In 1966, The Trial of Steven Truscott by Isabel LeBourdais was a Canadian bestseller. Yet it had nearly failed to find a Canadian publisher. McClelland and Stewart had signed a contract, but Jack McClelland developed doubts, for LeBourdais was doing what was just not done in the 1960s. She was suggesting that the Canadian judicial system was an imperfect instrument. A court in Goderich, Ont., had sentenced a fourteen-year-old boy, Steven Truscott, to be hanged for the rape and murder of a twelve-year-old girl, Lynne Harper. The evidence was circumstantial, but the jury, five of them local farmers, two merchants, two labourers, a mechanic, a milkman and a barber, were convinced of Truscott's guilt, and so was the presiding magistrate, Justice Robert Ferguson. "The jury rejected the defence and in my view, had good reason to do so," he wrote in his report of the case to the federal justice minister. LeBourdais argued not only that they all got it wrong, but that they were prejudiced. Injustice was done and was seen to be done. Such heresy was enough to send shivers oscillating up and down the spine of the legal establishment in the 1960s. The Trial of Steven Truscott would probably have been strangled at birth except that Victor Gollancz in the U.K. agreed to publish it, and then McClelland and Stewart brought out a Canadian edition.
I was at the time the literature editor of the now defunct Toronto monthly, Commentator, and reviewed The Trial. I was one of many reviewers. The case became a cause cTlFbre in the press, and a source of wrath within the legal profession. I still remember a long argument I had over a cocktail with a lawyer, who claimed that the legal system did not produce unjust verdicts except when the defence lawyer was incompetent, and the accused had only himself to blame if he hired an incompetent lawyer. Yet the public outcry forced the government to act. The Truscott case was referred to the Supreme Court of Canada, and Truscott was represented by one of Canada's great criminal lawyers, G. Arthur Martin, who could not be accused of incompetence.
I can still recall my shock at the verdict which eight of the nine Supreme Court justices (one, Justice Emmett Hall, dissented) produced after four months of deliberation. They made a rather defensive review of the circumstantial evidence against Truscott, noting that it could point to his guilt while neglecting to add that it could point equally well in the other direction.
The nub of the prosecution case centred on the time when Lynne Harper was killed. Lynne Harpers' body had been examined by a pathologist from Stratford, Ontario, Dr. John Penistan. The time of Lynne's last meal was known, and on the basis of a visual examination of her partly-digested stomach contents, he placed the time of death between 7:15 and 7:45 p.m., 9 June, 1959. The only person known to have been with Harper at that time was Truscott. Penistan's evidence put Truscott on death row. Penistan later had doubts, but it was too late to help Truscott. The Supreme Court heard an expert who defended Penistan's estimate, and heard another whose analysis of it was devastating. Nowadays, science has moved on, and no pathologist would pinpoint time of death with such accuracy on the basis of speed of digestion. But the justices on the Supreme Court bench were not scientists. They decided that the jurors had heard the pros and cons with regard to Penistan's judgement of the time of death, and their decision should stand. They upheld Truscott's conviction.
It seemed to me, as I was writing about the Supreme Court's verdict at the time for Commentator, that the legal system did not know how to deal with scientific evidence. No one, not even a magistrate, faced with a medical question about his liver or his bowels would ask a jury of farmers, bakers or labourers to make such a decision. Rather he would seek a consensus of informed medical opinion. Yet when it came to Lynne Harper's digestive system, the Supreme Court took the view that the jury had received adequate evidence and information backing it, and that the jury could therefore competently decide.
Since the 1960s, DNA science has made fools of the courts. As of 2002, 117 felons have been exonerated in the United States since 1989, when a DNA sample was first produced as evidence after a conviction. Twelve of these individuals were on death row. In January of this year, the governor of Illinois, George Ryan, reprieved all prisoners on death row in his state before he laid down the governorship. This constituted a decisive pronouncement on the want of confidence in the courts. In Canada, the cases of Donald Marshall, David Milguard, Guy Paul Morin, Thomas Sophonow and Gregory Parsons have shaken confidence in the legal system. The courts do not dispute that DNA is an important tool for detective work, but understandably they have been reluctant to admit it in appeals of convictions. The majority of states in the United States still do not allow post-conviction DNA tests, but that is a marked increase since in 1999 only two states did. Moreover, for every felon whose innocence is proven by DNA, there might be ten more for whom no DNA sample is available. DNA cannot help Steven Truscott now for none survives.
