Until You Are Dead (updated)

by Julian Sher

  Graham may have died convinced of Steven’s guilt, but many others are not so sure. When the first edition of this book hit the stores in October 2001, newspaper columnists and editorialists called on the justice minister to re-examine the case. “The book provides a long list of points that raise doubts about the validity of the conviction,” said the Kitchener–Waterloo Record. “Truscott deserves [a] review. So does the judicial system.”

  The revelations generated renewed public enthusiasm for Steven’s story—not the least in the place where it all started. In Clinton, several hundred students, teachers and citizens jammed themselves into the auditorium of the local high school to hear the author of this book talk about the town’s most famous boy. And in Goderich—the town that had vilified the accused fourteen-year-old rapist four decades earlier—more than one hundred citizens came out on a chilly fall evening to discuss what had gone so wrong.

  Paul Steckle, the Liberal MP from the riding that includes both Clinton and Goderich, told me the mood has changed in the community that once rushed to judgment. “There is a large acceptance that this man could not have been guilty. There’s no doubt that’s what you’d find in the street,” he said.

  Across the country, the story was the same. In Vancouver, a woman called an open line show to say that she grew up always knowing her father was convinced Steven had been railroaded by the police. Her father was Cpl. William A. Webb, the air force officer who first reported on June 9, 1959, that Mr. Harper suspected his daughter had run away from home by hitchhiking.

  In Steven’s adopted hometown of Guelph, three hundred people packed into a church to hear news of the case. They gave Steven, Marlene and their children a standing ovation. One of those in attendance was Mary Yanchus, the teacher who had written Steven, after seeing the fifth estate program, offering to help. Now she took it upon herself to organize a postcard campaign to urge the justice minister to take action. She printed up more than ten thousand cards—and ran out quickly. “I felt strongly that there were all kinds of people out there who wanted to do something about this,” Yanchus said. “Let’s hope it ends with Steven’s exoneration.”

  Exoneration was precisely what was on the mind of the hard-working team of lawyers from AIDWYC on November 29, 2001, when they announced the submission of a near seven hundred–page brief to the justice minister. Reporters were surprised to find that more than a legal unveiling, the press conference turned out to be a testimony to the wide scope of people who had been touched by Steven Truscott over the decades. On hand to support Steven from his Clinton years were fellow students Gary Gilks, Bryan Glover and Karen Allen, alongside vice-principal Maitland Edgar. From his prison years, former inmate Mike McGuin came to express his solidarity. From his Guelph years, neighbours and co-workers hugged and clapped Steven on the back.

  Through it all sat the two powerful and driven women who had stood by him all those decades—his mother Doris, still a firebrand in her seventies, and his wife Marlene.

  At a table in the front of the room, flanked by the legal team, Steven spoke briefly, urging Ottawa “after 42 years to finally do the right thing.” To the surprise of many jaded reporters, Steven stated unequivocally that he was not interested in financial compensation. “I want my name back, I want closure,” he said. “It hurts, it’s something that never goes away.”

  AIDWYC lawyer Philip Campbell was categorical: “There is, in our view, not a single part of the case mounted by the Crown that isn’t called seriously into question, if not utterly devastated, by the evidence that we’ve retrieved from the Ontario archives and other sources.”

  The section 690 appeal written by Campbell, James Lockyer and Marlys Edwardh, with research assistance from Jenny Friedland, was indeed sweeping. It revealed several new potential suspects from the current OPP case file, in addition to Alexander Kalichuk and the other men revealed in this book. One man was an accused sexual offender from the area whose daughter said years later she had seen him taking “the limp body of a young girl” out of the trunk of his car. Another man stationed at the Clinton base in 1959 was discovered in the 1980s to have a large collection of child pornography, a transcript of the entire Truscott trial—and a strange alibi for his whereabouts on the night Lynne vanished. “Each of these men is a likelier sex killer than a fourteen-year-old who, neither before nor since his arrest, betrayed the slightest tendency to antisocial behaviour,” the brief said.

