CBC news report ♦♦
Johnson gets 2.5 millions for wrongful conviction ♦♦
Harvey Cashore's speech to police college: The Runaway Hunch [PDF]
Clayton Johnson murder case
Nova Scotia Appeal Court orders new Murder Trial for Clayton Johnson
HALIFAX (CP) - Nova Scotia's highest court has ordered a new trial in the
death of Janice Johnson, whose husband was convicted nine years ago of beating her to death.
Clayton Johnson, 56, was found guilty in 1993 of murdering his wife, then released
five years later after forensic pathologists disputed earlier
findings that led to his imprisonment. In a ruling Monday, the
province's Appeal Court overturned the conviction. The court,
which was asked to review the case by the federal justice minister,
could have also set Johnson free or returned him to prison.
Johnson, who has settled back into the small rural community of Shelburne,
NS, as a construction worker and craftsman, was convicted of
The death was initially blamed on an accidental fall down the basement steps
of the couple's home, where a neighbour found Janice gasping
for breath on the morning of Feb. 20, 1989.
The case was reopened when it was revealed Johnson, a former high school teacher,
had taken out a $125,000 insurance policy on his wife and had
started dating a 22-year-old he eventually married.
Pathologists later re-examined the original ruling and helped bring about
his conviction. But questions always lingered about the high-profile
case, which was featured in two controversial documentaries.
Johnson repeatedly maintained he was on his way to work when
his wife died.
and dissenting views from pathologists led to Johnson's release
on bail in September 1998 after he served five years in prison
and after then-federal Justice Minister Anne McLellan recommended
new forensic opinions be heard by the Nova Scotia Appeal Court.
Janice Johnson's body was exhumed in 1998 for examination by pathologists, criminal
forensic scientists and anatomy and physics professors from all
over North America and as far away as Northern Ireland.
They were asked
to review the massive case file and many concluded the death
was the result of a freak accidental fall that resulted in massive,
fatal head injuries.
The case has
centred on the opinions of pathologists who have differed widely
in their determination of what caused the death.
at Johnson's trial argued a deadly beating with a baseball bat
or two-by-four was the only conceivable explanation for Johnson's
James Lockyer, Johnson's lawyer, said a Texas pathologist who reviewed the original
findings determined the woman died accidentally when he she fell
down the stairs backwards and struck her head.
Steven Truscott has also made a 690 application
Sep. 21, 1998:
HALIFAX (CP) -- Nova Scotia's Court of Appeal has been asked
by the justice minister to decide whether new evidence may be
used to hear the appeal of a man convicted of beating his wife
to death. Clayton Johnson was convicted in 1993 of first-degree
murder in the death of his wife, Janice. The former Shelburne,
N.S., teacher is serving a life sentence.
From the Globe and Mail
took care to pack a lunch for each of his daughters and complete
his daily Bible reading on Feb. 20, 1989, before he went downstairs
to beat his wife's head in.
At least that
was the scenario a jury in Shelburne, N.S., accepted four years
later when it convicted the 52-year-old industrial-arts teacher
of bludgeoning Janice Johnson with an unknown weapon and leaving
her for dead. But the verdict has now come into serious question
in light of new expert evidence, combined with the improbability
of the purported crime.
With Mr. Johnson
about to start his sixth year of a life sentence, two U.S. pathologists
have concluded that the forensic assessments that lay at the
heart of the case were dead wrong.
In reports prepared for the Association in Defence of the Wrongly Convicted
(AIDWYC) that was featured on the CBC program the fifth estate,
they say Mrs. Johnson died from an accidental fall on the basement
stairs several minutes after her husband kissed her and drove off to work.
nothing that suggests a beating of any kind occurred in the Johnson
home," says a report by Herbert McDonell, director of the
Laboratory of Forensic Science in Corning, N.Y. In arriving at
his conclusion, Dr. McDonell built an identical stairwell and
employed a model, in safety straps, to re-enact the incident.
"There is no question in my mind that the death of Mrs.
Johnson was the result of an accident," he wrote. "It was not a homicide."
