“And with the greatest respect, my lord, I submit that the jury listening to your charge could not help but get the impression that you consider a verdict of guilty was warranted on the evidence,” Steven’s lawyer said. It was as close to calling a judge biased as a lawyer could go.

The judge’s five-word response was stunning.

“What is wrong with that?”

• “Until You Are Dead”: Steven Truscott’s Long Ride into History: Sher, Julian: 9780676973815: Books – Amazon.ca, p. 256

I recently read the excellent 1966 book by Isabel LeBourdais, The Trial of Steven Truscott (Amazon). It details a wrongful conviction from 1959 – a grisly rape/murder of a 12 year-old girl for which a 14 year-old boy (Truscott) was wrongfully accused, convicted and sentenced to hang. Thankfully, the sentence was soon commuted to life imprisonment and he was released after about 10 years of wrongful imprisonment. It appeared to capture the public’s imagination – given the nature of the tragedy of both the murder of the victim and the imminent hanging of the other victim (the wrongfully charged and convicted 14 year-old). The commutation of the sentence to life imprisonment helped to somewhat lessen the consequences of the tragedy.

See “Requiem for a fourteen-year-old”, a haunting poem by journalist Pierre Berton, published in the Toronto Star on Oct. 5, 1959 – a mere six days after the sentence, and quoted in LeBourdais’ book (“Just eye for eye and tooth for tooth/Tooth for tooth and eye for eye:/A child does murder/A child must die. […] Save your prayers for the righteous ghouls/In that Higher Court who write the rules/For judge and jury and hangman too:/The Court composed of me and you.”). Apparently, Berton received a ton of hate mail for it (p. 212), including some wishing horrendous things on his own children.

Truscott’s wrongful conviction may never have reached the public consciousness as such if not for the superhuman efforts of Isabel LeBourdais (she was almost unknown before her book). Apparently, the SCC, in its unhuman arrogance, refused to allow her a seat[1] to watch the “retrial” or Reference. It apparently took her a long time to find a publisher for her book, given that she was – gasp! – critical of our justice system[2]. Publishers (and their lawyers) were concerned of being found to be in “contempt of court” if they published her critique and they all turned her down, until she eventually found a willing publisher. Has anything changed in the 55 years since then? Absolutely not! The hubris of our judicial system – and the sheer horror that accompanies any criticism of it (unless of course adjudged to be politically correct, such as Elaine Craig’s unjustified and vague critiques) – continues to be astounding. Note the book is reviewed: “The book is a “terrible revelation of the bumptious arrogance, the pretence and the ritualistic nonsense which afflicts the Canadian courtroom“” and “Crown counsel, she said, was antagonistic, vindictive, and interested only in securing a conviction – wasn’t interested in the cause of justice at all” – Innocence Lost, pp. 65 and 66, emphasis added.

A brief history of the case: Truscott told police when the girl had gone missing that he had given her a bike ride to the highway, and that he had seen her get into a car. The police and Crown – instead chose to proceed on the assumption that he never took her to the road, but had instead gruesomely raped and murdered her in the nearby bushes – where she had been found a day or two later. Whether this choice of the prosecution was because they had no other suspect and almost no real evidence (hence a bit desperate) or was a product of their sick minds is difficult to know. There is some indication in the literature (e.g. Real Justice) that there was a viable suspect that was not investigated, given his military rank.