  AIDWYC’s report also revealed new information about key witnesses. Sandra Stolzmann, the nurse who had befriended Jocelyne Gaudet in the 1960s, said in an affidavit that Joycelyne blurted out “that she had lied on the witness stand.” Another nurse remembered Jocelyne saying “she lied because she was angry at Steven and wanted to get back at him.”

  The AIDWYC brief prompted more public cries for action. In Ottawa, a dozen politicians from the Commons and the Senate formed a coalition to push for “a full re-examination of this case.” Then Peter MacKay, at the time Tory justice critic, rallied the entire Conservative caucus behind the cause. “We strongly believe that everything possible should be done to correct what appears to be a miscarriage of justice,” said then party leader Joe Clark.

  In Steven’s hometown of Guelph, the city council endorsed his appeal. The Guelph Mercury was unequivocal: “It has been made perfectly clear that Truscott could not have committed the crime for which he was jailed. The evidence simply does not hold together.”

  “The air needs to be cleared, not just for Steven Truscott, but for the sake of this country and our justice system,” echoed the London Free Press.

  And the Globe and Mail would soon add its national weight to what it called the issue that “haunts the Canadian imagination.”

  “This country’s justice system will avoid future miscarriages of justice only if it has the stomach to revisit and analyze its most egregious wrongs,” the editorial said. “Enough evidence has been found to suggest the system went horribly wrong in this case.

  But if the justice system went horribly wrong, it would take a lot longer—three justice ministers, two governments and five more years—before the system would be ready to seriously consider that a dreadful mistake had been made. Everyone—not just the Truscotts—thought that some kind of resolution of the case that had festered for more than five decades was just around the corner.

  It was not to be that immediate. But one way or the other, the final chapter of the Steven Truscott saga was about to be written.

  45

  THE FINAL CHAPTER

  The first, faltering glimmer of hope came on January 24, 2002, when the new federal justice minister, Martin Cauchon, made public what his predecessor, Anne McLellan, had already set in motion. Ottawa named former Quebec Court of Appeal justice Fred Kaufman to investigate the case and advise the government about “the granting of a possible extraordinary remedy because of the circumstances of this case.”

  It was an extraordinary victory, because few appeals to the justice minister are powerful enough to convince the federal government to re-open a case. The choice of Fred Kaufman also seemed to be an inspired one. Though a pillar of the judicial establishment, Kaufman had proven himself to be an unflinching critic of its abuses. He had probed failures in the Nova Scotia Public Prosecution Service and authored the devastating inquiry into the wrongful-murder conviction of Guy Paul Morin. “There is now a greater awareness that things can go wrong—maybe the system does make mistakes,” Kaufman said. “The justice system must not be afraid to take a second look at things.”

  “Of course we are thrilled,” Marlene Truscott told reporters. “It’s a very happy day for us. There’s a time for everything and I think Steve’s time has come.”

  But time had bedeviled Steven Truscott since 1959, when police, witnesses, lawyers and judges began picking apart those fateful minutes on the county road. And now Steven would learn that if the justice system wasted little more than two weeks to convict him, it would take a lot more time to even consider chan
ging its mind.

  No one expected Kaufman’s inquiry to be quick, but it would be eighteen months before he handed in his report to a new justice minister in the summer of 2004. True, he had to review thousands of pages of evidence from the 1959 trial and the Supreme Court hearing of 1966. But a big part of the delay was due to the decision by the Ontario attorney general’s office to dig in its heels and oppose Truscott every step of the way. Truscott’s lawyers from AIDWYC had been used to the stiff resistance from the OPP; they figured the police were not going to rush to the front of the line to admit they had jailed the wrong person, all the more so since the man responsible for that arrest, Harold Graham, was an OPP legend.

