Until You Are Dead (updated)

by Julian Sher

  Knowing the full story of their father’s past did not make things much simpler for the children—it just meant they were now part of the game of keeping the family secret. “You couldn’t tell certain people your name, and you had to be very careful when it got to family trees or things like that at school,” Lesley says. “So we always kind of skirted around problems like that.”

  One day in a grade Eleven class on law, Lesley found herself squirming in her seat as her teacher launched a discussion about the famous case.

  “I hear he lives in Guelph,” one student said.

  “I hear he has kids here,” another added, as Lesley grew increasingly uncomfortable. When class was over she approached the teacher.

  “Please tell me that we’re not going to do any more on this subject,” she said.

  “Why?” he asked. “Does it bother you?”

  “Yes, it does.”

  “Well, it bothers me too, to see an innocent man sit in jail for ten years for something he didn’t do.”

  “Well, it bothers me for a different reason—he’s my father,” Lesley blurted.

  “His chin must have hit the floor,” Lesley remembers.

  “You’re kidding!” the teacher gasped. “Oh my gosh, I can’t believe it!”

  “Do you want to meet him?” Lesley offered.

  “Are you kidding? Are you serious? I can meet him?” the teacher asked.

  “Sure,” Lesley said, with not a little pride in her voice. “You know, he’s just my dad.”

  The next day after school, Lesley brought Steve over to the school. “It’s a pleasure to meet you, sir,” the teacher said, still somewhat in shock.

  As an involved parent, Steve spent a lot of time at his children’s schools. He and Marlene often volunteered for special days and activities. Steve particularly enjoyed going on ski trips with the students. When Ryan graduated from elementary school, the Truscotts had the entire school staff—more than thirty teachers—over to their house for a party.

  “He’d play with kids all the time. He was always out there, with his kids, the neighbourhood kids,” says neighbour Gary Samson. “I think in part it was to get back into his childhood, to get back things he missed.”

  Joan Brock, another neighbour, recalls that Steve was never shy about showing his affection—always hugging and embracing his children. “Loving is touching,” she says. “He would not have had a lot of that while in jail. He was a hands-on father.”

  Ryan, Steve’s oldest son, agrees. “He always tried to do things with us that I think he missed,” he says. “He was always very involved with our lives as we were growing up.”

  Steve’s children also realized they could exploit that soft spot in their dad. If Marlene grounded them for misbehaving, Lesley and Ryan would try to get their father to reduce the sentence. “Somehow or another they’d work their way around him and he’d say, ‘Oh well, you know, they’re young and you should let them go,’” Marlene recalls. “I think it was because he was confined as a teenager. He wanted them to have a lot of things he didn’t have.”

  While Steve was entirely devoted to his children, he did manage to find time to indulge himself in two passions he forfeited as a young man: motorcycles and planes. In the fall of 1980, Steve’s brother Bill brought him a beat-up black motorcycle someone had abandoned. Steve spent the entire winter in his basement rebuilding the bike to perfection—only to discover that once assembled, it was almost impossible to get the machine up the stairs and outside.

  The tinkering suited Steve’s mechanical bent, but speeding along the highways also gave Steve a rush, a sense of exhilaration. It was as if he were also trying to race back in time to become an eighteen-year-old showing off his new bike to the girls at the drive-in diner.

  Perhaps Steve daydreamed too much about those lost days while cruising down the road. After one especially nasty spill, Marlene forced him to sell the bike. He did, only to buy a bigger one at a garage sale. He kept that bike—a red Yamaha 750—until the early 1990s.

  As a young kid on an air base, Steve had also dreamed of being a pilot. But his arrest in 1959 curtailed that dream. Twenty years later, while driving by an airstrip outside of Guelph, Marlene noticed Steve longingly looking at the small planes taking off from a local flying school.

