Justice Delayed: Steven Truscott’s 45-Year Wait To Clear His Name

This article was co-authored by Margaret Bojanowska and Steven Skurka and originally appeared in the National Association of Criminal Defense Lawyers March 2005 edition of The Champion magazine.

National Association of Criminal Defense Lawyers March 2005 edition of The Champion magazine

Justice Delayed: Steven Truscott’s 45-Year Wait To Clear His Name

By Steven Skurka, Margaret Bojanowska

In 1959, at the age of 14, Steven Truscott was convicted and sentenced to hang for the rape and murder of his 12-year-old classmate Lynne Harper. Lynne Harper went missing in the early evening hours on Tuesday, June 9, 1959 on the Royal Canadian Air Force Base near the small town of Clinton, Ontario. Steven Truscott was the last person observed with Lynne before her disappearance. Her body, nude from the waist down, was found on Thursday, June 11 by Cpl. George Edens in a forested area known as Lawson’s Bush. She had been strangled.

Following his arrest, trial, and conviction, Steven Truscott spent three agonizing months awaiting execution on death row. In 1960, the Court of Appeal for Ontario dismissed Steven Truscott’s appeal, but on the same day, by Order in Council from the government of Canada, his sentence was commuted to one of life imprisonment. Truscott’s subsequent application for leave to appeal to the Supreme Court of Canada was dismissed. In 1959, there was no existing appeal as of right in capital cases to the Supreme Court of Canada, unless there was a dissent in the decision by the lower courts. This legislation was amended in 1961 and in 1966; Steven Truscott’s case was referred back to the Supreme Court of Canada. The Supreme Court decided the case in 1967 and ultimately found that had the court considered the appeal in 1960, it would have been dismissed. Truscott spent 10 years incarcerated before being released on parole in 1969 at the age of 24.

The Association for the Wrongfully Convicted (AIDWYC)1 filed a 700-page brief with the justice minister in November 2001, arguing that newly discovered evidence and testimony never presented to the jury in 1959 would have resulted in a verdict of acquittal.

The justice minister was asked to review the case pursuant to section 696.1 of the Criminal Code of Canada, which allows an application for ministerial review to be brought “on the grounds of miscarriage of justice” by or on behalf of a convicted person “whose rights of judicial review or appeal with respect to the conviction or finding have been exhausted.” 3

The justice minister, exercising his power under section 696.1, appointed the Honourable Fred Kaufman, a former judge of the Quebec Court of Appeal, to preside over an inquiry into the conviction of Steven Truscott and to review and assess the new evidence in the case. Justice Kaufman has previously presided over the inquiry into the 1992 wrongful conviction of Guy Paul Morin, who was later cleared of the crime by DNA analysis and released from custody. Justice Kaufman delivered his report and list of recommendations regarding the Truscott case, along with thousands of pages of supporting material, to the justice minister in the spring of 2003.

Upon reviewing Justice Kaufman’s report, the minister of justice, Mr. Irwin Cotler, had one of three choices with respect to Truscott’s application; he could order a new trial, refer the case back to the Court of Appeal, or reject the application. The Criminal Code indicates that the remedy available under section 696.1 is extraordinary with no possibility of appeal.
Steven Truscott along with his lawyers expected the minister of justice would quash the murder conviction and send the matter back for a new trial in the same Goderich courtroom where Truscott was convicted back in 1959. Steven Truscott hoped the prosecution would not proceed with the case against him, based on the overwhelming evidence undermining the case, and Steven Truscott could walk away a free man.

On October 28, 2004, the justice minister granted Steven Truscott’s application by referring the case to the Court of Appeal. He stated, “I have determined there is a reasonable basis to conclude that a miscarriage of justice likely occurred in this case.”

Many Truscott advocates and supporters labeled the minister’s decision a tremendous disappointment. Steven Truscott would have to continue to wait for justice. The process chosen by the justice minister, including the hearing before a panel of judges of the Ontario Court of Appeal and a judgment could take a couple of years.

The Court of Appeal will have to decide if the fresh evidence that has emerged over the years would in any way have affected the guilty verdict. The judges will have three options in the end: upholding the conviction, quashing the conviction and ordering a new trial, or entering an acquittal. The Court of Appeal decision will be final, with no possibility of appeal to the Supreme Court of Canada.

Regardless of what decision will ultimately be reached by the Court of Appeal, one positive aspect has already emerged as a result of the Truscott case: the momentum for the development of a new, arm’s length commission in Canada to review wrongful convictions, responsible for making recommendations to the minister of justice. A model example is Britain’s Criminal Convictions Review Commission, which has referred 240 convictions of appellate review of which 77 percent were ultimately quashed.