In any event, the media quickly bought into this absurd theory. So did most of the townspeople of the little town he lived in. Clearly, so too did the judge and jurors at his 1959 local trial – see chapter XI of the book for eye-raisingly alarming misrepresentations and “spin” by the judge in his charge to the jury at the end of the trial – some notable examples include commenting on Truscott’s appearance at trial as apathetic (“You will ask yourselves and you will ask yourselves the reason if this boy is guilty, why he has shown such calmness and apathy” – dismissed by the SCC, though slammed by Hall J. in dissent), misstating the evidence on multiple points, showing significant favouritism to the Crown’s case, “experts” and witnesses, even suggesting an inference not available in the evidence – that if Truscott was not lying about taking her to the highway – as the Crown had so strenuously argued he was lying – he might have also taken her back, as someone must have(!). You’ll never believe that the judge (Justice Robert Irvine Ferguson – bio likely here, he had 9 years of judicial experience at the time of trial) later tried to get LeBourdais (and Berton) in trouble for writing her book (recommending a prosecution for public mischief, given her “thoroughly dishonest piece of writing” – in his opinion – and “vilification of the courts” – surprisingly not pursued by the Attorney General – without a doubt no one dared complain about the judge himself and if they had, they would have been punished)! Don’t get me started on the Crown’s behaviour at the trial, which objectively should have been more than sufficient for him to have been disbarred (one example was a sly mention to the jury of a statement made by Truscott that was later ruled inadmissible – even the judge said the Crown had “made a mistrial” with his idiotic and unethical comment – unfortunately, it was overlooked later in the trial and surprisingly found to be insufficient for a new trial according to the SCC). I can guarantee you he faced absolutely no censure – I’d be surprised if he (Glen Hays, Q.C.) wasn’t promoted and/or appointed a judge after his unethical behaviour at trial. Well done!

In the book, the overwhelming presumption of guilt that appeared to surround these charges (both at the time of trial and much later, clearly) is extremely obvious. She points out the editor of the local paper telling her he didn’t know a soul who didn’t believe in Truscott’s guilt.

After conviction, the Ontario Court of Appeal refused to overturn the conviction (a 5 member unanimous panel – Regina v. Truscott, 1960 CanLII 474 (ON CA), as did the Supreme Court (shocker!) shortly thereafter (not reported, apparently they dismissed it 2 days after it was filed, according to Real Justice). Following the controversy following the release of the book (it had 4 editions in 1966 – likely a bestseller), the SCC (very reluctantly, it appears – note LeBourdais’ accurate prediction that the SCC would not be prepared to overrule its earlier decision) agreed to hear a retrial (a Reference – apparently the first time the SCC had ever allowed new evidence on an appeal). In the SCC, Truscott testified (he didn’t at trial – not that, God forbid, that was used against him in any way, shape or form, at the trial). In any event, the SCC found him to be incredibly unreliable (“Since the evidence was given at trial, Truscott has testified on the reference. We refer herein to the parts of his testimony which simply cannot be believed” – emphasis added. Why can’t he be believed, you ask? Because, among other things, the SCC was convinced the killing happened where the body was found – definitely not true, and the book goes to great pains to show why this is not the case) and appears persuaded by the Crown’s child witnesses, most of whom were lying through their teeth – establishing that the SCC is just as bad at assessing credibility as it is at both applying the law and amateur sleuthing. Truscott had the benefit of G. Arthur Martin, Q.C. as his lawyer at the SCC – probably the most respected criminal law mind in Canadian history. Note the Crown had no doubt some of the best lawyers in the country representing it at the SCC (W.C. Bowman Q.C., D.H. Scott, Q.C., and federal deputy justice minister D.H. Christie, Q.C. – later associate chief judge of the Tax Court [3]) – yet it didn’t disclose critical information (such as Dr. Penistan’s recent, “agonizing reappraisal” nor the presence of a 4^th witness, Karen Daum, who corroborated Truscott’s 3 other witnesses – each of whom the Crown had claimed were liars).

There was a vicious “battle of the experts” at the SCC, along with various new evidence adduced (almost entirely thanks to LeBourdais’ fantastic book). After a multiple day hearing, the SCC reserved its decision. When it returned its decision (Reference Re: Steven Murray Truscott, 1967 CanLII 66 (SCC)), it dismissed the appeal, by an 8-1 margin. The lone justice apparently prepared to acknowledge innocence when it stared him right in the face was Justice Emmett Hall (highly respected and not a member of the SCC when the first appeal was dismissed).

The case more-or-less disappeared from the public limelight afterward. In 2000, a Fifth Estate episode and very hard work by Innocence Canada (lawyer James Lockyer, among others, and extensive new entomological evidence), the ONCA agreed to reopen the case, overturn the conviction and enter an acquittal in its place (Truscott (Re), 2007 ONCA 575). The poor victim was even paid a few million dollars of “hush money” by the government for his troubles. As far as I know, the SCC has not yet apologized (and why should they, given that they’re infallible) – nor have they even acknowledged their horrendous, inexcusable and bone-headed role in this awful wrongful conviction.

