CHAPTER 48
HENRY REPEATEDLY SOUGHT disclosure of medical reports, reasoning that if the medical evidence excluded him on a given charge, “then I wouldn’t have to deal with one extra charge.”
Despite the Crown’s duty to disclose relevant materials—including anything pointing to innocence—Judge Bouck refused to order disclosure. Instead, he accepted the argument that because the Crown wasn’t relying on medical evidence in its case, such reports need not be disclosed. As he said in his jury charge:
The Crown is not obliged to call every witness involved with the investigation of a crime. All it need do is present sufficient evidence so as to prove its case beyond a reasonable doubt.
If there are other witnesses who might give relevant evidence, the Crown is required to give up their names to the accused upon request, then it is up to the accused to decide whether or not to call them in support of his defence.
Sometimes an inference can be drawn against a party, Crown or accused, if they do not call relevant evidence, but this is not an instance where you should draw an unfavorable inference against the Crown.
We now know that the Crown withheld the names of the doctors who compiled rape kits on four of the “rip-off rapist” victims. Judge Bouck should have compelled disclosure of the requested reports. At a minimum, he should have told the jury that the Crown, by not disclosing them, was likely hiding something that would hurt its case. The jury should have been instructed to draw an “adverse inference” against the Crown for its failure to disclose.
We also now know that the City Analyst’s Laboratory in Vancouver had in its possession recovered spermatozoa from those same four women. In its defence to Henry’s civil claim, the City of Vancouver states that forensic testing of perpetrator spermatozoa was not the practice in British Columbia in 1982 and 1983.
True, DNA testing had not yet been perfected, but serology testing—using either ABO blood grouping or enzyme testing—was being widely used by police. As early as 1963, the laboratory at New Scotland Yard in London, England, was conducting ABO grouping on semen stains. As Justice Edward MacCallum, the commissioner in the inquiry into the David Milgaard case, said: “In 1967 and 1970, the science of serology, including blood typing, could lead to the exclusion of a suspected donor of a biological substance, but not to his positive identification. It had value as an investigative tool because of its ability to reduce the pool of potential suspects by reference to their serological profile.”1
Brian Wraxall, executive director and chief forensic serologist of the Serological Research Institute (SERI), in Richmond, California, swore an affidavit in Henry’s 2010 appeal saying that serology testing could have been used to include or exclude Henry as a potential suspect in the recovered spermatozoa cases. Noting that criminalist Paul Norvell of the City Analyst’s Laboratory in Vancouver had thrice attended training courses in forensic serology at SERI between 1980 and 1987, Wraxall said:
Both ABO and enzyme testing could have been conducted on (the four stains), and that such testing would have shown whether Henry had blood and enzyme types or sub-types consistent with those derived from testing the semen stains. If either his blood or enzyme type or sub-type was inconsistent with those obtained from the stains, the testing would have excluded him as the semen donor.
I have no personal knowledge as to whether the Vancouver City Laboratory was conducting ABO and enzyme tests at the time these four offences occurred. However, if they were not, I know of no reason why the physical evidence could not have been outsourced for testing, whether to the RCMP (as the Milgaard Report indicates was done by the Saskatoon Police) or a private laboratory like SERI.
Recently disclosed records make clear that the VPD, in the course of investigating sexual assaults that occurred soon after Henry’s conviction, used serology testing to rule out suspects. In an undated 1983 report regarding the “Marpole Rapist,” lead detective Michael Barnard wrote that “< >, having been found to have blood type ‘B,’ was eliminated as a suspect.” And in the VPD ‘Confidential Bulletin’ Re Marpole Sexual Assault Update, dated December 23, 1983, Barnard wrote that “suspect < >, having been found to have blood type ‘O,’ was eliminated as a suspect.”
The VPD’s decision not to conduct serology testing in the Henry case is suspect, as is its failure to retain the semen samples from the attacks. Such samples retained in 1984 led to the exoneration of Guy Paul Morin in 1995. Semen samples retained in 1969 led to the exoneration of David Milgaard in 1997. And samples retained in 1981 led to the exoneration of Thomas Sophonow in 2000.
Before the special prosecutor’s investigation from 2006 to 2008, the defence had no idea that the City Analyst’s Laboratory had recovered spermatozoa from four women in the Henry case. At the same time as that fact was brought to light, the VPD was advising the special prosecutor that all such samples had gone missing or been destroyed.
Had Henry known at trial that such samples had been collected, he could have asked the Crown to conduct serology testing. If the Crown refused, he could have sought an order from the judge to have such tests performed or, alternatively, asked the jury to draw an adverse inference from the Crown’s failure to do so.