Two AIDWYC lawyers who have devoted hundreds of unpaid hours to the case,
James Lockyer and Phil Campbell, believe that it is the latest
in a line of Canadian judicial miscarriages that include the
convictions of Donald Marshall (right), Guy Paul Morin (right) and David Milgaard (right).
The lawyers maintain that the Clayton Johnson case appears to bear many
of the hallmarks of a wrongful conviction, ranging from police
tunnel vision to a prosecution based on circumstantial evidence
and held in an inflamed community.
"Can you imagine a worse nightmare?" Mr. Campbell said in an interview.
"This guy loses his wife, and then gets sent to jail for 25 years."
soft-spoken and understated, wept quietly during an interview
last Friday at the Atlantic Institution in Renous, N.B. He said
that although he has lost all faith in the justice system, his
religious beliefs sustain him. "I always say the Lord doesn't
give you more than you can stand," he said. "My faith
gets me by."
With Mr. Johnson's legal appeals exhausted, AIDWYC intends to appeal to the federal
Justice Department to overturn his conviction.
The request will be made against the backdrop of a dramatic twist in the
fifth estate's involvement in the case. In its broadcast
tonight, the program intends to renounce a 1993 episode entitled
Getting Away with Murder. That episode lionized RCMP Sergeant
Brian Oldford, a corporal at the time who refused to accept the
official version of Mrs. Johnson's death as an accident, doggedly
fashioning the case that led to her husband's conviction. David
Studer, executive producer of the fifth estate, said
that after a lengthy reinvestigation of the case, the program
is utterly convinced Mr. Johnson is an innocent man.
"I would say the evidence is absolutely compelling and persuasive,"
Mr. Studer said in an interview. "Like most of the media,
we feel our job is not to cover our asses or provide comfort
for ourselves, but to get it right. If we get a chance to set
the record straight, let's do it."
Before his conviction, Mr. Johnson led an unremarkable life with no criminal
record or hint of violence in his past. He was widely viewed
in Shelburne, a town of 3,000, as a thoughtful and decent family
man. Friends described the couple's 13-year marriage as warm
and close. With their daughters, then 8 and 11, the Johnsons
were tightly entwined in the local Pentecostal community. Mrs.
Johnson, 36, was a homemaker who occasionally babysat for neighbours,
the Malloys. She was to look after Brittany Malloy the morning
of her death.
At 7 a.m., Mr. Johnson phoned Robert Molloy, at his wife's request, to ask
him to deliver Brittany by 8 a.m. so Mrs. Johnson could take
the child to a local carnival. A second visitor, Mrs. Johnson's
brother, was to drop off some clothing some time before 8 a.m.
At precisely 7:40, the school bus arrived to pick up the Johnson
children. Next-door neighbour Clare Thompson watched the girls
clamber aboard and dialled Mrs. Johnson's number for a chat.
later told police that the two friends talked for almost 10 minutes.
They were interrupted briefly when Mrs. Thompson heard Mrs. Johnson,
who was using a phone in the basement, say to her husband, "See
you later, hon." There was an audible kissing sound. The
two women hung up shortly before 7:50 a.m.
It is almost
certain that Mr. Johnson left for his 27-kilometre drive to work
at 7:40 a.m. or shortly afterward; he was seen by acquaintances
at various points along the way and arrived at work at 8:11.
Witnesses confirmed seeing him stop for gas and drive the final
10 km of the trip sedately, stuck behind a school bus. Mr. Molloy
and his daughter arrived at the Johnson home at 7:51, using the
main entrance in one part of the basement.
Mrs. Johnson lying at the bottom of the wooden basement stairs
in a pool of blood. Mr. Molloy rushed to the Thompson home and
called an ambulance at 7:54. Mrs. Johnson lay struggling for
breath, bleeding profusely, one foot resting on the bottom step.
Still holding her car keys, she had evidently been preparing
to leave the house.
tried desperately to stabilize her condition, tossing blood-soaked
equipment about the basement as they worked. When Mr. Johnson
arrived for work, a worried secretary instructed him to rush
to the hospital. He was visibly distraught as a medical team
worked in vain to save his wife. Later, he spent 15 minutes alone
with her body. Asked at his trial what he did, Mr. Johnson replied:
"Just held her hand and kept saying over and over, 'Why,
At the suggestion
of the evangelical pastor, two friends of Mrs. Johnson, Mary
Hartley and Mary Davis, went from the hospital to the Johnson
home to clean up most of the blood. Meanwhile, Mr. Johnson broke
the news to his daughters. The family then moved in with Mrs.
