COURT OF APPEAL FOR ONTARIO

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1 CITATION: R. v. Mullins-Johnson, 2007 ONCA 720 DATE: DOCKET: C47664 BETWEEN: COURT OF APPEAL FOR ONTARIO O CONNOR A.C.J.O., ROSENBERG and SHARPE JJ.A. HER MAJESTY THE QUEEN and Respondent WILLIAM MULLINS-JOHNSON Appellant James Lockyer, David Bayliss and Michael Lomer for the appellant Michal Fairburn and Kenneth L. Campbell for the respondent Heard: October 15, 2007 BY THE COURT: [1] The death of a child is always tragic. In this case, the tragedy of four-year-old Valin Johnson s death is compounded by the fact her uncle, William Mullins-Johnson, was wrongfully convicted of her murder and spent twelve years in prison. It is now clear that there is no evidence that Valin Johnson was assaulted or murdered, and no evidence that Mr. Mullins-Johnson was guilty of any crime in relation to her death. [2] At 7:00 a.m. on Sunday, June 27, 1993, Valin s parents found their daughter lying dead on her bed. Her body was taken to the Sault Ste. Marie General Hospital for an autopsy to be performed by Dr. Bhubendra Rasaiah. While the autopsy began at 12:55 p.m., the dissection of the body did not begin until 4:50 p.m. However, well before Dr. Rasaiah began the dissection, he called Dr. Charles Smith of the Hospital for Sick

2 Page: 2 Children in Toronto and described his preliminary observations to him. At around 2:50 p.m., Dr. Smith gave his opinion that Valin had been subjected to chronic abuse. 1 [3] Dr. Rasaiah called in Dr. Patricia Zehr to attend the autopsy. Dr. Zehr was not a pathologist but rather a gynaecologist/obstetrician with expertise in child sexual abuse. She observed the body and declared that this was one of the worst cases of child sexual abuse she had seen. Events began to unfold very quickly thereafter. Before the end of the post-mortem, Dr. Rasaiah told the police that he suspected Valin died between 8:00 and 10:00 p.m. the previous evening and that death was due to homicidal asphyxiation. [4] These initial findings by Drs. Rasaiah, Smith and Zehr set in motion an inexorable rush to judgment that centred on Valin s uncle, William Mullins-Johnson. At 6:30 p.m., less than twelve hours after her parents had found Valin s body, the police arrested Mr. Mullins-Johnson for first degree murder and aggravated sexual assault. He was charged because he had been home, alone, baby-sitting Valin and her three-year-old brother John between 8:00 and 10:00 p.m. on Saturday, June 26. [5] He was eventually convicted of first degree murder, and his appeals to this court and the Supreme Court of Canada were dismissed: (1996), 112 C.C.C. (3d) 117 (Ont. C.A.), aff d [1998] 1 S.C.R He spent twelve years in jail from the time of his arrest until he was released in 2005 on bail. From the very outset, Mr. Mullins-Johnson continually and vociferously protested his innocence but to no avail. [6] It is now clear that there is not and never was any reliable pathological evidence that Valin was sexually assaulted or otherwise abused during her short life and certainly not on the evening of her death. It is also now clear that there is no evidence to support a finding of homicidal asphyxia, the cause of death proffered at trial. While the cause of Valin Johnson s death remains undetermined, there is now no evidence to suggest it was the result of any crime. That Mr. Mullins-Johnson was arrested, convicted of first degree murder and spent twelve years in prison because of flawed pathology evidence is a terrible miscarriage of justice. 1 On June 25, 2008 the court received new information from Mr. Lockyer, counsel for the appellant. This information was confirmed by Ms. Fairburn, counsel for the Crown, in a letter dated July 7, As a result of evidence adduced at the Inquiry into Pediatric Forensic Pathology in Ontario (the "Goudge inquiry") after the release of the decision in this Reference, it is now clear that Dr. Rasaiah did not consult Dr. Charles Smith on the afternoon of June 27, Rather he consulted a different doctor at the Hospital for Sick Children. Accordingly, it was not Dr. Smith who provided the opinion expressed in paragraph 2 and the reference to him in paragraph 4 is similarly incorrect. Counsel for the appellant accepts that the reference in his factum and oral submissions to the involvement of Dr. Smith at this early point in time was the source of this error and is factually incorrect. However, Dr. Smith was consulted in this matter at a later point in time, prepared a report as to the cause of death and testified for the prosecution at trial.

