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Clayton Johnson murder case

Nova Scotia Appeal Court orders new Murder Trial for Clayton Johnson

Clayton Johnson passed away September 20, 2017

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 first-degree murder.

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.

Those questions 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.

Two pathologists at Johnson's trial argued a deadly beating with a baseball bat or two-by-four was the only conceivable explanation for Johnson's head injuries.

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

Clayton Johnson 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.

"I find 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, Guy Paul Morin and David Milgaard. 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."

Mr. Johnson, 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.

Mrs. Thompson 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.

They found 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.

Ambulance attendants 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, God?' "

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.

Nova Scotia's 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.

Three months 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.

Ms. Weybret 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.

His accusers 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.

Central to 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.

"An atmosphere 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 other locations.

(In the 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.

Armed with 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.

Informed by 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.

Sgt. Oldford 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".

During his 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 that."

Mr. Johnson 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.

After three 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?

The answer 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.

"Clayton 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."

Mr. Johnson 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.

"They 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.

"No one 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.

Sgt. Oldford 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.

Meanwhile, 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."

Ms. Weybret 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."

Mr. Johnson 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

HALIFAX (CP) Clayton Johnson hopes to join an unfortunate group that includes Donald Marshall, David Milgaard and Guy Paul Morin.

Johnson, a 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.

"There's 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."

Johnson's case 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.

In Ottawa, 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.

In Halifax, 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.

"It is 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.

The advocacy 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."

Lockyer said crucial blood-spatter evidence was never given to experts who testified at the trial.

Johnson says 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 his parents.

"I never 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

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 in hospital.

Mr. Johnson 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.

Minister's Decision

The Minister 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.

The Minister 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."

Pursuant to paragraph 690 (c) of the Criminal Code, the Minister has referred 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 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

The present-day 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

Guiding Principles

The Ministerial 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.

4. Applications 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.