ANOTHER WRONGFUL CONVICTION: IVAN HENRY “INNOCENCE ON TRIAL” by JOAN MCEWEN

BarristerI admit it…I’m a crime junkie. I’ve read every true crime book written by Ann Rule and Jack Olsen. I’m also a big fan of America’s Most Wanted, and I frequently peruse the FBI Most Wanted List. Don’t hate me when I tell you that I follow the executions in the States, even though I’m against capital punishment.

Having established my credentials to review Vancouver lawyer Joan McEwen’s new book “Innocence on Trial: The Framing of Ivan Henry” Heritage House Publishing 2014, I should also add that I’m a criminology graduate and have been married to a police officer for almost three decades.

Beginning with Steven Truscott and on to David Milgaard, Guy Morin, Romeo Phillion, Michael Morton and so many others, I have been horrified by the number of men who have languished in prison for crimes they did not commit, both in Canada and the United States.

But Joan McEwen’s story of the persecution of Ivan Henry brings it all home, right to our doorstep in Vancouver British Columbia, where a down-on-his-luck ex-con, father to two young daughters, found himself ensnared in a nightmare that still has not ended, after serving 27 years in prison.

Ivan Henry, age 35, was in an on-again/off-again relationship with ex- wife Jessie, a drug addict, when he was detained by the Vancouver Police Department as a burglary suspect. What he didn’t know was that the police were really after him for fifteen sexual assaults attributed to a sex offender the police called the “rip-off rapist”, based on the offender’s pretense that he was looking for someone who had stolen from him. Henry’s record contained one hit for attempted rape, a charge he pled guilty to on the advice of his lawyer when he lived in Winnipeg.

He denied being involved in any sexual offences and offered to take a polygraph test. The police declined his offer, but were adamant that he participate in a line-up. When he resisted, three “lean and mean” uniformed officers grabbed him and maneuvered him into a line with an assortment of their dark-haired colleagues, wrapping themselves around him, while holding his head of red hair in a vise-grip.

The photo of that line-up became a crucial part of Henry’s case and it was later revealed to be a “trophy”, retained by the trial judge, Mr. Justice Bouck, who proudly displayed it in the Judge’s Lounge in the courthouse at 800 Smithe Street, Vancouver. Cheap laughs…

Henry was immature and ornery, and too foolish to realize he was in water over his head when, after a preliminary hearing before His Honour Wallace Craig, he was committed to trial for ten counts of rape. Before his 1983 jury trial began Henry fired his legal aid lawyer. When offered the services of legal star, Richard Peck as trial counsel, Henry declined, believing the system was rigged and that Peck was just another player in the grand conspiracy against him.

How difficult could it be? There was no evidence against him: no hair, fibre, DNA , confession, or eye witnesses, and he had an alibi for many of the times he was alleged to be in flagrante delicto.
His trial tactics were unconventional, to say the least. Because he knew he had not assaulted any of the parade of women who identified him as their rapist, some of whom said they recognized his voice, he argued they were all liars…making it all up.

Before the trial completed Henry came to the realization that while he could handle the facts, he needed a lawyer to help him with the law. When he asked Mr. Justice Bouck to allow him to obtain a lawyer for that purpose, Bouck J. said:

“You should have thought of that before…I said you should have a lawyer. You turned it down. You elected to represent yourself. You take the chances…We’ve given you a copy of Martin’s Criminal Code.”

After ten hours of deliberation, the jury convicted Ivan Henry on all ten counts, whereafter Crown Counsel Mike Luchenko announced the Crown was seeking a dangerous offender designation. As night follows day, Henry was “bitched”, the expression used to describe criminals found to be “habitual” or dangerous offenders.

Henry poured over law books in preparation for his appeal but could not afford the thousands of dollars required for the court transcripts. Eventually he appeared before British Columbia’s Court of Appeal on a motion to dismiss the appeal for want of prosecution, brought by appellate crown Al Stewart, later Mr. Justice Stewart. Of course, the
Crown won and Henry was banished to purgatory. Later his leave to appeal to the Supreme Court of Canada was also rebuked.

Ms. McEwen’s carefully researched story reveals indifference, betrayal, class discrimination, and worst of all, a cast of characters who didn’t give a damn about Ivan Henry. He was just the usual collateral damage in the state’s zeal to close the books on a series of assaults that continued after Henry was locked away.