Johnson's parents for several weeks.
chief coroner, Roland Perry, had little problem concluding that
Mrs. Johnson had accidentally fallen forward as she went down
the stairs. He deduced that her head had wedged briefly in a
14-centimetre gap between the stairs and the wall before she
flipped over and came to a stop.
after Mrs. Johnson's death, however, the community of Shelburne
stopped seeing it that way. Mr. Johnson had begun dating a member
of the Pentecostal congregation, 22-year-old Tina Weybret, and
tongues wagged at high speed.
A year later,
the couple married. Sgt. Oldford, stationed in nearby Yarmouth,
heard the gossip and became suspicious. He seized upon Ms. Weybret
as a motive for murder. Mr. Johnson said in the interview that
nobody could possibly carry on an illicit affair undetected in
a small town like Shelburne. He said his courtship of Ms. Weybret
was rooted solely in his fear that he could not attend to the
needs of his prepubescent daughters on his own.
confirmed this in an interview. "I think he wanted to fill
a void," she said. "He needed a mother for his girls."
Rather than causing her concern, she saw this as further proof
of what attracted her to him most -- his honest, well-grounded
nature and his devotion to family.
saw a darker motive. Although they never produced any reliable
evidence that there was a relationship between Ms. Weybret and
Mr. Johnson before his wife died, they speculated that he killed
Mrs. Johnson to get her out of the way. In the months Sgt. Oldford
spent scouring the community for evidence, he came upon a second
possible reason to kill: an insurance policy Mr. Johnson had
recently acquired that paid $125,000 in the event his wife died.
As a motive,
it was equally tenuous. A school trustee later confirmed urging
Mr. Johnson to join the insurance plan, just as 40 per cent of
the province's teachers had. Testifying at his 1993 trial, Mr.
Johnson said he did not even realize until after his wife died
that her life was covered.
Sgt. Oldford's investigation was a series of interviews with
the two women who cleaned up their dead friend's blood after
the tragedy. According to the AIDWYC lawyers, Sgt. Oldford showed
them gruesome autopsy pictures of Mrs. Johnson.
of pervasive suspicion is just ripe for creative memories to
thrive," Mr. Campbell noted. "They came up with a whole
new story about the bloodstains." The women's original statements
to police made no reference to blood spatters anywhere else in
the basement. Now, they began to recall seeing spots in several
fifth estate program, they stick to their second statements.)
However, the two women were alone in remembering the blood. Others
at the scene, including ambulance attendants and police officers
who searched the basement, had no such recollections.
this new evidence suggesting a struggle, Sgt. Oldford sought
opinions from two outside pathologists, Charles Hutton of St.
John's and David King of Hamilton. On the basis of the purported
bloodstains, both felt murder was a likely scenario. They visualized
Mrs. Johnson being felled with a two-by-four, trapping her head
between stairs and wall, and then receiving several more blows
as she lay on the floor.
Sgt. Oldford of their conclusions, the coroner, Dr. Perry, changed
his stance in favour of a murder theory. The fifth estate
has confirmed in interviews that Dr. King and Dr. Hutton were
not shown two reports by RCMP forensic analysts that warned it
would be dangerous to draw conclusions from the purported blood
spatters. One of the RCMP analysts used an electronic device
that detects minute traces of blood, but did not find any blood
traces in portions of the basement identified by Mrs. Hartley
and Mrs. Davis.
said in an interview yesterday that he cannot recall whether
he gave the reports to Dr. King and Dr. Hutton. "For me
to answer any questions about the Clayton Johnson case, I would have to research
it," he said. "It is an old case. I don't see the point".
months-long investigation, Sgt. Oldford became a familiar sight
to the Johnson family. He frequently knocked at their door or
stopped them in the streets to try to extract more information.
Ms. Weybret said she was once shown autopsy photos of Mrs. Johnson
and warned that she would likely be her husband's next victim.