3 Page: 3 [7] On July 6, 2007, the Minister of Justice directed a Reference to this court pursuant to s (3)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, to determine Mr. Mullins-Johnson s case as if it were an appeal on the issue of fresh evidence. On October 15, 2007, this court heard evidence from Dr. Michael Pollanen, the Chief Forensic Pathologist for Ontario. The appeal record also contains reports from five other leading experts in the field of pathology. All six experts confirm that the medical evidence does not support the opinions provided at trial that Valin was sexually assaulted and murdered. There is no other circumstantial evidence that the appellant committed a crime or, indeed, that a crime was committed at all. To the contrary, an exhaustive review of the evidence from the night of June 26/27, 1993, including a forensic examination of Valin s pyjamas, underwear and bedclothes and the clothes Mr. Mullins- Johnson wore that night, supports the appellant s continued assertion that he did not assault or murder his niece. [8] Mr. Mullins-Johnson also testified before us. He described in moving terms his activities on June 26 and 27, 1993, and the devastating impact his wrongful conviction has had on him and his family. [9] At the conclusion of the testimony and brief oral submissions from Mr. Lockyer for the appellant and Ms. Fairburn for the Crown, the court allowed the appeal, quashed the conviction and entered an acquittal. We indicated we would provide reasons for our decision at a later date. We reserved our decision for two reasons. [10] First, while the Crown agreed that there should be an acquittal in this case, it is important to explain, even if briefly, the reason for admitting the fresh evidence and entering an acquittal. Second, in his argument, Mr. Lockyer suggested that this was a case where the court might want to go further and not merely enter an acquittal but make an order tantamount to a declaration of Mr. Mullins-Johnson s factual innocence. We deal now with those two matters. THE EXPERT EVIDENCE [11] A number of experts, including Drs. Rasaiah, Smith and Zehr, testified for the Crown at the trial. Their unanimous view was that various findings from the examination of Valin s body and the autopsy showed that she had been sexually assaulted over some period of time. Drs. Rasaiah and Smith also testified that Valin had been suffocated by her killer. [12] The defence called two pathologists, but the evidence of the defence experts was not compelling and in some respects bolstered the Crown case. The first expert, Dr. Rex Ferris, accepted that Valin had been subjected to chronic sexual abuse but suggested that she had not been sexually abused at the time of her death. His evidence at trial that the

4 Page: 4 cause of death was unexplained was inconsistent with a report he prepared prior to trial in which he suggested that Valin had been strangled. [13] The second expert, Dr. Fred Jaffe, testified that Valin had not been subjected to recent sexual abuse and that the cause of death could not be determined. His evidence suffered from certain frailties and was not accepted by the jury. [14] As we have said, the appellant has always maintained his innocence. After the Supreme Court of Canada dismissed his appeal, he contacted the Association in Defence of the Wrongfully Convicted. AIDWYC took up his case and retained an eminent pathologist, Professor Bernard Knight, to reinvestigate the case. To do so, Professor Knight needed the various photographs, slides and other materials from the autopsy. For reasons that are chronicled in the record, there was some delay in locating that material, but the material was finally found and provided to Dr. Pollanen to be passed on to Professor Knight. [15] Fortunately, Dr. Pollanen first did his own investigation. He concluded that the various bruises and injuries said to be the result of abuse and murder were no more than the result of normal processes following death or were caused by procedures connected to the post-mortem investigation. For example, the dilation of the child s anus that was thought to be so indicative of anal penetration and chronic sexual assault (recall Dr. Zehr and her comment that this was one of the worst cases of child sexual abuse she had seen) is a normal finding in children after death. The acute injuries to the child s anus and vagina observed at the autopsy were the result of artefacts related to dissection or tissue preparation. In other words, the findings said to establish sexual abuse were the result of natural changes to the body after death or of the post-mortem examination process itself. [16] Similarly, the various bruises to Valin s chest, neck and head, which were said to show that she had been physically abused during her life and manually suffocated, were the result of post-mortem artefacts related to lividity (the settling of the blood in the body after death). The multiple bruises described by Dr. Rasaiah were no more than detailed descriptions of lividity marks. They were not the product of a criminal assault. [17] Dr. Pollanen passed on the slides and other materials to Professor Knight. He agreed with Dr. Pollanen. In late 2005, Dr. Ferris was given the opportunity to meet with Dr. Pollanen and re-examine the materials. In a report he provided in January 2006, Dr. Ferris reversed his trial opinion and agreed with the opinion of Dr. Pollanen that Valin had not been sexually assaulted and there was no pathological evidence of homicidal suffocation. By January 2006, the Chief Coroner s review of other cases in which Dr. Smith had provided an opinion was already underway. The Office of the Chief Coroner asked three other leading expert pathologists to independently examine the Valin Johnson materials. They came to the same conclusions as Drs. Pollanen and Ferris and Professor Knight.

