The Innocence Project
For 26 years Ivan Henry insisted he’d been wrongfully convicted. Two years ago, the courts finally agreed and set him free. Like dozens before him, he still wonders: Is that enough?
August 14, 2015
This article was originally published in the October 2012 issue of Vancouver Magazine.
On May 12, 1982, Ivan Henry, 35 years old, living with his wife and two young daughters at Main and East 17th, was arrested without warrant and forced into a hastily constructed lineup composed mainly of plainclothes officers. Struggling for air as three policemen held his head in a chokehold, he was identified by three of 11 women—by his voice. The police released him, but Henry was immediately placed under surveillance. According to the VPD, that didn’t stop him from raping two more women—one the next day, the second three weeks later. After hypnotizing one of the victims, then showing her a photo array that included a picture of Henry with bars in the background and a police elbow in front, the police got the identification they needed. Resurrecting identifications from earlier victims, they re-arrested Henry, charging him with 17 counts of sexual assault involving 15 women.
Feeling paranoid that the legal aid lawyers who had represented him did not have his back—not a single one of them took the police-conspiracy elements of this account seriously—he opted to represent himself at trial. As the victims cried and quivered under his overly aggressive cross-examination—Henry as good as accused them of making the whole thing up—jurors shook their heads in disgust. So convinced was trial judge John Bouck of his guilt, and so poor at legal self-representation was Henry, a former construction worker who was selling jeans across the province out his hatchback, that Bouck kept conflating the words “attacker” and “accused” in his instructions to the jury. They came back after just hours: guilty of 10 counts of sexual assault on eight women.
This was the time of the Clifford Olson serial murders, and the public mood was fearful and unforgiving. Like Olson, Henry was designated a dangerous sex offender and given 11 concurrent life sentences. The likelihood he’d receive parole before he died? Slim to zero.
Henry served 26 years for those crimes. Imagine it, nearly 10,000 days knowing, arguing with anyone who’d listen, that he’d been set up in order to secure a conviction and close a file. For all those days—those 10,000 days—almost no one listened. Finally in October 2010, an end to the nightmare: the B.C. Court of Appeal exonerated Henry, holding that no properly instructed jury could reasonably have rendered a guilty verdict on any of the counts. The lineup photo—showing the chokehold and a good deal more—played a key role in the court’s ruling regarding tainted identification.
Having finally won release, Henry today is adrift; he lives on an old-age pension that takes no account of decades spent working in prison kitchens and laundries, sewing shops and warehouses. He has no résumé, no modern skills: every cent he earned behind bars—$5.25 per eight-hour shift, plus the pittance received from other inmates for help with court filings—went into the fight to regain his freedom: photocopies, court filing fees, envelopes made from butcher paper. Before Canada Post cottoned on, he used to lick the squiggly black lines off franked stamps and reuse those that he didn’t sell.
When a convict is released on parole, no matter how heinous his crime, he spends time in a halfway house. If he’s lucky, he receives job assistance and community support. He’s given a shot at reintegration. But when a convict is declared to have been wrongfully convicted, the court simply sets him loose—though he’s entrenched in institutional thinking and has likely endured decades of physical and psychological trauma.
Typical of exonerees, Henry has filed a civil suit against the police, the Crown, and every level of government, seeking compensation for the horrific waste of a life. And now he waits, powerless as ever, for the defendants’ high-priced legal team to argue that he’s the author of his own misfortune. While he waits, he spirals.
“Depression’s a common problem among exonerees,” says Tamara Levy, executive director of the UBC Law Innocence Project, one of a few programs in Canada that review claims of wrongful conviction. “While some states in America provide ‘life after exoneration’ programs, our government’s been silent on the subject.”
A 1996 graduate of Osgoode Hall Law School at York University in Ontario, Levy, seeking to fill “an important gap in the justice system,” established Canada’s second Innocence Project in 2006. (The first was in Ontario.) The UBC project now includes as many as 15 law students in any given year, a roster of 23 pro bono lawyers, and a growing stack of inmate applications. Levy inhabits a cubby-hole office crammed with binders full of legal authorities and plastic bags of news clippings and journals and scrawled notes—anything that might remotely be relevant. Innocence work is burgeoning since the widespread adoption of DNA testing in the 1990s, but it’s not for the faint-of-heart. Overturning convictions is hard enough when DNA’s available to rule out the offender. It’s almost impossible when, as in Henry’s case, semen samples collected at the time are
“Our project is part of the international network that exposes, documents, and prevents wrongful convictions,” Levy says, “but success stories in Canada are rare.” Up and running six years, they have a number of applications in the drafting phase but only one ready to file in the court of appeal.
