Ivan Henry found liable for sexual assaults of 5 women in B.C. civil trial

Ivan Henry leaves B.C. Supreme Court during a lunch break in Vancouver, B.C., Monday, Aug. 31, 2015. THE CANADIAN PRESS/Darryl Dyck

Five women who were raped by a stranger in their Vancouver homes in the early 1980s have been awarded $375,000 each in damages in a civil sexual assault suit against Ivan Henry – whose criminal convictions in the case were overturned more than a decade ago.

Justice Miriam Gropper handed down her ruling in B.C. Supreme Court last week, following a lengthy trial last year. The decision – which runs more than 180 pages – was posted online Wednesday.

“The plaintiffs are five women who were sexually assaulted in their basement or ground-floor suites at knifepoint by a stranger in the middle of the night in May 1981 and between February and July 1982. They allege that they were all assaulted by the same man, Ivan Henry. This action claims damages against him,” Gropper’s judgment begins.

Henry was found guilty of 10 counts involving eight victims in 1983 and designated a dangerous offender, spending 27 years in prison until his convictions were overturned on appeal in 2010 due to “multiple errors that undermined a finding of guilt,” Gropper’s decision notes. In 2016, Henry was awarded $8 million in damages for violations of his Charter rights in the case.

The burden of proof

A finding of liability in a civil claim, Gropper explained, is assessed using a different test than a criminal case which requires proof beyond a reasonable doubt.

“This action for damages addresses Mr. Henry’s liability for the assaults on the plaintiffs, assessed on the civil standard of proof: whether, on a balance of probabilities, the plaintiffs have proved that he was the person who raped each of them,” Gropper wrote.

“Mr. Henry does not dispute that all five plaintiffs were sexually assaulted. He denies that he assaulted them. His position is that the plaintiffs’ evidence identifying him as their attacker is inadequate and unreliable and it does not demonstrate, on a balance of probabilities, that he was the person who attacked these plaintiffs. He seeks dismissal of this action.”

One of the grounds on which Henry sought to have the civil case dismissed was that it was an abuse of process, arguing the suit constituted a re-litigation of matters already decided by during the criminal process.

The judge disagreed.

“The court did not find that he did not sexually assault any of the complainants, of whom five are plaintiffs here. Mr. Henry was found not guilty of the criminal offences, but that does not mean that he cannot be found liable for damages in this civil proceeding,” Gropper wrote.

“These proceedings provide a fuller and more robust review: there is more evidence and new evidence. Fairness dictates the results of the criminal charges should not be binding in this new context. And, of course, there is a different standard of proof to be applied.”

What the court heard

Henry – as is the case with anyone accused of a crime – was not required to testify in the criminal case. The civil proceeding, however, did see him take the stand. He was called as a witness by the plaintiffs, whose lawyers cross-examined him for four days before his defence counsel questioned him for another two.

“He showed an inability to answer straightforward questions with straightforward answers. I have also found Mr. Henry’s evidence to be untruthful,” Gropper said when assessing Henry’s credibility.

“I have found that Mr. Henry is not a credible witness. I do not accept his denials over the plaintiffs’ evidence,” she also wrote.

The court considered extensive evidence from each of the five women identifying Henry as their attacker, including voice identifications where several of the women testified about Henry’s distinctive “gruff voice” and particular manner of speaking.

Henry’s guilty pleas and convictions for multiple crimes in Winnipeg in the late 1970s were considered as “similar fact evidence” in the case. Broadly speaking, this type of evidence – if allowed – enables the court to consider a defendant’s prior bad acts.

The Winnipeg offences involved three female victims whose homes were broken into in the middle of the night by a man they had never met. One victim was sexually assaulted, another was strangled, and the third awoke to find Henry in her suite.

In this case, the “connecting factors” between the Winnipeg crimes and the Vancouver attacks – including Henry’s “admitted M.O.” – were treated as “significant corroborative evidence that the plaintiffs were not mistaken in their identification of Mr. Henry as their assailant,” the decision said.

‘Aggravating circumstances’

Gropper found each of the five plaintiffs had established it was more likely than not that Henry was the man who raped them. Next, she turned to the question of damages.

“In this case, Mr. Henry broke into the homes of the plaintiffs in the middle of the night, while they were sleeping, threatened them, and attacked them sexually. I find that general damages should reflect the aggravating circumstances here,” Gropper wrote.

The court heard testimony from all five women, as well as a medical expert, about the impact the attacks had on their lives – both short and long-term, including insomnia, isolation, PTSD, panic attacks, suicidality, and a shattering of their sense of safety. Several gave evidence that the re-emergence of the case in the news when Henry’s conviction was overturned and when he won his civil suit was retraumatizing.

One described how she felt the civil suit was the only opportunity she and the other women have had where their voices could be heard.

“She felt that at every point of the last 42 years since the attack, her voice and the voice of other women had not been heard and she wanted to tell her story. She recognized that there were reasons for the findings that Mr. Henry was wronged and released; the reasoning made sense to her. But she knew that Ivan Henry had attacked her,” Gropper’s decision said.

Each plaintiff was awarded $375,000 in damages. Gropper, however, declined to award punitive damages in the case, finding Henry’s 27 years of incarceration meant “he has not gone unpunished.”