Truscott (Re),

• Jurisdiction: Ontario
• Judge: McMurtry, C.J.O., Doherty, Weiler, Rosenberg and Moldaver, JJ.A.
• Neutral Citation: 2007 ONCA 575
• Date: 28 August 2007
• Court: Court of Appeal (Ontario)

Truscott, Re (2007), 226 O.A.C. 200 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. AU.009

IN THE MATTER OF Section 696.3 of the Criminal Code, S.C. 2002, c. 13;

AND IN THE MATTER OF an application for Ministerial Review (Miscarriages of Justice) Submitted by Steven Murray Truscott in respect of his conviction at Goderich, Ontario, on September 30, 1959, for the murder of Lynne Harper;

AND IN THE MATTER OF the decision of the Minister of Justice to refer the said conviction to the Court of Appeal for Ontario for hearing and determination as if it were an appeal by Steven Murray Truscott on the issue of fresh evidence, pursuant to subsection 696.3(3)(a)(ii) of the Criminal Code

Her Majesty the Queen (respondent) v. Steven Murray Truscott (appellant)

(C42726; 2007 ONCA 575)

Indexed As: Truscott, Re

Ontario Court of Appeal

McMurtry, C.J.O., Doherty, Weiler, Rosenberg and Moldaver, JJ.A.

August 28, 2007.

Summary:

In June 1959, 12 year old Lynne Harper was raped and murdered. That same year, 14 year old Steven Truscott was found guilty of murder. He maintained his innocence from the outset and attempted to demonstrate his innocence through numerous court proceedings. In 2004, the Minister of Justice referred the conviction to the Ontario Court of Appeal for hearing and determination as if it were an appeal on the basis of fresh evidence pursuant to s. 696.3(3)(a)(ii) of the Criminal Code.

The Ontario Court of Appeal allowed the appeal. The court found that the conviction constituted a miscarriage of justice and should be quashed. The court held that the most appropriate remedy was to acquit Truscott of the murder of Lynne Harper. The court declined to declare Truscott innocent of the murder.

Criminal Law - Topic 5080

Appeals - Indictable offences - Review by Minister of Justice - Reference to court of appeal - General - In June 1959, 12 year old Lynne Harper was raped and murdered - That same year, 14 year old Steven Truscott was found guilty of murder - He maintained his innocence from the outset and attempted to demonstrate his innocence through numerous court proceedings - In 2004, the Minister of Justice referred the conviction to the Ontario Court of Appeal for hearing and determination as if it were an appeal by Truscott on the issue of fresh evidence pursuant to s. 696.3(3)(a)(ii) of the Criminal Code - The Ontario Court of Appeal held that based on the evidence that qualified as fresh evidence in these proceedings, the court was satisfied that Truscott's conviction was a miscarriage of justice and had to be quashed - The court was further satisfied upon a review of the entirety of the evidentiary record and the additional material available to the court and not previously judicially considered, that if a new trial were possible, an acquittal would clearly be the likely result - The interests of justice dictated that the court make that order - The court stated therefore that Truscott should stand acquitted of the murder of Lynne Harper - The court rejected an argument by Truscott that it should make a declaration of his innocence - See paragraphs 246 to 788.

Criminal Law - Topic 5080

Appeals - Indictable offences - Review by Minister of Justice - Reference to court of appeal - General - In June 1959, 12 year old Lynne Harper was raped and murdered - That same year, 14 year old Steven Truscott was found guilty of murder - He maintained his innocence from the outset and attempted to demonstrate his innocence through numerous court proceedings - In 2004, the Minister of Justice referred the conviction to the Ontario Court of Appeal under s. 696.3(3)(a)(ii) of the Criminal Code "based on a consideration of the existing record herein, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider, to determine the case as if it were an appeal by Steven Murray Truscott on the issue of fresh evidence" - The Ontario Court of Appeal discussed the nature and scope of the review, stating that the reference was limited "to the issue of fresh evidence" (i.e., new information that was not presented in prior court proceedings) - See paragraphs 53 to 68 - The court explained that it would be approaching the fresh evidence analysis in two stages - First the court would decide whether in light of the fresh evidence the conviction could stand and then if the conviction could not stand, the court would determine the appropriate remedial order - At the first stage the court would address the issue of admissibility of the fresh evidence - The court elaborated on its approach and analysed the fresh evidence presented in this case accordingly - See paragraphs 69 to 245.

