yelling and screaming while being restrained by officers.Report Typo/Error