As the truth spills out, we learn that Ivan Henry’s ex-wife, sold him down the river, a la Judas Iscariot, in exchange for a few pieces of silver and gold, that ended up in her arm.

The unfortunate women who were victimized by a rapist, were then victims of a justice system that wasn’t really interested in the truth, for if it had been, they could have seen it staring in their face.

It is difficult to say who comes off worse in this sordid tale. Based on Ms. McEwen’s careful narrative, it must be a tie between Crown Counsel Mike Luchenko and trial judge Mr. Justice Bouck, both of whom deserve censure for the roles they played. By 1983, it was no secret that eyewitness testimony was unreliable and could never, by itself, be the foundation for a life sentence. But that’s what happened.

Years later, when one of the heroines of this story, Crown Counsel, Jean Connor , voiced her suspicions to the Attorney-General, concerning the convictions of Ivan Henry, McEwen reports that Mr. Luchenko tried, undeservingly, to take credit for an eleventh hour redemption.

With twists and turns galore, and an unvarnished glimpse of Canada’s brutal prison system, Ms. McEwen’s book is a compelling must-read for anyone who still believes justice should be blind, and that it is better that ten guilty men go free than to have one innocent man suffer.

Lawdiva aka Georgialee Lang

Airhead Reality Star Chastised by Divorce Court Judge

GEO CASUALNothing irks me more than women who have no  obvious intelligence or talent,  other than to parade around in their underwear on the set of a reality TV show. Case in point? Bethany Frankel.

She started her television career as one of two finalists on Martha Stewart’s short-lived TV show “The Apprentice”, a spin-off from Donald Trump’s hit show. She then appeared on the Real Housewives of New York City, a reality TV franchise I have never watched, with the exception of the Real Housewives of Vancouver with its irrepressible star, Jody Claman.

To her credit, Ms. Frankel created a beverage company called “Skinnygirl Cocktails”, and later sold it for millions of dollars. I tasted the mojito version once and pronounced it light but adequate.

She’s been married twice: the first marriage lasting a year and the second lasting two years. It was while she was in divorce court this week that her silly behaviour came to the attention of the judge.

Bethany had  earlier posted a photo of herself on instagram where she posed in her four-year-old daughter’s pink  Hello Kitty pyjamas, very proud of the fact that she could fit into them! The photo went viral.

Justice Ellen Gesmer admonished Ms. Frankel, by telling her lawyer “no more pyjamas!”. When her counsel explained  to the judge that it was simply a joke, she replied “It’s not a joke, her child is not a joke.”

With today’s inane celebrity culture, Ms. Frankel has managed to accumulate $55 million dollars in assets, property that her estranged spouse, Jason Hoppy, is hoping to share with her.

Happily for this little family, the parties have agreed to share custody of Brynn, now the fight is just over money, of which Ms. Frankel has lots!

Ever Hear of “Divorce Trolling”? Me Neither.

10950859361151CDPApparently “divorce trolling” has gotten so bad in the State of Michigan that a new law has been proposed to outlaw the practice, a bill sponsored by Michigan Republican Senator Rick Jones.

You ask “what is divorce trolling?” Good question. According to Senator Jones:

“When a woman is a victim of domestic violence and decides to file for divorce from her abusive husband, she should not have to worry about a trolling attorney tipping off her husband before she has time to protect herself and the children by taking actions like moving into a shelter house or getting a personal protection order.”

The proposed law will make it unlawful for a person to intentionally contact an individual that the person knows to be a party to a divorce action filed with a court, or an immediate family member of that individual with a direct solicitation to provide  a legal service until the expiration of 14 days after the date the proof of service is filed with the Court.

A first violation of this law is punishable by a fine of not more than $1,000, but if you get caught a second time or more, you’re looking at possible imprisonment and a fine of not more than $5,000.

I can only guess that divorce lawyers in Michigan are desperately in search of clients. Here in Vancouver it takes weeks to get an appointment with a top lawyer and even then, they may not want your case.

The good senator, a former sheriff, wants to make sure that women and children who flee a violent relationship aren’t further bugged by lawyers during this emotional time. Hard to believe that legislators in Michigan have nothing better to do than enact unenforceable laws.

I can picture it now…a sleazy lawyer lounging in  a criminal courtroom, jotting down names of domestic violence victims so he/she can run to a telephone to offer legal services to their spouse? Ya think?

