Until You Are Dead (updated)

by Julian Sher

  On Friday, October 22, Truscott made another of his increasing number of public appearances at a panel on the wrongfully convicted—this time before a group of law students in Windsor. Truscott told his audience that the justice system back in the 1950s “was completely different from the way it is today.”

  “There was no disclosure, so our lawyers didn’t know what the police had or what the Crown had,” he said. “Back then, there was nobody who would fight for anybody that was in jail.”

  On Wednesday, October 27, the night before Justice Minister Cotler’s scheduled news conference to unveil his decision, Marlene was nervous but excited. The 34th anniversary of her marriage to Steven was just three days away. She allowed herself to dream the campaign she had been waging since the 1960s to clear Steven’s name was finally over; she shared her hopes with the man she had shared a life and a life-long battle:

  “I told Steve that I firmly believed that this was the last night he would go to sleep as a convicted murderer.”

  Thursday, October 28, 2004, turned out to be one of those gorgeous sunny days when fall seems to forget winter is coming and pretends it is still summer.

  The small street in Guelph had been invaded by a media army. The TV satellite trucks from all the networks lined up outside the Truscotts’ simple bungalow; dozens of reporters camped outside, waiting nervously to hear the live broadcast from Ottawa and then capture the Truscotts’ reaction. Only close family and friends were allowed in the house. Steven’s three children and his grandchildren were on hand. On the kitchen counter lay a white celebration cake, with the word “juSTice” decorated on the top—the “S” and “T” capitalized to stand for Steven Truscott.

  The Truscotts and their supporters were hoping desperately for a victory. The fact that they had gotten this far was remarkable—almost all appeals to the justice minister to reopen a case are turned down. The worst case scenario for Truscott would be if the justice minister dismissed his case and found no merit to his appeal. As a middle ground, if Cotler felt there had indeed been a miscarriage of justice, he could refer the case to another court—either the Supreme Court again or, more likely, the Ontario Court of Appeal. That still meant, in effect, that Steven was guilty and, like any other appellant, he was asking a higher court to review the verdict against him.

  Under the law, even if he felt it was appropriate, the minister did not have the power to direct an acquittal—in other words, to unilaterally declare that Steven was innocent. So the best option Truscott and his lawyers had pushed for was a new trial. That had the advantage of quashing Steven’s conviction, since a man could hardly be put on trial if he is already guilty. In this scenario, Truscott would walk into the same courtroom in Goderich where he faced the noose more than forty years ago. The judge would read out the charge and ask Truscott how he pleaded.

  “Not guilty, your honour,” the adult Steven would say.

  Then the Crown—in the best case scenario—would announce that they have no new evidence to present and the case would be dropped.

  “Only then,” said James Lockyer, “[would] Steven have the chance to rid himself—we hope—of demons that must have lived with him for now 45 years.”

  That, at least, was the hope.

  The phone rang by mid-morning that Thursday and Steve picked it up quickly. Cotler had called his lawyers earlier and now Lockyer was passing on the announcement to his client.

  “I will never forget the look on Steve’s face and I knew that it was not the news we expected,” said Marlene. “Steve, being the courageous and caring person he is, turned to all the family in the room.”

  They sat hushed as an ashen-faced Steven said: “I am used to disappointment and I am sorry to have to give you this news.”

  Outside the journalists huddled around the satellite feeds and across the nation Canadians watched as the justice minister issued his decision at a press conference covered live on several networks.

  “I have determined that there is a reasonable basis to conclude that a miscarriage of justice likely occurred in this case,” Irwin Cotler said.

  That was the good news. The highest justice official in the land had agreed that most probably something had gone terribly wrong in that Goderich courtroom so many decades ago.

  But his solution was not what the Truscotts had been waiting to hear. “I’m referring the case to the Ontario Court of Appeal.” Cotler said. “I believe this is the most just and appropriate remedy.”