  “Geez, I knew he would just love to fly,” Marlene says. “He would never tell me—he would never do that. But I always knew that was his passion.” As a Father’s Day present, she bought him a gift certificate for a lesson. Steve put more money aside for the expensive lessons—not easy to do while supporting a family on a single salary. Never a disciplined student in Clinton, Steve started cracking the books and staying up late to master the theory and technical requirements. He thrilled at every chance he got to fly the Cessna planes with an instructor. A year later, out of more than thirty students, he was one of a handful who made the grade and graduated from flying school.

  To Steve’s everlasting regret, he was never able to take his father up for a ride. Dan Truscott—bursting with pride when he learned one of his sons was going to be a pilot—died just two weeks before Steve finally got his licence. But Steve took almost every other member of his family for a spin. He teased his friends and neighbours by buzzing perilously close to their rooftops and waving his wings. “You’re cutting the grass a little low,” one of his instructors commented wryly when he caught sight of Steve’s daredevil moves.

  “To be up there alone, he feels free—away from everything,” Marlene says.

  Steve’s sense of freedom as he soared over the skies of Guelph had little to do with escaping the daily pressures of raising a family. It was not even the freedom from the confinement he felt in prison. The feeling was of freedom from his jailers—the police, the judges, the jurors, the doctors and the guards—those who, for too long, held the keys to his life and his future.

  “You’re up there by yourself,” he sighs, “and you’re the one in control of your destiny.”

  Destiny also meant accepting that one day, the children he so cherished would grow up and leave home. In September 1994 Steve had to go through a rite of passage that is a milestone in a father’s life—the marriage of his daughter.

  At Guelph’s Trinity United Church—just three blocks away from the house where Steve and Marlene first met in 1970—Lesley walked down the aisle accompanied by her father, dashingly handsome in a tuxedo with a white carnation in the lapel. After the ceremony, more than 150 guests packed the local legion hall for some speeches, laughter, singing and dancing.

  “Marlene didn’t have the wedding that she dreamed of, so she gave it to Lesley,” said the Truscotts’ friend Gary Samson.

  “You’re happy, but you’re sad,” Steve says, remembering the day the daughter he had cradled in his arms twenty-three years earlier became a married woman. Prison kept him from his older brother’s wedding, countless family birthdays and Christmas celebrations. He did not want to forget this special family moment for a long, long time. “You don’t really know what you’ve missed until you’re out of prison.”

  At Lesley’s wedding, as Marlene took to the floor with Steve, alongside the bride and groom, Ryan and a friend sang one of Lesley’s favourite tunes from the recently released movie Aladdin entitled “A Whole New World.”

  A whole new world was indeed about to begin for Steven and the Truscott family, as changes in the legal landscape in Canada, a bold decision to break a forty-year silence, and a dramatic television program would alter their lives forever.

  PART FIVE

  THE FINAL BATTLE

  “What they did was wrong. And that’s all I want

  them to do: say they were wrong. I’m not asking for

  the world. Go over all the information. Investigate it.

  Let the people know all the evidence.…

  I’m not afraid of that. Why are they?”

  —Steven Truscott

  41

  OUT OF THE SHADOWS

  The dam brok
e in the summer of 1997. As with most floods, it began as just a trickle, a small crack in the wall of silence.

  “One night we were sitting outside,” Marlene remembers. “It was dark out and we were drinking coffee.”

  “I want to ask you something,” Marlene said to her husband.

  “Yeah?” Steve answered.

  “Did you really think they were going to hang you?” his wife asked.

  “Yup,” came the simple reply.

  “You would know that they wouldn’t do that to someone so young, wouldn’t you?” Marlene pursued.

  “Every time my lawyer said they weren’t going to do something, they did, so why would I think anything different about hanging?”

  “Oh, for years I wanted to ask him—I was dying to know,” Marlene explains today. That first question on the front porch was the start of countless probes she made into her husband’s memory. “I started to ask him more questions and more questions,” Marlene says. “All I knew is that there was something desperately wrong with the case.”

