The public should have access to a 700- page document that may cast new light on the murder conviction of Steven Truscott and why his decade-long incarceration was possibly unjust, lawyers argued at Ontario's top court yesterday.
Lawyers for several media organizations, including the Toronto Star, Sun Media Corp., and the CBC, were at the Ontario Court of Appeal yesterday putting forward their case to see the document.
This is not a case-management document," Star lawyer Paul Schabas told the court, which is examing Truscott's 1959 conviction.
"(The Truscott case) is before you because of the (Kaufman) report and it is essential that it becomes something that the public too can come to understand."
Last month, the Star filed a motion requesting the release of the report, prepared by retired Quebec Court of Appeal justice Fred Kaufman for the federal government and now in the possession of the Ontario Court of Appeal.
Ontario's attorney general opposed the Star's move, expressing fears the release might prejudice the case now before the appeal court.
In 1959, Truscott was 14 years old when he was found guilty of slaying 12-year-old Lynne Harper and sentenced to death. The appeal court later commuted the sentence to life imprisonment. Truscott has always maintained his innocence.
During yesterday's hearing, Rosella Cornaviera representing Ontario's attorney general, said disclosing the content of the report will inevitably taint future witnesses because the document "contains much of the fresh evidence both parties will be seeking to tender" at a reference hearing.
At one point during Cornaviera's oral submission, Justice David Doherty asked for solid reasons as to why the court should decide in favour of the attorney general's position.
"It seems to me people would have concerns about us sealing things up when it's probably the most notorious, well-known criminal case in Canada," he said.
Truscott's push for a review of his case was brought back to the limelight in 2002, when the federal justice minister Martin Cauchon asked Kaufman to investigate Truscott's wrongful conviction claim.
The retired judge filed his findings last year. Last October, Justice Minister Irwin Cotler said he had reason to believe a "miscarriage of justice" had likely taken place but referred the case to the Ontario Court of Appeal.
The justice minister also asked the court in writing to consider whether releasing the report something he is in favour of in principle would impact on the reference hearing.
Among other things, the Kaufman report includes three volumes of unreported arguments by the Ontario government on why it believes Truscott was rightly convicted.
It also includes all of the material filed by Truscott and his lawyers to support his wrongful conviction claim, including fresh new evidence. Truscott's material had already been made public and reported extensively.
Truscott's lawyer, James Lockyer, said his client does not oppose public access to the report.
The court reserved its decision on the issue yesterday until a future date.
An Ontario Court of Appeal judge expressed irritation yesterday over a continuing clamp on information involving the Steven Truscott murder case.
Speaking at a media challenge of the secrecy surrounding the case, Mr. Justice David Doherty questioned whether the Ontario government has done all it can to open the case to public scrutiny.
A lot of people could have concerns about sealing everything up in what is the most notorious and well-known criminal case in Canada," Judge Doherty said sharply. "Quite frankly, I think we could use a little more help and a little more urgency from your side."
Mr. Truscott was sentenced to death at the age of 16 for the 1959 killing of 12-year-old Lynne Harper. His sentence was later commuted to life imprisonment. He was released on parole after 10 years.
The media have challenged the sealing of a lengthy, investigative report that lay behind federal Justice Minister Irwin Cotler's decision last fall to turn down Mr. Truscott's request for exoneration and refer the case to the Court of Appeal for a rehearing.
Late yesterday, Chief Justice Roy McMurtry said the three-judge panel will render its decision on the media request "very shortly."
The rehearing is not likely to take place until at least winter. In the meantime, both the federal government and Ontario have opposed the contents of the Truscott investigative report becoming public.
Written by former Quebec Court of Appeal judge Fred Kaufman, the report deals with the pros and cons of a host of witnesses and evidence.
Federal lawyer Croft Michaelson maintained yesterday that Mr. Cotler would like to see the information become public, but only if it does not taint the evidence of potential witnesses or harm individuals who are mentioned in it.
Depending on the ruling, he said, federal lawyers may edit the report to remove the names of third parties, then release it. However, Ontario Crown counsel Rosella Cornaviera warned that publicizing the contents of the report could induce several witnesses to change their testimony.