Guest Post: Spousal Support: Heads She Wins, Tails He Loses

I have been a fan of Ontario lawyer/writer KAREN SELICK (karenselick.com) for many years and appreciate her “tell-it-like-it-is” approach to some of Canada’s absurd laws. Karen wrote the piece below on spousal support seventeen years ago in the November, 1997 issue of “Canadian Lawyer”, when the Spousal Support Advisory Guidelines were nothing more than a law professor’s dream. Enjoy!

“The law of spousal support has become so repugnant to me lately that I often ponder giving up the practice of family law altogether.  It’s almost impossible to feel good about what you’re doing.  If you act for wives, you have to inform them about the kinds of claims they can make—including claims which I consider to be unjust or downright ridiculous.  If you act for husbands, you have to be prepared to be on the losing side most of the time. 

It seems that no matter what course a couple’s married life took, the wife can always find some reason to claim spousal support.   If she  worked outside the home and supported her husband while he became a brain surgeon, her claim is for “compensatory support.”  If she did just the opposite, sitting around eating bonbons while the brain surgeon supported her, her claim is for  “developing a pattern of economic dependency.”

I’ve even seen cases where the wife has claimed both grounds in the same action, oblivious to the possibility that the bonbon-eating lifestyle she enjoyed in the later years of marriage has already more than compensated her for whatever work she did in the early years, or to the idea that if she was such a great provider in the early years, there was nothing stopping her from maintaining her lucrative career throughout the marriage. 

In fact, the only common thread running through most support orders is this: males pay.

I remember reading once about the peculiar notion held by some eastern philosophy that if you rescue a person from impending death, you become responsible for him for the rest of his life.  Canadian courts seem to apply a similar prescript to support cases.  Once a man has kindly provided a woman with a higher standard of living than she could reasonably have hoped to achieve on her own, he’s stuck with providing it for years to come—maybe even the rest of her life–regardless of how she has behaved toward him or the reason they separated. 

The Divorce Act enshrines this principle.  It tells judges to alleviate any economic disadvantage arising from either “the marriage or its breakdown.”   That “or” is a powerful word.  Suppose the marriage gave the wife an advantage rather than a disadvantage: a more affluent, leisured lifestyle than she would have earned on her own. Then, obviously, the termination of the marriage constitutes a disadvantage. 

If a man genuinely caused his wife some disadvantage during the marriage, he pays for that reason.  But if instead he bestowed an advantage upon her, he pays for having stopped.  Heads she wins, tails he loses.

Another objectionable thread woven through both the legislation and the case law is the notion that if a woman can’t support herself after separation, the courts should make her ex-husband support her rather than see her go on welfare.  Maybe the legislators and judges who came up with this idea thought it would placate opponents of welfare. If so, they’ve misunderstood the nature of the objection to welfare. 

Welfare is objectionable because it is coercive and one-sided.  It’s not like charity, which is voluntary.  It’s not like a contract, from which both parties benefit.  No, welfare simply forces some people to hand over money to others whose predicament they didn’t cause and who have provided no value in exchange. 

The same could frequently be said about spousal support.  Take, for instance, the recent Ontario case, B. v. B.   The trial judge accepted the husband’s evidence that this was a marriage “made in Hell.”  The wife, whose IQ was only 68, didn’t work outside the home, but also didn’t do housework.  She watched a lot of television, while the husband assumed responsibility for cooking and cleaning, in addition to being the sole breadwinner.  They argued a lot, and she was occasionally violent towards him. 

The trial judge awarded her only time-limited support, saying “…this husband started to pay for this marriage about three months after it occurred, and then he paid for the next 15 years, and I am not prepared to make him pay for the rest of his life.” 

On appeal, the Divisional Court removed the time limit on the wife’s support, stating explicitly that the burden of the wife’s support should fall on family members, not on taxpayers.  Why?  What principle of justice or morality warrants making Mr. B. pay, as opposed to some unrelated taxpayer? Neither of them caused the wife’s need for support. Neither of them ever received any benefit from her existence.

In fact, we’ve thrown out just about every principle there ever was—from the notion of contract to the notion of fault—that made matrimonial law rational, comprehensible, predictable, controllable or just.  While some people may feel that no-fault support has been a liberating event, it’s clear that for others, it has meant nothing but grief and involuntary servitude. 

It’s about time we re-examined the unfashionable idea of marital conduct to see whether justice can ever again form part of matrimonial law.”