At present in Canada, cases are reviewed by the Department of Justice. Since 1997, there have been just eight cases referred for a new trial or appellate court review. Mr. Cotler stated, “I think what we need is what is the best process for a wrongful-conviction-review process. If the best process is to have an independent commission, so be it.” He added that the large volume of applications from convicted criminals claiming innocence has made it impossible for justice ministers to give them the attention they deserve.

The justice minister referred specifically to was recently struck by the voluminous material he had to consider in reviewing the Steven Truscott murder-conviction, which consisted of thousands of pages of evidence.

 

Making The Case Against Steven Truscott

The Crime Scene

Those first to arrive on the scene, officers from the Royal Canadian Air Force Base conducting the search, covered Lynne Harper’s nude body with shirts to protect the girl’s dignity, without realizing the crime scene was being compromised.

The crime scene was neat, showing no evidence of a violent struggle. There were no wounds on the body except for a gash on Lynne Harper’s left shoulder and strangulation marks on her neck. Two branches were also curiously placed criss-crossed across her body. At trial the prosecution would argue that this was an attempt by a frightened young boy to cover up the crime.

Dr. Penistan, who later performed the autopsy on Lynne Harper, found numerous blood stains at the scene, yet failed to examine the body at the scene for hairs and fibers.

A fresh set of tire skid marks was discovered leading out of Lawson’s Bush and onto the county road. The evidence was not revealed to the defence, as it could possibly lead to an adult killer who had left the scene of the crime in a vehicle. Rather, investigators focused on an already dried set of bicycle tracks, at least a week old, because Steven Truscott and Lynne Harper were last seen riding on a bicycle along the county road.

Time Line

On the day Lynne disappeared, she had played baseball after school, returning home at 5:30 in the afternoon. She left home again sometime after 6: 15 p.m., upset at her parents who refused to accompany her to the river for swimming. Steven Truscott returned home from school at 5: 15 p.m. His mother asked him to run out and get coffee at 5:50 p.m. He returned promptly with a rip in the seat of his jeans at the top of his right leg, which he explained happened on his brother’s bicycle. He left home again, cognizant of the fact that he had to return home by 8:30 p.m. to baby-sit his younger siblings.

At 6:35 p.m. Lynne arrived back on the school grounds and assisted with a scavenger hunt. According to witnesses, when Steven Truscott drove by on his bike Lynne immediately approached him and sat on the crossbar of Steven’s bike. According to Steven, Lynne asked him for a ride to the highway. Since Steven was going to the river anyway, he gave her a ride. He remembers glancing through a classroom window when leaving the school grounds and noticing that it was 7:25 p.m. According to the police, and later the prosecution’s theory, it was shortly after picking Lynne up at the school grounds, that Steven made a sharp right turn off the country road into Lawson’s Bush, where he raped and strangled Lynne Harper.

According to Steven Truscott, however, he continued along the county road, past the bridge over the river where local kids were playing, and dropped Lynne off by the highway. It was a hot summer evening and many local residents were out on the county road or cooling off by the river. Steven Truscott’s version of events was supported by two eyewitnesses. Eleven-year-old Dougie Oates was questioned by police two days after Lynne’s disappearance and stated he saw Steven and Lynne riding double on a bicycle across the bridge, past Lawson’s Bush. Gord Logan, who was in the river, some 600 meters away from the bridge, told police it was nearly 7:30 p.m. when he saw Steven and Lynne cross the bridge. A third boy, named Butch George, initially told police he saw Lynne and Steven from the river. He would later change his story.

According to Steven Truscott, he returned to the bridge after having dropped Lynne off at the highway. Gord Logan confirmed, in his statement to police, that he saw Steven return, alone, five minutes after he first saw Steven and Lynne heading in the direction of the highway. Allan Oates also observed Steven standing alone on the bridge at around 7:45 p.m.

Gord Logan told police he saw a 1959 Chevrolet parked on the corner of the road where Lynne had been dropped off. Steven Truscott also told police about a vehicle at the side of the county road, with something yellow or orange on the back bumper of the vehicle. Through numerous police interviews and courtroom testimony, these boys would never alter their stories. The prosecution would submit that Gord Logan was a liar and could not possibly have seen Steven and Lynne on the bridge since he was located 600 meters away from the bridge. Years later, however, tests would confirm that when standing in the location where Gord Logan said he was standing on the evening of June 9th, it was possible to recognize people on the bridge and to distinguish the clothing they were wearing.

