by Julian Sher
He started with the timing of the county road evidence, realizing that Martin had punched serious holes in the prosecution’s calculations by showing that—even accepting the police times for Philip’s walk and Steven’s bike ride—Philip should have been close enough to the bush to see Steve or even bump into him. To challenge Martin’s scenarios, Bowman had to do some fancy footwork. Philip met Jocelyne “somewhere in the area” of the southern edge of the bush, “roughly in the area where Gellatly met Truscott,” he said. Since it took Philip ten minutes to meet Jocelyne, and Richard took only two to four minutes to get to roughly the same spot, Jocelyne must have been six to eight minutes behind Steve, giving him plenty of time to scurry into the bush.
To the judges’ ears, it must have sounded much simpler than Martin’s complicated calculations of feet per second and exact measurements along the road. But Bowman had made assumptions that differed with the evidence in two ways.
First, by all accounts, Richard did not meet Steve “roughly in the area” where Philip met Jocelyne. Philip had insisted he met the girl walking toward the school about a hundred feet from the southern tip of the bush. Richard and Steve both agreed they crossed paths between the southern edge of the bush and the school—anywhere from about eight hundred to twelve hundred feet farther than where Philip met Jocelyne. So Bowman’s version chopped off about a thousand feet of bicycle travel distance.
Second, Bowman’s timing proof was extremely selective. He accepted the times given by Jocelyne, Butch and Philip as accurate and dismissed Richard and Steven’s estimate that they met closer to 7:25. Little wonder Bowman’s times ended up making Steven look guilty.
“Whatever the time Truscott took Lynne Harper north on the county road, it is clear that Gaudet and George were behind him seeking him out,” Bowman stated. But only a guilty scenario needed Jocelyne and Butch to be behind Steve. In fact, if Bob Lawson’s account of Jocelyne’s visits to his farm was accurate, she was at his barn and Butch was already at the river when Steve left the school around 7:25, as he claimed.
Bowman told the judges the police timing of Philip’s walk home was “realistic.” In fact, as shown in Chapter 28, the OPP’s timing was completely out of whack; they had the little boy slowing to a crawl at some points and racing at a marathon pace at others. Bowman also insisted that a boy on a bike with a girl “would have been an extraordinary sight for Philip.” On the contrary, two people riding on a bike was not a momentous event on a summer evening in Clinton. According to the testimony in 1959, Beatrice Geiger rode double with her daughter down to the river, and Kenny Geiger got a lift on Robb Harrington’s bike. What’s more, Bowman and the court never considered that there was a good chance Philip was already near or at the school grounds when he crossed Steven and Lynne. If that happened, Steve and Lynne would not have been on the bike at all, but walking across a crowded playground.
Perhaps sensing he could not rely entirely on Philip’s walk home, Bowman told the Supreme Court justices that other people on the road would have spotted Steve and Lynne if they had stayed on the county road. “He would be in plain view all the way.”
“You say because he had red trousers?” Justice Spence asked.
“Red trousers, my lord,” Bowman readily agreed, not sensing the trap.
“Could he have seen then a licence plate which was yellow?” Spence queried.
“I don’t know,” Bowman said.
Bowman tried to recover by suggesting Steve cleverly diverted the police with a fanciful tale of a car, obliging them to hunt for her abductor and diverting their search from the bush.
“He was a pretty clever fellow, wasn’t he?” Spence interrupted.
“That was his intention, to divert the search from Lawson’s wood,” Bowman parried.
“Where in your submission is Truscott’s bicycle when he walked over the tractor trail?” Justice Cartwright queried.
“It is in the woods somewhere,” Bowman replied, repeating the scenario favoured by prosecutor Glenn Hays in 1959. But Bowman might have realized the improbability of Steven dragging Lynne and his bike across the barbed wire, so the Crown now came up with a new theory. Perhaps Steve went into the bush not along the laneway, but directly from the county road in the area where the locket was found. “It would not be too difficult to get into the woods from the county road,” Bowman suggested. This entry point would help explain the troublesome locket, and would also fix some of the difficult timings by having Steve and Lynne off the road even earlier. Except that, in this unlikely scenario, the pair had to enter the bush straight from the county road, not via the tractor trail, and anyone on the road in that vicinity would have seen them.