"What basis do you have for saying they would not comply with a court order?" Judge Doherty asked, saying the Crown had produced nothing but "vague generalities" to back up its concerns.
Ms. Cornaviera said that two or three witnesses are the type who might tailor their evidence. Association lawyer James Lockyer told the judges yesterday that Mr. Truscott has no objection to the report being made public.
The Attorney General of Ontario's office is now home to nearly 6,000 postcards requesting a new trial for Steven Truscott.
And though an office spokesman once said the receipt of 5,000 postcards usually draws attention from Attorney General Michael J. Bryant, there have been no new developments to expedite the matter, according to communications spokeswoman Valerie Hopper.
To date, 5,765 postcards have been sent to the attorney general's office.
The postcard campaign's founder, Clinton native Mary Yanchus who, as well as Truscott, now lives in Guelph, had originally hoped 16,000 cards would arrive at the attorney general's doorstep when the protest was launched in the fall.
Hopper says the decision of whether to hold a new trial rests with the Ontario Court of Appeal, which is currently reviewing the extensive case review completed by retired justice Fred Kaufman for the federal justice department.
The timeline followed by the court is not an issue within the purview of the Attorney General. "It's up to the Court of Appeal to set up a time table," says Hopper. Document to be revealed
Meanwhile, James Lockyer, one of Steven Truscott's Association in Defence of the Wrongly Convicted (AIDWYC) lawyers, is welcoming news that a version of an investigative report into the 1959 slaying of a Clinton-area school girl will be released.
"We're quite happy with his decision," says Lockyer about federal Justice Minister Irwin Cotler's decision to release former Quebec Court of Appeal justice Fred Kaufman's report to the public -- perhaps as early as October.
His report reached the justice minister in April 2004 after two years of sifting through the evidence.
Cotler's decision "does not necessarily mean the entire report will be made public," says Kerry Scullion, senior counsel for the Justice Department's criminal conviction review Group. "There are other considerations, like our federal Privacy Act."
There are a host of exceptions to the law, however, including a section that allows the government to release information considered "personal" if it believes the public interest in disclosure clearly outweighs any potential invasion of privacy, he said.
However, that act was most recently cited by police as grounds for not releasing the name of the No. 1 suspect in the 1990 rape and murder of Lynda Shaw, an engineering student at University of Western Ontario. -- With notes from The London Free Press
Louis B. Hobson is wearing his heart on his wrist. The Calgary Sun movie critic is sporting one of those rubber bracelets -- first made popular by cyclist Lance Armstrong for cancer. But Louis' bracelet is white, not yellow, and it says, JuSTice Now. The letters S and T are capitalized because they stand for Steven Truscott.
While Louis has only been wearing this bracelet for three weeks, he's been carrying around a burden for the injustices endured by Truscott for decades.
That burden was the figurative grain of sand that irritated Louis' conscience and like an oyster, Louis has turned the irritant into a pearl -- a pearl of wisdom and great art.
Beginning tomorrow, Albertans will have an opportunity to see Louis' latest and, I believe, greatest play to date: Steven: The Steven Truscott Story.
Truscott, who will attend tomorrow night's showing, will also take part in a workshop on the wrongfully convicted Friday at the Canadian Criminal Justice Association's 30th National Congress at the Westin Hotel, which will bring experts in criminal justice from around the world to Calgary.
Truscott was Canada's youngest-ever death-row inmate, when at the age of 14 he was convicted of killing 12-year-old Lynne Harper in the idyllic military town of Clinton, Ont.
As Louis' play so masterfully shows, the Crown prosecutor and police officers cared more about winning than justice. They massaged and even hid important evidence that would have acquitted Truscott all those years ago.
Louis says the person who implanted the Truscott grain of sand into his psyche was his mother, Jeanne, who passed away nine years ago.
"I'm just a few months older than Steven," explains Louis, 60, "so when I was 14 that's how old Steven was. My mother, even though we were living out here in Alberta, like so many mothers across Canada, was outraged by the idea that a 14-year-old boy could be arrested, convicted and sentenced to hang within four months on purely circumstantial evidence and she was a real fighter. She talked to the Catholic Women's League, she got people to write letters and she never let me forget that story," recalls Louis. "She would say: 'That could have been you.' "
When Louis began writing plays about three decades ago, his mom often asked when he was going to write about Steven.