Steven Truscott returned to the school grounds at 8 p.m., this fact was undisputed. Those who saw him there, told police and testified in court that he appeared normal, calm as always. An interesting observation, since according to the prosecution, he had just raped and murdered Lynne Harper. Steven returned home on time that evening to baby-sit his siblings.

Runaway

Lynne’s parents first reported that Lynne was missing at 11:20 p.m. on June 9th to Flight Sgt. Frank Johnson. Johnson notified the Ontario Provincial Police (O.P.P.) that Lynne Harper was possibly hitchhiking to her grandmother’s home. Lynne’s parents were initially concerned that their daughter had run away.

However, at trial, Lynne’s mother would deny that her daughter hitchhiked. The prosecution implied that Lynne did not have the disposition or desire to run away. The initial reports that signaled to the contrary were hidden from the defence and the triers of fact, the jurors. Lynne’s friends, who hitchhiked with her, were not called to provide evidence with respect to this issue.

On the evening of Lynne’s disappearance, Lynne’s father went to visit the Truscott’s after having heard that one of the boys may have seen his daughter on the evening of June 9th. Steven Truscott told Mr. Harper he had taken Lynne to the highway on his bike and that she hitched a ride on the highway. An official Air Force log for the day is evidence that a search was not deemed necessary at the time.

Police Investigation

On June 10th, Lynne Harper’s father informed Constable Hobbs, an investigator assigned to the file, that a young boy on the base gave Lynne a ride to the highway the previous night, before she went missing. Cst. Hobbs decided to investigate. This would be the first of seven police interviews with Steven over the next 72 hours. Each time, he told virtually the same story.

In his first police interview, Steven Truscott told Cst. Hobbs he had given Lynne a ride on his bicycle after picking her up at the school between 7:00 and 7:30 p.m. that evening. Officer Johnson, also present for this interview, remembered Steve saying he had picked Lynne up at about 7:25 to 7: 30 p.m. at the school. Steven told police he dropped Lynne off at the highway and then returned to the bridge on the river. Steven also told police that when he looked back toward the highway, he saw Lynne getting into a vehicle, which he believed to be a late model Chevy, possibly a Bel Air version. The vehicle appeared to have a yellow license plate. It would seem, Steven Truscott’s memory would have been the freshest on the morning after he had given Lynne a lift to the highway.

Cst. Trumbley, another officer investigating Lynne’s disappearance, drove to the bridge to test Steven Truscott’s story by observing vehicles on the highway. He noted that he could not distinguish license plate numbers. Police would later state that this was when they first began to doubt Steven’s story. Oddly, Steven Truscott had never mentioned anything to police about reading license plate numbers of vehicles on the highway. Rather, he had told police that he observed a vehicle standing on the country road with something yellow or orange at the back.

At 8 p.m. on Wednesday night, Steven Truscott had another meeting with police. Sgt. Anderson asked Truscott to show him the bicycle route he had taken with Lynne before she disappeared.
Thursday morning, police interviewed the young boy for the fifth time. He told the same story, adding only that Lynne had been wearing a gold chain necklace that evening.

In the early afternoon on Thursday June 11th, Lynne’s body had been found. The first bulletin released about the murder of the young girl instructed police to stop white vehicles with yellow license plates and to inspect the occupants of those vehicles for scratches on the hands, face, neck, and arms. It is an interesting picture of how the police initially viewed the investigation. The emphasis on scratches soon disappeared, however, once police arrested an unblemished Steven Truscott for the murder of Lynne Harper.

Another problem with the initial police broadcast was the time of death. It was pinpointed as 9 p.m. on June. 9th It presented a huge problem for police because it could not be disputed that Steven Truscott was at home babysitting by 8: 30 p.m. that evening. Interestingly enough, this police bulletin was never disclosed to the defence and never made its way before the jurors who tried the case.
On Friday, June 12th, Cst. Trumbley was ordered to bring Steven Truscott into the police station, preferably without his parents. Steven Truscott met with Inspector Harold Graham during his sixth police interview. Graham’s plan was to meet Steven alone, though he was well aware of judicial guidelines specifying that a parent or social worker ought to be present when a young person was being questioned by police. Steven Truscott was interviewed for an hour and a half and called a liar. He still maintained his story.