  There had always been a sort of unwritten rule in the Truscott household: they would talk about Steve’s case when they had to—when the Trent book or the fictionalized movie came out, for instance, or when the children asked. Generally, however, the subject was avoided. The priority was on raising the family in safety and in privacy.

  But by the late 1990s, the two oldest children, Lesley and Ryan, were in their twenties and Devon was almost eighteen. Canada had matured too—people no longer believed that the justice system was infallible. In fact, several high-profile scandals had revealed just how tragically wrong the police and the courts could be.

  Not long before the porch talk, in July of 1997, Steve and Marlene watched the TV news in amazement: DNA testing had exonerated a man from Saskatchewan named David Milgaard, jailed for almost a quarter of a century for a murder he did not commit.

  If it worked for Milgaard, maybe it could work for Steven. “It was the number of years in the Milgaard case that got us,” Steve remembers. “That kind of sparked the hope that there was a chance.”

  David Milgaard was only seventeen when police arrested him in 1969 for the sex slaying of Gail Miller, a nursing aide in Saskatoon. He spent twenty-three years of hell behind bars. He was raped, tried to commit suicide, escaped twice and was even shot once. After a relentless campaign by his mother, Joyce, to clear her son’s name, the Supreme Court of Canada finally ordered a new trial in 1992, and the charges were then stayed until DNA cleared him.

  Milgaard’s case was the latest in a series of wrongful conviction cases. In 1983, the Nova Scotia Court of Appeal acquitted Donald Marshall Jr. for a 1971 murder, after he had spent eleven years in prison. Marshall had been just sixteen when police arrested him. News stories and talk in the community eventually led the police to discover that one of the chief witnesses who accused Marshall of stabbing a friend actually had been the one who wielded the knife. A royal commission, concluding that “the criminal justice system failed … at virtually every turn,” made sweeping recommendations to reform the justice system.

  In 1986, Guy Paul Morin was tried for the murder of his nine-year-old neighbour, Christine Jessop, in Queensville, Ontario. Morin, who had spent almost a year in custody, was acquitted at his first trial, but police arrested him again when the Court of Appeal reversed the jury’s verdict. A second jury found Morin guilty in July 1992, after a nine-month trial with more than a hundred witnesses. The Ontario courts condemned Guy Paul Morin to prison for life. Morin’s supporters and a group of dedicated Toronto lawyers set up a defence committee, and by early 1993 they scored an important victory—Morin was released on bail.

  The defence committee held a party to wind down their activities. But one of the lawyers there—James Lockyer, an outspoken advocate with a mane of curly hair and a booming voice—pulled a couple of his friends and colleagues aside. “You shouldn’t be closing down,” he said. “We should be expanding.”

  Lockyer had been practising law in Canada since 1977, but he still had enough of a British accent to give away his University of Nottingham days. The accent wasn’t the only thing that endured. “I’ve always been interested in miscarriages of justice,” he says. “It goes with my left-wing politics from university on.”

  Lockyer sat down to draft the objectives of a permanent organization devoted to uncovering cases of injustice, and in May 1993, the Association in Defence of the Wrongly Convicted (AIDWYC) was born. Theirs was a novel approach. Glaring examples of judicial screw-ups made headlines, but the public and the news media generally regarded these cases as isolated, if somewhat horrific. AIDWYC challenged that comfortable illusion.

  “We were suggesting that wrongful convictions are not an uncommon occurrence,” Lockyer says. “There are all sorts of systemic problems within the trial process that helps produce them.”

  Over the next few years, AIDWYC organized a series of public conferences. While the association has become a credible lobbyist for government reforms, its most useful function is as a sort of clearing house for expertise and resources on overturning wrongful convictions. An AIDWYC review committee of three lawyers examines prospective cases, and, if deemed suitable, a legal team is assembled. That’s important, Lockyer explains, because most defence lawyers, by definition, think first of defending: throw something at them, they try to deflect it.

  “They are not used to the role—and therefore they don’t play the role—of carrying the case,” he says. “When you’re trying to expose wrongful convictions, you are really the prosecutor. You’re the one who has to satisfy everyone beyond a reasonable doubt.”