What I find most shocking about the SCC’s decision was its conclusion that the weight of the evidence – including the new evidence – points to guilt and that “parts of his testimony simply cannot be believed” [4]. How that finding is compatible with any of the 8 being, er, the most intelligent judges in the country is simply mind-blowing[5]. A quick review of the book (and/or the new evidence) is all that is needed to see that the conviction was incredibly weak. How that could be missed can only be explained by tunnel vision, or at best – the presumption of innocence being an absolute joke[6] (of course, the SCC likely didn’t read the book – why would they? Definitely want to make sure the Crown gets a “fair shake” at the hearing).

There were a number of issues that the Crown relied on to obtain the conviction, including but not limited to:

1. Numerous eyewitnesses (mostly children) that swore up and down that they had or hadn’t seen the accused at the appropriate times (on the bridge, biking back, etc.). Of course, there were many other children testifying for the defence, but they were mostly “liars.” The Crown witnesses were clearly tampered with and coached excessively by police and/or Crown, and most were almost certainly lying (see Real Justice). Nevertheless, their testimony was considered extremely reliable – by the Crown, trial judge, jury, and clearly the SCC on both occasions. In fact, you can say the SCC largely “hung its hat” on this absurd and tenuous testimony in 1967, essentially finding that there was no other way to explain such convincing “evidence” of guilt. See here.
2. The stomach contents evidence – the Crown relied on very shaky “evidence” at trial from pathologists (primarily Dr. Penistan) who insisted that the stomach contents put the time of death precisely between 7:15-7:45 PM that evening, which tightened the grip “like a vise” around Truscott, according to the trial Crown in closing argument. There were significant weaknesses in this nonsense, and some of it was exposed by defence at trial, especially by its own expert, and also by LeBourdais in her book (extensively – suggesting the time of death was quite possibly at least a few hours later – Innocence Canada notes that Dr. Penistan’s draft notes at the time of the autopsy – not disclosed to defence – put the timeframe after midnight that evening, 5 hours later than the time Dr. Penistan swore up and down at trial that the death occurred). On the 1967 Reference, countless experts were called – by both sides – with at least one Crown “expert” making a complete ass of himself thanks to rigorous (and legendary) cross-examination by G. Arthur Martin (excerpted in just about every Canadian advocacy textbook – neglecting to mention that the “ammunition” for this lethal cross-examination likely came directly from LeBourdais’ book) – not that the inconsistencies appeared to be recognized by the SCC. Somehow, this wasn’t sufficient for the SCC to overturn the conviction. Note that on the 2007 reference, a big part of the decision focused on newer, entomological evidence that also destroyed the Crown hypothesis. Did I mention that Dr. Penistan had an “agonizing re-appraisal[7]” of his opinion prior to the 1967 Reference (right around when the book was released – coincidentally!), which was never mentioned to the defence, and he was (surprisingly!) not called at the SCC Reference? Note that the Crown even had the nerve to call further evidence at the 2007 Reference supporting Dr. Penistan’s trial perjury/lies – thankfully dismissed by the Court (paras. 165-166). Of course, theoretically improved (as of the ‘90s) Crown “disclosure obligations” should fix that! (sarcasm).
3. Genital lesions on Truscott – the Crown made a very big deal out of these at trial, and is utterly demolished in the book. Thankfully, the Crown appeared to ignore the issue at the Reference, and practically conceded that it was entirely BS. Apparently, 5 dermatologists further testified at that Reference (all for defence) that the Crown trial doctors (including Penistan, whose other testimony should also be suspect as a direct result of these lies) were full of s**t – at best – who cares, right?