In April, 1992,
the RCMP charged Mr. Johnson with first-degree murder. "There
is a promotion in this, and you're my ticket," Mr. Johnson
quoted Sgt. Oldford as telling him. The officer, who was later
promoted to the rank of sergeant, said yesterday he thought it
unlikely he would say such a thing. "If I made that statement,
it would be very Mickey Mouse, and I don't think I would say
was vaguely acquainted with 11 of the 12 jurors at his trial,
a development he at first viewed as fortunate. However, the trial
soon came to focus on the veracity of local gossip and on Mr.
Johnson's financial state.
weeks, Mr. Justice Jamie Saunders of the Nova Scotia Supreme
Court delivered a jury charge that laid bare the weaknesses of
the Crown's circumstantial case. On the key issue of bloodstains,
he said that if any existed, they might well have been deposited
by the family dog shaking its bloodstained fur or by the ambulance
attendants flailing about with their equipment.
The judge stressed
the extreme risk of discovery Mr. Johnson would have faced if
he had bludgeoned his wife at the exact time he was supposed
to leave for work and two sets of visitors were to arrive. Judge
Saunders said he found it personally telling that no wood fragments
were found in Mrs. Johnson's head wounds, despite the fact the
murder weapon was supposedly a two-by-four or piece of firewood.
Nor were there any bloodstains on the ceiling, he said, as one
might expect in a bludgeoning.
It was all
lost on the jury. After eight hours of deliberation, on May 4,
1993, they convicted Mr. Johnson. "I had thought for sure
I was going home," he recalled. "It came as a total
shock to me." How did such a flimsy case triumph?
appears to lie in the small-town disapproval that greeted Mr.
Johnson's new relationship with Ms. Weybret, coupled with the
stark choices facing the jury members. They recognized that if
indeed Mrs. Johnson had been murdered, only her husband could
have done it in the short space of time available. Mr. Lockyer
said the defence concentrated more on proving Mr. Johnson was
not the killer than on the absurdity of the murder scenario itself.
knew two people were coming to the house any minute," the
lawyer said. "Indeed, he had called one of them to encourage
him to be there early. What a time to decide to kill your wife!"
The fifth estate is equally unequivocal in tonight's program:
"It was open and shut," said reporter Trish Wood, who
spent three months reinvestigating the case. "Clayton was
not home when his wife died."
said he heard through the grapevine after his conviction that
the jury felt the school board implicitly branded him guilty
by laying him off without pay. He also heard that the jurors
reacted with suspicion to the fact that the Johnson family hired
a top Halifax lawyer, Joel Pink, to defend him.
allowed what the police were saying and local gossip to make
their decision," Ms. Weybret summed up. "They got sucker-punched."
Ms. Wood said
the community has gone into a defensive shell. "If you say
the word 'innocent' to people, they shout at you," she said.
"The town collectively bought into it, and it is really
hard for them to let it go."
After Mr. Johnson
approached AIDWYC, Mr. Lockyer asked a Texas forensic pathologist,
Dr. Linda Norton, to review the case. She concluded that forensic
evidence and the sequence of events rendered a theory of murder
preposterous. The central mistake Dr. King and Dr. Hutton made
was assuming that the only way Mrs. Johnson could have fallen
was forward while descending the stairs, Dr. Norton said.
If they had
considered the possibility that she lost her balance and fell
backward from the top of the stairs, she said, her injuries would
make sense. Dr. Norton said this scenario not only accounts for
Mrs. Johnson's head injuries, but also a long, linear bruise
on the back of her left calf consistent with her leg hitting
the edge of a stair. If the head were the first point of contact
in a fall, it makes sense that there would be little blood on
the wall and third stair, Dr. Norton said.
Had Mrs. Johnson
been struck and fallen to that spot, she said, there would have
been copious bloodstains from a gaping head wound. According
to Dr. Norton, the accidental-fall scenario also explains why
there were no indications of a struggle or defensive wounds on
Mrs. Johnson's hands. It also accounts for her being alive when
she was found, rather than having been finished off, and the
absence of either a murder weapon or of blood on Mr. Johnson
and his truck.
can ignore the implausibility of Clayton allowing himself only
10 minutes to beat his wife to death, eliminate and/or manipulate
the incriminating evidence he would almost surely leave at the
scene, shower, change clothes so as not to transfer blood to
his vehicle or elsewhere, and then manage to get to work at even
close to a reasonable time," Dr. Norton summarized.
