ONTARIO'S HIGHEST COURT DID, HOWEVER, USE STRONG LANGUAGE TO DRIVE HOME THE POINT THAT THERE IS NO EVIDENCE VALIN'S 1993 DEATH WAS A CRIME, SAYING THE ARREST WAS THE RESULT OF AN "INEXORABLE RUSH TO JUDGMENT" TRIGGERED BY SAULT STE. MARIE DOCTORS BHUBENDRA RASAIAH AND PATRICIA ZEHR – BOTH INVOLVED IN THE AUTOPSY ON VALIN'S BODY – AND TORONTO PEDIATRIC PATHOLOGIST DR. CHARLES SMITH.
"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," THE COURT SAID. "WHILE THE CAUSE OF VALIN JOHNSON'S DEATH REMAINS UNDETERMINED, THERE IS NOW NO EVIDENCE TO SUGGEST IT WAS THE RESULT OF ANY CRIME."
Reporter Tracey Tyler; Toronto Star;
--------------------------------------------------------------------------
Sault Ste. Marie pathologist Dr. Bhubendra Rasaiah's refusal to take any personal responsibility for his role in the William Mullins-Johnson travesty must be considered in light of the Ontario Court of Appeal decision acquitting Mullins-Johnson after he had spent more that twelve years behind bars;
Toronto Star reporter Tracey Tyler's story on the exraordinary appeal court decision ran on October 20, 2007 under the heading "Court rejects 2 shades of innocence."
"The Ontario Court of Appeal appears to have closed the door on the concept of a third verdict in criminal trials to allow wrongly convicted persons to be declared "factually innocent," saying the move could degrade the meaning of the words "not guilty," Tyler wrote;
""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," said Associate Chief Justice Dennis O'Connor and Justices Marc Rosenberg and Robert Sharpe in a written judgment," the story continued;
"The "most compelling" reason, the judges said, is the impact it would have on other people found not guilty by the criminal courts – relegating them to a lesser class of persons who have benefitted from the presumption of innocence and the requirement that the Crown must prove its case beyond a reasonable doubt.
The panel confronted the thorny issue yesterday in the case of William Mullins-Johnson, 37, who spent 12 years in prison after being wrongly convicted of murdering his 4-year-old niece, Valin, on the basis of flawed pathological evidence.
The court acquitted Mullins-Johnson on Monday after an emotional hearing at Osgoode Hall. O'Connor expressed the court's profound regret for the Sault Ste. Marie native's ordeal.
The court went even further in its written reasons yesterday, saying the conviction was "wrong" and twice describing Mullins-Johnson as the victim of "a terrible miscarriage of justice."
James Lockyer, the exonerated man's lawyer, had requested that the court go beyond simply acquitting him.
He asked the panel to express in its written reasons that Mullins-Johnson, who had been accused of strangling and sodomizing his niece, is "actually innocent" and was convicted of a crime that simply did not occur.
Ontario's highest court did, however, use strong language to drive home the point that there is no evidence Valin's 1993 death was a crime, saying the arrest was the result of an "inexorable rush to judgment" triggered by Sault Ste. Marie doctors Bhubendra Rasaiah and Patricia Zehr – both involved in the autopsy on Valin's body – and Toronto pediatric pathologist Dr. Charles Smith.
"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," the court said. "While the cause of Valin Johnson's death remains undetermined, there is now no evidence to suggest it was the result of any crime."
"Nothing we have said in these reasons should be taken as somehow qualifying the impact of the fresh evidence," said the panel. "That evidence, together with other evidence, shows beyond question that the appellant's conviction was wrong and that he was the subject of a terrible miscarriage of justice."
For Mullins-Johnson, now a first-year student at the University of Toronto, it was more than enough.
"I'm as happy as can be," he said yesterday. "They came as close as they could, legally speaking, in terms of factual innocence. If you read it, that's actually what they're saying."
Lockyer was also gratified.
"I accept the court's judgment and I accept the decision they've come to," he said. "It doesn't trouble me, because they've made it abundantly clear that Mr. Mullins-Johnson is a victim of a terrible miscarriage of justice and they've said it twice in a short judgment. What more could I ask for?""