Justice Spence sounded a note of skepticism. He reminded Bowman that the prosecution in 1959 insisted Steve went into the bush along the laneway, using the bicycle tracks as proof. “I am surprised when you say they went directly into the woods from the county road,” he stated.
The prosecutor then moved on to what he hoped was firmer ground—the medical evidence, well aware that he had to counter Martin’s challenges to the time and place of death. Bowman insisted the autopsy photographs that appeared to show signs of blanching on Lynne’s body—seized upon by defence experts as indications the murder took place elsewhere—were not as reliable as the eyewitness accounts by Penistan and Brooks, who examined the body directly.
“What is the evidence as to the latest time this girl might have died?” Justice Cartwright wanted to know.
“7:45, my lord, on the evidence,” the prosecutor answered.
But Cartwright wanted more. “I said ‘at which she might have died,’ but not the time you submit at which she did die.”
“It would seem the weight of the evidence is … that she died within two hours after ingestion of her last meal.”
“Could it be asserted with confidence on the medical evidence that the girl died before eleven o’clock that night?” the judge asked.
“I think so, my lord,” Bowman agreed.
Such an admission left open the possibility Lynne could have died after 8:00 p.m., when Steve was at the school with friends, or later, when he was at home babysitting. Again, it was a concession Glenn Hays had never made.
Bowman knew one of the strongest cards he could play would be Steven’s poor memory when he testified before the Supreme Court justices. He detailed Steven’s embarrassing denials of meeting just about anyone on the county road. He zeroed in on Steven’s testimony that he told no one the real cause of his penis sores until years after the trial, calling it “unbelievable,” but ignoring once again Addison’s testimony to the contrary.
The Crown counsel also seized on Steven’s 1964 parole application as proof of his untrustworthiness. “It can be considered a confession,” he said. “He lies at all times, and did throughout this proceeding.”
Bowman’s eagerness to paint Steve as a liar got the better of him another time. He tried to suggest that when Butch George met Steve after Lynne’s disappearance, “it would look as though it might be primarily Truscott’s idea” to mislead the police by telling them Butch saw Steve at the river. But Justice Spence stepped in to point out that the only evidence about the conversation came from Butch, and he had always insisted it was his, not Steven’s, plan to lie.
Undeterred, Bowman came up with another example of Steve’s deceit: his claim that he spotted the plates on the car at the highway. Bowman noted that a car stopping to pick up a hitchhiker would simply pull over on the highway, not back up onto the county road. Yet Martin’s private detectives parked their test car not on the highway, but on the county road, giving someone on the bridge a much better view of the rear bumper. “Truscott said nothing about the car [having] backed in, but just described it as swerving in off the highway and picking up the little girl and going away,” the lawyer stated.
But it was Bowman, not Steven, who was being loose with the truth. If Bowman had checked the police record, he would have discovered that OPP Const.
Donald Trumbley duly noted Steve telling him on Wednesday—before Lynne’s body was even discovered—that the car pulled in from the highway onto the shoulder, then crossed the county road and parked on the right side, with its rear fender facing the bridge.
In any event, Justice Spence was inclined to believe Steve’s claims—and not those of the prosecutors of 1959 or 1967—about what he could see from the bridge. “I would have been quite surprised if Truscott had admitted that he could not see the yellow plate,” said Justice Spence to Bowman. “As you leave the building, look a quarter of a mile east and see if you can tell the yellow plates on the Quebec cars parked around here.”
“That is quite so, my lord,” the chastened Bowman was forced to admit.