  But the opposition from the attorney general was disappointing. The Crown lawyers owed no personal allegiance to the prosecutors who operated in a 1950s court system much different than today. It was not their reputation at stake. Perhaps they felt some kind of institutional loyalty to the administration of justice at all costs; or perhaps the top prosecutors in Ontario in the twenty-first century looked at the rush to judgment in 1959 and decided—despite all the new evidence—there was nothing wrong: Steven Truscott was indeed guilty. Whatever the reason, Crown lawyers wrote a 254-page brief, urging Ottawa to reject Truscott’s appeal. They took a swipe at AIDWYC, the CBC and this book, stating that “over the forty-four years since his conviction, [Mr. Truscott’s] advocates have assailed the verdict on any number of fronts”—all of them without merit.

  It all meant more work for Truscott’s lawyers and for Kaufman. The Crown representatives challenged every bit of new evidence, every new revelation. Kaufman’s inquiry was not a trial but a one-man investigation: no jury, no judge, no cross-examination by defence or Crown lawyers. The lawyers on both sides could only submit briefs and make recommendations on possible avenues of research. Kaufman had a police investigator to hunt down witnesses and evidence and the power of subpoena to oblige the reluctant ones to come forward. In all, Kaufman interviewed twenty-one witnesses under oath including Steven Truscott, several other children from Clinton at the time, police officers, medical experts, plus two journalists—Julian Sher, the author of this book, and research associate Theresa Burke. When his report was finally released in 2004, at the request of the Crown and the defence, some sections remained confidential, but there were a few revealing insights.

  For the first time in forty years, the two chief child witnesses against Truscott—Arnold “Butch” George and Jocelyne Gaudet—were heard from again. They had kept silent since the 1959 trial. George apparently changed his story again and told yet another version of what happened—his fifth, if one counts his three differing police statements and his trial testimony. His account to Kaufman was not made public but even the Crown admitted it was “inconsistent” with what he said in court.

  Gaudet—who seemed to be in an unstable state of mind and who littered her new testimony with profanities—was the only witness who did not come forward voluntarily. She had to be subpoenaed by Kaufman. Her memory was spotty at best: she remembered playing dolls with Lynne but not the names of any other of her friends. She did not recall her home address. She did not remember Steven calling at her house on the evening of June 9, as the prosecution alleged, nor could she say if she was looking for Lynne or Steve as she walked up and down the county road. In fact, according to the report, “she does not remember a trial, although she remembers being there.”

  Of Steven, she said he was a “jock” but “she was not into boys and thus did not pay any attention” to him. She stuck to her story that Steven had asked her to meet him on the night of June 9; she was “shocked” but figured: “What the hell … I will go for it.” Still, she said he was so gentle he once warned her that picking up a lizard by its tail would hurt the animal, so when the police asked her if she thought Steven could have killed Lynne, she answered: “How could he? He can’t even kill a fly. I thought: ‘What a dumb question.’”

  Gaudet got the most agitated when asked about her dealings with the police. She complained about being woken up at midnight and questioned “without the presence of her father” in a room with three officers: “They kept trying to change my words,” she said without providing any specifics. “Here’s this twelve-year-old kid, half asleep, and these bastards are trying to change my story.”

  When Kaufman had excerpts of her statement to police read back to her, she interrupted angrily: “Remember [the police] were trying to get me to change my shit. They kept trying to change my words.”

  Steven himself testified twice under oath in front of Kaufman, once in August 2002 and again in March 2003. He recounted, as he did in the fifth estate program and for this book, his activities on the night of June 9, his shock at being arrested and his bewilderment as the adults around him—his lawyers and parents—told him not to worry as he kept sinking deeper and deeper into the pits of the justice system.

  When Kaufman asked him if financial compensation was a factor in his decision to go public and ask the government to re-open the case, Truscott said he had “not really given it much thought.”

  “My main interest is clearing my name,” he said. “I want my kids to go through life with a name that they’re proud of, not something that has a stigma attached to it.”

