Lawyer lays out case, says B.C. owes Henry huge payout
Misconduct: Evidence was destroyed during original trial
Ivan Henry says he deserves at least $30 million for his wrongful conviction in 1983 for sex offences and the 33-year ordeal that followed.
His lawyer John Laxton told B.C. Supreme Court Wednesday Henry was due the same compensation as previous wrongfully convicted Canadians, even though it would be a historic total award for charter damages.
“It is submitted that, though there are no legal precedents, there are lengthy reports dealing with compensation for wrongful conviction that are extremely helpful,” Laxton argued.
He led Chief Justice Christopher Hinkson through some of Canada’s most infamous wrongful convictions, beginning in 1959 with Steven Truscott in Ontario.
Ultimately acquitted, Truscott was sentenced to hang at age 14 for murder, but he avoided the noose and served 10 years before release. He received $7.2 million, or $720,000 a year in 2015 dollars, Laxton said.
If you added an award for the last six years of traumatic litigation, considered that Henry’s circumstances were much worse (the police and Crown in Truscott’s case did nothing wrong), and added a premium for deterrence and vindication, Laxton calculated that meant Henry should get somewhere around $33 million.
Although most wrongful conviction awards have been negotiated or the subject of ex gratia payments, Laxton urged the court “to adopt the approach appraisers use when appraising a house, by reference to comparables.”
Other notorious cases, he said, helped establish a reasonable ballpark figure.
Thomas Sophonow, who served 45 months, received $2.6 million, translating into $29.6 million in 2015 dollars for Henry.
David Milgaard served 22 years and received $10 million, or about $20.2 million for Henry.
Guy Paul Morin got $1.25 million for 15 months, which would give Henry $43 million.
Laxton conceded it was difficult to assess the 69-year-old Henry’s intangible loss: “His damages are for the life he has lost which cannot be replaced.”
However, a large award, he added, would serve to deter future misconduct by prosecutors and put an exclamation mark behind Henry’s vindication.
Laxton emphasized Henry spent nearly three decades in a tiny cell, 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 in prison as a despised sex offender.
Laxton hammered the province for continuing since Henry’s release to defend the outrageous prosecutorial misconduct.
Henry was hampered in proving his innocence, he said, partly because the courts have only two verdicts, guilty or not guilty, but also because police destroyed semen and other evidence that could have exonerated him.
“He will never escape the stigma of being a serial rapist,” Laxton maintained.
He blamed the province for the “nasty” 11th-hour intervention by Rape Relief to put Henry’s innocence on trial. Victoria spurred Rape Relief on, Laxton suggested.
“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 Henry should be acquitted of 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. The details of those deals remain secret, but both disavowed allegations that Henry might be guilty even though such accusations were pointedly put to him during aggressive cross-examination.
While city lawyer Bruce Quayle led that attack, Laxton accused the province of sitting “in the weeds silently urging” him to throw “character bombs.”
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.”
The non-disclosure by police and prosecutors in the case was the most outrageous in Canadian history, he added, and “amounted to a coverup.”
The prosecution had control of the case from charge approval to appeal and knew from the start there was no evidence to justify a charge. He said Hinkson should consider the prosecutors’ 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, highhanded, oppressive, outrageous and was utterly intolerable in a civilized community.”
Though lead prosecutor Michael Luchenko is dead, Laxton said the evidence from the junior prosecutor on the 1983 case, Judy Milliken, was very important: “The Crown’s disdain for Mr. Henry oozed from her testimony.”
The province will present its final argument Dec. 16.