Still, Bowman went on to imply that Steve could deceive even without talking. He suggested the boy’s apparent calmness and normality when he returned to the school was not proof of innocence but rather another example of what psychiatrist James Hartford had labelled Steve’s “particular mental make-up.”
Justice Spence jumped in to voice his doubts once more. “And six years later a group of five psychiatrists found no evidence of paranoid tendencies,” he said. “One would have thought it would have developed considerably in six years.”
There had been no evidence on that, Bowman said.
“I know they weren’t asked,” Justice Spence retorted. “I am simply, perhaps, using a little common sense.”
By midday on Monday, January 30, 1967, Bowman began wrapping up, and the nine Supreme Court justices began to wrestle with the challenge before them. As Bowman himself pointed out, the preamble to the reference explicitly cited the “widespread concern” about a possible “miscarriage of justice.”
“There seems to be some indication that the real question for this court is guilt or innocence to be decided here, if it can be,” Bowman concluded.
It was not something with which the esteemed judges were necessarily comfortable. “Supposing we find … that we think Truscott probably is guilty but we do not think we can affirm that beyond a reasonable doubt. What is the position then?” Justice Cartwright wondered aloud.
Justice Fauteux crystallized the dilemma, noting that, unlike traditional appeals, the nine judges were hearing fresh testimony for the first time. “We are the judges of the first instance on the evidence heard before us,” he said. “That does make it different from the ordinary case of an appeal.”
It was not a matter the judges were going to settle in public.
“We will reserve our decision,” Chief Justice Taschereau announced—and the extraordinary session of the Supreme Court of Canada was adjourned.
How did the hearing of 1966 and 1967 compare to the trial of 1959? The two were not strictly comparable, since the first was a full-blown trial while the second was a special hearing without all of the witnesses and their testimony. Still, Steven’s lawyers were clearly better prepared and more skilful this time. The defence was able to produce an impressive array of expert witnesses and credible new theories. The judges also showed less outward bias against the defendant than Justice Ferguson displayed in his summation. The media were present throughout much of the Supreme Court session, giving the public an independent account of the proceedings, and insight into the moods and performances of the key players.
But in one fundamental and serious way, the same flaw—lack of full disclosure—crippled both the trial and the Supreme Court hearing. Legally, the police and prosecutors were still under no obligation to divulge the details of their investigation. From the start, it was clear that lack of full access to the police files badly impeded Martin almost as much as it had Frank Donnelly in 1959. Disclosure laws would not fundamentally change until 1991. Many essential elements of the 1959 police case—as well as new information or opinions—remained secret.
At one point, when the Supreme Court was examining Butch George’s various statements to the police, Justice Spence asked, “Has this statement ever been produced?” It was a good question, since few of the police witness statements had ever been scrutinized by outsiders.
“No, my lord,” Martin replied.
“So we can’t tell what has changed,” the judge noted.
In describing Lynne’s mood on the night she disappeared, Martin quoted her mother’s account that Lynne “wasn’t annoyed, but was resigned” to her parents’ refusal to let her go swimming. Martin knew nothing of the three separate OPP and military police reports that revealed the Harpers’ initial suspicion that their daughter was a hitchhiking runaway. In his brief to the court, Martin told the judges that according to the testimony of Brownie leader Anne Nickerson, Lynne “seemed quite normal.” Steve’s lawyer had no idea that Nickerson told police a rather different story about Lynne not wanting to go home because “her mother was cross with her.”
As Martin described to the judges Steve’s trip down the county road, he could not tell them about the two younger baseball players who put Steve’s departure from the school at close to 7:30 p.m., much later than the times cited by prosecution witnesses. He pointed out the numerous “frailties and improbabilities” in Jocelyne’s tale about her hunt for Steve, but Martin did not know she and two other witnesses told the police originally she asked about Lynne’s whereabouts.
Martin tried to convince the Supreme Court justices of the importance of the blood under Lynne’s fingernails. He could have made an even stronger case if he had a copy of the OPP bulletin the night Lynne disappeared, telling police to be on the lookout “especially for scratches on face, neck, hands and arms” on the assailant.
