Truscott case bounced back to appeals court

Steven Truscott and his wife, Marlene, outside their family home in Guelph, Ont. Thursday.
 Photo: Adrian Wyld/CP
Steven Truscott and his wife, Marlene, outside their family home in Guelph, Ont., on Thursday.

From Friday's Globe and Mail


Friday, Oct 29, 2004

Ottawa Federal Justice Minister Irwin Cotler bounced Steven Truscott's 45-year-old murder conviction back to the Ontario Court of Appeal Thursday, an unexpected move that disappointed the family and shifted the spotlight to the province's Attorney-General.

Now the pressure to end Mr. Truscott's long quest for exoneration is on Michael Bryant, who some say could acknowledge Mr. Truscott was wrongfully convicted and recommend that opposition to the appeal be dropped.

While most had expected the federal minister to order a new trial where prosecutors would decide not to proceed against Mr. Truscott, Mr. Cotler chose to ask the appeal court to determine whether new evidence would have changed the outcome of the 1959 trial.

Mr. Cotler said that he had found "there was a miscarriage of justice in this case" but that the only appropriate remedy was to have the appeal court review the evidence.

At his home in Guelph, Ont., Mr. Truscott met the decision with an air of fatalism. "It's a bump on the road," he told The Globe and Mail. "Once they sentence you to hang, what else can they do to you?"

His eldest son, Ryan, said: "It's disappointing that we didn't get what we wanted. But we'll turn around as a family tomorrow and start fighting again."

Mr. Truscott's wife, Marlene, who had been the driving force in the family's recent battles, was clearly angered by the Justice Minister's decision: "It's a disgrace; I think it's a cop-out."

Mr. Truscott was 14 when he was sentenced to death for the rape and murder of 12-year-old Lynne Harper. His sentence was later commuted to life imprisonment.

In 1966, journalist Isabel LeBourdais published a book championing his innocence. His case was reviewed by the Supreme Court, and rejected in 1967. He was freed on parole in 1969.

But as his family continued to fight for his exoneration, new evidence that was not revealed at his trial emerged and the Association in Defence of the Wrongly Convicted filed an application for a review of his conviction.

Lawyers for Mr. Truscott said Thursday they were disappointed that they face a likely delay of two or three years, rather than seeing him exonerated soon in the Goderich, Ont., court where he was convicted.

They said the only hope for a swift resolution would be a decision by Ontario's Attorney-General not to fight the appeal.

"There is one way that this appeal can be expedited. And that's if the Ontario Attorney-General backs off, acknowledges as well as the Justice Minister that there is a miscarriage of justice in this case, acknowledges that in the Court of Appeal and we can have this appeal heard in a matter of months," lawyer James Lockyer said.

Mr. Bryant declined to comment directly on Mr. Lockyer's remarks. But in earlier, general remarks about Mr. Cotler's decision, he told reporters at Queen's Park he could not make any judgments himself. "A conviction has been entered, and it is only the Court of Appeal, under this process, that could overturn that conviction."

"As the Minister of Justice said today, the issue of guilt or innocence is not to be determined by either the Attorney-General of Canada or of Ontario. It's to be determined by a court," Mr. Bryant said.

The case will now go to the court as an appeal of Mr. Truscott's conviction, but because it is based on fresh evidence not introduced in court before, appellate judges could call witnesses and examine the evidence.

The appeal court can uphold the conviction, order a new trial, or acquit Mr. Truscott.

Mr. Cotler's decision was a middle step between the two stark choices in the case: to reject Mr. Truscott's claim of wrongful conviction or to order a new trial.

Prosecutors would probably have been forced to fold the case in a new trial, 45 years after Mr. Truscott was convicted, because some witnesses are now dead and the testimony of others might now be viewed as unreliable.

Mr. Cotler, who said he had informed both the Harper family and the Truscott family of his decision, insisted that he was not dodging responsibility.

"I don't shrink from any decisions that I have to make. I'm guided by one principle only, and that is: What is the right thing to do?" he told reporters.

He said that if he ordered a new trial, prosecutors would have either argued the case, taking just as much time as an appeal, or they would have decided that they are no longer able to present a case 45 years later.

"That would not have given Mr. Truscott the exoneration that he seeks," Mr. Cotler said.

He noted that only judges can test new evidence to determine whether it is admissible in court, and whether it would have affected the verdict in Mr. Truscott's trial.

He indicated that Mr. Justice Fred Kaufman of the Quebec Court of Appeal, who was appointed to investigate the case, made the same recommendation in his 700-page report, which he submitted in May.

Typically, new trials are ordered when the new evidence provides a clear-cut indication that the first trial was prejudiced, such as when physical evidence that helped secure a conviction is shown by DNA evidence not to match that of the convicted suspect.

But when the evidence is less clear-cut, such as new testimony from witnesses who have not been cross-examined, it is more often referred to the appeals court.

Mr. Lockyer scoffed at Mr. Cotler's explanation of his decision.

"The minister's statement is a statement without meaning. I can only conclude it's made as an attempt to justify the decision that he's having difficulty justifying," he said.

"In a new trial, you determine the admissibility of evidence, and you do that in a court of appeal. One is done in the rarefied atmosphere of a court of appeal, and one is done in the more down-to-earth atmosphere of a trial court."

In the past 25 years, about 20 cases have been referred to appellate courts for closer scrutiny by the minister of justice of the day. Only two have been sent straight back to the trial courts for a retrial, Mr. Lockyer said.

With reports from Julian Sher, Richard Mackie and Kirk Makin