"Her dream became my dream."
Recently, from Oct. 5 to Oct. 20, Steven was played in Guelph, Ont., where Truscott lives with his wife, Marlene. One of Truscott's two grandchildren, 16-year-old Jeff Bowers, acted two roles throughout that run.
Here in Calgary and in Guelph, the adult character of Steven is played by J.D. Hanson and the younger Steven is played by Matthew Buzahora. Both play their roles with masterful understatement.
Following the opening-night performance in Guelph, Truscott told reporter Magda Konieczna of the Guelph Mercury: "Very seldom in one's lifetime does a person get a chance to see someone else's view of what you lived through.
"Hopefully if any (government officials) ever watch the play, it will have more effect than what we've had so far," added Truscott. "Hopefully it will make a difference, not just for me but for others."
Thanks to Truscott's courage, books by journalists, this play and help from those Canadian heroes, like lawyer James Lockyear with AIDWYC -- The Association in Defence of the Wrongly Convicted -- things have changed for the better and will likely continue.
The death penalty was abolished in Canada in 1967, largely due to the outrage Canadians felt about what happened to Truscott, who spent 10 years in prison for a crime he didn't commit. In 1991, a precedent-setting case now requires the Crown to disclose ALL evidence -- whether it helps their case or not.
But justice still hasn't been done. Truscott still fights for a new trial to clear his name. And of course, the real killer has never been held accountable.
"JuSTice Now," says Louis' bracelet. So does this play -- a Canadian classic that will endure like a pearl.
Tomorrow's show at the W.R. Castell Central Library, 616 Macleod Tr. S.E., is sold out but tickets are still available for Friday and Saturday's shows by calling 263-0079.
A REPORT on the Steven Truscott case remains under wraps while Ontario Court of Appeal judges decide if it can be released to the public.
Lawyers for the Toronto Sun, Toronto Star and the CBC argued yesterday for the public's right to know what is contained in a 700-page federal government report on the Truscott case.
"The investigation that lead the (federal) minister of justice to conclude there might be a miscarriage of justice has to be public," Sun lawyer Alan Shanoff said after the court of appeal hearing.
"This isn't titillation or sensationalism. This is about shining a light on the most notorious criminal prosecution in the last 50 years."
Truscott was convicted in the late-1950s of murdering 12-year-old Lynne Harper. He was supposed to hang, but the then 14-year-old's sentence was commuted to life. He was paroled in 1969 and has been fighting to clear his name.
Rosella Cornaviera, lawyer for the attorney general, said the report should be kept from the public because it could taint potential witnesses.
"You can't predict what effect (publishing) the report would have until it's too late," she said. Paul Schabas, a lawyer for the Toronto Star, said the Truscott case must be conducted as openly as possible.
"Subjecting things to public scrutiny brings people forward," he told court. "It enhances the evidentiary process."
Schabas said the report has already been given to the court as well as to lawyers for Truscott and the Crown -- effectively neutralizing any claim of solicitor-client privilege by the federal justice minister who asked for the report in 2002.
Cornaviera said a probe, including talking to witnesses, has been continuing and could be wrapped up by the fall.
But her argument was too vague for Justice David Doherty, who wanted more specifics on the status of the attorney general's investigation and what harm could come from releasing the report to the media.
A key witness at Steven Truscott's 1959 murder trial claims she was awakened in the dead of night and taken to a police station at an air force base in Clinton, Ont., where an OPP inspector and three other officers pressured her to change her evidence.
"Here's this 12-year-old kid, half asleep, and these bastards are trying to change my story," the woman, then known as Jocelyne Gaudet, testified in 2003 during an investigation into Truscott's conviction for the slaying of Lynne Harper.
Her testimony is summarized in a lengthy report on the case prepared for the federal government by former Quebec Court of Appeal judge Fred Kaufman.
