"Ivan Henry says he deserves roughly $30 million or more for his
wrongful conviction in 1983 for sex offences and the 33-year ordeal that
followed. In a hard-hitting submission to B.C. Supreme Court, his
lawyer John Laxton said Wednesday Henry deserved the same compensation
as previous wrongfully convicted Canadians even though it would be an
unprecedented total award for damages. He led Chief Justice
Christopher Hinkson through the details of some of Canada’s most
infamous wrongful-conviction settlements, beginning in 1959 with Steven
Truscott in Ontario. Ultimately acquitted, Truscott at 14 was
sentenced to hang for murder, but he avoided the noose and served 10
years before his release. He received $7.2 million, or $720,000 a year,
in 2015 dollars, Laxton said. If you added the extra six years of
traumatic litigation, consider that Henry’s circumstances were much
worse (the police and Crown did nothing wrong in the Truscott case), add
a premium for deterrence or vindication, Laxton calculated that meant
Henry should get somewhere around $33 million.
He reviewed other
notorious cases to establish that as a reasonable ballpark figure.........While it was easy to calculate Henry’s
loss of income during his incarceration, about $1.5 million, Laxton said
it was more difficult to assess his intangible loss: “His damages are
for the life he has lost which cannot be replaced.” As well, he
said, there should be compensation included for Henry’s two daughters
for emotional distress and the loss of their dad.........Henry spent nearly three decades in a
tiny cell, he emphasized, suffered regular strip searches and was forced
to wear leg irons and handcuffs any time he was moved. He lived in
constant fear of his life because he was sex offender, the bottom of
prison’s social scale, the lawyer added. “It has been said that
Mr. Henry was on death row for 27 years but death row means a planned,
quick and painless death unlike what Mr. Henry was threatened with on a
daily basis,” Laxton said in his submission. Laxton hammered the province for continuing since Henry’s release to defend outrageous prosecutorial misconduct. The
octogenarian legal lion underscored that Henry has been hampered in
proving his “innocence” — partly because the courts have only two
verdicts, guilty or not guilty, but also because police destroyed semen
evidence that could have exonerated him. “He will never escape the stigma of being a serial rapist,” Laxton said. As
a result, he added, the court saw the misguided 11th-hour application
by Rape Relief, which tried to intervene to argue Henry was not
innocent. He suggested the group acted at Victoria’s behest: “The
complainants should have been blaming the police and the Crown not Mr.
Henry, but Henry was and will always be the easier target.” The
B.C. Court of Appeal in 2010 concluded that Henry should be acquitted of
the 10 Vancouver assaults against eight women, triggering this
litigation.
Henry sued the City of Vancouver, for the work of police and forensic analysts; the federal government, for officials who had a duty to review his convictions; and the province, for the prosecutors. Only Victoria remains in the suit after the other governments settled last month..........Laxton excoriated the government for re-traumatizing Henry by not having “the decency to disassociate itself from this demeaning examination of an obviously vulnerable and mentally and psychologically challenged witness.” “It demonstrates just how blinded the defendants are by their own distorted view of the facts. They appear to want to believe that the real victims are the prosecutors who committed these grave breaches of Henry’s charter rights.” Laxton told Hinkson that the prosecution had control of the Henry case through appeals and knew there was no evidence to even justify laying a charge. The non-disclosure in the case was the most egregious in Canadian history, he added, and the Crown’s “intentional refusal to disclose the complainants’ weak identification evidence amounted to a major coverup.” He said prosecutorial misconduct must also be considered in light of their attitudes and beliefs. “The evidence against Henry being the perpetrator was overwhelming and the Crown’s refusal to look at this evidence is a testament to the egregiousness of the Crown’s misconduct,” he said. It “was extreme, high-handed, oppressive and outrageous and was utterly intolerable in a civilized community.” Though the lead prosecutor Michael Luchenko is dead, Laxton said the evidence heard from the junior prosecutor on the 1983 case, Judy Milliken, was very important: “The Crown’s disdain for Mr. Henry oozed from the testimony of Ms. Milliken.” The province will present its final argument Dec. 16."
Henry sued the City of Vancouver, for the work of police and forensic analysts; the federal government, for officials who had a duty to review his convictions; and the province, for the prosecutors. Only Victoria remains in the suit after the other governments settled last month..........Laxton excoriated the government for re-traumatizing Henry by not having “the decency to disassociate itself from this demeaning examination of an obviously vulnerable and mentally and psychologically challenged witness.” “It demonstrates just how blinded the defendants are by their own distorted view of the facts. They appear to want to believe that the real victims are the prosecutors who committed these grave breaches of Henry’s charter rights.” Laxton told Hinkson that the prosecution had control of the Henry case through appeals and knew there was no evidence to even justify laying a charge. The non-disclosure in the case was the most egregious in Canadian history, he added, and the Crown’s “intentional refusal to disclose the complainants’ weak identification evidence amounted to a major coverup.” He said prosecutorial misconduct must also be considered in light of their attitudes and beliefs. “The evidence against Henry being the perpetrator was overwhelming and the Crown’s refusal to look at this evidence is a testament to the egregiousness of the Crown’s misconduct,” he said. It “was extreme, high-handed, oppressive and outrageous and was utterly intolerable in a civilized community.” Though the lead prosecutor Michael Luchenko is dead, Laxton said the evidence heard from the junior prosecutor on the 1983 case, Judy Milliken, was very important: “The Crown’s disdain for Mr. Henry oozed from the testimony of Ms. Milliken.” The province will present its final argument Dec. 16."
