The Ontario Court of Appeal refused yesterday to fashion a novel verdict of "factual innocence" that would apply to wrongful conviction cases, saying it was loath to downgrade the worth of a conventional acquittal.
But while the court passed up its chance to make legal history, it nonetheless described the wrongful murder conviction of William Mullins-Johnson, 37, as a "terrible miscarriage of justice."
It said the murder he was charged with never actually took place, but was a fiction created by shoddy pathological work.
Describing the case as a tragic "rush to judgment," the court noted that Mr. Mullins-Johnson was arrested just 11 hours after his four-year-old niece, Valin, was found dead in her bed. He spent the next 12 years behind bars.
"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," said Associate Chief Justice Dennis O'Connor, Mr. Justice Robert Sharpe and Mr. Justice Marc Rosenberg.
"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."
On Monday, the court acquitted Mr. Mullins-Johnson and joined the Crown in offering him an extraordinary apology for his ordeal, but reserved its reasons for judgment.
An aboriginal man from a reserve near Sault Ste. Marie, Mr. Mullins-Johnson told the court in moving testimony that only a declaration of utter innocence could change the mind of people who continue to believe he is a child killer.
"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," the appeal court responded yesterday.
On the night of Valin's death, Mr. Mullins-Johnson was living with his brother, Paul, and his sister-in-law, Kim, in their home on the reserve near Sault Ste. Marie. The previous night, he had babysat their children.
The next morning, her mother found Valin dead. Eleven hours later, based entirely on autopsy evidence, police arrested Mr. Mullins-Johnson for first-degree murder.
The case began to disintegrate five years ago, when international experts poked holes in disgraced pathologist Charles Smith's conclusion that Valin was sexually violated and murdered.
The court made a point yesterday of thanking the province's chief pathologist, Michael Pollanen, "whose diligence set in motion the chain of events that led to this acquittal."
It also named three prime culprits whose errors led to Mr. Mullins-Johnson's ordeal:
Bhubendra Rasaiah, who concluded at the original autopsy that Valin was murdered between 8 and 10 p.m. the previous night.
Patricia Zehr, a gynecologist and obstetrician with expertise in child sexual abuse, who declared "that this was one of the worst cases of child sexual abuse she had seen."
Dr. Smith, whose finding of murder was based on phantom injuries to Valin's anus and erroneous conclusions based on the settling of blood vessels in her neck and upper chest.