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

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:

Daniel Antony King’s death at the end of a police pursuit on October 13, 2006 was a homicide, a coroner’s inquest jury has ruled. The anonymous five person jury had heard seven days of evidence from some 25 witnesses before deliberating and releasing its verdict yesterday. They first returned a draft verdict that was kept secret by the coroner.

The jury heard that Danny King, 37, died from multiple gunshot wounds after being shot five times by a Burnaby RCMP member and a New Westminster police member at a Burnaby gas station. According to the evidence, Mr. King lay gasping for breath for several minutes before police officers radioed for an ambulance. No police officer of the dozen or so on the scene rendered first aid.

RCMP media relations personnel originally indicated that lethal force was used because Mr. King produced a hangun. Several days later, they advised the media that the handgun in question was actually an imitation. Evidence presented at the inquest indicated that the toy plastic “Made in China” pistol found at the scene was sent for forensic analysis to lRCMP labs in Vancouver and Edmonton. However, the RCMP produced no forensic reports indicating that Mr. King’s fingerprints or DNA were on the toy.

Testimony at the inquest also revealed that RCMP homicide investigators never interviewed either of the two police officers who fired the fatal shots.

The jury made five recommendations:

1) that video and audio equipment be installed in patrol cars;

2) that transponders be installed in patrol cars;

3) that police officers responding to calls make every effort to “radio in” their location;

4) that officers involved in a lethal force situation be held to a speciified time frame for providing a statement; and

5) that RCMP and municipal police forces create a program implementing “emergency response training”.

These recommendations, which have no binding effect, will be forwarded to the appropriate agencies.

The coroner’s inquest into the death of Daniel Antony King is scheduled for up to eight days commencing December 8, 2008. All hearings, which are open to the public, will be held at the Office of the Chief Coroner, 20th floor, Metrotower 2, in Burnaby, BC starting at 9:30 a.m..

Mr. King, 37, was shot and killed by RCMP and New Westminster police officers at a Burnaby gas station on October 13, 2006. After the shooting, the RCMP issued a series of media releases (Burnaby file no. 2006-54556).

The first media release, at 6:00 a.m. October 13, 2006, stated:

“At 12:23 a.m. this morning, there was a police involved shooting at the Mohawk Gas Station on Canada Way at Edmunds in Burnaby. One male suspect is deceased, no one else was physically injured in this incident. As a result of this being a police involved shooting the Integrated Homicide Investigation Team (IHIT) have been assigned to conduct an independent investigation. This is a multi-jurisdictional event including the New Westminster Police, Coquitlam RCMP and Burnaby RCMP.”

(Note: IHIT is a team of police officers that includes investigators from the New Westminster Police Service and the RCMP)

The first RCMP media update, issued at 10:59 a.m., said, “A press release is to be issued at 11:30 a.m. This is not a press conference…”

The press release issued at 11:38 a.m. described the shooting this way: “As officers approached, the suspect produced a handgun. In an attempt to subdue the driver, the police officers were required to engage in lethal force. The driver was shot several times. He was transported to Royal Columbian Hospital where he was pronounced dead.”

The next media update, at 4:56 p.m. on October 16, 2006, identified the deceased and included this remark: “Forensic Identification Specialists and investigators who examined the shooting scene have confirmed the handgun KING produced as the police officers approached the vehicle, was an imitation handgun.”

Twenty-five witnesses are scheduled to testify. According to the BC Coroners Service:

“Inquests are formal court proceedings, with a five-person jury, held to publicly review the circumstances of a death. The jury hears evidence from witnesses under subpoena in order to determine the facts of the death. The presiding coroner is responsible to ensure the jury maintains the goal of fact finding, not fault finding.”