Table of content.
The Events Leading to the Trial
The Impact of the Trials on Criminal law in Canada
Previous versus modern methods of forensic evidence
The Events Leading to the Trial
On the evening of 9th June 1959, Cheryl ‘Lynne’ Harper, a 12-year-old girl, disappeared near an air force base not far from Clinton, Ontario[1]. At the time of her disappearance, she and Steven Murray Truscott, who was 14 at that time, were seventh graders at the Air Vice Marshal Hugh Campbell School also near the air force base. Truscott had given Harper a ride on his bicycle and they went on to a place which up to date remains the bone of contention between the Crown and Truscott ever since. Truscott maintains that he dropped her off at a place where she then took a vehicle to head home. The Crown on the other hand, maintains that Truscott proceeded to strangle her with her own blouse and then sexually assaulted her[2].
Truscott was taken into custody and arrested by Mabel Gray on the evening of June 12th 1959. Early the next morning (at 2:30am) he was charged with first degree murder which is a crime under the Juvenile Delinquents Act[3]. He was committed to the Juvenile Court in Goderich, Ontario under the same Act. On 30th June of the same year, the Magistrate in that court ordered that Truscott undergoes a trial as an adult in an “ordinary court”, on the grounds that the Juvenile Court had no experience in the issues arising in the matter.
An attempt by his attorneys to appeal against this order was dismissed[4]. After a preliminary hearing in July 13th and 14th 1959 in which the court was presented with some 31 witnesses and 21 pieces of material to prove the Crown’s case, the court decided the matter should proceed to a full trial. The full trial commenced the 16th of September, the hearings being presented before Justice Robert Ferguson and a jury in the Supreme Court of Ontario. In these hearings, the judge heard 76 pieces of evidence from 59 different witnesses.
The coroner, Dr Pennistan, testified as to the time of death of Harper, which he stated to have been between 7:00pm and 7:45pm June 9th, 1959[5]. Other witnesses gave evidence that placed Truscott and Harper together that evening. Evidence of two lesions on Truscott’s penis after a physical examination two days after the incident was also presented[6]. All the evidence that counsel for the Crown was purely circumstantial evidence, and depended on placing the accused Truscott in the time frame of the rape and murder. The jury returned a verdict of guilty after a ten-minute deliberation (between 10:45pm and 10:55pm)[7] but recommended that the accused be shown mercy. But in accordance with the law, the judge was bound to sentence the accused to death by hanging (EW Knappman, 1997). The sentence was delivered on 30th June, 1959[8]. He was to be hanged but the execution was delayed to allow him to appeal on the matter.
His attempt to appeal in the Court of Appeal on 21st January, 1960 in Ontario was dismissed, but then the government of Canada commuted Truscott’s sentence to life imprisonment. In February, he was taken to the Kingston Penitentiary to be assessed, after which he was sent to Ontario Training School for Boys at Guelph. Another attempt to seek leave for an application to appeal the sentence and trial to the highest court in the country, the Supreme Court of Canada, was also dismissed on 24th February, 1960 on the grounds that the matter did not give rise to a question of public relevance[9]. In January 1963, he was transferred to the Collins Bay Penitentiary located in Kingston, Ontario. Three years later the Minister in charge of Justice in Canada presented the matter to the Supreme Court of Canada for consideration. However, the court upheld the decision of the Supreme Court of Ontario[10].
After this decision, Truscott remained at Collins Bay until October 1969, when he was released on parole due to a clean record during his time in prison. He changed his name and started a new life. He married and raised three children. In September 1997, he underwent a DNA test in an attempt to clear himself from the conviction, and in March 2000, Truscott, through an interview in a show on Canadian Broadcasting Corporation and in a book done by a Canadian journalist, reappeared into the scene again, insisting that he was innocent and that crucial evidence had been omitted in his 1959 conviction. In 2001, Truscott attempted to have his conviction reviewed again. Through the activist and defense attorney James Locker of the Association in Defense of the Wrongfully Convicted, Truscott obtained the attention and reply of the Court of Appeal in Ontario. In October 28th, 2004, his request was pursued by the then Canadian federal Minister in charge of Justice[11].
In June 2006, a panel of five judges admitted the evidence brought forward by some seventeen witnesses in the case. In August 2007, they heard oral arguments of attorneys from both sides then on the 28th of the same month the Court of Appeal unanimously declared the 1959 conviction a miscarriage of justice, quashed it and acquitted Steven Truscott of the murder[12]. Its reason for the decision was on the basis of the evidentiary issues that arose from the proof presented by the Crown and its witnesses, part of the fresh evidence that defense counsel had adduced in accordance with the Criminal Code section 683(1)[13], and the evidence presented by experts[14]. Truscott was later (on 28th March 2008) awarded a compensation of 6.5 million dollars for his suffering due to the wrongful conviction[15].
The Impact of the Trials on Criminal law in Canada
The influence of the media on the legal system
In Truscott’s case, the media played a major role in publicizing the issues at hand. Not only in this case has the media done so. For instance, in R v Morin[16], the media also greatly influenced the proceeding of the matter, until finally Guy Paul Morin, the accused, was acquitted. This has the implication that the legal system, in particular the courts, are likely to be influenced by the prevailing public opinions as opposed to exercising absolute discretion required in their decision-making. There might be reason to place a cap to the extent to which the media ought to interfere with legal matters.
Previous versus modern methods of forensic evidence
The nature and procedure of conducting the autopsy that was carried out by Dr Pennistan in 1959 is evidently inferior to the more developed one that was carried out in 2006 to determine the time of Harper’s death[17]. It is a fact that modern technology is much superior in terms of accuracy, than the older methods that were used. But this brings into question whether in legal terms this invokes a right to previous convicted persons for retrials. If the answer is in the affirmative, then many cases may have to be re-examined, as is the reason why Truscott underwent a DNA test in 1997[18].
The International Covenant on Civil and Political Rights[19] defines wrongful conviction in Article 14(6) as follows:
“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice….”
Part of the reasons why the death penalty was abolished in Canada in 1976[20] may have been the public opinion that the sentence may be used on wrongful convictions[21]. For instance, in R v Morin[22], a man who had been convicted of murder was acquitted of the crime in a retrial in 1995 after further evidence proved he could not have been the perpetrator[23]. Also, in R v Marshall[24], the accused had wrongfully been convicted of the murder of one Sandy Seale at the age of seventeen. The influence of the conviction of a fourteen-year-old boy through a trial which he underwent as a minor and which led to the imprisonment of the boy in a common jail at first caused some considerable disquiet in the province and may have contributed to the abolition of the death sentence on such convictions.
The term ‘miscarriage of justice’ is often applied in instances where an appeal has been made to a higher court and after reviewing the matter, the appellate court holds that the accused person had actually been convicted based on the wrong law in terms of procedure or substantive legal provisions that guide such proceedings[25].
In the context of the Truscott trial, the Court of Appeal’s decision that his original conviction was a miscarriage of justice[26] and the subsequent compensation[27] brings into question of the extent to which such awards are to be accepted in Canada. In Article 14(6) mentioned above, the International Covenant for Civil and Political Rights states as follows concerning a situation where a person has suffered due to a miscarriage of justice:
“…the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”
The Robin Report applied this clause[28]together with the Federal/Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons to award Truscott the compensation[29]. But the question remains whether this may be the right approach, considering that compensation may be awarded to a person who was actually liable for the crime.
Bibliography
Juvenile Delinquents Act, RSC 1952, c 160
Criminal Code, RSC 1985, c C-46
R v Marshall (1999) 1 SCR 759
R v Morin (1992) 1 SCR 771
R v Truscott (1959), 125 CCC 100; Truscott (Re), 2007 ONCA 575
Chandler DB, Capital punishment in Canada: a sociological study of repressive law, (Montreal: McGill-Queen’s Press – MQUP, 1976).
Grossman MG & Roberts JV, Criminal Justice in Canada: A Reader (Michigan: Cengage Learning, 2011).
Knappman EW, Great world trials, (Detroit: Gale Research, 1997).
Lebourdais I, The trial of Steven Truscott (Toronto: McClelland and Stewart, 1966).
Westervelt SD and Humphrey JA, Wrongly convicted: perspectives on failed justice: Critical Issues in Crime and Society, (New Brunswick: Rutgers University Press, 2001).
In The Matter of Steven Truscott: Advisor Opinion on The Issue of Compensation (August 28, 2007) online: ROBIN REPORT <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/truscott/robins_report.pdf
Steven Truscott, Canadian Wrongful Convictions Timeline, online: AIDWYC <http://www.aidwyc.org>
Synopsis of Reference re: R. v. Steven Murray Truscott: <http://www.cbc.ca/news/background/truscott/pdf/2007ONCA0575synopsis.pdf>
[1] Steven Truscott Canadian Wrongful Convictions Timeline, online: AIDWYC <http://www.aidwyc.org>.[ Wrongful Convictions].
[2] I Lebourdais, The trial of Steven Truscott (Toronto: McClelland and Stewart, 1966) at 23 [Truscott].
[3] RSC 1952, c 160.
[4] Wrongful Convictions, supra note 1.
[5] Truscott, supra note 2.
[6] R v Truscott (1959), 125 CCC 100 [Truscott trial].
[7] Wrongful Convictions, supra note 4.
[8] Truscott trial, supra note 6.
[9] Truscott, supra note 2.
[10] Synopsis of Reference re: R. v. Steven Murray Truscott: http://www.cbc.ca/news/background/truscott/pdf/2007ONCA0575synopsis.pdf [Synopsis].
[11] Wrongful Convictions, supra note 4.
[12] Truscott (Re), 2007 ONCA 575 [Truscott (Re)].
[13] RSC 1985, c C-46
[14] This included evidence by experts in pathology, gastroenterology and entomology.
[15] In The Matter of Steven Truscott: Advisor Opinion on The Issue of Compensation, (August 28, 2007) online: ROBIN REPORT <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/truscott/robins_report.pdf> [Advisory Opinion].
[16] (1992) 1 SCR 771[Morin].
[17] Truscott (Re), supra note 11.
[18] SD Westervelt & JA Humphrey, Wrongly Convicted: Perspectives on Failed Justice: Critical Issues in Crime and Society (New Brunswick: Rutgers University Press, 2001) at 44.
[19] Ratified by Canada on May 19, 1976.
[20] Bill C-84, s 745 introduced to replace death sentence with life sentence Criminal Code.
[21] Synopsis, supra note 9.
[22] Morin, supra note 13.
[23] DB Chandler, Capital Punishment in Canada: A Sociological Study of Repressive Law (Montreal: McGill Queen’s Press- MQUP, 1976) at 67.
[24] (1999) 1 SCR 759
[25] MG Grossman & JV Roberts, Criminal Justice in Canada: A Reader (Michigan: Cengage Learning, 2011) at 82.
[26] Truscott (Re), supra note 11.
[27] Advisory Opinion, supra note 14.
[28] Ibid at 20.
[29] These limit the amount of compensation to a wrongly convicted individual, but they are not binding law.