white-haired woman and man at table with ocean behind
Joan McEwen (left) heard of the case of Ivan Henry (right), investigated and quickly became his champion for justice (Photo: courtesy of Joan McEwen)

Topics: Justice | Activism

Wrongful conviction of Ivan Henry in B.C. spurs calls for reckoning

He spent 27 years in jail for a spate of rapes he didn't commit, a conviction so sloppy the B.C. Court of Appeal couldn't let it stand


They make an unlikely pair, talking intently at a corner table in the lounge of the Hyatt Regency Hotel in Vancouver on a sunny Tuesday morning. Joan McEwen is pert and petite, fashionably dressed and laser-focused, a compact bundle of intelligence and energy. Ivan Henry is a big, burly, freckled fellow with gaps in his dentition and faded jailhouse tattoos.

They’re meeting, as they have often these past couple of years, because he’s been victimized by the criminal justice system and she’s determined to help him seek redress. She wants to make Ivan Henry’s name as well known to Canadians as David Milgaard’s or Steven Truscott’s.

Henry grew up rough in Regina, quitting school after Grade 8 and fleeing an abusive home for a life of petty crime. In his late teens, the crime became less petty. Besides convictions for break-and-enter and car theft, his record includes a three-year prison term for stealing a television and a five-year term for attempted rape.

In the early 1980s, while on mandatory supervision, he ended up in Vancouver. To support his drug-addicted wife and their two young daughters, he worked construction jobs and sold designer jeans from the trunk of his car.

During this period, the Clifford Olson sexual murders of young people had galvanized the Lower Mainland. Once Olson was arrested, his cash-for-bodies deal (the RCMP paid his wife $100,000 in return for Olson’s revealing the location of the corpses) outraged the public. At the same time, week after week, a serial rapist was terrorizing Vancouver. The police badly needed a PR win.

With his record, Ivan Henry was a promising suspect. Pulled over in a traffic stop in May 1982, he found himself being interrogated, muscled into a bizarre police lineup and accused of sexually assaulting 17 women.

Fearing that his legal aid lawyer was part of a conspiracy to frame him, Henry dismissed the lawyer and belligerently, ineptly represented himself. After a two-week trial, he was found guilty of 10 sexual crimes, declared a dangerous offender and sent off to prison to serve an indefinite sentence.

Joan McEwen has a morbid fear of prisons, and she knows exactly where and when it started. When she was a little girl in East Vancouver, her father took the family for Sunday drives in the Fraser Valley. One day, they ended up on a dirt road that led to a massive, dungeon-like building.

“There were towers, and bars on the windows, and it freaked me out,” she recalls. “I asked my dad, ‘What’s that?’ and he said, ‘It’s a jail.’ Ever since, I’ve had a visceral fear of being locked away, unable to do what I wanted.”

After getting an English degree at the University of British Columbia, travelling in Europe and trying her hand at teaching, McEwen enrolled in law school. She considered a criminal practice but couldn’t bear the idea that her clients might end up in jail and opted for labour law instead.

During the next 12 years — articling, clerking for the B.C. Supreme Court justices, joining Davis & Company and then Campney & Murphy, marrying the eminent lawyer Irwin Nathanson, adopting two children and setting up practice as a private arbitrator — the childhood image of that prison haunted her.

McEwen had always wanted to try creative writing. When she took a course at Simon Fraser University, she recalls, “The instructor told us, ‘Write about what you know.’ I thought, no, I’m going to write about what I’m afraid of.” She conceived a novel about a convict and his parole officer, and started visiting prisons in the Lower Mainland for research. The first time she toured a facility, she says, “my heart was beating so fast I thought it would burst my chest.”

Gradually she became relaxed in the penal environment. The more inmates she met, the more sympathetic she became. “We only ever think about offenders twice,” she says. “When they’re on trial, if it’s newsworthy. And then, years later, when they’re applying for parole.” But for inmates living through the interim, time slips by with agonizing monotony, danger flares and subsides, and conditions gradually deteriorate. Playing fields are sacrificed to more living units. Libraries are closed. Therapeutic programs are done away with. Non-Christian chaplains are eliminated from the payroll.

Having inherited a passion for social justice from her staunchly NDP father, McEwen, together with her husband, quietly donates books to prison libraries, offers pro bono legal advice to her incarcerated friends and helps inmates near the end of their sentences transition back into the community.