5 Page: 5 [18] As the Crown agreed, this expert evidence is admissible as fresh evidence. It clearly meets the traditional test for the admissibility of fresh evidence as set out by the Supreme Court of Canada in R. v. Palmer (1979), 50 C.C.C. (2d) 193, and as most recently discussed by this court in the Reference Re R. v. Truscott, [2007] O.J. No The exceptionally credible and persuasive expert evidence that has come to light only since 2005 conclusively demonstrates that the experts who testified at trial that Valin was subjected to great violence before her death were wrong. [19] Even if the Palmer test were not strictly met, Doherty J.A. s observation in R. v. Maciel (2007), 219 C.C.C. (3d) 516 (Ont. C.A.) at para. 48 would apply: I also think that evidence should be received on appeal, regardless of whether it was available at trial, at least in the context of criminal cases where an appellant's liberty is at stake, if the evidence is sufficiently cogent to warrant an acquittal. It is not in the interests of justice to maintain a conviction where, on the totality of the evidence available to the appellate court, that court is satisfied that no reasonable jury could convict the appellant. [20] We agree with the submissions of Crown counsel about the fresh evidence as expressed in para. 12 of their factum: There is no doubt that the new expert opinions in this case are credible and highly cogent. They go to the very core of whether there was an offence committed in this case. The opinions have been provided by some of the leading Canadian and international experts in forensic pathology and pathology. The opinions not only have a profound impact on the reliability of the jury verdict reached at trial, it is submitted that they are dispositive of the result. [21] Finally, in their excellent factums the parties have fully reviewed for us the entire body of evidence aside from the expert evidence. In short, without the expert evidence there is no case against the appellant and no evidence of a crime. The non-expert evidence, if anything, is inconsistent with guilt and, again, is not indicative of a crime. Now that the trial expert evidence has been completely discredited, there is no case against the appellant and he is clearly entitled to an acquittal.

6 Page: 6 THE DECLARATION OF INNOCENCE [22] The fresh evidence shows that the appellant s conviction was the result of a rush to judgment based on flawed scientific opinion. With the entering of an acquittal, the appellant s legal innocence has been re-established. The fresh evidence is compelling in demonstrating that no crime was committed against Valin Johnson and that the appellant did not commit any crime. For that reason an acquittal is the proper result. [23] There are not in Canadian law two kinds of acquittals: those based on the Crown having failed to prove its case beyond a reasonable doubt and those where the accused has been shown to be factually innocent. We adopt the comments of the former Chief Justice of Canada in The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons, Randy Druken, Annex 3, pp. 342: [A] criminal trial does not address factual innocence. The criminal trial is to determine whether the Crown has proven its case beyond a reasonable doubt. If so, the accused is guilty. If not, the accused is found not guilty. There is no finding of factual innocence since it would not fall within the ambit or purpose of criminal law. [24] Just as the criminal trial is not a vehicle for declarations of factual innocence, so an appeal court, which obtains its jurisdiction from statute, has no jurisdiction to make a formal legal declaration of factual innocence. The fact that we are hearing this case as a Reference under s (3)(a)(ii) of the Criminal Code does not expand that jurisdiction. The terms of the Reference to this court are clear: we are hearing this case as if it were an appeal. While we are entitled to express our reasons for the result in clear and strong terms, as we have done, we cannot make a formal legal declaration of the appellant s factual innocence. [25] In addition to the jurisdictional issue, there are important policy reasons for not, in effect, recognizing a third verdict, other than guilty or not guilty, of factually innocent. The most compelling, and, in our view, conclusive reason is the impact it would have on other persons found not guilty by criminal courts. As Professor Kent Roach observed in a report he prepared for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell, there is a genuine concern that determinations and declarations of wrongful convictions could degrade the meaning of the not guilty verdict (p. 39). To recognize a third verdict in the criminal trial process would, in effect, create two classes of people: those found to be factually innocent and those who benefited from the presumption of innocence and the high standard of proof beyond a reasonable doubt.

7 Page: 7 [26] Nothing we have said in these reasons should be taken as somehow qualifying the impact of the fresh evidence. That evidence, together with the other evidence, shows beyond question that the appellant s conviction was wrong and that he was the subject of a terrible miscarriage of justice. We conclude these reasons by paraphrasing what the president of the panel said to Mr. Mullins-Johnson at the conclusion of the oral argument after entering the verdict of acquittal: it is profoundly regrettable that as a result of what has been shown to be flawed pathological evidence Mr. Mullins-Johnson was wrongly convicted and has spent such a very long time in jail. [27] We can only hope that these words, these reasons for judgment and the deep apology expressed by Ms. Fairburn on behalf of the Ministry of the Attorney General will provide solace to Mr. Mullins-Johnson, to his mother and to everyone who has been so terribly injured by these events. DISPOSITION [28] Accordingly, in accordance with the terms of the Reference and s (3)(a)(ii) of the Criminal Code, we admit the fresh expert evidence, allow the appeal, quash the conviction for first degree murder and enter an acquittal. [29] We wish to thank all counsel, defence and Crown, for their assistance not only in preparing the materials for this court and for their oral submissions but in assisting Mr. Mullins-Johnson in his pursuit of the acquittal that he so justly deserves. And, while all the experts deserve thanks, we wish to express special appreciation to Dr. Pollanen whose diligence set in motion the chain of events that led to this acquittal. Signed: D. O Connor A.C.J.O. M. Rosenberg J.A. Robert J. Sharpe J.A. RELEASED: DOC October 19, 2007