In the face
of these new critiques, Dr. Hutton and Dr. King are wavering.
"It's not so tidy, no," Dr. Hutton told the fifth
estate . "I admit that. But I don't change my interpretation
of the injuries as applied to the body somehow -- whether it
was falling over stairs or being hit over the head with a two-by-four."
Dr. King told the program that he now views the homicide theory
as open to question, and he would be more willing to consider
Mrs. Johnson having died accidentally.
told The Globe and Mail that the jury spoke clearly, and that
the case has withstood two appeals. Asked about the allegation
that he succumbed to tunnel vision, he said he would probably
be the last person to know whether that were true.
Mr. Johnson's extended family remain highly supportive. "My
mom would be angry with all these people -- her friends -- who
turned against my dad," his daughter Darla said. "She
would hate them for this."
has since moved from Nova Scotia and remarried. After two years
of travelling to Mr. Johnson's remote prison in Renous, she lost
hope of his ever being released, she said. "I got tired
of saying goodbye all the time," she said. "I had lost
faith in the justice system. I have always been 100-per-cent
certain he didn't do it, but I felt no matter what we did, we
were going to lose."
said he thinks often of the woman he was convicted of murdering.
"We shared our children together, and I was very faithful
to her," he said, wiping away tears. "I loved her."
Teacher hopes murder conviction will be reviewed
Clayton Johnson hopes to join an unfortunate group that includes
Donald Marshall, David Milgaard and Guy Paul Morin.
small-town teacher convicted five years ago of murdering his
wife, says evidence gathered by an advocacy group on his behalf
supports his contention that he was wrongly convicted. Morin,
Marshall and Milgaard were all exonerated by new evidence that
overturned their murder convictions.
no way that I should have been convicted," Johnson said
Tuesday from New Brunswick's Renous Institution following a Halifax
news conference announcing a high-profile bid to clear his name.
"I know myself I didn't do it."
gained national attention Tuesday when a group led by Milgaard's
mother made a direct appeal to federal Justice Minister Anne
McLellan to re-open the case and order a new trial. Johnson is
serving a life sentence for first-degree murder in the 1989 death
of his wife Janice, whose bloodied body was found at the bottom
of a staircase in their Shelburne, N.S., home.
An appeal to
the Nova Scotia Court of Appeal was dismissed and in 1995, the
Supreme Court of Canada refused to hear the case. The application
to McLellan, under a little-used section of the Criminal Code,
asks the justice minister for an "extraordinary remedy."
It is a move that can take place after all other appeals have
been exhausted. About 30 such reviews take place each year.
McLellan said she would review the case, but warned against abusing
the provision. "It was not intended to be a fourth level
of appeal," she said. "It was never intended to be
that." Crown attorneys will co-operate with any decision
made by the federal justice minister, said Martin Herschorn,
deputy director of Nova Scotia's public prosecutions. He would
not comment further on the case. Police and the medical examiner
initially ruled Janice Johnson's death an accident. But Clayton
Johnson was later arrested and the Crown's case centred around
allegations that he killed his wife for insurance money and to
pursue a younger woman.
Johnson's supporters presented two reports Tuesday they believe
clears his name. "Clayton Johnson is serving a life sentence,
not for a crime that he didn't commit, but a crime that never
happened," said lawyer James Lockyer, a member of the Association
in Defence of the Wrongfully Convicted.
the ultimate tragedy. His daughters lost a mother to a tragic
accident, then they lost their father to a miscarriage of justice,"
said Lockyer, who represented Morin, the Ontario man wrongly
convicted of the death of his nine-year-old neighbor.
group reviewed evidence presented at Johnson's 1993 trial and
obtained new interviews. It commissioned reports from a Texas
forensic pathologist and a New York criminologist which both
concluded that Janice died after falling backwards down the stairs.