In the report, made public yesterday, Kaufman said Truscott's "innocence has not been demonstrated." But a substantial amount of evidence was not disclosed to his lawyers at trial or at a 1966 hearing before the Supreme Court of Canada, he said.
That evidence could have affected the verdict and provides a basis for concluding that "a miscarriage of justice likely occurred," he said.
Kaufman sent his report to the government 19 months ago and it formed the basis for Justice Minister Irwin Cotler's decision in October 2004, to refer Truscott's case to the Ontario Court of Appeal for a rehearing. It may take place next year.
Earlier this year, the Toronto Star and other media outlets asked the court to make the report public. The court said there "can be no doubt" that the report was a matter of public interest, but it was also covered by solicitor-client privilege and could only be released by Cotler.
Soon after, Cotler announced he would release it.
The at times "highly significant" evidence not provided to Truscott's lawyers includes initial police statements given by children who testified at the trial and, like Truscott, lived at the Royal Canadian Air Force base in Clinton when 12-year-old Lynne was killed.
There were "profound" dangers associated with not disclosing the statements, which could have been used to challenge the credibility of witnesses, support Truscott's case and unlock other avenues of investigation for the defence, Kaufman said.
Much of it was found in the Ontario archives by Truscott's lawyers. But new evidence has also come from witnesses questioned under oath as part of the investigation, he said.
"The prosecution's case was not an overwhelming one. It is highly likely that the undisclosed evidence, if not the `new' evidence, would further weaken - in my view substantially - that case."
Lawyers for Ontario's attorney general - who oppose Truscott's bid to overturn his conviction - argued that the evidence had either been disclosed or was readily available to the defence.
Truscott's assertions of innocence are based on nothing more than his own account of what happened and he's not a credible witness, they said.
In the four months since Cotler announced he would release the report, federal justice department officials have been engaged in an extensive editing process and consulting with lawyers for Truscott and the Crown to ensure, they said, that the report complies with Privacy Act requirements.
Some or all of more than 100 pages of the 700-page report appear to have been removed, the majority at the request of the Crown. They include a section in which Kaufman appears to have concerns about the accuracy of statements from Jocelyne Gaudet, who couldn't elaborate on what evidence police tried to get her to change.
At the trial, the Crown relied on her testimony to establish a motive for Lynne's murder.
Lynne was with Truscott when she was last seen alive, riding on the crossbars of his bike on the county road outside Clinton, northwest of Stratford, on June 11, 1959.
Gaudet told the jury that she had made a date for a secret rendezvous with Truscott to look for calves at a woodlot known as Lawson's Bush, where Lynne's body was later found. Gaudet said she cancelled and the Crown used her testimony to argue that Truscott, a 14-year-old Grade 7 student, was a lust-crazed teenager who tried to lure another girl into the bush before settling on Lynne.
After Truscott's conviction, he was sentenced to death by hanging, but the federal cabinet later commuted his sentence to life in prison. He served 10 years before being paroled.
An application filed in 2001 by Truscott's lawyers asking the justice minister to reopen his case included affidavits from two women who said they were at nursing school with Gaudet in the 1960s when she broke down and said she'd lied at the trial.
Gaudet denied their claims under questioning in 2003 by lawyer Mark Sandler, who assisted Kaufman with the investigation.
But she said she was convinced of Truscott's innocence and told police at the time that he wouldn't hurt a living creature. She remembered he had given her a lizard but warned her not to pick it up by the tail because it would fall off.
"He can't even kill a fly."
Kaufman also heard from Truscott, who said he didn't really understand what was happening during the Supreme Court hearing into his case.
"All of a sudden, you're thrown up in front of nine judges, your lawyers are over here, and you're scared," he said.
Truscott said he had only brief meetings with his trial lawyer, Frank Donnelly, and lawyer Arthur Martin, who represented him at the Supreme Court, and he didn't spend a lot of time with them preparing for the case.
But lawyers for the attorney general told Kaufman that's "incapable of belief." Truscott only said that to cover up his "lacklustre" performance at the Supreme Court, which didn't believe him, they said.
But Kaufman said the attorney general is placing "undue weight" on the Supreme Court's decision and the only thing that matters now is whether there is new evidence suggesting a miscarriage of justice.