“Each case—we’re currently dealing with 21—involves a painstaking review of everything from the original investigation to the final appeal. If, at the end, we believe we can verify that a major miscarriage of justice occurred, students assist outside counsel in preparing the appropriate application.
“We do our best, but we’re underfunded. The Crown has been quite cooperative but there’s a fair amount of foot-dragging by police when we ask for disclosure.”
The phone rings. It’s Ivan. “I’ve been waiting 20 minutes.” His words slur together. “Where are you?”
Our meeting is for tomorrow, not today.
“I had a rough weekend. Wide awake till dawn, five nights running. I got no money. First thing in the morning, I started knocking on doors. Worked eight hours raking leaves. Made $50.” He chuckles. It’s part of the man’s charm, this habit of laughing no matter how bad it gets. It’s part of why I’m using my legal training to help him and why I’m writing a book about his wrongful conviction.
We meet anyway, and as he flops into the passenger seat, dishevelled, reeking of booze, he’s far removed from the proud, take-charge man he’s struggling to become.
“Half a mickey of Bailey’s,” he admits. “A handful of these.” He brandishes a bottle of clonazepam.
“I’m sorry,” he says. “I really am.” When he smiles, his lips stay pressed together. Prison dental care is an oxymoron. “When a tooth got rotten,” he’s told me, “I grabbed a set of pliers and yanked it out. When—if—my lawsuit ever ends, I’ll be getting myself a new set of teeth.”
Does he need a stomach pump? He’s not a man to overindulge.
“It’s these new meds,” he mumbles, sweat trickling down his cheeks. “I’ll be fine.”
He slumps forward. “It’s just so hard,” he whispers. “All of this. So bloody hard.”
After a burger and several cups of coffee, he’s ready to work, producing a battered notebook from his back pocket. “1997. Have a look.”
“Perfect timing,” I say, hauling out my laptop. “I just finished 1996. We’re halfway through your incarceration.”
I direct his attention to a pyramid on my screen. “Today, I thought we’d do something a little different.” I explain to him the theory behind Maslow’s Hierarchy of Needs: the levels of motivation that extend from basic survival up to our highest reasons for being. “Are you up for it?”
“Fire away,” he says. “You’re worse’n a small dog nipping at my heels.” He’s learning to trust me—a woman. No small feat for a man who’s borne the “sex offender” label for so long.
“At the bottom, physiological needs—food, water, shelter, and the like. The most fundamental needs.”
He says he can cook a chicken so that every part tastes delicious. His ideal living space? A solid concrete building where “no one can penetrate my senses. So I’ll never be hurt again. In jail, I read Victor Frankl, Thomas Merton. Merton said that the entire world, the spirit of the divine, takes place in your own thoughts. When I looked to my faith, I learned that the Church was also with me. Roman Catholic doctrine says a man has a right to a fair trial.”
“Safety needs,” I say. “Financial security, the health and well-being of you and your family.”
He takes a breath. “After they arrested me, the cops asked my daughters whether I’d ever molested them. Ten years later, after their mother passed on, I begged the courts to help me find them. The bastards said they lacked the jurisdiction.”
He looks out the window. “I used to cry all the time,” he says, “But it got me nowhere, so I stopped.”
“Next level: love and belonging. Tell me about that.”
“Simple: thank you to those who supported me; screw everyone who railroaded me. As for love, listen to this. I was working as a cleaner in the private family-visit huts. There was a certain redheaded guard I liked, maybe even loved. I asked her which is more important, love or trust. She said love, so when I got back to my cell I grabbed one of the I Love You labels I’d made to stick on letters to my kids and pushed it through the window slot. She reported me to the security officer. I never talked to her again.”
Tormentors were everywhere, he says. Guards forced a strip-search on his elderly mother when she came to visit, opened his mail and defaced it, wrote obscenities on the photos of his girls, scratched out the letters on the keys of his typewriter, blasted tape-recorded profanities into his cell, laughed when an inmate hid shit in his bed, rewarded inmates for taunting him. As they passed his cell, they hollered, “What’s that smell?”
“Because of my crimes, and because I wouldn’t confess, I was considered lower than a snake.” When he was sentenced, a psychiatrist testified that his denial of guilt created a “disconnect between him and his victims’ pain.” Labelling him an “anti-social type” suffering from a “personality disorder,” he said that Henry failed to show remorse, and therefore “lacks the quality of insight that would enable him to modify his behaviour.” The stigma continued in lockup; that’s the correctional system’s Catch-22: either admit guilt or forgo access to the rehabilitative programs that are one step on the road to release.
