Clayton Johnson’s happy life as a carpenter, high school industrial arts teacher, church volunteer, loving husband and father of two was shattered on February 20, 1989. That morning, his wife, Janice, fell down a flight of stairs, hit her head, and lost consciousness, while Clayton was out of the house on his way to work. Janice’s body was found by a neighbour, who called paramedics immediately. Despite their rushing Janice to hospital, it was too late to save her. Janice passed away at 12:04 p.m.
At first, police agreed with the doctor who performed Janice’s autopsy that her fatal fall had been accidental. However, the investigation was reopened in the summer of 1989, due to rumours in the community which suggested that Clayton had killed his wife. Specifically, many people were suspicious of the fact that Clayton had recently taken out a life insurance policy that covered Janice. There was gossip suggesting that this decision might be connected to Clayton’s new relationship with a young woman named Tina Weybret, which started several months after Janice’s death. However, on June 10, 1990, the police again closed the investigation, since they had not found anything that would justify charging Clayton.
Further Police Investigation
Despite the fact that police had not turned up any evidence that Clayton had harmed his wife, RCMP officer Cpl. Brian Oldford took it upon himself to look into the matter further. Cpl. Oldford had not been involved with the case at its earlier stages, but in the summer of 1990, he nonetheless began to conduct his own investigations into Janice’s death. He re-interviewed two friends of the family – Mary Davis and Mary Hartley – who had helped to clean up the blood from Janice’s head wounds after her death in order to spare her family from seeing it. The two stated that they had observed widespread blood splatter, which was inconsistent with Mary Davis’ statement on the day of Janice’s death. Mary Hartley had not given a statement at the time of Janice’s death. Cpl. Oldford provided these new opinions to Dr. David King, of the Regional Forensic Pathology Unit in Hamilton, Ontario. He did not provide Dr. King with the original police reports, which told a different story. On January 17, 1991, Dr. King concluded that Janice had been struck and killed – and the two Marys’ testimony played an important role in his opinion.
Cpl. Oldford then sought a second opinion from forensic pathologist Dr. Charles Hutton, who also was not provided with the original police reports. Dr. Hutton, too, concluded that Janice had been murdered.
Given these two expert opinions, it is not surprising that in April of 1992, Clayton was arrested and charged with the first-degree murder of his wife.
Clayton’s Trial and Incarceration
At trial, the prosecution claimed that Clayton had murdered Janice in order to collect on her life insurance policy and pursue a new relationship with Tina. Even though there was no evidence to suggest that Clayton and Tina had been romantically involved before Janice’s death, the Crown suggested precisely that. The forensic pathology evidence from Dr. King and Dr. Hutton was the centrepiece of the Crown’s case. The jury members were also encouraged to believe that they could discern Clayton’s supposed murderous motives and guilty conscience from wildly speculative “evidence” such as “when Clayton cried, or did not cry,” “his failure to pass a school bus on the highway,” and “his being five minutes later to school than was typical for him.”
Clayton staunchly maintained that he was innocent, as he had done ever since his arrest. He told the jury that “I had nothing to do whatsoever with the injuries caused to Jan. I loved her too much, as I love my two girls. I just don’t know how the injuries occurred. I know I didn’t – let God be my witness, I had nothing to do with it whatsoever.”
On May 4, 1993, Clayton was found guilty of the first-degree murder of his wife. After the jury returned this verdict, the trial judge asked Clayton if he had anything to say. His response was simply, “No, other than I didn’t do it and I am innocent and that’s all I can say.”
Clayton was incarcerated at Renous Penitentiary, where he would spend the next five years. Had his wrongful conviction not been discovered, he would still be in prison today: Clayton would not have been eligible for parole until 2018.
Clayton appealed his conviction to the Nova Scotia Court of Appeal. This Court dismissed his appeal on March 8, 1994. He then applied for leave to appeal to the Supreme Court of Canada, which dismissed his application on February 2, 1995. Clayton spent the next five years languishing in prison for committing a murder that had never happened.
