Julian Sher.com

Four decades ago, Canada nearly hanged a 14-year-old for murder. New evidence of his innocence should make us reopen the case, says author JULIAN SHER

After four decades, Steven Truscott's story still grips generations of Canadians.

Three hundred people came to hear it last month, at a book-reading in a Guelph, Ont., church. (Guelph is where Mr. Truscott, now a grandfather of three, makes his home.) In the front pew, a white-haired 96-year-old woman listened attentively. She was a cook at the prison where Mr. Truscott spent his teenage years in the early 1960s. At the back of the church, a 13-year old boy with a hip haircut was also transfixed -- and proud of the top marks he earned for his school project on the Truscott case. The vice-principal from Mr. Truscott's school back in 1959 turned out, as well as childhood friends, neighbours and even former prison guards who had come to believe in his innocence.

Belief is one thing; proof is another. But with new evidence in hand, lawyers for the Association in Defence of the Wrongly Convicted unveiled their 600-page brief yesterday in Toronto asking Justice Minister Anne McLellan to reopen the 42-year-old murder case.
Back in 1959, when Canada still had the death penalty, Mr. Truscott was sentenced to hang for the rape and murder of Lynne Harper, a 12-year-old classmate in Clinton, Ont. He was 14 years old. His sentence was commuted to life and the boy spent 10 years in prison, where, despite being questioned while under LSD and truth serum, he steadfastly maintained his innocence. He is still on parole.

The new evidence presented to the Justice Minister -- uncovered by Mr. Truscott's tireless wife, Marlene, his legal team and investigative journalists -- was not available to the jurors who condemned Mr. Truscott in 1959 and the Supreme Court justices who endorsed the guilty verdict in 1966. The one man with firsthand knowledge of much of that evidence passed away just three weeks ago. Harold Graham, the OPP inspector who arrested the boy and eventually rose to the force's top job as commissioner, died Nov. 3, at the age of 84.

I spoke to Mr. Graham several times in the course of researching my book on the Truscott case. He always declined to be interviewed. Now, he takes many unanswered questions to his grave.

Why after the autopsy on Ms. Harper's body on June 11, 1959, did Mr. Graham issue a handwritten police bulletin estimating the time of death at 9 p.m. (when Mr. Truscott was safely at home baby-sitting) -- yet at trial, he and the pathologist instead talked about a time of death between 7 p.m. and 7:45 p.m., when Mr. Truscott was seen with the girl?
When Mr. Graham received a disturbing letter from the same pathologist seven years later on the eve of the Supreme Court review in 1966, why did the Crown keep it secret? The doctor told Mr. Graham he had made an "agonizing reappraisal" of the narrow window he had fixed for the time of Ms. Harper's death -- in effect reversing the single-most important piece of evidence that condemned the boy.

Why did the Crown keep from the jurors crucial testimony from a nine-year-old girl -- in a statement witnessed and signed by Mr. Graham himself -- that she saw Mr. Truscott and Ms. Harper make their way down to the highway on his bike, just as Mr. Truscott claimed? Why did Mr. Graham and his men dismiss the statement of an elderly woman who claimed she saw a young girl hitchhiking by the highway, right where Mr. Truscott insisted he dropped off Ms. Harper?

And why did Mr. Graham stay silent when the Harpers testified in court that their daughter was not a hitchhiker? He had surely read the reports in which Lynne's parents told his officers the night she vanished that "it was possible she was hitchhiking to her grandmother's."

The case "haunted him all throughout his term and through his retirement," a friend of the former commissioner told a Globe and Mail reporter when Mr. Graham died. "But to his death, I'm sure he thought [Mr. Truscott] was guilty."

Many others today are not so sure. Several newspaper columnists and editorialists across the country have called on the Justice Minister to re-examine the case in the light of my recent book and an investigation by the CBC's the fifth estate. "Truscott deserves that review," wrote the Kitchener-Waterloo Record last month. "So does the judicial system."

Peter MacKay, the Tory House leader and justice critic, agrees. "We have an opportunity to undo a historic wrong that continues to be a black mark on our country's judicial history," says the former prosecutor, who has raised the Truscott case several times in the House. "There is tremendous pressure on the minister and I'm going to keep bugging her."

The push comes not only from the opposition, but the Liberals' newest senator, Laurier LaPierre. As a co-host of This Hour has Seven Days,he wept on camera after presenting a story on the Truscott case in 1966. "It's seared in our memories," Mr. LaPierre says. "We almost hanged a 14-year-old boy."

Peter Steckle, the Liberal MP from the Huron-Bruce riding in Southwestern Ontario where the 1959 trial took place, says the mood has changed in the community that once rushed to judgment. "There is a large acceptance that this man could not have been guilty," says the backbencher. He has brought up the Truscott case several times with the Justice Minister. "Exoneration is what we would hope would happen," he says. "Canada owes him that at the very least."

Ms. McLellan's own department uses unusually encouraging language in letters to citizens demanding action: "The Minister of Justice is very aware of the potential for a miscarriage of justice in Mr. Truscott's case," the official reply says.
Still, it is not going to be easy for Mr. Truscott, now 56, to triumph in this, his last chance for justice. Only one in 100 applications to the Minister for a review of a murder conviction leads to a successful overturning of the verdict.

But according to guidelines set out by the government in 1994, the appeal "need not convince the minister of innocence" or even prove "conclusively that a miscarriage of justice has actually occurred." All that is needed is a demonstration that "a miscarriage of justice likely occurred."

Surely, Steven Truscott's case meets those standards. Mr. Truscott was condemned at a time when Canadians had an abiding faith in the police and the courts: They did not err.

Just ask Fred Kaufman. A judge with 18 years experience on the bench, he headed the commission of inquiry into Guy Paul Morin's wrongful conviction and says the Truscott story strikes a deep chord with Canadians today for one reason: "There is now a greater awareness that things can go wrong."

And that, he says, "lends credibility to a person who has been trying to clear his name for 40 years. The justice system must not be afraid to take a second look."

"What they did was wrong. And that's all I want them to do -- say that they were wrong," he told me. "I'm not asking for the world. Go over all the information. Investigate. Let the people know all the evidence, and let them judge for themselves. I'm not afraid of that. Why are they?"

Julian Sher is the author of Until You are Dead -- Steven Truscott's Long Ride Into History (Knopf Canada), with Theresa Burke as research associate.

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Last chance for justice