British Columbia

Ivan Henry awarded $8M for wrongful conviction, 27 years in prison

Ivan Henry, wrongfully convicted for sexual assault, has been awarded $8 million after spending 27 years in prison.

B.C. man was convicted of 10 counts of sexual assault in 1983, acquitted in 2010

This 1982 Vancouver police lineup photo, showing an officer holding Ivan Henry in a choke hold, was submitted to the B.C. Court of Appeal when it reconsidered Henry's sexual assault conviction in 2010. (CBC)

A British Columbia man wrongfully convicted for sexual assault has been awarded $8 million after spending 27 years in prison.

Ivan Henry, who was wrongfully convicted of sexual assault in 1983, has been awarded $8 million after spending 27 years in prison. (Darryl Dyck/Canadian Press)

Ivan Henry launched a civil lawsuit against the province in B.C. Supreme Court after being acquitted in 2010 of 10 sexual assault convictions.

The City of Vancouver and the federal government settled earlier with Henry in 2015 for undisclosed amounts.

In the ruling released today, Chief Justice Christopher Hinkson said that had Henry received the disclosure he was entitled, the likely result would have been an acquittal during the 1983 trial.

"I find that in 1982 and now, the Crown has a duty to disclose relevant material, whether or not it intends to introduce it into evidence," Hinkson wrote in a 97-page decision.

"Material is considered relevant if it can reasonably be used by the accused either in meeting the Crown's case, advancing a defence, or otherwise making a decision that may affect the conduct of the defence. The Crown must err on the side of inclusion, and bears the onus of disclosing all material that is not clearly irrelevant."

'Intentional decisions' not to disclose

Hinkson concluded a Crown attorney "made intentional decisions on more than one occasion not to provide disclosure" of information including the existence of other suspects and records detailing unsuccessful efforts to tie Henry to the sexual assaults.

As part of their investigation of the sexual assaults that ultimately led to Henry's arrest, Vancouver police were also looking at another man, Donald James McRae, who had a history of late-night predatory sexual behaviour, lived in the same neighbourhood as Henry and and resembled him in appearance.

In 2005, McRae pleaded guilty and was sentenced in relation to three 1980s-era sexual assaults that bore similarities to the crimes for which Henry was sent to prison.

As a result of those similarities, the Criminal Justice Branch began a review to investigate a possible miscarriage of justice.

In its defence, the province argued that Henry contributed to any harm he suffered through his own negligence by dismissing his legal counsel and representing himself at trial.

But Hinkson rejected that argument, saying that, if anything, the fact Henry was self-represented put a greater onus on the Crown to make sure he had all the facts at his disposal to mount a proper defence.

"Mr. Henry cannot be held, through his no doubt unwise decision to represent himself, to have negated or diminished the liability of the Crown for the breach of its duty to disclose," the judge wrote.

"The result would be a licence to breach disclosure duties to accused persons who are unrepresented, vulnerable, or who have poor ability to make effective decisions on their own behalf."

'Locked in a cell, 23 hours a day'

The award includes $530,000 for lost earning and special damages of $56,691.80.

But by far the biggest part of the award is $7.5 million in damages Hinkson determined were necessary to make up for the breaches of Henry's charter rights.

"Mr. Henry contends that the first and obvious problem in assessing his entitlement to compensation is how to determine the appropriate compensation for his being locked in a cell, 23 hours a day, seven days a week, for years, believing that such incarceration would last for the rest of his life," the judge wrote.

"Clearly, 27 years in jail constitute exceptional circumstances."
The largest Canadian settlement for wrongful conviction went to David Milgaard, who was awarded $10 million in 1999.

The judge noted that the largest Canadian settlement for wrongful conviction went to David Milgaard, who was awarded $10 million in 1999 after spending more than 22 years in prison for a sexual assault and murder he didn't commit.

But Hinkson settled on a lower figure because Milgaard was 17 years old when he was wrongfully convicted, with only a minor juvenile record, whereas Henry was 36 when he was sent to prison and had previous convictions for assault and attempted rape.

In a statement, B.C. Attorney General Suzanne Anton said the Ministry of Justice will "review the reasons for judgment, and provide advice on next steps."

"It is important to recognize that Canadian law on disclosure has undergone significant developments since Mr. Henry's criminal trial," wrote Anton.

"We will continue to remain sharply focused to ensure that our … prosecutions respect the constitutional rights and entitlements of any British Columbian accused of a crime."

With files from The Canadian Press


To encourage thoughtful and respectful conversations, first and last names will appear with each submission to CBC/Radio-Canada's online communities (except in children and youth-oriented communities). Pseudonyms will no longer be permitted.

By submitting a comment, you accept that CBC has the right to reproduce and publish that comment in whole or in part, in any manner CBC chooses. Please note that CBC does not endorse the opinions expressed in comments. Comments on this story are moderated according to our Submission Guidelines. Comments are welcome while open. We reserve the right to close comments at any time.

Become a CBC Member

Join the conversation  Create account

Already have an account?