The Crown argued she died after being struck in the head with
a piece of wood, then falling forwards. Lockyer said evidence
kept from the trial, combined with town gossip concerning Johnson's
marriage to a young woman a year after his wife's death made
the case "ripe for a wrongful conviction."
crucial blood-spatter evidence was never given to experts who
testified at the trial.
his experience with the justice system has made him wonder how
many others don't belong behind prison walls. "Since this
happened, I tell you, it makes you think twice about everything,"
he said. "Some guys in here that I've talked to, I don't
know if I'm getting all the facts or not, (but) just what they've
told me, there's a whole lot more (who) shouldn't be here or
shouldn't have gotten the sentence they did."
The young woman
Johnson married a year after his wife's death left him, tired
of waiting for him to get out of prison. But he still has weekly
contact with his daughters, now 17 and 20, who were raised by
had any doubt in my mind, I always believed my father,"
Darla, 20, told a news conference. "My father's innocent.
He deserves to be free." Johnson's case received national
attention in November 1993, when the CBC's The Fifth Estate
broadcast a documentary suggesting he murdered his wife.
The news program
renounced that position in an episode broadcast Tuesday night.
The Johnson case is sure to get a fair amount of attention partly
because of the high-profile people who have come to his side,
but also because of Donald Marshall's case. Marshall, a Nova
Scotia Micmac, spent 11 years in prison before his murder conviction
was overturned and he was released. The Marshall case prompted
a royal commission inquiry into Nova Scotia's criminal justice system.
Minister of Justice Announces remedy on Application for Mercy by Clayton Johnson
21, 1998 -- Anne McLellan, Minister of Justice and Attorney General
of Canada, announced today that she has granted Clayton Johnson
a remedy under section 690 of the Criminal Code, based on information
submitted and gathered during the review of his application.
Clayton Johnson submitted his application to the Minister of Justice for a section
690 review on March 31, 1998. The application was based, in part,
on information suggesting that Janice Johnson's injuries were
the result of falling down a flight of stairs by accident, and
not the result of an assault by her husband. Mr. Johnson was
convicted of first degree murder in the death of his wife in 1993.
As a result of this application, pursuant to paragraph 690 (c) of the Criminal
Code, the Minister has referred Mr. Johnson's application to
the Court of Appeal of Nova Scotia for its opinion on the following question:
In the circumstances of this case, would the information provided by or on behalf
of Clayton Norman Johnson or obtained during the review of his
section 690 Criminal Code application for the mercy of the Crown
be admissible as fresh evidence on appeal to the Court of Appeal?
If the Court of Appeal concludes that the information would be admissible
on appeal, the Court, pursuant to paragraph 690 (b) of the Criminal
Code, will proceed to hear the case as if it were an appeal by Mr. Johnson.
"It is a priority for me to ensure that the section 690 review process
is a fair one," said Minister McLellan. "In considering
the submissions of all interested parties, this remedy will best
serve the interests of justice. In my view, the issues and information
presented in this application are matters that should be considered
by a Court of Appeal"
Section 690 provides that a person who has been convicted of an indictable
offence and who has exhausted all appeals may apply to the Minister
of Justice for a review of his or her conviction.
The section 690 application of Clayton Johnson
Background Information, Section 690 and the Minister's Decision
Background of the case
On May 4, 1993,
a jury convicted Clayton Johnson of first degree murder for the
death of his wife, Janice Johnson. Mrs. Johnson was found on
February 20, 1989 lying unconscious at the bottom of the basement
stairs with serious head injuries. She died of the injuries later
was convicted of first degree murder and sentenced to life imprisonment
with twenty-five years to be served before becoming eligible
for parole. On March 8, 1994, the Nova Scotia Court of Appeal
unanimously dismissed his appeal. The Supreme Court of Canada
dismissed an application for leave to appeal on February 2, 1995.
On March 31,
1998, Mr. Johnson, through counsel and the Association in Defence
of the Wrongly Convicted (AIDWYC), submitted an application under
section 690 of the Criminal Code. Mr. Johnson provided the Minister
with voluminous materials in support of his application.