4. View of the highway from the road – Truscott had told police that he could see the colour (not the numbers, as was wrongly claimed at trial by both the Crown and judge) of the license plate that picked up the girl from where he stood on the road. Misleading Crown evidence “showed” he was a liar – thoroughly debunked in the book. Insufficient – surprisingly – for a new trial at the SCC (downplayed there altogether), despite the egregious nature of this bogus evidence and the very significant negative (or positive – depending on your perspective) effect it certainly had at trial.
5. There was also some crap about Truscott telling a kid (Arnold “Butch” George) to back up his “alibi” defence – this is also thoroughly demolished in the book. Note that George had originally told police that he had seen Truscott and retracted it the next day – once the police began homing in on Truscott as the suspect – and then claimed Truscott had told him to lie for him. Of course, dangerous for Truscott’s credibility and “character.” Concerningly, not criticized by SCC.
6. There was another witness (a Jocelyne Gaudete – incredibly unreliable) who made up a story about Truscott trying to get her to see some calves (or ponies – I’ve lost track at this point) with her – you’ll be surprised to know that her evidence was relied on heavily by the Crown to secure the conviction (see here for weaknesses in her evidence – known to police and/or Crown at the time)! Her story included that Truscott had told her not to tell anyone – also (false) bad character evidence. Of course, more awful bad character evidence, which I’m sure courts these days would excuse as necessary for “narrative,” as the SCC majority blatantly did in the 1967 Reference.
7. The accused did not give evidence at his trial – definitely not allowed to be relied upon to establish guilt (in theory), but in practice, it very often is (to this day!) – in Canada, anyway[8]. Note the second sentence of the 1967 reference (emphasis and brackets added): “Most of the evidence was circumstantial [ya think?] and the accused did not give evidence at his trial [therefore? …]”.
8. Media – in fact, allowed to be tried as an adult to entitle the media to broadcast his “guilt” as early and as often as it pleased and to allow for the death penalty (Regina v. Truscott, 1959 CanLII 496 (ON SC) – note the ironic finding that “in a matter of this kind where public sentiment may have been aroused, the trial and disposition of the matter shall be in the ordinary course and free from any criticism” – emphasis added) – apparently, media allowed to report all of the details at the trial – despite the youth of the accused and the blindingly obvious prejudicial nature of this coverage.
9. Have a load of this, from the SCC: “We do not think that there is any doubt about the place of death. The position of the body, the scuff marks and a footprint at the foot, and the flattening of the vegetation between the legs, indicated that the act of rape took place there.” This is dead wrong actually – it was definitely not the place of death, as established in the book, and conclusively at the 2007 Reference.
10. The trial judge’s charge to the jury included (emphasis added) “It will be for you to say whether you accept Doctor Penistan’s theory, an Attorney-General’s Pathologist of many years’ standing, or do you accept Doctor Brown’s [defence] evidence.” Biased much?
11. Blame defence counsel! Defence didn’t insist on a mistrial at the time – due to some blatant misconduct from the Crown that the judge at the time suggested called for a mistrial. Same with other clearly biased words from both the Crown and judge. Whether or not the SCC explicitly blames defence counsel, it certainly penalizes the victim, which further adds insult to injury. It’s very simple, SCC – glaring mistakes made by Crown, judge, etc. are grounds for a new trial – whether or not defence counsel objected at the time. Please don’t continue to blame the accused and/or his counsel (and visit the consequences upon them) for a grossly unfair system that they’ve done nothing to establish.