  For their part, the Ontario attorney general’s lawyers had argued vociferously that Steve’s “version of what happened to Lynne Harper on the night of June 9, 1959, is not worthy of belief.” They highlighted his dismal performance at the Supreme Court, whose judges seemed distinctly unimpressed with Truscott’s memory and story. Kaufman, on the other hand, found that Steven’s testimony back in 1966—even when he forgot evidence that was favourable to his case, such as meeting Richard Gellatly on the county road—indicated that “Truscott was a poor, but not necessarily a deceitful witness.” After reviewing the extensive record of Truscott’s police statements and the trial transcripts from 1959 and 1966, Kaufman came down solidly in favour of Steven’s credibility: “On the totality of the available evidence, Truscott’s evidence on the critical events is not incapable of belief.”

  Kaufman also looked at the case of Alexander Kalichuk, the airman who had tried to lure young girls into his car and whose name was raised in the mid-sixties to OPP investigator Harold Graham “but was dismissed in somewhat peremptory fashion.” The Kaufman inquiry also heard of a salesman in the area who drove a 1957 Bel Air and later pled guilty to various crimes; of a man who had four convictions of assaulting females and males and who allegedly told his doctor on his deathbed that he had done “the murder that Steven Truscott went to jail for;” and of a military man stationed at the base between 1958 and 1959 who was a member of the search party but later for some reason felt the need to mislead police by claiming he was “miles away” when they discovered the body and who bizarrely named his own daughter Lynne after “a little girl that had to die.”

  None of these possible other suspects necessarily proved a miscarriage of justice, but in Kaufman’s mind they raised the spectre of “tunnel vision” on the part of police and prosecutors. “This investigation—rightly or wrongly—quickly focused on Truscott … Traditional police work such as the identification of local sexual offenders may not have been pursued with vigour, or at all.”

  Kaufman then went on to argue that lack of disclosure of key evidence “deprived the defence of a considerable amount of information that could have been used to impeach the credibility of witnesses, cast doubt upon the prosecution’s theory of the case, or support the defence case. In some instances, the evidence would have made it possible to discover and explore new avenues of investigation.” He was also convinced that the withholding of several witness statements “significantly reduced the ability of the defence to properly challenge the Crown’s case.” Taken together, he said, “this undisclosed evidence … could reasonably be expected to have affected the verdict.” The conclusion was inescapable: these problems “contribute to a reasonable basis for concluding that there was
a likely miscarriage of justice.”

  Those three words—“miscarriage of justice”—were in and of themselves a long-awaited and hard-fought victory for Steven Truscott. For the first time—except for Supreme Court Justice Emmett Hall’s powerful but largely ignored dissent—somebody in judicial authority was listening to his complaints—and largely agreed.

  But that was as far as Kaufman was willing to go. “The evidence presented to me, taken at its highest, does not demonstrate innocence, but only that there is a reasonable basis to conclude that a miscarriage of justice likely occurred.” What, then, would he recommend the justice minister do?

  “The issue of remedy is complex and unique,” Kaufman warned.

  Indeed.

  Kaufman handed in his seven hundred-page report to the new justice minister, Irwin Cotler, in August of 2004. The Truscotts, through their lawyers, knew the content of some of his findings but not his final recommendation. For three months, Kaufman’s decision remained a secret as Cotler—who had been a prominent civil rights activist for many years—patiently read the report and pondered what to do.

  As word leaked out late in October that an announcement was imminent, nerves began to fray. “Although Steve appears to be holding up well, I can tell you that I have seen him age in the last while and I am concerned about his health,” Marlene Truscott wrote her growing number of supporters in an e-mail. “The waiting has caused stress and is proving to be very difficult on him and other family members.”

  Peter MacKay, who had met Steven and Marlene several times and by now was deputy head of the Conservative Party, called any further delay “inexcusable.” “Steven Truscott and his family have been living in purgatory,” he said. “The tortuous pace of the minister is taking a tremendous toll on them.” But like many, he was optimistic: “I’m very hopeful that this is going to result in a full exoneration.” Liberal MP Paul Steckle shared that optimism, telling reporters he had presented the justice minister with a copy of the 2001 edition of this book when Cotler took over the portfolio. “We are all hoping for a very positive outcome of this,” the member of parliament from Steven’s original hometown of Clinton said. “This is the worst case of miscarriage of justice in Canadian history.”