McEwen first heard of Henry through reports of his acquittal in 2010 by the B.C. Court of Appeal. Researching her novel, curious to know how he’d survived in penitentiaries as a sex offender for almost three decades, she contacted him through his lawyers. “Half an hour into our first meeting, at a coffee shop in North Vancouver,” she recalls, “I was listening, open-mouthed, to the story of his wrongful conviction.”

She set out to either confirm or rule out his innocence. How did she conclude he’d been framed? “By reading piles of transcripts and documents and interviewing dozens of people,” she says. “Before long, there was no doubt. The question became, why were they so eager to pin it on him? And how can I prove it?”

It hasn’t been easy. Thirty years after the trial, exhibits and documents have gone missing. Many key players are dead. Only two of the original complainants would speak to McEwen, and only two of 12 jurors. Neither the Vancouver Police Department nor the Crown was helpful. Even Henry’s own lawyers won’t speak to her.

Nonetheless, working almost obsessively, she’s found abundant evidence to support his contention of miscarried justice. “Ivan was nowhere near most of the crime scenes,” she explained over lunch in Vancouver not long ago. “He had solid alibis. The police knew it, which is why they failed to investigate his alibi statement. He asked repeatedly to take a polygraph test, to show he wasn’t lying. They refused to give him one. Semen was collected from several victims, but they never did serology testing, even though it was standard investigative practice at the time.

“I reviewed the testimony of 15 women, and it was obvious that most — if not all — had been coached by the police. Expert studies in the area of memory implantation show that people can come to honestly believe they saw things they did not. The six trial complainants who had attended the lineup went from having only fuzzy memories of their attacker to providing very specific descriptions at trial.”

McEwen produces a photo of the lineup. “It’s ludicrous — Ivan being held in a chokehold by three uniformed Vancouver police officers. As freewheeling as justice was back then, the Court of Appeal had no trouble in its acquittal decision, calling the lineup biased and farcical. Ivan maintains he was never even in that lineup.”

The trial judge, she adds, made numerous errors. When Henry dismissed his legal aid lawyer, the judge failed to appoint an amicus curiae, a friend of the court, to help him through the legal process. The judge also told the jury, incorrectly, that Henry’s reluctance to participate in the police lineup implied guilt.

Henry was no saint, of course, but “his prior conviction for attempted rape shouldn’t have been allowed into evidence,” says McEwen. “In contravention of the presumption of innocence, to which every offender is entitled, the judge kept referring to Henry, in his charge to the jury, as ‘the attacker,’ rather than ‘the accused.’” Though he was considered a criminal law expert, the judge — now dead — “went so far as to hang a trophy photo of the lineup in the judges’ lounge.”

The cards, McEwen concluded, were stacked against Henry from the start. “You see it through the whole process: the arrest, the lineup, the preliminary hearing, the trial, the dangerous offender designation. And then, once he was in prison, the way his appeals were either ignored or dismissed. He didn’t have a chance.”

Most of Henry’s time was served in the Saskatchewan Penitentiary, near Prince Albert, and at Mountain Institution, near Agassiz, B.C. The horrors of life behind bars as a sexual offender are too many and too disturbing to recount here.

Suffice to say that Ivan Henry, whatever his faults, is a man of extraordinary fortitude, faith and perseverance. He read the Bible, and he prayed. He spent so much time poring over legal texts that they named the prison library after him. His best friend inside, a serial killer, protected him. When Henry’s teeth rotted and he couldn’t get dental care, he yanked them out with pliers.

“I knew my family was suffering,” he says, “emotionally, financially, in every way. I had to put those thoughts aside. I had to get out. I never stopped pushing, no matter what. Other inmates believed I was either innocent or a complete bug case who was chasing a shadow.”

Henry’s wife died in 1990. A month before she passed away, she confessed to one of their daughters that Ivan was innocent and she herself had caused his arrest. She had fingered him as the rapist, not because she believed he was guilty, but because she was paid $1,000 for her information, money she used to support her addiction.

Henry’s acquittal — after 27 years of proclaiming his innocence — came about because, the appeal judges ruled, his convictions were so flawed they could not be allowed to stand. Instead of declaring him innocent, however, the B.C. Court of Appeal merely declared him not guilty.

There are two kinds of innocence: actual and legal. Some wrongly convicted people are exonerated, meaning their innocence is established through DNA, an ironclad alibi or a third-party confession.

