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Mullins-Johnson case referred back to Ontario Court of Appeal

|Written By Helen Burnett

The case of a man convicted of murdering his niece 13 years ago has been referred back to the Ontario Court of Appeal, after the federal minister of justice concluded that there was likely a miscarriage of justice.

William Mullins-Johnson of Sault Ste. Marie, Ont., was convicted of first-degree murder in the death of his niece Valin Johnson in 1994, based on the evidence given at trial by Dr. Charles Smith, a former Ontario forensic pathologist whose cases have since been subject to a review by Ontario’s chief coroner.

According to the Association in Defence of the Wrongly Convicted, during trial, Smith’s opinion that the child had been sexually assaulted at the time of death, which contradicted defence evidence that the child had died of natural causes, was essential to the jury’s verdict of first-degree murder. 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.

The Ontario Chief Coroner’s office has since carried out a review of 45 criminally suspicious and homicide cases where Smith consulted or performed the autopsy, identifying specific concerns in 20 cases, including 12 which had resulted in convictions and one finding of not criminally responsible. Following the results of the review, Ontario Attorney General Michael Bryant announced that he was calling a full public inquiry into the matter.

In September 2005, Mullins-Johnson’s counsel applied to the federal justice minister for a s. 696 review of his murder conviction. The Ontario Superior Court of Justice subsequently granted bail pending the minister’s decision.

University of Ottawa law professor David Paciocco was appointed to investigate the case and issued a preliminary report in October 2005. He was then asked to await the results of a review of the pathology evidence in the Mullins-Johnson case being conducted by the panel reviewing a number of Smith’s cases, before completing the investigation.

After receiving the final report of the investigation, Justice Minister Rob Nicholson concluded that, “There is now significant new evidence that was not available at the time of Mr. Mullins-Johnson’s trial that casts serious doubt on the correctness of his conviction for murder.”

Based on a review of the investigation report and advice of Paciocco, the submissions of counsel for Mullins-Johnson and the attorney general as well as the recommendations of the minister’s special adviser on the criminal conviction review process, Nicholson decided to refer the case to the Court of Appeal.

Mullins-Johnson’s lawyer James Lockyer says he suspects the case will reach the Court of Appeal sooner rather than later as he says Bryant has already announced that, in his view, Mullins-Johnson should be acquitted of the charge.

“That would seem to me to make it likely that it will be heard fairly soon, within months, but ultimately it’s dependent on counsel to get the case before the court as quickly as we can.”

With respect to the other Smith cases that were part of the coroner’s review, Lockyer says this case sets a significant precedent, as it “demonstrates how badly pathology can go wrong, it demonstrates significant problems with Dr. Smith’s opinions.” He adds that, “It’s a very good indication that the findings of the review that was conducted on all his other cases are reliable whenever they suggested that he diagnosed a case wrongly.”

According to a spokesperson for the Ontario Ministry of the Attorney General, Bryant’s position on the case is that the conviction cannot stand and that the Ontario Court of Appeal should ultimately acquit Mullins-Johnson. He adds that the ministry will do everything it can to work with the Crown and defence to expedite the appeal.

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