Criminal Law - Topic 5080

Appeals - Indictable offences - Review by Minister of Justice - Reference to court of appeal - General - In June 1959, 12 year old Lynne Harper was raped and murdered - That same year, 14 year old Steven Truscott was found guilty of murder - He maintained his innocence from the outset and attempted to demonstrate his innocence through numerous court proceedings - In 2004, the Minister of Justice referred the conviction to the Ontario Court of Appeal under s. 696.3(3)(a)(ii) of the Criminal Code "based on a consideration of the existing record herein, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider, to determine the case as if it were an appeal by Steven Murray Truscott on the issue of fresh evidence" - Truscott led evidence from a number of qualified experts and material recovered from various archival sources to attack the credibility and reliability of the pathologist who testified for the Crown at trial as to the victim's time of death - The Ontario Court of Appeal held that it was satisfied that both the expert testimony and the archival material (the evidence) should be admitted as fresh evidence - The evidence complied with the rules of evidence, was sufficiently cogent to warrant admission on appeal and the court was not satisfied that the material was available to the accused's counsel or that it could have been available through the exercise of due diligence - The court held that if this evidence had been before the jury it could reasonably have been expected to have affected the result and therefore the conviction could not stand - See paragraphs 90 to 245.

Criminal Law - Topic 5080

Appeals - Indictable offences - Review by Minister of Justice - Reference to court of appeal - General - Part XXI.I of the Criminal Code, entitled "Applications for Ministerial Review - Miscarriages of Justice", described a process that began with an application by a person convicted of an offence for a review of that conviction "on the grounds of miscarriage of justice" - Section 696.2 delineated the Minister’s review process - Section 696.3(3) provided that the Minister could dismiss an application, order a new trial, or refer the matter to the court of appeal - Section 696.3(3)(a)(ii) directed that a reference to the court of appeal shall be heard and determined "as if it were an appeal by the convicted person" - The Ontario Court of Appeal stated that Parliament’s direction that references made under s. 696.3(3)(a)(ii) were to be treated as conviction appeals was significant - An appeal was not a wide-ranging investigatory process but rather an adversarial judicial process carried out in accordance with the statutory provisions of Part XXI of the Criminal Code which defined the appeal court’s procedural, substantive and remedial powers - The court stated that the appellate nature of these proceedings dictated that the appellant carry the burden of demonstrating based on evidence admitted on the reference that there had been a miscarriage of justice - The court would presume that the conviction was valid until the appellant demonstrated otherwise - The appellant also had the onus of establishing any factual assertions that were material to arguments advanced in support of a motion to adduce fresh evidence - See paragraphs 69 to 75.

Criminal Law - Topic 5081

Appeals - Indictable offences - Review by Minister of Justice - Reference to court of appeal - Powers of court of appeal - [See first and fourth Criminal Law - Topic 5080 ].

Cases Noticed:

R. v. Palmer (1979), 30 N.R. 181; 50 C.C.C.(2d) 193 (S.C.C.), refd to. [para. 92].

R. v. Fell, [2001] EWCA Crim 696 (C.A.), refd to. [para. 252].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 79 C.R.(3d) 1; 59 C.C.C.(3d) 92; 1990 CarswellOnt 108; 1990 CanLII 77, refd to. [para. 699].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 1992 CanLII 79, refd to. [para. 699].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1; 1993 CarswellOnt 76; 1993 CanLII 116, refd to. [para. 699].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 42 C.R.(4th) 133; 101 C.C.C.(3d) 97; 128 D.L.R.(4th) 121; 1995 CarswellOnt 555; 1995 CanLII 74, refd to. [para. 699].

R. v. Khelawon (R.) (2006), 355 N.R. 267; 220 O.A.C. 338; 215 C.C.C.(3d) 161 (S.C.C.), refd to. [para. 699].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449; 36 C.R.(5th) 1; 190 D.L.R.(4th) 591; [2000] 11 W.W.R. 1; 2000 CarswellMan 449; 2000 SCC 40, refd to. [para. 704].

R. v. Finta,[1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241; 88 C.C.C.(3d) 417; 112 D.L.R.(4th) 513; 28 C.R.(4th) 265; 20 C.R.R.(2d) 1, refd to. [para. 722].

R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356 (C.A.), refd to. [para. 722].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 683(1) [para. 80]; sect. 696.1(1), sect. 696.2, sect. 696.3(3), sect. 696.3(3)(a)(ii) [para. 69].

Counsel:

James Lockyer, Philip Campbell, Marlys Edwardh, Hersh E. Wolch, Q.C., and Jenny Friedland, for the appellant;

Rosella Cornaviera, Gregory J. Tweney, Alexander Alvaro and Leanne Salel, for the respondent.

This appeal was heard on January 31 and February 1, 2, 5-9, 13 and 14, 2007, by McMurtry, C.J.O., Doherty, Weiler, Rosenberg and Moldaver, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on August 28, 2007.