A Miscarriage of Justice
Clayton contacted Innocence Canada (formerly AIDWYC) in November of 1995, and the organization took his case. With Innocence Canada’s help, Clayton submitted an application for ministerial review of his conviction, under s. 690 (now s.696.1) of the Criminal Code. This application was granted, and Innocence Canada prepared a wide variety of material for the Minister of Justice, which demonstrated that Clayton had been wrongly convicted.
Innocence Canada addressed the blood-spatter question by consulting experts in the field who had been apprised of all the evidence (unlike Dr. King and Dr. Hutton). These experts concluded that Janice’s death had been an accident: she had fallen backwards down the stairs, and her head had briefly been wedged between the stairs and the wall. One of the experts spelled out in his report that “There is no question in my mind that the death of Mrs. Johnson was the result of an accident. It was not a homicide.”
Furthermore, Innocence Canada demonstrated that the credibility of the evidence from Mary Hartley and Mary Davis regarding the blood stains they claimed to have observed was dubious at best. Mary Hartley was interviewed on November 15, 1990 – nineteen months after Janice’s death. The officer’s notes indicate that “Mary stated that there was so much blood around now that she thinks of it.” However, these notes also explain that “Mary stated that she felt she should tell me [that] … she took one of the photos partly out of its file” when the officers were out of the room. “She was able to see the wound to the right side of Janice’s head. She stated that she never used to think anything other than [that] Janice fell downstairs.” After seeing the photo of Janice’s head wounds, she had concluded that her original theory “couldn’t have happened as there was nothing sharp on the stairs … to cause what she saw.” In other words, Mary Hartley understandably, but destructively, revised her memory to accord with what she had seen in the file.
Mary Davis was interviewed the day after Mary Hartley, and gave a statement that differed dramatically from her original statement. This time around, she too recalled observing a great deal of blood splattered in different locations.
As for the life insurance policy, Innocence Canada pointed out that Clayton had bought this insurance for both himself and his wife after a teachers’ union representative suggested that buying life insurance would be a wise choice since Clayton did dangerous construction work in addition to his teaching job. Clayton wanted to know that his wife and daughters would be provided for if something happened to him, so he followed this advice and bought the policy.
Finally, there was no reason at all to believe that Clayton’s relationship with Tina had any sinister aspect. He had contacted Tina after his wife’s death, initially for emotional support. The pair became romantically interested in each other a few months after Janice’s death. The two were very open about their relationship, dating in public places and sitting together in church. On June 30, 1990, Clayton and Tina were married. Tina adopted his daughters, and the pair stayed together until after Clayton’s conviction (when, as seen above, he was sent to prison for the indefinite future). The total absence of evidence that Clayton and Tina had done anything wrong did not, however, stop the prosecutor from asking questions that obviously suggested that Clayton had been cheating on Janice with her.
On September 21, 1998, the Minister of Justice sent Clayton’s case back to the Nova Scotia Court of Appeal, requiring the court to reopen it. On September 25, Clayton was finally released from prison, after spending five years behind bars for a crime that never occurred.
Three and a half years later, Clayton’s name was cleared at long last. On February 18, 2002, the Nova Scotia Court of Appeal quashed Clayton’s conviction and ordered a new trial that would include the overwhelming new evidence – collected “from 22 experts in forensic pathology, engineering, biomechanics, physics and human postural dynamics” –proving that Janice’s death was accidental. However, the Crown decided not to enter any new evidence, meaning that rather than being subjected to a lengthy, painful trial, Clayton was finally free.
Causes of Clayton’s Wrongful Conviction
As noted by the Innocence Canada lawyers who composed the s. 690 application for ministerial review, Clayton was wrongly convicted because of a combination of “overzealous police investigation; an overreaching prosecution; misleading expert evidence; and a climate of suspicion in which prejudice and speculation were easily substituted for reason and evidence.”
Despite the lack of any concrete reasons to support this theory, some officers (including Cpl. Oldford) reached their own conclusions that Clayton had murdered his wife. In addition to blinding them to evidence of Clayton’s innocence that should have led them to drop the investigation, it is possible that the officers unconsciously transmitted their strong beliefs to Mary Hartley and Mary Davis, altering these witnesses’ recollections about the day of Janice’s death. Human memory is very malleable and fades very quickly. As a result, “people are particularly prone to having their memories affected by misinformation when it is introduced after the passage of time has allowed the original event memory to fade.”  This fact might explain why it was so easy for both Marys to change their minds – over a year after the fact – about what had happened on the day that Janice passed away, when presented with cues that suggested to them that their friend had actually been murdered.
