Canadian Lawyer

w w w . C a n a D I a n L a w y e r m a g . c o m J a n u a r y 2 0 1 5 27 for juries, although justices Bertha Wil- son and Antonio Lamer agreed with the majority that the acquittal should be set aside and a new trial ordered. "e jury must be satisfied, within the context of all the facts of the case, that each of the facts they rely on for a finding of guilt has been proved beyond a reasonable doubt," wrote Wilson. Simply referring to the "case as a whole," gives the jury "no guidance as to what standard of proof it must apply to the fact-finding exercise," she added. Another legal debate over the duties of a judge in the instructions to the jury arose in the 1996 appeal of William Mullins-John- son. e Sault Ste. Marie, Ont., resident was convicted in 1994 of raping and killing his four-year-old niece, spending 12 years in prison. Mullins-Johnson was acquitted in 2007, aer new tests showed his original conviction was based on faulty evidence by now disgraced pathologist Dr. Charles Smith. e young girl had actually died of natural causes. Mullins-Johnson ultimately received more than $4 million in compen- sation from the Ontario government. What remains in place though, are the steps a trial judge must take in putting the defence theory to a jury. ese were set out by the majority in the 1996 Ontario Court of Ap- peal ruling that upheld Mullins-Johnson's murder conviction. It is necessary to look at the charge "as a whole" to determine if the juror has received "a fair picture of the position of the defence," the majority wrote. e late justice Stephen Borins dis- sented and would have ordered a new trial, concluding the evidence was "weak" that Mullins-Johnson, or anyone, had assaulted the girl. e appellate judge also suggested trial judges had a greater responsibility when explaining the defence theory to a jury. Evidence should be outlined, in a sys- tematic way, that if accepted by a jury, could raise a reasonable doubt, wrote Borins. e Supreme Court of Canada dis- missed Mullins-Johnson's appeal in a one- sentence oral ruling in 1998. e process suggested by Borins was also explicitly rejected by his Court of Appeal colleagues in 1999, in the dismissal of an appeal by Lisa Olsen and Michael Podniewicz in a notorious case involving the death of an infant. e Court of Appeal decision in Mullins-Johnson continues to be cited not only on the issue of a trial judge's responsi- bilities of explaining the defence theory to the jury, but also on the right of the Crown to bring up propensity evidence against a defendant, if he is trying to implicate an- other person at the trial. In some instances, the principles set out can be very broad and the fact they came from a wrongful conviction case, can be incidental. e test for bail pend- ing appeal aer a conviction for a serious offence was developed in 1992 by the On- tario Court of Appeal in a ruling against Robert Baltovich. He was denied bail af- ter his conviction in the death of his girl- friend. e legal test, though, is ultimately whether it is in the public interest to allow the release pending appeal. According to Ruby, the principles may oen be sound, regardless of the cases where they originated or were refined. e number of principles, which are still valid, that came out of prosecutions with wrong- ful convictions may be more of a "quirk" in the law, says Ruby. While it is oen other factors that lead Practical. Relevant. Accessible. OSGOODE PROFESSIONAL DEVELOPMENT CONTINUING LEGAL EDUCATION JANUARY Expert Forensic Evidence in Criminal Proceedings January 16, 2015 Bhasin v. Hrynew: The New Duty To Act Honestly Webinar January 19, 2015 Negotiating, Challenging and Drafting Domestic Contracts January 20, 2015 The OsgoodePD Webinar Series: The Guide to Bringing/Defending Civil Sexual Assault Claims Starts January 20, 2015 &HUWLoFDWHLQ/DERXU/DZ Starts January 27, 2015 &HUWLoFDWHLQ5HJXODWRU\ &RPSOLDQFHDQG/HJDO5LVN Management for Financial Institutions Starts January 27, 2015 3HQVLRQ %HQHoW Entitlements Upon 0DUULDJH%UHDNGRZQ January 28, 2015 0HQWDO+HDOWK/DZIRU Children and Youth January 28, 2015 Prosecuting and Defending Professional Discipline Cases January 30, 2015 FEBRUARY The Public Interest in Securities Adjudication: Past, Present and Future February 4, 2015 Financial Statements and Financial Reporting February 17 - 18, 2015 $FFLGHQW%HQHoWV What's Current, What's Important? February 20, 2015 The Practical Guide to Federal Court Practice February 25, 2015 11th Annual Conference on &URZQ/LDELOLW\ February 27, 2015 The Intensive Course Written Criminal Advocacy February 28, 2015 MARCH Data Breaches: Avoidance, Preparedness and Response March 2, 2015 6HWWLQJ8S.QRFNLQJ Down Asset Protection Structures March 3, 2015 4th Annual Recent Developments and Complex Issues in Property and Equalization March 4, 2015 8th Annual Intensive Course on Drafting and Reviewing Search Warrants March 5, 2015 7KH2VJRRGH&HUWLoFDWH LQ(OGHU/DZ Starts March 24, 2015 Fundamentals of U.S. 6HFXULWLHV/DZ:KDW &DQDGLDQ/DZ\HUV Need to Know March 26, 2015 0 $6NLOOV%RRW&DPS March 31 - April 1, 2015 A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING OSGOODE PROFESSIONAL DEVELOPMENT, 1 DUNDAS STREET WEST, SUITE 2600, TORONTO To Register: www.osgoodepd.ca Or Call: 416.597.9724 or 1.888.923.3394 Or Email: 2VJRRGH3'#RVJRRGH\RUNXFD Osgoode Professional Development has been approved as an Accredited Provider of Professionalism Content E\7KH/DZ6RFLHW\RI8SSHU&DQDGD 3ULRULW\6HUYLFH&RGH&/ ntitled-3 1 2014-12-16 1:22 PM

• Cover