August 28, 2007
Ontario court acquits Truscott; says 1959 conviction 'miscarriage
of justice'
TORONTO (CP) _ The youngest Canadian to ever face a death sentence
fell victim to a ``miscarriage of justice'' nearly half a century
ago, Ontario's highest court said Tuesday as it acquitted Steven
Truscott of the 1959 rape and murder of 12-year-old Lynne Harper.
``The conviction, placed in the light of the fresh evidence,
constitutes a miscarriage of justice and must be quashed,'' reads
the unanimous judgment from the Ontario Court of Appeal.
``The fresh evidence related to the issue of the time of Lynne
Harper's death is sufficient to quash the conviction.''
That evidence dealt in large part with the original autopsy notes
made at the time by forensic medical examiner Dr. John Penistan,
who testified that Harper died before 7:45 p.m. on June 9 _ a
conclusion that made Truscott the prime suspect.
Last year, the Appeal Court heard evidence that Penistan's original
autopsy conclusions allowed for a time of death much later than
7:45 p.m. _ perhaps even the next day, when Truscott was in school.
``Armed with the two unofficial and earlier versions of the autopsy
report, the defence may have secured an admission by Dr. Penistan
that he had changed his mind as to the likely time of Lynne Harper's
death,'' the Appeal Court ruled.
``We agree with the appellant's contention that the documents
could have had a dramatic impact on the jury's assessment.''
The judgment, which means Truscott is no longer a convicted murderer,
falls short of his lawyers' request that the court not only acquit
their client but find him innocent as well.
``The appellant has not demonstrated his factual innocence,''
the court wrote. ``At this time, and on the totality of the record,
we are in no position to make a declaration of innocence.''
Ontario Attorney General Michael Bryant told a news conference
within minutes of the decision being released that the Crown had
no plans to mount an appeal.
He also delivered an abject apology.
``On behalf of the government, I am truly sorry,'' Bryant said.
``It is a decision that will not be appealed by the Crown _ it
is over.''
Bryant also said he has asked Justice Sydney Robins _ a former
Ontario Court of Appeal judge and ``one of our greatest jurists''
_ to advise the government on the issue of compensation.
``The government of Ontario will fully co-operate with Justice
Robins, as will all counsel.''
Truscott and his lawyers were expected to react to the decision
at a news conference later Tuesday afternoon.
While the court's finding would usually result in a new trial
being ordered, the panel of judges said the Truscott case is unique.
``We are satisfied that were a new trial possible, the acquittal
of Mr. Truscott, while not the only possible verdict, would clearly
be the more likely result.''
Truscott was convicted of the rape and murder of Harper on Sept.
30, 1959, some three months after her body was found in a wooded
area near the CFB Clinton air force base in southwestern Ontario.
Truscott had long claimed he gave Harper a ride on his bicycle
and saw his schoolmate get into a passing car on a rural highway.
The Crown successfully argued in 1959 that Harper never made
it to the highway because Truscott veered down a path south of
that location where he raped and strangled the girl.
At 14, Truscott became the youngest Canadian to be sentenced
to hang _ a sentence that was commuted to life in prison in 1960,
the same year he lost his first appeal.
Six years later, journalist Isabel LeBourdais's book ``The Trial
of Steven Truscott'' became the first published document to poke
holes in the police investigation and the prosecution's case,
prompting a review by the Supreme Court of Canada.
But the conviction was upheld and Truscott spent 10 years in
prison before he was released on parole in 1969. He later married
his wife Marlene and moved to Guelph, Ont., where he raised his
now-grown sons Devon and Ryan and daughter Leslie in anonymity
under an assumed surname.
The Association in Defence of the Wrongly Convicted, led by prominent
lawyer James Lockyer, took on his case and in 2000, Truscott went
public with his story for the first time in a television documentary.
Less than a year later, his lawyers asked the federal justice
minister to reopen the case. Retired Quebec justice Fred Kaufman
was given the task and concluded there was likely a miscarriage
of justice.
Irwin Cotler, who was justice minister at the time, nonetheless
sent the case to the Ontario Court of Appeal to examine whether
new evidence might have altered the outcome of the original trial.
During the review _ part of which was broadcast live on television
_ Truscott's lawyers argued previously undisclosed witness testimony
that put him and Harper on a bridge north of the wooded trail
where her remains were found contradicts the Crown's original
murder theory and proves his innocence.
They also introduced forensic evidence related to Harper's stomach
contents and the process of her body's decomposition that suggested
she was likely killed some time after she and Truscott were know
to be together.
Journalist Julian Sher, who has written a book on the Truscott
case, said the Appeal Court's decision is virtually everything
Truscott wanted to hear, short of a finding of innocence.
``Steven Truscott went to bed last night a convicted murderer,''
Sher said. ``This morning, he has been acquitted of a crime he
always said he never committed. He has the court saying there
was a miscarriage of justice, which he always believed, what he
always wanted to hear. In that sense, it's extremely, extremely
important.''
