Truscott: the justice system on trial
For many, the verdict is already in. Good has come from this saga
By JULIAN SHER
Author of Until You Are Dead: Steven Truscott's Long Ride into
History
Monday, August 27, 2007
It was on Oct. 1, 1959, when Prime Minister John Diefenbaker
sat down with his cabinet colleagues for a troubling conversation.
Three days earlier, a judge had sentenced a 14-year-old boy named
Steven Truscott to hang by the neck "until you are dead."
"The outcome would be reported all over the world and would
undoubtedly reflect badly on Canada," Diefenbaker said, according
to cabinet minutes.
Nobody around the cabinet table seemed to doubt the verdict.
Nobody was bothered that police had arrested a boy - without notifying
his parents - after fewer than 24 hours of investigation; that
he was put on trial as an adult with his lawyer having only three
months to prepare; and that the entire show was over in two weeks
before the judge sent the teenager to the gallows.
The prime minister - who as a lawyer had seen a client he was
convinced was innocent go to the gallows - told his colleagues
he was "shocked" by the sentence. Still, the cabinet
eventually decided to delay any action because "premature
commutation might well be criticized as setting an undesirable
precedent for the future."
For four months, the boy sat on death row, until his punishment
was commuted to life in prison. He served 10 years and has been
on parole ever since as a man convicted of a murder he insists
he did not commit.
Tuesday, the Ontario Court of Appeal will issue its historic
verdict on the case after hearing disturbing new evidence of an
egregious miscarriage of justice.
But for many, the verdict is already in on how the Canadian justice
system failed miserably for Steven Truscott and Lynne Harper,
the 12-year-old girl who was killed.
The good news is that the Truscott saga also reflects how dramatically
we have changed our attitudes since Diefenbaker's cabinet debated
the fate of a teenage boy.
In the early 1960s, when a bold and brash journalist named Isabel
LeBourdais dared to investigate the Truscott case and suggest
in a bestselling book it was deeply flawed, there was outrage.
Lawyers denounced it as "an unwarranted attack on the processes
of justice" in a front-page article in the Toronto Star.
The Globe and Mail found extreme hostility in the town of Clinton,
Ont., where Truscott and Harper had lived on a nearby military
base. "If we can't have confidence in our courts, what kind
of country have we got?" asked John Livermore, the clerk
treasurer.
Precisely. But surely that confidence had to be earned, not awarded
blindly.
That's what the Truscott case taught a lot of Canadians. "I
lost faith in the Canadian courts," Liberal MP James Byrne
proclaimed, as the controversy continued to rage all through the
1960s over the Truscott rush to judgment. It quickly became enmeshed
in the debate over the abolition of the death penalty.
"Truscott furor boosts anti-hanging hopes," ran one
newspaper headline in 1966, as Parliament prepared for a cliffhanger
of a vote. In the end, a compromise bill that limited the death
sentence to murderers of on-duty police officers and prison guards
passed by the slimmest margins.
A young justice minister named Pierre Elliott Trudeau called
it "one step further from violence and barbarism." The
NDP house leader, Stanley Knowles, the parliamentarian who more
than any other had fought for Truscott's freedom, called it "a
great day in the history of civilization." That same year
the Supreme Court reviewed the Truscott file, but only one judge
found fault with it. In a blistering dissent, Mr. Justice Emmett
Hall decried the 1959 court case as "a bad trial."
"When passions are aroused and the court is dealing with
a crime which cries out for vengeance, then comes the time of
testing," Justice Hall wrote.
Fast-forward 30 years to the 21st century. How much has changed,
thankfully. Names like Marshall and Morin and Milgaard have become
synonymous with a term that hardly existed in the public parlance
of the 1950s or the 1960s: "wrongful conviction."
The Supreme Court of Canada has ruled that we cannot extradite
someone to countries that execute people - including the United
States - unless the death penalty is explicitly taken off the
table. The court explicitly cited the disclosures of wrongful
convictions for murder in Canada, the United States and the United
Kingdom as "tragic testimony to the fallibility of the legal
system."
How far we have come from that courtroom in 1959.
Now it has come full circle to the case that started much of
this reflection and change. Nineteen judges in five decades have
ruled against Steven Truscott. Will the five members of the Court
of Appeal be any different? Let's hope they have the courage to
not only condemn a miscarriage of justice, but also to exonerate
a man who has already been punished too much for a crime he did
not commit.
It is, as Justice Hall put it so aptly, a "time for testing."
But the tables have turned. It is the justice system that is
on trial now. Not Steven Truscott.
