Chief Justice Dickson for the Supreme Court of Canada in R. v. Oakes ([1986] 1 S.C.R. 103, at para 29), stated that “An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community as well as other social, psychological and economic harms”. A glaring example in recent times of the above statement is the case of Williams Mullins-Johnson, who was convicted of the crime of rape and murder of his 4 year old niece and then acquitted after 12 years in prison. In Canada, the availability of the post-conviction review process is meant to correct errors in convictions. This process is contained in sections 696.1 to 696.6 of the Criminal Code. This process underwent an overhaul in 2002, after criticisms against the earlier system. Critics of the new provisions say that these are merely cosmetic changes and post conviction review in Canada is far from ideal (Anderson, 2015, p.11). One may argue in favour of that position, considering the many cases that have come to light where the innocent party has been wrongly convicted and waited for years to get reprieve.
This paper discusses the case of Williams Mullins-Johnson in the context of wrongful conviction and post conviction reviews. Considering the wrongful conviction cases that have come to light, this paper argues that there is a need to review the post conviction review process in Canada.
The improvements in science, forensics and DNA technology have played a very important role in the criminal justice system. Firstly, access to new scientific and forensic techniques gives a better chance to the criminal justice system to convict the right persons for crimes. Secondly, the same techniques and processes help in cases of wrongful convictions and may lead to exoneration of guilt. Science and technology has made possible reprieve to several people, who had been convicted of crimes. Adversely, it has also brought to limelight the fallacy of the criminal justice process that may at times lead to the conviction of an innocent person. One such case in recent times is that of Williams Mullins-Johnson, which will be considered in this paper.
Regardless of the availability of the scientific and forensic processes, at times, acquittals come after much personal hardship and long periods of incarceration for some convicts. The reason for that is definitely not in the lack of scientific processes that can go to establish innocence. The reason for delay in establishing innocence may also be due to some flaws in the review system. Thus, the first miscarriage of justice happens when an innocent person is wrongly convicted. Delay in reviews is the continuity of the miscarriage of justice.
In Canada, sections 696.1 to 696.6 of the Criminal Code is meant to give relief to those who claim wrongful conviction. However, the process is long and may take years for the convict to get reprieve. Compensation cannot really compensate a person for all that he is deprived of once he is convicted. This is especially true in serious crimes, such as in the case of Williams Mullins-Johnson, many members of whose family disowned him due to his conviction.
A miscarriage of justice means the failure to achieve the desired end of justice and it occurs where there is breach of rights of suspects or defendants due to: (a) deficient processes; (b) deficient laws; (c) absence of factual justification for the treatment or punishment; (d) disproportionate treatment of suspects or convicts vis a vis people whose rights need to be protected; efficient protection of rights of people, (e) state law (Walker, pp.32-33). The third point is relevant to this paper. Mullin’s conviction was based on the testimony of two pathologists, which have been proved to be deeply flawed, therefore there was no factual justification for his conviction.
At the outset, it is important to understand the difference between a miscarriage of justice, which maintains only that an injustice has occurred and will not pronounce innocence; and a wrongful conviction, wherein the convict is seeking exoneration for a crime they claim they have not committed. There is a lot of divergence on the issue of wrongful conviction. In Canada a finding of legal innocence does not necessarily mean that the individuals are, in fact, innocent of committing the crime. Factual innocence refers to individuals who have been wrongfully convicted for crimes that they did not commit (Anderson, 2015, pp.6-7). The difficulty that many innocent convicts face, even after declaration of miscarriage of justice, is that society does not consider them to be innocent because the court has not made that pronouncement.
Mullins was convicted in 1994 of sodomizing and strangling his four-year-old niece Valin Johnson, who was found dead in her bed on the morning of June 27, 1993. There was no forensic evidence that linked him to the death of Valin. The testimony from pathologists led to his conviction (Perkel, 2005). His appeal to the Supreme Court of Canada, was dismissed (R. v. Mullins‑Johnson, [1998] 1 S.C.R. 977).
In 2005, new testimony by experts, including Ontario's chief pathologist, concluded that Valin may have died of natural causes and that the earlier pathologist report was intrinsically flawed. Based on this the Court Of Appeal For Ontario, held that “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” (R. v. Mullins-Johnson, 2007 ONCA 720).
It is interesting that the Minister of Justice directed a Reference to the Court of Appeal, pursuant to Criminal Code, s. 696.3(3)(a)(ii) only on July 6, 2007, two years after the PAGE 3 evidence given by the pathologists in 2005. Mr. Mullins-Johnson’s case was to be heard as if it were an appeal on the issue of fresh evidence (R. v. Mullins-Johnson, 2007 ONCA 720). In 2010, Mullins was awarded compensation and given an official apology for the wrongful conviction. The compensation settlement amount was $4.25 million. Does the compensation really compensate Mullins for the years in prison and resultant difficulties?
Canada’s post-conviction review process was amended in 2002 after some criticism that the process was not effective. Sections 696.1 to 696.6 of the Criminal Code and the applicable regulations are Canada’s post-conviction review process. However, the major problems in the system that may impede effective review are centred in the power of the Minister of Justice who also happens to be the Attorney General of Canada, thus leading to a lack of independence, which is an imperative for a review. Furthermore, the power is discretionary as the Minister of Justice directs a new trial based on his opinion that there is a reasonable basis for it (Criminal Code, s.696.2(1)). A oft repeated criticism is that the new provisions only make modest improvements to the law (David, 2010). There can be alternatives to the present system of review that can be done only by the Minister of Justice. For example, courts or commissions can be utilised for the purpose of reviews. Or the Parliament may consider other compatible jurisdictions like the UK or USA in order to understand how such reviews are carried out in those countries.
The Mullins-Johnson case evidences the fact that miscarriages of justice and wrongful convictions do take place in Canada. The post conviction review process that is contained in Criminal Code, needs to be assessed. Focus should be on greater access to review so that convicts who claim innocence do not have to wait for years to get reprieve. The effects of wrongful conviction are serious as far as the convict is concerned. Therefore, it is imperative that the system is reviewed and alternatives thought out.
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