The section 690 application of Clayton Johnson

Background Information, Section 690 and the Minister’s Decision

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:

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:

1. a new trial may be granted
2. the matter may be referred to the Court of Appeal for hearing as if it were an appeal by the convicted person
3. 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.

Communications and Executive Services Branch
Department of Justice
September 21, 1998