  Instead of dismissing Truscott’s appeal, as the Ontario attorney general’s lawyers wanted, or quashing the conviction and ordering a new trial, as Truscott’s team had pushed for, Cotler had taken the safer, middle ground.

  That was what Fred Kaufman had recommended. “The passage of time makes a retrial in his case unrealistic,” Kaufman had written in his report to the minister. He acknowledged that a review by the Ontario Court of Appeal “would be cumbersome and prolonged” but it was the only way to prove Truscott innocent in the eyes of all. “The innocent are entitled to their public exoneration,” Kaufman said. The “existing record”—in other words, the new evidence as presented to him—was enough to raise doubts about how fair the trial was but not enough to definitively prove Truscott innocent. Kaufman’s job was not to hold an open trial; neither the Crown nor the defence had a chance to cross-examine the witnesses. The federal government’s logic was that now justice must not only be done, it must be seen to be done in some form of open court.

  Cotler repeated those arguments to reporters and bristled at any suggestions that he had taken the easy way out. He said that if he ordered a new trial, the Ontario prosecutors—who showed no signs of accepting Truscott’s innocence—would have either argued the issue aggressively and dragged on the case or they might have decided to stay the murder charge because the evidence and witnesses were so old, or no longer available—which would have left Steven in a kind of legal limbo.

  “That would not have given Mr. Truscott the exoneration that he seeks,” Cotler said. “I’m guided by one principle only, and that is: What is the right thing to do?”

  Eventually, the Truscotts would come to see that by pushing for a public airing of the case, Cotler may have indeed done the right thing. But at the time, the mood inside their home was somber. There were tears, but not the tears of joy they were expecting. The champagne bottle was left corked, the victory cake, uncut.

  “It was tense. It was sad. It was anger. It was a lot of different emotions rolled up into one,” said Lesley, Truscott’s daughter and by then the thirty-year-old mother of his three grandchildren. “It was a letdown. I don’t think we were prepared for it, because it was built up so much that we were expecting a new trial,” she said.

  Marlene Truscott could not contain her disappointment—and her fury: “It’s a disgrace; I think it’s a cop-out.”

  Typically, it was the man at the centre of the battle who took the setback the best. After all, he had been used to seeing the justice system crush his hopes. “It’s a bump on the road,” Steven said stoically. “Once they sentence you to hang, what else can they do to you? They had sentenced me to death once, so anything else is a plus. You get up in the morning; you look around; you breathe. It’s another day. I’ll be vindicated. It will just take longer.”

  Ryan, who lived with his parents and had been the most active in their public battle, was overcome with disappointment. It was his father who came downstairs to console him. “Don’t worry, we’ll turn around,” Steven told his wife and children. “We’ll fight and we’ll keep going.”

  “Dad always told us we had to be a close, tight-knit family because he never got to enjoy that family life at all,” Ryan said. “The justice system took that away from him.”

  Throughout the afternoon, Truscott’s three grandchildren had been scampering around in white T-shirts that student supporters had made. The T-shirts listed the names of other wrongly convicted men in Canada—Guy Paul Morin, David Milgaard, Thomas Sophonow—with a
red check in a box next to each name under the title “Cleared.” But “Steven Truscott,” at the bottom of the list, had no check mark yet. The grandchildren would have to wait a few more years to see it, but their mother, Lesley, said she had learned patience from a father who spent four months on death row and ten years behind bars.

  “It’s a new fight. As we talked about it, we figured it’s going to be okay in the end,” she said. “It’s going to take us longer, but we may even get a better result in the end.”

  In the Senate on Parliament Hill, Conservative Senator Marjory Lebreton—who had worked with John Diefenbaker, the prime minister who had commuted the fourteen-year-old Truscott’s death sentence—declared her “profound sadness” at yet another delay on Steven’s long ride for justice.

  “We all know that Mr. Truscott was convicted on highly questionable and circumstantial evidence in a trial that lasted only a few weeks,” she said. “Any fair-minded, straight-thinking person would surely conclude that what we have here is a travesty of justice.”

  In a National Post column, media magnate David Asper denounced the “investigative mischief and incompetence” that had seen Truscott railroaded by a justice system unwilling to admit its faults. Asper was not just shooting from his editorial hip: as a lawyer, he had helped fight to clear David Milgaard, wrongly convicted of the 1969 murder of a Saskatoon nursing aide. He had seen Saskatchewan prosecutors battling feverishly to uphold the original conviction.

  Now, Asper warned, Ontario Attorney General Michael Bryant was doing the same thing. “The spectacle of the system trying to defend the indefensible will unfold once again unless Bryant calls off his dogs. Why force a court to review that which has already been painstakingly reviewed? Unfortunately, Bryant seems more likely to play out his department’s weak hand rather than admit what everyone knows.”

  That is precisely what happened. The provincial legal dogs were not called off. If Bryant had backed off and acknowledged—as his federal counterpart Irwin Cotler did—that there was a strong likelihood of a miscarriage of justice, the appeal process could have been settled within months. But Bryant refused to budge, stating that the issue of guilt or innocence “is not going to be determined by the court of public opinion but by a court of law.” For the next two years, his prosecutors fought Truscott’s lawyers over every detail, every point of law. Endless briefs and counter-briefs were filed by both sides, re-hashing much of what had already been explored by Kaufman. In the end, the Court of Appeal would not begin its hearings until late June 2006—almost two years after Cotler had promised a speedy, public resolution to Truscott’s plea for justice.

  In the meantime, Steven Truscott’s supporters were not going to sit back and quietly watch the justice system drag its feet. In the Guelph home of Mary Yanchus, the teacher who had launched a postcard campaign for Truscott, more than two hundred people showed up a few weeks after Cotler’s decision. By now Yanchus had exceeded her original print run of 16,000 and was planning to send 20,000 protest cards to Attorney General Bryant.

  At the Humberview School, in Bolton, the grade Twelve law class researched and studied the Truscott case; then the class argued the case in front of Peel Region judges at the Brampton courthouse. They took on the roles of the defence, the prosecutor and the witnesses—and this time Truscott was found not guilty. The students didn’t stop there. They launched an online petition and began selling bracelets for five dollars that read “juSTice now” to raise money for AIDWYC. “[The campaign] allows us to say this is terrible and then do something about it,” said Alex Sinclair, a seventeen-year-old law class student. Steven and his family came to a public symposium the students organized. On June 10, 2005, the students marked the 46th anniversary of what they called Steven Truscott’s “Fight for Freedom” by handing over their petition to Ontario Progressive Conservative Party leader John Tory—their local MPP—who then personally handed the thousands of names to the attorney general.

  Steven was becoming a reluctant celebrity. Still shy and unassuming, the man who had rarely traveled far from Guelph was now speaking to law faculties, and at public events—even to a gathering of prosecutors. His local newspaper named him Newsmaker of the Year. Still, Steven remained first and foremost a family man, going to work every day as a millwright at the local factory and spending the weekends with his grandchildren or friends. He shunned the spotlight as much as possible. It was Marlene who still answered the phone at his house most of the time; Marlene who wrote the e-mails and kept fanning the flames of the public campaign.

  In the late spring of 2005, Steven found himself in Newfoundland for an AIDWYC conference that featured some of Canada’s best-known wrongly convicted personalities. He was joined on stage by David Milgaard, Ronald Dalton and Gregory Parsons. All but Truscott had been exonerated after serving prison time.

  “I’m still waiting. It’s getting there slowly and we’ll stick at it because of people like this,” Truscott told the crowd, nodding to the men next to him. “Because of [wrongly convicted] people who have yet to come.”

  His final chance to clear that name came in June of 2006 when the Ontario Court of Appeal finally set a date to hear his case.

  If Truscott’s new appeal would dig into long-buried truths and secrets, it seemed only fitting that it would be foreshadowed by the very real unearthing of long-buried bones. On Thursday, April 6, the body of twelve-year-old Lynne Harper, buried for forty-seven years, was exhumed by the coroner’s office for DNA testing. It must have been a gut-wrenching experience for her family, contemplating the disruption of a grave of a girl who never saw her teenage years. The Crown, presumably, was hoping to find traces of Truscott’s sperm or blood that would prove his guilt once and for all. On hand to observe the procedure for the defence was Edward Blake, a DNA expert from California, whose investigations for AIDWYC helped clear David Milgaard and Guy Paul Morin.

  Dr. Blake worked on more than fifty post-conviction exonerations through DNA work, including people on death row. But this was the first time he had ever seen an attempt to secure DNA evidence from a body buried so long ago. “A body that has been buried fifty years has significant challenges,” he said. He recently examined blood stain evidence from the Sam Sheppard case of the 1950s—the famous slaying that inspired The Fugitive TV series and movie. But he stressed that blood samples were quite distinct from bones. “When you take a body out of the ground, that is a totally different thing,” he cautioned.

  In the end, Blake was right: Lynne’s body was too badly decomposed to give up any evidence about her killer.

  Steven Truscott’s last chance for exoneration began on Monday June 19, 2006, in the ornate chambers of Courtroom 1 of the Ontario Court of Appeal at Osgoode Hall in downtown Toronto. Forty-seven summers ago, on an equally hot day on June 13, 1959, a frightened teenager had stood in a courtroom to hear the charge of murder read out to him; then a few months later that same teenager would hear the judge condemn him to hang by the neck “until you are dead.”

  That teenager had become a tall, proud grandfather, who strode into the courtroom, looking every bit the calm hero he had become to so many Canadians. Dressed in a simple grey suit with a maroon shirt, unbuttoned at the collar, Steven sat under a majestic chandelier in the front row of the public benches. On his left, was a determined Marlene, who by now probably knew more about the case than any of the lawyers in the court. On his right were his two grown sons, Ryan and Devon.

  “We were up all night,” said Ryan. “It’s what you’ve been waiting for and then the day finally it arrives. It’s hard to take in.”

  It was hard to take in: nearly five decades after he became Canada’s most famous convicted murderer and a decade after he had first gone public to clear his name, Steven Truscott was finally getting his day in court. This would be his last, best chance. No more campaigns, no more legal arguments, no more waiting. This was it.

  Going up against an array of Crown attorneys were three of AIDWYC’s most experienc
ed and combative lawyers: James Lockyer, Phil Campbell and Marlys Edwardh, assisted by Jenny Friedland who had done much of the legal research on the case as an articling student but was now a full-fledged lawyer in her own right.

  It was not a new trial: Steven would not testify, nor would the key child witnesses against him, Jocelyne Gaudet and Arnold “Butch” George. The Court of Appeal could only hear new, fresh evidence. Still, it was an historic, unprecedented event. After all, the court was re-opening a case that had already been settled by the highest court in the land back in 1967. And while usually appeal hearings were limited to dry debates between lawyers over fine points of law, this time the court would spend three weeks hearing live, oral testimony from an array of witnesses—most of them medical and scientific experts, but also a handful of people from the Clinton area back in the 1950s.

  “Court is now in session,” the clerk intoned as the five judges walked in to take their seats on the dais in front. “Please be seated.”

  If the first witness was any indication, Steven had a fair shot at vindication. As Ontario’s chief forensic pathologist, Dr. Michael Pollanen usually testified for the prosecution. It was Pollanen who conducted the second autopsy of Lynne Harper’s remains after her body was exhumed. The Crown had also asked him to go beyond her remains to look at other material—including the black-and-white photographs of her body taken at the crime scene, Dr. Penistan’s 1959 findings and the microscopic slides made from tissue samples removed during the original autopsy.