All of these investigative problems, however, were rooted in the suspicion and baseless gossip that began to swirl around the community after Janice’s death. Neither Clayton’s decision to purchase a life insurance policy for Janice (and for himself), nor his relationship with Tina, had any relevance at all to his guilt or innocence but the police and prosecutors seemed to become infected by the toxic atmosphere created by community gossip. It is vitally important that law enforcement and officers of the court remember that their role is to be objective and dispassionate in the pursuit of justice, rather than allowing their personal preferences and prejudices to cloud their judgment.
Wounds that Innocence Canada Cannot Heal
Clayton was able to clear his name, but as the judge who released him from his five years in prison pointed out, the time “unjustly taken from him … can never be restored.” Moreover, Clayton was of course separated from his young daughters, who were only 11 and 9 years old at the time of Janice’s death. The girls had in effect lost both their parents in rapid succession, and were sent to live with their paternal grandparents while their father was in jail for their mother’s murder. As the AIDWYC lawyers put it in their application for ministerial review, these girls “lost their mother through fate; they…lost their father through a miscarriage of justice.”
Unlike many other wrongly convicted people, Clayton was lucky enough to be successful in his subsequent lawsuit against the government, in which he argued that he was due compensation for the almost unimaginable losses he sustained. Clayton received $2.5 million dollars. While this figure is substantial, no amount of money could ever replace the loss of five years of his life, which should have been spent with his already grief-stricken family rather than apart from them in jail.
 R v Johnson,  NSJ No 381 at para 8, 131 CCC (3d) 343 (Freeman JA) [R v Johnson]; Applicant’s Factum in the Matter of an Application Under Section 690 of the Criminal Code, between Her Majesty the Queen (Respondent) and Clayton Johnson (Applicant), dated March 31, 1998, at paras 3-5, 8, 12, 13, 16, 18, 206 [Applicant’s Factum]; CBC News: “Clayton Johnson Walks as Crown Balks at New Trial.” February 18, 2002, http://www.cbc.ca/news/canada/clayton-johnson-walks-as-crown-balks-at-new-trial-1.346679 [“Clayton Johnson Walks”].
 Applicant’s Factum, supra note 1 at paras 21-24.
 Ibid at paras 25, 37, 30.
 Ibid at para 31.
 “Clayton Johnson,” Injustice Busters website: http://injusticebusters.org/index.htm/ClaytonJohnson.htm.
 Applicant’s Factum, supra note 1 at paras 24, 29, 31, 214.
 Ibid at paras 33, 200.
 Ibid at para 33.
 Ibid at para 1; Richard Perry, Department of Justice: “Clayton Johnson Settlement.” June 18, 2008, at Nova Scotia Canada: http://novascotia.ca/news/release/?id=20040618007 [“Clayton Johnson Settlement”].
 Applicant’s Factum, supra note 1 at para 1.
 Ibid at paras 2, 32, 37.
 Ibid at paras 9, 36, 37, 199.
 Ibid at para 97.
 Ibid at para 92.
 Ibid at para 209.
 Ibid at paras 225, 228-230.
 R v Johnson, “Clayton Johnson Walks,” supra note 1.
 “Clayton Johnson Walks,” supra note 1; Chris Hansen, Public Prosecution Service: “Crown Halts Clayton Johnson Murder Prosecution.” February 18, 2002, at Nova Scotia Canada: http://novascotia.ca/news/release/?id=20020218002.
 Applicant’s Factum, supra note 1 at para 262.
 Elizabeth F Loftus, “Planting Misinformation in the Human Mind: A 30-year Investigation of the Malleability of Memory” (2005) 12 Learning & Memory 361-366 at 361.
 Applicant’s Factum, supra note 1 at 273-247.
 R v Johnson, supra note 1 at para 12; Applicant’s Factum, supra note 1 at paras 6, 295.
 “Clayton Johnson Settlement,” supra note 9.