“Everyone was waiting for me to fail. I could see it in their eyes.”
He’s free today, but still carries an inmate’s mentality with him. “Police tail me in ghost cars,” he says, “place women in my path to try to entice me into sexual overtures. No one thinks I’m innocent.”
A VPD member who worked in an unrelated department in the 1980s recently told me, “Ivan Henry? The man’s guiltier than sin. The fact that he got off on a technicality galls me—galls all of us—to the bone.”
A technicality? Despite B.C. Supreme Court Justice Bouck’s reputation as an expert in criminal jury trials, the court of appeal concluded that no reasonably instructed jury could have convicted Henry on the identification evidence led by the Crown. When Bouck learned, in January 2009, that Henry’s appeal would be reopened, he struck back on his blog. As Vancouver Sun reporter Ian Mulgrew wrote at the time, Bouck “continues to believe justice was done in spite of last week’s announcement that another man may be responsible for Henry’s crimes.” Mulgrew added: “Justice Bouck insists that, if Henry did not receive a fair trial, it is his own fault.”
Moving up Maslow’s pyramid to esteem, I ask Henry whether he feels valued by others.
“Did I ever tell you my turkey story?” he says, a glint in his eye. “At our Christmas social—at Mountain, where I was transferred in 1994 from Saskatchewan Penitentiary—I cooked 22 25-pound turkeys and a bunch of 12-pound roasts. Before the visitors arrived, I caught one of my men throwing roasted turkeys out the window. It was my job to make sure we didn’t run out.” There’d be 440 inmates and 160 guests. 600 people. “I gave the goof hell. Told him he was giving them an excuse to add more security, shut the joint up tighter than ever. A total disrespect for the inmates who died fighting for justice, the inmates we honour on Prison Justice Day every August 10. The other inmates respected me. I never wavered, never stopped working towards release. When they realized I wasn’t just fooling around, that’s when the respect came.”
At the apex of Maslow’s hierarchy is self-actualization. I ask him what realizing his full potential would look like.
“Stop violence,” he says. “That, and advocate for little kids. Oh, and one more thing. Once I get me a little money I’ll be going after all the bad guys. Legally speaking, of course.”
As we prepare to part company, he digs in his pocket and brandishes a brand-new roller-ball pen. I recognize the significance: during his early days in prison, when his fight was just beginning, he wrote his first appeal submissions using dried-up felt pens dipped in ink mixed with kerosene.
“Only cost 99 cents,” he says. “It’s for you.” I accept with thanks.
As fine-tuned as the justice system may be, mistakes occur with regularity and result in years of unjust imprisonment. Below, a handful of the dozens of Canadian about-faces from recent years
D a v i d M i l g a a r d
At age 16, Milgaard was sentenced to life in prison for the 1969 murder of 20-year-old Saskatoon nursing aide Gail Miller. He served 23 years in prison before the Supreme Court set aside his conviction. He was cleared by DNA evidence five years later and awarded $10 million.
W i l s o n N e p o o s e
Nepoose was found guilty of second-degree murder but was freed five years later, when a key Crown witness admitted that he had lied on the stand. Six years later, after a long period struggling with depression, Nepoose took his own life in 1998.
S t e v e n K a m i n s k i
After being accused of sexually assaulting a co-worker, Kaminski received a dangerous offender designation and served seven years. He was released when it was discovered that his accuser had been having affairs with the investigating RCMP officer and one of the key witnesses.
H e r m a n K a g l i k
Kaglik spent almost five years in prison after he was accused of several sexual assaults by his niece. As she was dying, she admitted to fabricating the accusation, and Kaglik was acquitted in 1998 after DNA testing of samples he had given in an earlier attempt to prove his innocence.
B r e n d a W a u d b y
Waudby was charged with murder of her 21-month-old because of testimony by Dr. Charles Smith, identifying chronic abuse. Smith’s flawed pathology for the Ontario Office of the Chief Coroner has been roundly discredited: he made mistakes in 13 cases that led to criminal convictions.
G u y L a f l e u r
When his son broke curfew after being placed under house arrest, the NHL star was charged with aiding the offence and obstructing justice. A year after being found guilty, Lafleur was acquitted and the conviction was thrown out. Lafleur has since filed a $2.8 million civil suit.