  It did not take long for AIDWYC lawyers to produce results.

  Lockyer headed up Guy Paul Morin’s appeal and in January 1995, DNA testing exonerated Morin—almost ten years after police first charged him. Lockyer’s next high-profile case was that of David Milgaard. In July 1997, the science of DNA finally proved Milgaard was innocent. Milgaard’s mother, Joyce, became an active director of AIDWYC.

  Milgaard, Morin, Marshall. They all became household names in Canada, very public symbols of justice gone awry. But AIDWYC says its conservative estimate is that at least forty other people are currently serving sentences of life imprisonment for crimes they did not commit.

  In 1959, Steven Truscott’s arrest and subsequent death sentence elicited barely a murmur of protest over the speed of the conviction or the justness of it. Four decades later, the mood in the country had changed dramatically. Investigative journalists were digging into dubious trials. Committed lawyers were defending the wrongfully convicted. Science had developed sophisticated DNA tests that—given the proper and available evidence—could prove guilt or innocence.

  It was time for Steven to step out of the shadows.

  The 1996–97 TV season for the fifth estate, the CBC’s flagship current affairs program, had been a busy one, with exposés on everything from Big Tobacco to Karla Homolka. At one point in the mad rush to research stories, film interviews and make deadlines, Trish Wood, one of the hosts, approached me about the possibility of producing a documentary on the Truscott case. I wrote a memo proposing “a fascinating piece about Canada before Morin, before Marshall … the case of a brutal slaying and the lingering controversy.” Executive producer David Studer and senior producer Susan Teskey quickly endorsed it.

  Wood had kept in touch with the Truscotts ever since she had first met Marlene in 1979. “She kept phoning and phoning,” Marlene says, “and we were waiting for the kids to get older.”

  When Wood approached her in 1997, Marlene finally agreed to discuss the possibility of doing a TV program with Steve. She also agreed to talk with a researcher from the fifth estate, Theresa Burke.

  The Truscotts knew that if they were going to take the plunge, the fifth estate was the natural place for them to turn. Aside from their connection with one of the hosts, the show had a wide national audience and a well-earned reputation for hard-hitting journalism.

>   The show also had begun to earn a track record for examinations of wrongful convictions. In the 1990s, the fifth estate had produced documentaries on the cases of David Milgaard and Guy Paul Morin. For the 1997–98 season, Trish Wood and producer Harvey Cashore were beginning work on the controversial case of a Nova Scotia man, Clayton Johnson, who had been imprisoned in 1993 for murdering his wife. Lockyer and AIDWYC had uncovered serious flaws in his conviction. Eventually, AIDWYC helped win a review of his case and Johnson was released on bail.

  In principle, the Truscotts knew the fifth estate was the right choice, but after thirty years of anonymity, Steve was not going to make up his mind about going public overnight. Disagreements began to emerge between Steve and Marlene about how far they would go.

  On the simplest level, Steve and Marlene had radically different perceptions of the media. “I felt without the press he had nothing,” Marlene says. “I think the media have been damn decent.”

  Steve was more cautious. “You have to remember at the trial what the news did to me,” he explains, still smarting from the uncritical coverage that portrayed him as a sexual monster. “My level of trust was very low.”

  But the differences between Steven and Marlene ran much deeper than that. “I always wanted this, it’s here now, I have my opportunity to fight—I don’t give a damn what everybody thinks, this is what I am going to do,” Marlene says.

  For too long she had restrained herself, even though she longed to campaign openly for her husband’s innocence. Marlene felt that Steve—to his own credit but also to his disadvantage—had sacrificed himself in order to save Doris and his brothers and sister the agony of another public controversy. They, after all, still had the Truscott name; he, Marlene and the three children lived under an assumed name.

  “It was a very touchy thing. I always felt that Steve—and it wasn’t for his own reasons—didn’t want anything brought out. You didn’t want the flak from the family, right?”