Here are some lessons I think we can all take from this awful wrongful conviction (ahem, SCC) – adoption of which may slightly reduce the odds in the future of this kind of travesty, considering that so little has actually changed in our laws or approach to criminal justice and trials in general since 1959 (other than abolition of death penalty, improved theoretical right to disclosure; otherwise, convictions have been made arguably a lot easier by “relaxing” of evidentiary rules and the quagmire that is “credibility contests” these days and denial of almost all possible defences for sexual assault charges – with ss. 276, 278, and the refusal to allow most defences by somehow calling them “myths” as I’ve blogged about extensively in the past):

1. Presumption of innocence is a thing – it’s time to actually take it seriously, not just pay lip service to it, as we’ve been doing for a mere century or two. Maybe a complainant shouldn’t be defined as a “victim of an alleged offence” according to our Criminal Code (pre-conviction, s. 2, emphasis added). Same goes for ethical and fair conduct by the Crown and courts (of all levels – I should stress);
2. Watch out for lying/perjuring “experts” – they’re fairly common, it appears;
3. Watch out for lying/perjuring witnesses – these are also fairly common in Canada, it seems. Perhaps they should even suffer consequences on the odd occasion (blasphemy – I know). The excessive and obsequious “deference” regularly afforded to findings of fact as it relates to credibility of complainants in sexual assault (and other trials), as re-affirmed in v. G.F., 2021 SCC 20, is simply a travesty and practically explicitly invites and endorses wrongful convictions en masse. For example, an appeal of a sexual assault conviction in which some of the complainant’s testimony was found to be concerning, troubling, questionable, and a little unsettling (exact words used by the trial judge – R. v Saddleback, 2020 ABPC 168, at paras. 59, 60, 71) was found to be “frivolous” at the bail stage (R v DRS, 2021 ABCA 171, para. 13) – full disclosure, I was counsel at both levels of court;
4. Bad character evidence against accused continues to be downplayed or ignored by appellate courts (including the SCC). It would be nice if they would start taking it even slightly as seriously as similar “evidence” against a complainant (e.g. “myths,” “whacking the complainant”, etc.);
5. Media – they also need to at least pretend to respect the presumption of innocence. They should not be allowed to regularly plaster the names, faces and details of allegations of presumptively innocent accused persons – the same way they are almost never allowed to do so regarding the complainant;
6. Disclosure – defence should have access to the entire police file, not just the parts the police and/or Crown deem disclosable;
7. Anything else?

I’ll add below LeBourdais’ excellent foreword to her book (I should add the book should be required reading for all first-year law students, Crowns, academics, and judges of all levels) and Justice Hall’s dissent on the 1967 SCC Reference – emphases added.

Foreword: what does it really mean when a judge, under the law, instructs the jurors at the end of a trial that the accuse does not have to prove his innocence because the onus of proof is on the prosecution and that if there is any ground for a reasonable doubt the accused must be acquitted?

It means that we, the people, through our legislatures and our law courts, believe in the fundamental right of every one of us to the protection of his personal freedom and respect for his integrity. It means that regardless of any apparent circumstances those who accuse him of breaking the law must prove their case by clearly incriminating evidence, or it is they who are the transgressors against a fellow human being, not he.

Most of us give very little thought to the manner in which justice is administered. We leave it to the police, the magistrates, the judges and others involved in judicial processes. We chuckle at the time-worn jokes that a jury consists of twelve men chosen to decide who has the better lawyer, or that penitentiaries are inhabited solely by men who declare that they were unjustly convicted. But a news story about a crime, followed by someone’s’ arrest, interests us only slightly, for we usually take it for granted that the accused is guilty or the police would not have arrested him. We thoughtlessly line ourselves up with the police as judge, jury and even executioner.

How often does the most important fact enter our heads: that the accused is legally an innocent man until after he has been proven guilty?

It is customary for a judge to inform a convicted man that he has been found guilty after a fair trial, and for anyone who writes about a trial to assume that it was fair. By definition a fair trial is presumably one in which both sides have had legal counsel and the court was objective and impartial. That in many trials the scales are heavily weighted against the accused is admitted by every serious student of the subject. Therefore the accused has in fact had to prove his innocence regardless of what the judge might duly have said about the law in his address to the jury at the end of a trial.

This book is written in the belief that the law is a good law and should always give to the accused the advantage inherent in the presumption of innocence and not just lip service to that right, so that right is not a horrible, grim game with the accused tossed back and forth like a ball amid barrages of melodramatics and rhetoric. If the onus of proof is on the prosecution from beginning to end, it is always the accusers who must justify themselves, not the accused.

Justice Hall’s dissent:

Having considered the case fully, I believe that the conviction should be quashed and a new trial directed. I take the view that the trial was not conducted according to law. Even the guiltiest criminal must be tried according to law. That does not mean that I consider Truscott guilty or innocent. […]

It was inevitable that this horrible crime would arouse the indignation of the whole community. It was inevitable too that suspicion should fall on Truscott, the last person known to have been seen with Lynne in the general vicinity of the place where her body was found. The law has formulated certain principles and safeguards to be applied in the trial of a person accused of a crime and has throughout the centuries insisted on these principles and safeguards being observed. In the great majority of cases adherence to these fundamentals is not difficult but in a case like the present one, when passions are aroused and the Court is dealing with a crime which cries out for vengeance, then comes the time of testing. It is especially at such a time that the judicial machinery must function objectively, devoid of inflammatory appeals, with the scales of justice held in balance.