On April 3,
1998, the appointment of John Briggs of Halifax, Nova Scotia
was announced publicly. He was to assist Departmental counsel's
investigation of the application on behalf of the Minister of
Justice. The investigation of the application was completed on
July 30, 1998. Counsel for the Department completed an Investigation
Brief summarizing the information gathered and assessed during
the investigation and forwarded it to Mr. Johnson's counsel for review.
is of the opinion that this application has met the various criteria
set out in governing principles outlined below. Given these circumstances,
it is appropriate to refer the matter to the Court of Appeal
of Nova Scotia. It was the view of the Minister that the issues
and information presented in this application are matters that
should be considered by a Court of Appeal. This remedy will allow
a full and public airing of all the relevant issues presented
by the application. Furthermore, courts of appeal have available
to them a wide range of options if they conclude in favour of an appellant.
of Justice has no power to enter an acquittal, but a Court of
Appeal does. As well, under section 686 (8), a Court of Appeal
can make any order "that justice requires."
paragraph 690 (c) of the Criminal Code, the Minister has referred
to the Court of Appeal of Nova Scotia for its opinion on the
In the circumstances
of this case, would the information provided by or on behalf
of Clayton Norman Johnson or obtained during the review of his
section 690 Criminal Code application for the mercy of the Crown
be admissible as fresh evidence on appeal to the Court of Appeal?
If the Court
of Appeal concludes that the information would be admissible
on appeal, the Minister has asked the Court, pursuant to paragraph
690 (b) of the Criminal Code, to proceed to hear the case as
if it were an appeal by Mr. Johnson.
section 690 originates in England, where traditionally the Royal
Prerogative of Mercy was the only way to revisit a decision in
a trial. Section 690 can be traced to section 748 of the 1892
Criminal Code, which had its origins in section 545 of the English
Draft Code of 1880.
In 1923, the
right to appeal in criminal cases as we now know it was introduced
in Canada. The relevant section (then 1022) of the Criminal Code
that dealt with a ministerial review of wrongful convictions
was also amended to allow the Minister of Justice not only to
order a new trial, but also to refer either an entire case or
one or more specific points to the Court of Appeal for its opinion.
The section 690 process as it now exists has evolved in the last
few years to become more transparent.
There are three possible remedies the Minister may grant under section 690:
a.a new trial
may be granted b.the matter may be referred to the Court of Appeal
for hearing as if it were an appeal by the convicted person c.the
matter, or any specific question regarding that matter, may be
referred to the Court of Appeal for its opinion
discretion with respect to applications under section 690 is
to be exercised according to certain governing principles stated
in the decision of W. Colin Thatcher. The principles are as follows:
1. The remedy
contemplated by section 690 is extraordinary. It is intended
to ensure that no miscarriage of justice occurs when all conventional
avenues of appeal have been exhausted.
2. The section
does not exist simply to permit the Minister to substitute a
Ministerial opinion for a jury's verdict or a result on appeal.
Merely because the Minister might take a different view of the
same evidence that was before the court does not empower him
or her to grant a remedy under section 690.
3. Similarly, the procedure created by section 690 is not intended to create
a fourth level of appeal. Something more will ordinarily be required
than simply a repetition of the same evidence and arguments that
were before the trial and the appellate courts. Applicants under
section 690 who rely solely on alleged weaknesses in the evidence,
or on arguments of law that were put before the court and considered,
can expect to find that their applications will be refused.
under section 690 should ordinarily be based on new matters of
significance that either were not considered by the courts or
that occurred or arose after the conventional avenues of appeal
had been exhausted.
5. Where the applicant is able to identify such "new matters", the
Minister will assess them to determine their reliability. For
example, where fresh evidence is proffered, it will be examined
to see whether it is reasonably capable of belief, having regard
to all of the circumstances. Such "new matters" will
also be examined to determine whether they are relevant to the
issues of guilt. The Minister will also have to determine the
overall effect of the "new matters" when they are taken
together with the evidence adduced at trial. In this regard,
one of the important questions will be "is there new evidence
relevant to the issue of guilt which is reasonably capable of
belief and which, taken together with the evidence adduced at
trial, could reasonably be expected to have affected the verdict?"
6. Finally, an applicant under section 690, in order to succeed, need not
convince the Minister of innocence nor prove conclusively that
a miscarriage of justice has actually occurred. Rather, the applicant
will be expected to demonstrate, based on the analysis set forth
above, that there is a basis to conclude that a miscarriage of
justice likely occurred.