Court mulls acquittal, retrial in 1983 B.C. rape case

A B.C. Appeal Court judge says there's no doubt an appeal must be allowed for a man who spent 27 years in prison on charges he sexually assaulted eight women in Vancouver — charges the convicted man has always denied.

Justice Richard Low, who has been the most vocal of the three judges hearing the case Monday and Tuesday, said the court's only options are either to order a new trial or acquit Ivan Henry of the charges.

The court reserved the decision with no indication when a ruling would be announced.

Henry's lawyer, David Layton, told the court Tuesday that several mistakes were made by police, Crown lawyers and the judge in the original 1983 trial.

Henry was arrested in July 1982 and charged with the rapes of eight women that occurred between May 1981 and June 1982 in three Vancouver neighbourhoods. He was convicted in 1983 of three counts of rape (later changed to "sexual assault" in Canada's Criminal Code) and several other sex-related offences and declared a dangerous offender. Two subsequent appeals — in 1984 and 1997 — failed.

Crown prosecutor David Crossin agreed with Layton that evidence wasn't disclosed to Henry as it should have been during the 1983 trial and that if he were tried again, a jury likely wouldn't convict him.

Henry acted as his own lawyer at the original trial.

Lineup photo cited

Victim statements from early in the investigation gave various descriptions of the attacker, with some saying he was five-foot-six inches tall, others saying he had brown hair and one saying he had a long beard.

None of those details applied to Henry, Layton told the court, but over time, the descriptions changed to match Henry.

"Ultimately, there was a convergence from all of the women where the evidence becomes the same," Layton said.

"Your point is that if this had been disclosed, it would have been a gold mine for a defence lawyer," Low said.

The court also was shown a police line-up photo showing three officers holding 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 ignored

Sperm samples taken from some women weren't disclosed, and while DNA evidence wasn't available at the time of the trial, Henry could have been eliminated as a suspect through a blood test, Layton said.

Given all the mistakes made in the original trial process, the only solution is to acquit Henry, said Layton.

The Crown said it was "not in a position to disagree with many of the major points" Layton made.

Layton told the court Monday that Vancouver police ultimately came to believe that another man — who was convicted of sexual assaults committed after Henry was imprisoned — also could have been responsible for the crimes for which Henry was convicted.

Henry's daughter, Tanya Olivares, said outside the court Tuesday that she had just spoken with her father, who did not attend the two-day hearing, and said he awaited the verdict with hope.

Henry, 63, has been free on bail since the summer of 2009, when the appeal court decided it would hear his case.