A key theory of Martin’s defence was that the murder could have taken place somewhere besides the bush. Martin reminded the judges there was “some supporting evidence” for this idea from George Edens, the corporal who found the body and testified about seeing skid marks from a car at the end of the laneway near the county road. What Martin did not know—and the judges never found out—was that two other airmen at the crime scene gave the police similar leads about tracks “made by a car spinning” as if someone “got their front wheels up on the pavement and gunned it.”
Martin did get some nuggets out of the prosecution before the hearing. For instance, Steve’s lawyers requested and received the police statement of Karen Daum. In the end, however, Martin decided not to make any use of her testimony. The lawyer had made the strategic calculation not to challenge the accounts of the children and adults on the county road; he reserved most of his fire for the medical testimony, perhaps hoping scientific fact would sway the Supreme Court judges more than the confused memories of children.
But by employing that strategy, Martin was severely hindered by the silence imposed on Dr. John Penistan. The Supreme Court devoted most of its hearing to the testimony of world-renowned medical experts debating the validity of Penistan’s 1959 autopsy. The prosecutor produced several witnesses to praise what Keith Simpson called Penistan’s “very competent and conscientious investigation.” Bowman told the Supreme Court judges that Penistan had more credibility than his critics because they were forced to rely on imperfect photographs, while Penistan had seen the actual body at the crime scene and on the autopsy table.
You would think, for all those reasons, Bowman would want to bring in Dr. Penistan himself to testify before the Supreme Court about what he saw. Penistan had made it clear he was willing and quite eager to talk before any inquiry. But the man at the very centre of the Supreme Court debate over the medical evidence that condemned Steven was curiously absent from the proceedings.
The tragedy was that the court, in the end, would rush to endorse the very findings about time of death that Penistan himself had begun to question and undermine.
37
THE DECISION
There was nothing to do but wait.
The Supreme Court justices would take almost four months before issuing their decision in early May. The country, meanwhile, was in the throes of centennial year jubilation. Everywhere, schoolch
ildren were bellowing out the refrain from Bobby Gimby’s “CA-NA-DA” song as hundreds of thousands of people were getting ready to attend Expo 67 in Montreal. South of the border, Americans were in the grips of political turmoil over race relations and the Vietnam War; in less than a year they would watch in horror as assassins gunned down Martin Luther King Jr. and Robert Kennedy.
Largely sheltered from the news and furor outside the prison walls, Steve spent several mercifully quiet months back in Collins Bay. The psychiatrists left him alone. It was a more anxious time for his parents and their supporters as they continued their campaigns of letter writing, lobbying politicians and speaking to the media. Isabel LeBourdais tried to assure Dan and Doris that everything had gone well at the Supreme Court. “The more I think back on the actual arguments and material presented by the two sides, the more I am sure we will win,” she wrote. Privately, she was less confident.
“This period is truly nerve-racking,” Isabel LeBourdais told a friend in a February letter, fearing the Supreme Court’s decision would be political and have “nothing to do with the obvious weight of evidence and argument on Steve’s side.”
The two red leather chairs on one side of the courtroom were empty. The Supreme Court clerks had set them aside for the Truscotts. But Dan and Doris did not show up. Nor did Isabel LeBourdais. Instead, they waited to hear the news in a private home in Toronto, along with lawyer Ted Joliffe.
In Collins Bay, Steve had accompanied Malcolm Stienburg to the Protestant chapel at 8:30 that morning to await the decision. “It was a difficult two hours, a lifetime, but Steve kept a stiff upper lip,” the chaplain reported. Shortly before the deadline for the announcement, they walked solemnly across the prison courtyard to the warden’s office to get the news.
In Ottawa, about forty journalists and a dozen members of the public packed into the courtroom to hear Justice John Cartwright read one of the most eagerly awaited decisions in the court’s history at 10:30 a.m. on the morning of May 6, 1967.