Lawyers for William Mullins-Johnson have asked the court to acknowledge his innocence, but the Crown says such a finding could have broad implications for the administration of justice and set up a three-tier system in the province.
More than 13 years after he was wrongfully convicted of first-degree murder of his four-year-old niece, the Ontario Court of Appeal acquitted Mullins-Johnson last week, as the Crown offered its formal apologies.
“It is regrettable that as a result of the flawed pathological evidence you were wrongfully convicted and you spent so long in custody,” said Ontario Associate Chief Justice Dennis O’Connor, speaking on behalf of appeal panel members Justice Marc Rosenberg and Justice Robert Sharpe, after entering the verdict of acquittal.
Following the acquittal, lawyers for the government extended an apology to Mullins-Johnson. “On behalf of the Ministry of the Attorney General, I wish to extend our sincere, our profound, and our deepest apologies to Mr. Mullins-Johnson and to his family for the miscarriage of justice that has occurred in this case and all that he has had to endure as a result,” said Crown counsel Michal Fairburn.
Mullins-Johnson of Sault Ste. Marie was convicted of first-degree murder based on the evidence given at trial by former Ontario forensic pathologist Dr. Charles Smith, whose opinion that the child had been sexually assaulted at the time of death was essential to the jury’s verdict.
There has since been new expert evidence that the child died in 1993 of natural causes. A misplacing of crucial evidence in the case prompted an audit of tissue samples in 2005, from autopsies performed at the Hospital for Sick Children in Toronto before the samples were located on Smith’s desk.
In September 2005, Mullins-Johnson’s counsel applied to the minister of justice for a s. 696 review of the murder conviction. The Ontario Superior Court of Justice granted bail pending the minister’s decision after serving 12 years. Federal Minister of Justice Rob Nicholson decided to refer the case to the Court of Appeal last July, concluding that there was significant new evidence “that casts serious doubt on the correctness of his conviction for murder.”
Stemming from the results of a review of several of Dr. Smith’s cases by Ontario’s chief coroner, which identified concerns in 20 cases, including 12 which had resulted in convictions and one finding of not criminally responsible, an inquiry into pediatric forensic pathology in Ontario, led by Justice Stephen Goudge, is set to begin its public hearings next month.
Following the acquittal, Mullins-Johnson told reporters that, “I got my name back. I got my reputation back.”
“It has to sink in. I am still kind of numb,” he said.
Defence and Crown counsel were in agreement during the appeal that Mullins-Johnson should be acquitted, as Crown attorney Ken Campbell told the court in his submissions that a “who’s who” of the international forensic pathology community all say that there was no evidence of homicide or sexual injury in this case.
“Mr. Mullins-Johnson not only deserves the acquittal that he has fought so long and hard to achieve but that an acquittal is really required in the interests of justice in this case,” he added.
Mullins-Johnson and Ontario chief forensic pathologist Dr. Michael Pollanen also testified at the appeal. Mullins-Johnson’s lawyer from the Association in Defence of the Wrongly Convicted, James Lockyer, applauded the fact that the court allowed Mullins-Johnson to address and give evidence during the appeal, which he says is the first time this has happened, of which he is aware.
While the acquittal was entered last week, the panel reserved its written reasons, and will be considering the submissions of counsel.
Those submissions included comment from both sides on the issue of either an acknowledgement or formal declaration of innocence.
Last month, Lockyer and lawyer David Bayliss filed a factum with the court, asking that the court affirm Mullins-Johnson’s actual innocence, quash his conviction, and enter a verdict of acquittal.
“It is respectfully submitted that the stage has been reached where he is entitled to an acknowledgment of his innocence. It is not enough for his conviction to be quashed and an acquittal entered,” said the factum.
While Fairburn noted that she is not sure that the Crown and defence are that far apart on the issue, she told the court last week that giving what is tantamount to a “verdict of innocence” is a significant matter that has broad implications for the administration of justice.
From a policy perspective, the effect of this, she told the court, could be to “devalue” and “debase” every not-guilty finding in a criminal court, and could essentially set up a three-tier verdict system.
If the court were to go with a three-tier route, she says, it is really a matter for Parliament.
“Surely, there’s a strong policy argument here that, like we always have historically, we ensure that a not-guilty finding means innocent for all purposes,” Fairburn told the court.
Lockyer told the court that he was not arguing “in the midst of a three-tier verdict system” through a request as to how the court should exercise its discretion.
He says he made a “human request” for the court to tell Mullins-Johnson that he is innocent in whatever way they will, so that he can go back home and hopefully have a reunification of his family.
“Do I think a court should be able to say to someone, ‘You didn’t do it’ or ‘You’re factually innocent’ or whatever way they want to say it? Of course they should be able to say that,” he told Law Times.