Police made this sixth interview appear as though Steven Truscott was still simply just a suspect. The trial judge would later rule that police knew the boy was going to be charged and that a warning to that effect ought to have been given. The statement was ruled to be involuntary. When the Truscott’s became worried about their son not showing up at home in the late hours of June 12th , they searched and found him at the police station.

Inspector Graham also interviewed a dozen other students, among them were Dougie Oates and Gord Logan who informed him they saw Steven Truscott and Lynne Harper cross the bridge, heading toward the highway. Inspector Graham had to convince himself these boys were lying.

Jocelyn Gaudet

Jocelyn Gaudet was a school friend of both Steven Truscott and Lynne Harper. On Friday June 12th, following Steven Truscott’s arrest for the rape and murder of Lynne Harper, Jocelyn told police that Steven had asked her to go along with him on a secret rendezvous in Lawson’s Bush, and to tell no one about it. Based on this story, police viewed Steven Truscott as a lustful teenager, luring young girls into the Bush. The prosecution argued that after plans with Jocelyn didn’t work out, Steven found a substitute in Lynne Harper. Jocelyn provided four statements to the police, each one more elaborate than the first. She initially told police she had been looking for Lynne in the Bush that evening, and had made no mention of Steven Truscott or their planned date. Curiously enough, another young classmate, Gary Gilles, testified that Jocelyn Gaudet was interested in setting up dates herself, and had asked him twice to accompany her into the Bush. In addition, fellow classmates of Jocelyn Gaudet in 1966 provided affidavit evidence that Jocelyn had disclosed to them that she had lied at Steven Truscott’s trial.

Philip Burns

Another key witness for the prosecution at trial was a ten-year-old boy, who testified that while traveling on the county road on the evening of June 9th, he didn’t meet Steven Truscott and Lynne Harper on the road. The prosecution would use his testimony to say that if they were not seen on the road, Steven Truscott must have been in the Bush murdering Lynne Harper.

The weakness of Philip Burns’ testimony lies in the fact that he didn’t see a number of other people along the county road that night, people who said they had seen him. This was not unusual for a 10-year-old boy traveling down a county road on a regular, run-of-the-mill, summer evening. What was unusual, however, is the extent to which the Crown relied on his evidence.

Medical Evidence

The autopsy was performed by Dr. Penistan in a cramped funeral home, not adequately equipped for the procedure. The body was not shipped to a better location because of concerns over the cost of transport. In the end it, was the medical evidence that convinced the jury of Steven Truscott’s guilt.

Dr. Penistan’s testimony left no room for doubt that Lynne died during the half hour that she had been with Steven Truscott. The doctor predicted the time of death as 7: 15 to 7:45 p.m., based on an examination of the deceased’s stomach contents. Even today, with the availability of much improved forensic tools, this would be astute precision.

Dr. Penistan reversed this conclusion regarding the time of death in a memorandum dated 1966. He stated his findings were compatible with death having occurred within two hours of Lynne’s last meal, and not incompatible with death at a later time, even up to 12 hours or longer. Inspector Graham stated that a report from the Attorney General’s lab confirmed the time of death as established by Dr. Penistan. However, the official report from the lab, dated August 19th, 1959 made no reference at all to the time of death.

In 1966, Dr. Sharp, a pathologist who re-analyzed the stomach contents, wrote critically of Dr. Penistan’s conclusions as well as his evidence given at trial. Dr. Penistan had failed to mention the different variables that affect stomach contents and the timing of digestion. Two world leading pathologists, Dr. Knight and Dr. Butt, both discounted Dr. Penistan’s evidence and confirm that Lynne could have been killed at any time that night.

In his first autopsy report, Dr. Penistan wrote he had found some bruising around the vagina. He later revised his finding by stating there was no hemorrhage. In effect Penistan went from saying there was bruising to no bruising at all. Dr. Ferris, another pathologist who analyzed the medical evidence, found that there may not have been a rape at all. He identified that the swelling of the membranes of the vagina were most likely the result of decomposition, not rape.

Dr. Penistan made a finding that the acid phosphate found in Lynne’s vagina was a constituent of semen that naturally comes from men and which is not naturally found in women. Dr. Ferris stated that this was simply erroneous because the acid is found in women, and it was certainly not indicative that semen was present in the vagina.

Dr. Penistan also concluded that the large quantities of whitish fluid found in Lynne’s vagina were indicative of a lot of sexual activity. Dr. Ferris actually attributes this whitish fluid to the state of decomposition of the body.

