“I have a dream”; August 28, 1963

A panel of the Court of Appeal (Saunders, Levine and Lowry JJA) today granted Ivan Henry’s application to re-open his appeal, more than twenty-five years after he was convicted of eight counts of sexual assault and sentenced to an indefinite term of imprisonment. Calling it an “extraordinary” case, Madam Justice Saunders, for the Court, concluded that “in this highly unusual situation it is in the interests of justice that the appeal be re-opened.”

The decision is now available here: 2009 BCCA 12 R. v. Henry

Ivan Henry was arrested on July 29, 1982 and charged with a series of sexual assaults. He has been in jail ever since. Tomorrow he will learn whether he will have an opportunity that has eluded him for over a quarter century; the opportunity to appeal his conviction on the merits.

Mr. Henry defended himself at his trial before a judge and jury. No physical evidence (fingerprints, footprints, hair, bodily fluid, etc.) was tendered at trial to link him to any of the crimes, although police investigators had obtained some. He was convicted on the testimony of the complainants, several of whom were shown a lineup in which Mr. Henry was the only man being forcibly restrained by three uniformed police officers. He was convicted of ten counts involving eight women and, on November 23, 1983, declared a dangerous offender and sentenced to an indefinite term of imprisonment. He filed an appeal immediately, but it was dismissed for want of prosecution on February 24, 1984.

Still representing himself, Mr. Henry filed more than 50 unsuccessful applications in an attempt to overturn his convictions. His attempts to obtain legal aid funding were rebuffed.

In December, 2006 the Criminal Justice Branch of the Ministry of Attorney General announced that senior lawyer Leonard Doust, Q.C. was appointed “to determine whether there has been a potential miscarriage of justice” in the case. We were retained to represent Mr. Henry’s interests and, following the delivery of Mr. Doust’s report in 2008, legal aid funding was made available.

Ivan Henry, now 62, depicted in a recent photo

Sad news arrived recently with word that Richard Sugden, Q.C. died on January 5, 2009, four years after illness forced his premature retirement from the profession he loved. Although I didn’t know him as well as I would have liked, Rick was always unfailingly polite and generous with his time whenever I encountered him in the precincts of the Law Courts. He was a rarity; a terrific lawyer who thrived in the cutthroat world of civil litigation, yet one who retained high levels of civility and courtesy that all of us should try to emulate. He will be sorely missed.

There will be a special memorial ceremony on Friday afternoon, January 16, 2009 at the Great Hall of the Vancouver Law Courts.

UPDATE: A 17 year old Martinsville, Virginia youth is the latest to die after being Tasered by police. The unidentified boy died Thursday, January 8, 2009 after police responding to a disturbance jolted him with 50,000 volts. He is at least the 381st North American to die in similar circumstances.

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With nineteen days before the Braidwood Inquiry reconvenes to examine the circumstances of Robert Dziekanski’s death, it’s worth taking stock of what has occurred since the unfortunate Polish immigrant died at Vancouver Airport following five 50,000 volt jolts from an RCMP “less than lethal” TASER.

At least eighty other North Americans, mostly unarmed men, have died in similar circumstances since the Dziekanski incident on October 14, 2007. There were at least 64 deaths in 2008, starting with that of Brandon Smiley, 24 of Mobile, Alabama on January 2nd and ending with the death of an unidentified man in Harris County, Texas on Christmas Eve. The list includes six Canadians who died in 2008 after being Tasered: Jeffrey Marreel, 36 of Norfolk, Ontario; Michael Langan, 17, of Winnipeg; Sean Reilly, 42, of Brampton; Frank Frachette, 49, of Langley, BC; Trevor Grimolfson, 38, of Edmonton and Gordon Bowe, 30, of Calgary.

According to a recent CBC News study, TASER X26 models may discharge more energy than the manufacturer specifies. However, there is still no regulatory approval regimen for TASER products in Canada. An electric fence regulator must be CSA approved before it can be marketed, but electrical devices for controlling humans face no such scrutiny.

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Here, just for the heck of it, two late greats singing about the snow: