Until You Are Dead (updated)

by Julian Sher

  Bryant seemed determined to make it all go away. “This miscarriage of justice … is now over,” he concluded, saying it was “foremost an opportunity for closure in the eyes of the law.”

  Closure for the justice system that would jump at the opportunity to ignore its own mistakes, perhaps. It was telling that Bryant mentioned Lynne Harper’s family three times in his prepared statement but never talked of the suffering the Truscott family endured and mentioned Steven only once.

  To Steven, Bryant said simply: “For [the] miscarriage of justice, on behalf of the government, I am truly sorry.”

  Not surprisingly, those words rang hollow to Truscott. In the only angry moment at his news conference, he said, “I don’t really feel that the apology was sincere. For the past fouryears they’ve had the same evidence as what the judges have had and they chose to fight us every step of the way,” he said. “The Crown chooses not to think about justice; it would almost appear that they are more interested in convictions.”

  Truscott’s battle with the Ontario government was not over. Bryant announced he was naming a retired judge, Sydney Robins, to review the question of compensation—an interesting pre-emptive move since at no time in Steve’s public battle in the preceding ten years had he ever talked about money. It had simply never been a priority issue for him, but few would begrudge him some kind of payment for the injustice done to him and his family.

  Yet, disturbingly, Robins let slip in one newspaper interview that he felt, “the issue turns on the fact that there was no explicit finding of factual innocence in the case.” That seemed to be an extremely narrow reading of the Court of Appeal decision which, after all, spent 300 pages illuminating what it called the dark “shadow of a conviction” that hung over Steven for nearly fifty years. Barry and Leslie Harper both made it clear they intended to oppose any payment to Truscott.

  As Marlene Truscott noted wryly, “the burden of proof is put on Steve once again!”

  It was a measure of how much Steven Truscott’s ordeal had become a part of the Canadian story when young and old, politicians of all stripes, rock bands and trade unions, heralded his victory.

  “Justice was long delayed. It has now been served,” said Irwin Cotler, whose decision as justice minister to refer the case to the Court of Appeal set in motion Steven’s eventual acquittal. At the time the Truscotts were bitterly disappointed with his choice; now they were grateful.

  At a weekend concert in Newfoundland, the Tragically Hip dedicated their haunting song “Wheat Kings”—about David Milgaard’s miscarriage of justice—to Steven. At a factory in the Northwest Territories, employees made a huge cake with Steven’s name on it. In Ontario, Steven’s union put out a flyer to extend its “heartfelt congratulations,” quoting Martin Luther King: “Injustice anywhere is a threat to justice everywhere.”

  Back at home, Marlene was swamped with over 2,000 emails. “We all feel that the ordeal Steve has gone through the past ten years has brought a sort of unity to Canada,” Marlene wrote back to supporters. She also thanked “the many people who made a difference in Steve’s life”—singling out Isabel LeBourdais for her pioneering investigation; Theresa Burke and Linden McIntyre who worked on the influential fifth estate program; myself, the documentary producer and author of this book; and the “dream team” of lawyers and staff from AIDWYC.

  But few doubted that Steven’s triumph would ever have come without Marlene’s determination and drive. “From the time I heard about his case in 1966, I knew he was innocent,” Marlene said. “My interest only increased and when I married Steve … I vowed to myself that I would make sure he had family and would live a normal life. I also vowed to myself that I would do everything humanly possible to correct this horrendous mistake which occurred in 1959.

  “Today, I feel those two vows have been fulfilled.”

  When all was said and done—even though Truscott’s case helped abolish the death penalty and changed the way Canada looks at the justice system—in the end it all comes down to a story of one man and one family and one struggle: How does a man reclaim what is most dear to him—his name?

  Steven Truscott did it with a quiet strength that was all the more remarkable considering what Canada’s justice system had put first him and then his family through over five decades. All he ever wanted was his good name back.

  Six months before the Court of Appeal had even begun the hearings that would eventually exonerate him, the snow was piled high outside the Truscott home. It was Christmas, and Steven pulled a very special gift out from under the Christmas tree. It was a carefully gift-wrapped pizza box.

  Inside were the documents that his youngest son, Devon, had filled out to legally adopt his father’s surname—Truscott.

  “You could never ask for more,” Steven told the local paper. “That was totally unexpected, but it was probably the best thing he could have ever have given me.” Ryan had taken his father’s name three years earlier; Lesley lived under her married name. Now Devon was completing the circle.

  “That’s the name I was born with,” Steven said. “It’s my name.”

  And now, after all those years, it was finally a name that was cleared.

  * See pages 325–327

  * See page 197

  † See page 608

  ‡ See page 24

  * See Chapter 25

  Steven, holding a Donald Duck comic book, with his older brother, Ken, at right, and friend.

  A school photo of Steven at age thirteen.

  Steve on board his grandfather’s boat in Vancouver during summer holidays in the mid-1950s.

  Steven, just after his fourteenth birthday, with his friend Karen Allen in February 1959.

  The school’s football team after winning the Little Grey Cup in November 1958. Steven, identified as “the star of the team,” is the tallest boy in the back row; on his right, his good friend Arnold “Butch” George.

  Steven in the summer of 1959 with his green racer.

  Lynne Harper, who was murdered shortly before her thirteenth birthday.

  Lynne’s body is carried out of Lawson’s bush as policemen wait on the tractor trail.

  Police photo of marks found next to Lynne’s left foot. OPP Identification Officer John Erskine described them as indistinct scuffmarks, but air force Flying Officer Glen Sage insisted he could tell they were from a crepe-soled shoe.

  Cpl. Hank Sayeau at the crime scene. Stakes mark the area surrounding the body.

  The view of the county road Philip Burns would have had as he approached the entrance to the tractor trail on his left. Philip told the court he did not see Steve and Lynne.

  The entrance to the tractor trail leading into Lawson’s bush. Police say this is the path Steven took with Lynne to go into the bush.

  OPP Inspector Harold Graham (left) arrives in Clinton to solve the murder.

  Steven is taken in for questioning.

  Steven is taken to the Huron County Court House in Goderich, June 18, 1959.

  Steven at the Ontario Training School in Guelph, where he was kept from 1960 to 1963.

  The Truscott family visits Steve at the Ontario Training School. From left to right, back row: Steve, Ken, Doris and Dan, and in the front row: Bill and Barbara.

  Steven at the Ontario Training School in Guelph.

  Dan and Doris Truscott read Isabel LeBourdais’ book, The Trial of Steven Truscott, as they await the decision of the Supreme Court.

  Arthur Martin, called by his colleagues “the greatest criminal lawyer Canada has ever produced,” represented Steven before the Supreme Court of Canada.

  Marlene, the young woman from Guelph who took up Steven’s cause and eventually became his wife.

  Steven and Isabel LeBourdais at the farm annex outside Collins Bay Penitentiary in 1968.

  Steve escorts his daughter, Lesley, to her wedding in September 1994.

  Julian Sher (right) with Steven Truscott during the filming of his interview with the fifth estate.


  Steven and Linden MacIntyre on the county road during the filming of the fifth estate documentary.

  Marlene and Steve Truscott celebrate Canada Day in 2006 with 160 supporters at their home. The picture was taken by the daughter of Cpl. John Erskine, the one police officer who raised doubts about the rush to condemn Truscott back in the 1950s.

  ACKNOWLEDGMENTS

  This book would never have come to be were it not for the teamwork that went into producing a documentary for CBC television’s the fifth estate, where it was my privilege to work for ten years. The crew for “His Word Against History: The Steven Truscott Story” included cameramen Colin Allison and Michael Savoie, soundmen Larry Kent and Alistair Bell, editor Gary Akenhead, researcher Dallas Brodie, archivists Jim Bertin and Diana Redegeld, production manager Alex Powell, and, on the original team, Trish Wood and Joseph Couture. David Studer, as executive producer, made it all possible. Susan Teskey, as senior producer and mentor, was a driving force and inspiration to me.

  Theresa Burke worked tirelessly as the co-producer on the program. Her title as “research associate” for this book hardly does justice to her long hours, patient interviewing and endless cheerfulness. I owe her a debt of gratitude that can never be repaid.

  Letting a journalist into your life can be an invasive process, but the many members of the Truscott family accepted me with warmth and openness. Doris Truscott and her children, as well as Steve’s children—Lesley, Ryan and Devon—were forever patient. Steve and Marlene Truscott put up with hours and hours of endless questions. They had the generosity to let me into their home and private lives and the courage to never impose their views or any limits on my investigation.

  The legal team of James Lockyer, Philip Campbell, Marlys Edwardh, Jenny Friedland and Brian D. King were kind enough to share their thoughts and analysis, without ever expecting me to necessarily agree with their opinions or conclusions.

  In the publishing world, I would thank my agent, Michael Levine, for his sage advice; Louise Dennys for her encouragement and support; Pamela Murray for her sharp lead pencil and even sharper eagle eye; and especially Diane Martin, my editor, for the idea, the confidence, the unflinching criticism and unflagging optimism.

  Dr. John Butt, the former chief medical examiner of Nova Scotia, gave me invaluable advice on medicine and insight into how pathologists work; Patrick Healy of McGill’s faculty of law tried to teach me law; Graham Ospreay of G. P. Ospreay Associates, was kind enough to share his top-notch handwriting expertise; Kevin McGarr, formerly of the Montreal Urban Police, helped me analyze police tactics and procedures and gave me a perspective into how good detectives think; and Mary McFadyen, senior legal counsel in the federal department of justice’s Criminal Conviction Review Group, tried to explain section 690s to me. All these people deserve credit for what I get right. The blame for any errors or omissions rests entirely with me, although I have tried to be as accurate and fair as is humanly possible.

  I hope this book builds upon the fine journalism that has come before it. Isabel LeBourdais’ 1966 work, The Trial of Steven Truscott, remains a classic. I am especially grateful to her son, Julien LeBourdais, for his permission to hunt through her personal archives and quote from her correspondence. Bill Trent’s two books, The Steven Truscott Story (1971) and Who Killed Lynne Harper? (1979) were also useful, as was Jack Batten’s Mind Over Murder. For accounts of events in the 1960s, I relied on the fine reporting of many journalists for daily papers and magazines, including Peter Sypnowich, Gordon McCaffrey, Frank Adams, Phyllis Griffiths and Ron Haggart. Special thanks to Pierre Berton for permission to quote from his poem.

  The complete transcripts of the trial of 1959 and the Supreme Court hearings of 1966 and 1967 are available for anyone to read. Through Access to Information I also obtained cabinet minutes from 1959 to 1967 dealing with the Truscott case and examined thousands of pages of police notes, Crown prosecutor’s files and prison records.

  For a taste of what cultural life was like in the 1950s, I consulted Alexander Ross’s book, The Booming Fifties. For a history of the death penalty in Canada, I am indebted to Frank Anderson’s Hanging in Canada and Carolyn Strange’s article “The Lottery of Death: Capital Punishment 1867–1976” in the Manitoba Law Journal, January 1996. Research assistance also came from Virginia Smart at the CBC; Daniel German, Paul Marsden and Andrew Whorl at the National Archives in Ottawa; Dan Bryant at the Ontario Public Archives; Philip Malcolm at the air force museum in Clinton; and Sgt. Russ Koopman, RCAF (retired) Secretary-Treasurer of the Air Force Telecom Association of Canada.

  The Truscott saga has become part of my life for the past decade. I could never have survived the challenge of bringing this book to life without the patience and love of my two children, Myriam and Daniel, who for most of their childhood watched their father leave on airplanes yet remained constantly curious about what I was doing; and without the support and help from my loving wife and writing partner, Lisa Fitterman, who tolerated late night and early morning computer vigils and kept me sane by forcing me to run all those hills.

  Julian Sher

  julian@sher.com

  Montreal, November 2007

  For more information on the Truscott case and other books, see www.juliansher.com

  JULIAN SHER is an award-winning investigative journalist and author of five books, including One Child at a Time: Inside the Police Hunt to Rescue Children from Online Predators. He wrote and directed a New York Times-CBC TV investigation into nuclear terrorism which won the DuPont Award, the broadcast equivalent of the Pulitzer Prize, in 2006. In Canada, he has won the Governor General’s Michener Fellowship for writing and a Gemini for his TV work. His writing has appeared in the New York Times, USA Today, CNN.com, and he is a regular contributor to the Globe and Mail. For more information on his work, visit www.juliansher.com.

  Copyright © 2001 Julian Sher

  Chapters 44 and 45 copyright © 2007 Julian Sher

  All rights reserved. The use of any part of this publication, reproduced, transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise, or stored in a retrieval system without the prior written consent of the publisher—or in the case of photocopying or other reprographic copying, license from the Canadian Copyright Licensing agency—is an infringement of the copyright law.

  Seal Books and colophon are trademarks of Random House of Canada Limited

  “UNTIL YOU ARE DEAD”

  Seal Books Edition 2008

  eISBN: 978-0-307-36584-2

  Originally published in hardcover in Canada by Alfred A. Knopf Canada, Toronto, in 2001. Distributed by Random House of Canada Limited.

  Photographs courtesy of the London Free Press are from the Collection of Photographic Negatives, D.B. Weldon Library, University of Western Ontario.

  The verse quoted on p. 119 is from the poem “The Rose Beyond the Wall” by A.L. Frink.

  Map: CS Richardson

  Seal Books are published by Random House of Canada Limited.

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