On June 12th, 1992, Dr. Addison, the Truscott family physician, performed a medical examination on Steven Truscott at the police station. The doctor knew Steven Truscott was a possible suspect in a rape. The doctor found what he described as two large lesions on each side of Steven Truscott’s penis. However, on June 13th, just hours after Dr. Penistan’s examination, the boy was examined by Dr. Taylor, a jailhouse doctor who observed no injury with respect to Steven Truscott’s penis. Dr. Taylor’s report never saw the light of day at Truscott’s trial.

A leading dermatologist, Dr. Rosenthal has concluded, upon re-examination of the evidence of lesions on Steven Truscott’s penis, that a variety of medical conditions completely unrelated to sexual activity likely accounted for the injury.

The prosecution relied on evidence of minor scratches identified on Steven Truscott as evidence of a struggle with Lynne in a wooded area. The prosecution did not consider that such scratches were quite normal on an active 14-year-old boy. The prosecution also relied on a tear in Steven’s pants as suggestive that he had climbed over the barbed wire fence around Lawson’s Bush. The Crown did not consider that the tear in the clothing was acquired earlier that evening before Steven Truscott met Lynne Harper at the school grounds.

Speedy Arrest And Even Speedier Trial

Steven Truscott was arrested within 24 hours after Lynne’s body was found. The police did not seriously consider any other suspects. They did not check police or military records for known sex offenders, despite that fact that there were several thousand servicemen living on the air base.

After a preliminary hearing, Steven Truscott was committed to trial on a charge of capital murder in early July 1959. His trial commenced before a jury in the Town of Goderich on the 16th of September 1959. Steven Truscott was tried as an adult under s. 9 of the Juvenile Delinquent’s Act. The Crown’s case was based entirely on circumstantial evidence. Before the end of September, Steven Truscott was found guilty and sentenced to hang.

Another Suspect Emerges Years After the Trial

Sgt. Alexander Kaliczuk was not investigated by the police in relation to the rape and murder of Lynne Harper, despite having an extensive history of sexual offences. His psychological file, which mysteriously disappeared for 40 years, reveals that just three weeks before Lynne’s murder, Sgt. Kaliczuk attempted to abduct a 10-year-old girl by luring her to his vehicle. The young girl’s father approached, and the girl managed to avoid the encounter.

A doctor’s file on Kaliczuk, dated three weeks after Lynne’s murder, stated that he suffered from “overwhelming anxiety, tension, depression, and guilt.” A senior medical officer’s diagnosis of Sgt. Kaliczuk was that he suffered from a sexual deviation. A military memo warned that when he was posted at a base near Clinton in the early 1960s, ongoing incidents made it into the local paper. Police warned about an unidentified molester preying on young girls from a vehicle.

Another interesting factor in this case is Kaliczuk’s vehicle. In 1959 he bought a brand new canary yellow Pontiac and sold it again just weeks after Lynne Harper’s murder. Steven Truscott identified the vehicle that he saw at the highway by the fins on the back of the car, tail lights shaped like cat eyes, and something yellow or orange on the back. Sgt. Kaliczuk’s yellow car could also be identified by the fins on the back of the vehicle.

The Long Fight Still To Come

Steven Truscott addressed the AIDWYC Annual General Meeting on November 27, 2004 by stating that, “after 45 years I thought my case might be reaching an end.” Although the case has been reviewed by 19 members of the judiciary over the past 45 years, it is still going on. In commenting about the justice minister’s decision to send the case back to the Court of Appeal, Steven Truscott said his case was moving forward, albeit not as he had hoped, in the direction of a retrial in the Goderich courtroom where he was convicted and sentenced to die.

He continued, “but it hasn’t diminished my will or my wife Marlene’s will. We will fight this on to the end.” Steven Truscott thanked his wife, his lawyers, and all his supporters throughout the years, stating that “without you we’d be back in the dark age.”

Steven Truscott will turn 60 in 2005 with his 1959 murder conviction still intact and the uncertainty of when his pursuit of justice will finally come to an end.
The ultimate result in the case remains undecided.

 

Notes

1.Visit http: //www.aidnyc.org/StevenTruscott.pdf for membership and support information, and to read more about the work AIDWYC is doing in Canada and the United States to aid the wrongfully convicted.
2. See the document filed with the justice minister athttp://www.aidnyc.org/StevenTruscott.pdf
3. Criminal Code of Canada, R.S.C 1985, c. C-46, s. 696.1(1)
4. Makin, Kirk, “Cotler mulls panel to probe wrongful-convictions claims”, Globe and Mail, November 25, 2004, Page A12.

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