Unfortunately for Henry, the semen samples collected at the time have been lost or destroyed. The police never checked his alibi. And though McEwen says she now knows, through her own research, who the actual rapist was, the likelihood that he will ever be arrested and confess is slim.

Most wrongly convicted people are not exonerated but, like Henry, merely acquitted. Without an official declaration of innocence, such people are often viewed as offenders who got away with it, beat the system on a technicality.

Ivan Henry was 35 years old when he was led off in manacles. Pierre Trudeau was prime minister, the final episode of M*A*S*H drew a record audience, and Mark Zuckerberg had not yet been born. Henry’s now 66. In a world that bears scant resemblance to the one he left behind, he’s had a predictably rocky time. He lives in a basement suite in the home of one of his daughters, playing with his grandchildren and cuddling their chihuahua at night.

In his first weeks of freedom, he was afraid to go outside. The pace of life, the traffic, the commotion, the technology — merely walking down the street sent his heart racing. When his daughter asked him to mow the lawn, he was terrified: the task seemed monumental. When someone posted his address in a nearby mall, he received death threats. Struggling to cope, he thought his best option might be to return to prison.

“A convicted murderer being paroled is placed in a halfway house, offered counselling and given job-placement assistance,” McEwen points out. “He gets at least a nominal chance at reintegration. Someone found not guilty after a wrongful conviction, however, gets no support whatsoever.” Or, as Henry himself puts it: “One day you’re in this shithole that’s your life. The next day you’re out, trying to make sense of it all.”

“Some U.S. states now offer compensation in wrongful conviction cases, but that doesn’t help Ivan,” says Tamara Levy, director of the Innocence Project at the University of British Columbia. “He’s fortunate to have Joan on his side. She’s committed to doing the right thing.”

So engaged has McEwen become by Henry’s case — and the broader issue of wrongful convictions — that she travelled with Levy to two recent Innocence Network conferences in the United States, meeting forensic experts and listening to freed men and women tell their stories. Hundreds of wrongful convictions have come to light in recent years, thanks mainly to the increased sophistication of DNA testing.

“What struck me is that most of these guys are not bitter,” says McEwen. “They’re just glad they’re out. Ivan isn’t bitter, which is amazing. I guess enough of his life has been wasted that he doesn’t want to spend another day looking back and being angry about what happened.”

Henry’s lawyers have filed a lawsuit with the B.C. Supreme Court. It seeks damages from the attorneys general of the province and the country, the City of Vancouver and various members of the Vancouver Police Department.

“As a result of the wrongful acts and omissions of the defendants,” his lawyers maintain, “the plaintiff was charged, detained in custody, wrongfully convicted and imprisoned, and his wrongful convictions were not set aside until 2010.”

His lawyers argue that Henry suffered humiliation, disgrace and pain, losing his liberty, reputation and privacy, the enjoyment of life and everyday experiences, as well as income, benefits and a pension. The suit also seeks compensation for his daughters, who were “effectively deprived of a father and of the benefits of a father’s love, guidance and affection.”

All true, of course, and Henry stands one day to receive a settlement. (David Milgaard, who served 23 years for a rape and murder he did not commit, got a tax-free package worth $10 million.) Exactly when is uncertain, however; the defendants have no reason to seek a speedy resolution. Meantime, Henry survives on a meagre pension cheque.

McEwen believes that Henry’s story deserves to rank — along with those of Milgaard, Truscott, Donald Marshall Jr. and Guy Paul Morin — among the sorriest miscarriages of justice this country has seen. She’s writing a book about the case and talking to the television networks in hopes it will become equally notorious.

“If ever a case cries out for investigation,” says McEwen, “it’s this one. Why doesn’t the government convene a commission of inquiry, as it has in many wrongful conviction cases, so that witnesses can be summoned and evidence taken under oath?”

Perhaps because, as the American attorney Barry Scheck, co-founder of the Innocence Project, points out, “The criminal justice system exempts itself from self-examination. Wrongful convictions are seen not as catastrophes but topics to be avoided.”

“Ivan Henry is tragic, living testimony to the fallibility of our legal system,” says McEwen. “He’s innocent as a matter of fact — not just a matter of law. I want to see him exonerated, and I want to see him properly compensated for the horrible waste of his life. I don’t plan to stop until that happens.”

Gary Stephen Ross is an author, editor and communications consultant in Vancouver.


This story first appeared in The United Church Observer’s October 2013 issue with the title “Wronged.”


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