A bad trial remains a bad trial. The only remedy for a bad trial is a new trial. Accordingly, the validity of the trial is, in my view, the dominant issue. With deference to contrary opinion, I see no purpose in erecting a massive and detailed structure of evidence, inference and argument confirming a verdict that has no lawful foundation upon which to rest. […]

by his failure to stop Crown Counsel when in his speech to the jury he advanced subtly worded inflammatory arguments which should have been repudiated on the spot […]

The errors and inflammatory arguments were too numerous and too integrated into the whole of the case as to be capable of coming within the exception provided for by that section. […]

I do not find it necessary to go in detail into the medical evidence given on the reference in this Court. This has been done in the majority opinion and is seen to be contradictory in the extreme. This much must, however, be said that it tends strongly to increase the doubt a juryman may honestly have had as to the time of death, if properly charged […]

The reference to ‘apathy’ in this passage by the learned judge was purely gratuitous. The word itself or a condition or conduct so describing Truscott does not appear in the evidence. It had been urged that his appearance and conduct were normal. The learned judge wrongly transposed ‘normal’ into ‘apathy’. The dictionary definition of ‘apathy’ is ‘insensibility to suffering or feeling’. ‘Apathy’ in relation to the crime in question here was a description highly damaging to the accused. […]

A trial judge has the right to express his own opinion or opinions in the course of his charge to the jury, but he has the duty to put the defence of the accused fairly to the jury. This he did not do on this branch of the case. […]

The consequences of Defence Counsel’s failure to object at the trial do not fall upon counsel, but upon the client, in this case a 14½ year old boy on trial for his life.

I appreciate that after nearly eight years many difficulties will be met with if a new trial is held both on the part of the Crown and on the part of the accused, but these difficulties are relatively insignificant when compared to Truscott’s fundamental right to be tried according to law.

Footnotes

[1] See THE TRIUMPH OF ISABEL LEBOURDAIS | Maclean’s | November 19 1966 (macleans.ca); also THE TRIAL OF ISABEL LEBOURDAIS | Maclean’s | June 4 1966 (macleans.ca) See also Zealots at error | Maclean’s | FEBRUARY 22,1993 (macleans.ca); Marlene film (IMDB); and “Until You Are Dead”: Steven Truscott’s Long Ride into History: Sher, Julian: 9780676973815: Books – Amazon.ca

[2] “At some point, LeBourdais considered writing a magazine article, “but it just became too big,” her son says. “It became a book” – a book every publisher in Canada turned down on the advice of their lawyers, who were afraid it would be perceived as an attack on the justice system and lead to being found in contempt of court.” – The Star, emphasis added. See also Real Justice: Fourteen and Sentenced to Death: The story of Steven Truscott, 2012, Bill Swan.

[3] See Kaufman Report, 2004, Executive Summary

[4] “The effect of the additional evidence which was heard by this Court, considered in its entirety, strengthens the view that the verdict of the jury ought not to be disturbed.” (emphasis added – also, nicely contradicted by the dissent)

[5] Oh, I see, the Chief Justice had begun his descent into alcoholism, at the time. That explains it (for 1 out of 8, anyway)!

[6] As I’ve suggested it continues to be. On a related note, I’m also enjoying this podcast (Not on the Record), and other similar material.

[7] So much for his confident trial certainty about a 30-minute window of time for the death to have occurred: “All findings are compatible with death within 2 hours of Lynne’s last meal. They are not incompatible with death at a later time (up to 12 hours or even longer)” – emphasis added, paras. 229-230 of 2007 Reference. So he may have been off by as many as 10 hours? Holy ****. Nothing to see here.

[8] See disturbing cases such as R. v. Prokofiew, 2012 SCC 49, where a 5-4 majority somehow found that commenting on accused’s failure to testify is not reversible error. Conversely, see People v. Hughes (2002) :: :: Supreme Court of California Decisions :: California Case Law :: California Law :: US Law :: Justia, emphasis added:

Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. (People v. Murtishaw (1981) 29 Cal. 3d 733, 757-758 (Murtishaw); see also People v. Bradford (1997) 15 Cal. 4th 1229, [27 Cal. 4th 372] 1339 (Bradford) [“a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand“].)