Lawdiva aka Georgialee Lang

Debunking the Myths About Canada’s Proposed Prostitution Law

_DSC4179 - Version 2The Harper government’s new prostitution Bill C-36, The Protection of Communities and Exploited Persons Act, has polarized stakeholders as evidenced in the ongoing hearings before the Senate Legal and Constitutional Affairs Committee, with no consensus among social service agencies who provide support to prostitutes, among prostitutes themselves, or among legal analysts and lawyers who study the issues.

Those who condemn Bill C-36 and favour full legalization of prostitution in Canada focus their remarks on the following arguments:

1. Prostitutes choose to work in the sex industry and like it.

Because some women have the emotional maturity to choose this work, it does not mean that one should ignore the vast library of research that shows that in the main, prostitution is a survival strategy, a last option, and the very edifice of prostitution is built on the lie that women like it.

A United Nations International Labour Organization report in 1998 found that prostitution was one of the most alienated forms of labour.

2. Bill C-36 will push prostitution further underground.

The empirical evidence from Sweden is that street prostitution was cut in half by the Nordic model as working girls were free to sell their services unimpeded by the law in safer, indoor locations. (See “The Ban Against Purchase of Sexual Services: An Evaluation 1999-2008″ Swedish Government report 2010).

With Bill C-36’s decriminalization of common bawdy houses, women will be free to set up their own indoor situations or go online and advertise their services.

3. Bill C-36 will make prostitutes less safe.

It can’t be sugar-coated. Prostitution is a dangerous way to make a living and making it legal for women to sell sex will not change this. However, research shows that safety issues are present  whether prostitution is legalized or criminalized. If one works as a prostitute, no matter the legal structure, there are very high odds of physical and sexual violence as well as long-lasting trauma.(See `Prostitution and Trafficking in Nine Countries: An Update on Violence and Post-Traumatic Stress Disorder”,Dr. Farley et al)

4. Bill C-36 is a conservative moral crusade

Governments throughout Europe are adopting laws that embrace the Nordic Model, including socialist (Sweden and France) and progressive governments (Iceland, where the sex industry has virtually been shut down, on account of a large number of women in elected office). The twelve-year legalization experiment in Holland and Australia has been a debacle. Prostitution has increased, trafficking of foreign  sex workers has increased, and pimps are now cast as legitimate businessmen. Women and girls work underground rather than registering and paying tax.(See “Legalizing Prostitution is Not the Answer”, Drs. Mary Sullivan ad Sheila Jeffreys 2001 http://www.catwinternational.org)

If one considers equality for women a moral issue, then yes, it is a moral issue.

5. Bill C-36 will be struck down by the Supreme Court of Canada.

The proposed law is a radical departure from its predecessor. Under the Criminal Code, prostitution was legal. Under Bill C-36 it is illegal for men to purchase sex. The law is no longer directed at activities that surround prostitution, such as soliciting  sex on a street corner or operating a common bawdy house. The new law calls a spade a spade. Prostitution hurts and exploits women and children.

Bill C-36 treats women as the victims they are, they will not face criminal  sanctions unless they ply their trade in the immediate vicinity of school grounds, playgrounds, or daycare centres. All easily avoidable.

The current legislation was struck down because the connection between the effect of the law and the object of the law i.e. public nuisance, was illusory. It was taking a legal sledge hammer to maintain public order arising from a legal activity. It was grossly disproportionate. Bill C-36 clearly sets out its goal: the illegality of the purchase of sex and the abolition of prostitution.

Lawdiva aka Georgialee Lang

Divorce Fraud Leads to 17 years in Prison

GEO#1California businessman Steven Zinnel, age 50, thought he could get away with cheating his wife, his two teenage children, and the bankruptcy court, but he was wrong….boy was he wrong!

Zinnel and his wife, of Gold River, separated in 1999. By 2001 their uncoupling got even more ugly when he told his wife she would get nothing, no assets or support because he was filing for bankruptcy.

Zinnel systematically funnelled millions of dollars into the names of other persons and true to his word, filed for voluntary bankruptcy in 2005. He also laundered money through shell corporations in order to conceal his true income.

Shockingly, he did all this with the assistance of lawyer, Derian Eidson, age 50, who used her trust account, her personal account and a corporation she owned to return the funds to Zinnel after his discharge from bankruptcy.

