VANCOUVER — "Odd," "ironic," and "embarrassing" are among the words two prominent lawyers are using to describe British Columbia's legal defence against a man who was wrongfully imprisoned for nearly three decades.
Ivan Henry has sued the province, the federal government and the City of Vancouver after his 2010 acquittal on 10 counts of sexual assault — 27 years after he was originally convicted.
Eric Gottardi, former head of the criminal justice section of the Canadian Bar Association, said Tuesday that he was perplexed by the province's argument that Henry's sex-assault trial in the early 1980s may have ended differently had Henry not represented himself in court.
"It's an odd position for the province to be taking," said Gottardi.
"It's ironic that the province is saying, 'Well, this is one of the problems that comes from representing yourself — you might end up wrongly convicted,' when they're the ones that control a large portion of the purse strings in terms of access to publicly funded counsel through legal aid."
Michael McCubbin, who sits on the legal-aid action committee of the Trial Lawyers Association of B.C., called the province's position "embarrassing" when it argued that its failure to disclose important documents to Henry during the trial wouldn't likely have affected the outcome.
"(The province) is acknowledging a very legitimate miscarriage of justice for which they're responsible and then relying on a very technical and speculative argument to say that, 'Well, it doesn't really matter because (Henry) is too unskilled and simple to have done anything with it even if we had given him the documents,'" said McCubbin.
"What they're trying to say is, 'Yeah, we acknowledge that we screwed up. But even if we hadn't screwed up Ivan Henry would have been in the same position.'"
Neither Gottardi nor McCubbin are directly connected to the Henry case.
The documents in question that weren't disclosed to defence include sperm samples found on several complainants that failed to match Henry's blood type, as well as a hand-written letter from a complainant sent to the home address of one of the investigating officers.
"I didn't want to let you down. I didn't want to disappoint you," the complainant wrote in the letter read out in court by Henry's lawyer John Laxton.
Laxton suggested the letter held the reasons why the woman positively identified the accused.
"You have a very special place in my heart and I think of you often," read Laxton. "Take care of those blue eyes and don't work too hard.''
The complainant identified Henry using a police lineup in which he was held in a chokehold by three officers, which Laxton excoriated as "seriously flawed and unfair."
Henry reached a settlement with the City of Vancouver last week, but he is still pursuing compensation from the provincial and federal governments.
