Case Summary
Between 25 November 1980 and 8 June 1982, the Vancouver Police Department received more than 20 reports of attacks on local residents that followed a similar pattern.1 Generally, the assailant would break into the victim’s home and commit a sexual assault, in some instances bizarrely claiming to have been “ripped off” by someone who lived there. This pattern led investigators to conclude that these crimes were perpetrated by one man, dubbed the “rip-off rapist.”2 Police at first suspected Donald James McRae, alias Donald Hobson, in connection with these offences.3 McRae was known to police, and had twice been arrested, for his late-night predatory behaviour in Mount Pleasant and other Vancouver neighbourhoods where the “rip-off rapist” had struck.4
Ivan Henry was a construction labourer with a significant criminal record, including for attempted sexual assault in 1977, who had come to Vancouver while under mandatory supervision (that is, release from a correctional facility, similar to parole).5 He also happened to resemble McRae in appearance.6 Henry became the primary suspect when his ex-wife made a police statement suggesting that he might be the perpetrator.7 She later told one of her daughters, just prior to her death in 1990, that she had identified Henry “not because she believed he was guilty, but because the police threatened to turn her daughters over to Child Welfare and [also] paid her $1,000 for her information.”8
Henry was placed under police surveillance and then detained on May 12, 1982.9 Police forcibly placed him in a line-up with three officers, keeping him in a chokehold for its entire duration.10 Of the 11 women who were shown this line-up, 6 positively identified Henry as the perpetrator.11 Police released Henry following the line-up procedure and obtained warrants to track and wiretap him, but this did not yield any further evidence connecting him to the sexual assaults.12
In late July 1982, police showed J.F., one of the victims, a photo line-up with a picture of Henry taken outside his cell while he was in custody. J.F. tentatively identified him as the attacker.13 Police arrested Henry on July 29, 1982 and charged him with 17 sexual offences relating to 15 victims.14
Henry stood trial beginning on February 28, 1983, for 10 counts of sexual assault pertaining to 8 victims. (The Crown did not proceed with the other charges.)15 Refusing a Legal Aid lawyer, Henry represented himself.16
The Crown’s case against Henry was solely comprised of eyewitness evidence. Seven of the eight victims testified at his trial, identifying him in court as the perpetrator.17 The Crown also read into the record J.F.’s in-court identification of Henry from the preliminary inquiry (she did not give evidence at trial).18 Regrettably, this evidence was compromised from the outset by the manner in which it was obtained (i.e., the line-up where officers restrained Henry in view of the victims, and the photo taken of him in a correctional setting). As the B.C. Court of Appeal later observed, there was accordingly “no reliable pre-court [or in-court] identification” of Henry, nor did “forensic or other evidence” connect him to the attacks.19 In sum, “[t]his was decidedly not a strong case.”20 The trial judge, however, bolstered it in the eyes of the jurors, wrongly instructing them that Henry’s resistance during the “chokehold” line-up could be taken as evidence of his guilty conscience.21
On March 15, 1983, the jury convicted Henry on all ten charges.22 At a sentencing hearing where he again chose to represent himself, the Court found Henry to be a Dangerous Offender on November 23, 1983. He was then “sentenced to an indefinite period of incarceration.”23
Between 1984 and 2003, Henry made numerous attempts to draw attention to his wrongful conviction. He appealed both his conviction and his Dangerous Offender status, filed habeas corpus applications (to be released from unlawful imprisonment), and requested that the federal Minister of Justice review his case to determine if a miscarriage of justice had occurred. None of these approaches were successful.24
In 2005, Donald McRae – the initial suspect in the “rip-off rapist” investigation – pled guilty to three counts of sexual assault that took place in the vicinity of Mount Pleasant.25 A provincial prosecutor noticed similarities between the “rip-off rapist” offences and this series of assaults, and commenced a review of Henry’s file, concerned that he might have been wrongfully convicted.26 As a result, Henry’s appeal was reopened in 2009. He was granted bail pending appeal on June 12, 2009, having spent almost 27 years in prison.27
The British Columbia Court of Appeal quashed Henry’s conviction and acquitted him on all charges on October 27, 2010. The Court found that no reasonable jury could convict him.28 The Court concluded that, like the in-person (“chokehold”) line-up, the photo line-up provided to witnesses had been unfair to Henry because he stood out from the rest. Unlike the other pictures, Henry’s had been taken in front of a jail cell “with a uniformed police officer in the foreground.”29 His age, hairstyle, and facial hair (he was the only one with a mustache) set him apart from the others as well.30 The Court found that this initial “ process of identification was polluted so as to render [his] in-court identification . . . highly questionable and unreliable.”31
The Court further observed that the Vancouver Police Department lab had not properly preserved samples taken in connection with the “rip-off rapist” offences. This rendered the samples valueless, as a result of which they were destroyed, and this promising source of DNA evidence was forever lost.32
Henry launched a civil suit against police, prosecutors, and several levels of government on June 28, 2011. He settled with the City of Vancouver and the federal government for approximately $5 million.33
Henry’s claims against the provincial Crown went forward to a civil trial. The Court found in Henry’s favour, concluding that the Crown had breached its duty of disclosure towards him by failing to provide a long list of evidence relevant to his defence, including the following.34 First, the Crown did not disclose “medical, lab and police reports” showing that semen samples were obtained in connection with four of the assaults (which potentially could have exonerated Henry). Second, he was not made aware that some of the victims who identified him at the “chokehold” line-up were later shown a picture taken of him at this line-up (further cementing their sincere but mistaken belief that he was the assailant). Third, he was unaware of the police investigation pertaining to alternate suspect McRae – including his having twice been arrested for predatory behaviour in the Mount Pleasant vicinity.35
Further, the Court concluded that the Crown had “made intentional decisions on more than one occasion not to provide [this] disclosure” to Henry or his appeal lawyers.36 The Court found that the undisclosed information “was material and [that] a reasonable prosecutor would have known that failure to disclose it would impinge on full answer and defence” – that is, Henry’s right to receive a fair trial.37 The Court characterized this conduct as “serious instances of wrongful non-disclosure that demonstrate[d] a shocking disregard” for Henry’s constitutional rights.38
On June 8, 2016, the Court ordered $8 million in damages for Henry’s wrongful conviction and lengthy incarceration.39 (The previous $5 million settlement award was subtracted from this amount, meaning that he received approximately an additional $3 million.40) No one besides Henry has been prosecuted for the “rip-off rapist” offences, which remain unsolved.