But there is now an aura of reasonable doubt hovering over all convictions where the evidence was circumstantial. To add to the embarrassment of the courts, the convicts who have been proven innocent by DNA in the United States have been largely black or poor. DNA has proven innocence in only about half the dubious convictions which have been appealed, but that is cold comfort. In the Truscott case, the statistical likelihood that the verdict was wrong is about fifty percent, even before the court record is scrutinized.
It was, however, the court record which astonished Isabel LeBourdais in the pre-DNA days, and the information which has come to light since LeBourdais's book makes any defense of the legal system more difficult. Inspector Harold Graham of the Ontario Provincial Police, who by 1973 became the OPP chief commissioner, Ontario's top cop, was in charge of the investigation, and it is now clear that he had decided early that Truscott was guilty of the murder and rape of Lynne Harper, and suppressed evidence that might count against his conclusion. The Crown prosecutor Glenn Hays did not make full disclosure of the evidence to the defence lawyer. The law at the time did not require him to do so despite several court rulings to the contrary. Whether or not Hays broke the law as it was in the 1950s, is a moot point, but by the standards of present-day legal procedure, his actions were culpable.
Most astonishing of all, however, was the conduct of the presiding judge, Justice Ferguson, who not only derogated the defence evidence in his charge to the jury, but introduced a new hypothesis of his own to explain how Truscott could have murdered Lynne Harper and left her body in the bush where she was found. The hypothesis was supported by no evidence, but it did serve to weaken the case made by the defence. It was not surprising that the jury found Truscott guilty.
Then Justice Ferguson with apparent relish sentenced the fourteen-year-old boy to hang. Truscott spent the fall of 1959 on death row, until the Diefenbaker government commuted his sentence to life imprisonment the following January. Truscott went to the Ontario Reformatory in Guelph where he was attended by a coven of rather silly social workers and psychiatrists, and then when he was no longer a juvenile, he was transferred to Collins Bay penitentiary for hardened criminals. The publication of LeBourdais's The Trial of Steven Truscott brought the case into the headlines again, but the Supreme Court rose to the defense of the legal system. Its report was a book to answer a book, as a spokesman for the court crowed at the time, and it was intended to put the doubts that LeBourdais raised to rest. It failed. The case remained an open wound, sapping the credibility of the Canadian judiciary.
Finally the CBC's the Fifth Estate took up the Truscott case and subjected the evidence to an investigation more thorough than LeBourdais could do. This book emerged from that program. Julian Sher's Until You are Dead appeared first in 2001 and now reappears with an new afterword which brings readers up to date on the latest developments in the effort to clear Truscott's name. Until You are Dead reveals fresh disturbing aspects of the OPP investigation into Lynne Harpers' death. There was a known paedophile in the area when Lynne was killed. Yet the OPP seems not to have made even a routine check. Even worse, the police notes and Crown records, which are now available, reveal that the OPP suppressed evidence which might damage the case against Truscott. They showed that the two children whose testimony was most useful for the prosecution, Butch George and Jocelyne Gaudet, had each made more than one police statement, and they tended to evolve over time in a direction helpful to the prosecution. There could be no doubt that Steven Truscott did not have a fair trial.
That does not mean that Truscott is likely to be exonerated. It is not only the reputation of the court at Goderich presided over by Justice Robert Ferguson in 1959 that is at stake. The Supreme Court of Canada has placed its imprimatur on the Goderich court's verdict. The Truscott case is a matter of high embarrassment. In the court of public opinion, Steven Truscott has won and the legal system has lost, but the legal system can still hope to outlive its critics. However Julian Sher reports in an epilogue that on 24 January, 2002, Ottawa named a former Quebec Court of Appeal Justice Fred Kaufman to investigate the case. If he sees fit, he can call for another trial, a hearing before an appeal court, or a pardon.
The Steven Truscott case has more than legal interest. A small community in rural Ontario was shocked by a horrifying crime and sought closure. Both the Truscotts and the Harpers lived on the RCAF base at Clinton, better known for manufacturing pianos. Harper was an officer with the privileges that came with his rank while Steven Truscott's father was a warrant officer, much further down in rank. Steven Truscott was an ideal suspect: an adolescent male, the son of a low-ranking service man. Both Inspector Graham of the OPP and the Crown prosecutor Glenn Hayes soon decided that Truscott was the murderer, and set out to wind up the affair quickly. Justice Ferguson seemed uncertain as to whether he was a judge or a prosecutor. All three had decided that hanging Truscott would bring closure to the community, law and order would be restored, and life would resume its proper course. Unfortunately, Graham, Hayes and Justice Ferguson all lost their reputations for integrity instead, and, whether Truscott is eventually exonerated or not, they diminished the dignity of the Canadian legal system. ò