But he didn’t stop there…Zinnel went on to initiate an FBI investigation of his ex-wife, displaying a hatred that knew no bounds and that eventually led to his own demise.

In the course of the investigation, authorities uncovered Mr. Zinnel’s bankruptcy and divorce fraud. Before U.S. District Court Judge Troy Nunley he was sentenced to 17 years and eight months in prison, fined $500,000, and ordered to disgorge the sum of $2.8 million to the state.

Judge Nunley in bankruptcy court and the 3rd District Court of Appeal in respect of his divorce matter condemned Zinnel for his narcissistic arrogance, and found that while he was articulate and charismatic he used those traits for his own selfish purposes.

Yorba Linda lawyer Ms. Eidson, was disbarred and sentenced to 10 years and one month in prison for money laundering. She was also fined $200,000. Her undoing began when she commenced an intimate relationship with Zinnel and became a victim of her own greed.

As for Mr. Zinnel, his phone call to his son when first imprisoned shows that he still doesn’t get it…he told his son that he was “railroaded” and blamed his ex- wife!

Lawdiva aka Georgialee Lang

Happy Ending for Local Child Abduction Case

DSC00275_1Not all abduction cases end in the disappointment of “no return” or even death, like little Amber Lucius. Early last month I became involved in a child abduction case that spanned the globe from Portugal to Vancouver to Corner Brook Newfoundland.

The parents of a nine-year-old girl named Lauren moved from their long-time home of Vancouver to Portugal three years ago. They settled in and Lauren’s mom who was a Canadian citizen applied for and was granted Portuguese citizenship as did Lauren, who was born in Canada. Their new life began, Lauren was registered in school and by all accounts, her parents enjoyed their new home, particularly Lauren’s father who was a dual citizen and had family and business interests in Portugal.

Unfortunately, the marriage began to falter but the parties remained together in the family home. Lauren’s father became concerned that his wife would leave Portugal with Lauren. He was so concerned that he obtained a “travel ban” which is a non-judicial warning to immigration that a child cannot be removed from the country without a court order or the consent of both parents. Lauren’s mom knew that her spouse would never agree, so she planned a clandestine middle-of-the-night departure, circumventing Portuguese authorities by driving to Seville Spain and catching a plane to Newfoundland where the parties had a summer cottage and where her family resided.

Lauren’s mom knew that her midnight dash was contrary to the law, having received advice from several lawyers and other officials, but she ignored them all. Lauren’s father immediately left Portugal and arrived in Vancouver, ready to do whatever was required to bring his daughter back to Portugal for the start of school on September 11. In the meantime, Lauren’s mother had already obtained an ex parte order from a Newfoundland court giving her interim custody of Lauren. My quarrel with ex parte orders is well-know to regular readers of Lawdiva. They are a blatant breach of due process and ought not to be granted unless there is clear evidence of impending danger to the leaving parent or the child.

We rapidly prepared an application pursuant to the Hague Convention on Child Abduction, an intricate process that entails the compilation of many relevant documents. Of course, all of the documents required translation as they were in Portugese. Back in Portugal a criminal action was commenced since child abduction is a criminal offence. The next step was to locate a lawyer in Newfoundland who was able, on short notice, to get into court there to argue for the return of Lauren. An experienced QC jumped on board to secure Lauren’s return.

An interesting part of this case was that Lauren’s father and mother shared a computer which gave Lauren’s father access to all his wife’s emails, many of which were extremely damaging to her case. After obtaining advice from a lawyer specializing in privacy law, the decision was made to include the emails in the Hague application. Lauren’s return was paramount and any evidence that assisted had to be utilized.

A Newfoundland judge presided over a four-day hearing last week that focused exclusively on the question of which court had jurisdiction to deal with custody of Lauren: Portugal or Newfoundland? The law is very clear that the court where the child “habitually resides” has sole jurisdiction to make custody decisions. Naturally, Lauren’s mother attempted to argue that Newfoundland was Lauren’s habitual residence, a position that was doomed to fail, given the extensive evidence of Lauren’s life in Portugal.

Thankfully, the Newfoundland court found that Portugal was the jurisdiction to determine Lauren’s custody and an order was made that her father return with her to Portugal immediately, just in time for the first day of school.

If Lauren’s mother is determined to bring Lauren to Canada, she must now convince a Portuguese judge that her position is in Lauren’s best interests. The battle is won, but the war is not over.

Lawdiva aka Georgialee Lang