Truscott, Re, (2006) 216 O.A.C. 217 (CA)

• Judge: McMurtry, C.J.O., Doherty, Weiler, Rosenberg and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 18, 2006
• Jurisdiction: Ontario
• Citations: (2006), 216 O.A.C. 217 (CA)

Truscott, Re (2006), 216 O.A.C. 217 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. OC.053

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/applicant) v. Steven Murray Truscott (appellant/respondent)

(C42726/M34189)

Indexed As: Truscott, Re

Ontario Court of Appeal

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

October 18, 2006.

Summary:

The Minister of Justice referred the 1959 murder conviction of Steven Truscott 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 Crown sought to lead the evidence of Ms. X, concerning a 1958 incident during which Truscott allegedly made sexual advances to Ms. X, which Ms. X successfully repelled.

The Ontario Court of Appeal ruled that the proposed evidence was inadmissible at this stage.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - In June 1959, Lynne Harper was raped and murdered - That same year, the then 14 year-old Steven Truscott was found guilty of the crime - 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 Crown sought to lead the evidence of Ms. X, concerning an August 1958 incident during which Truscott allegedly made sexual advances to Ms. X, which Ms. X successfully repelled - The incident happened in a cornfield - The Ontario Court of Appeal ruled that the proposed evidence was inadmissible at this stage where: (1) Truscott had not put his character in issue in these proceedings either by his proposed evidence or by statements made outside these proceedings; (2) Truscott's credibility was not a fact in issue in these proceedings since he had not yet testified; (3) the fact that Truscott and a girl from his circle of friends ended up in a cornfield in 1958 could not assist in deciding whether Truscott invited an acquaintance to go to a field with him the night of Lynne Harper's disappearance in June 1959; and (4) the proposed evidence had no forensic ability to identify Truscott as the killer - See paragraphs 1 to 57.

Criminal Law - Topic 4983

Appeals - Indictable offences - Powers of Court of Appeal - Power to make any order that justice requires - In June 1959, Lynne Harper was raped and murdered - That same year, the then 14 year-old Steven Truscott was found guilty of the crime - 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 Crown sought to lead the evidence of Ms. X, concerning an August 1958 incident during which Truscott allegedly made sexual advances to Ms. X, which Ms. X successfully repelled - Truscott requested that if the court ruled that Ms. X's evidence was inadmissible, that there should be a ban on publication of the testimony and statements of Ms. X, and all evidence and submissions associated with it, until the court's judgment was delivered on the appeal - The Ontario Court of Appeal refused the request, after ruling that Ms. X's evidence was inadmissible - Justice required that the court's ruling on the Crown's Motion and the court's reasons should be a matter of public record - See paragraphs 58 to 63.

Criminal Law - Topic 5205

Evidence and witnesses - Admissibility and relevancy - General - In June 1959, Lynne Harper was raped and murdered - That same year, the then 14 year-old Steven Truscott was found guilty of the crime - 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 Crown sought to lead the evidence of Ms. X, concerning an August 1958 incident during which Truscott allegedly made sexual advances to Ms. X, which Ms. X successfully repelled - At issue was whether the court should rule on the admissibility of the proposed evidence without hearing the testimony - The Ontario Court of Appeal held that it could do so where the evidence was clearly irrelevant to any material fact in issue in the proceedings - See paragraphs 17 to 25.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The Ontario Court of Appeal held: "The submission that an accused can put his character in issue in criminal proceedings through statements made outside of the confines of those proceedings, which form no part of the record thereof, is both novel and meritless" - See paragraphs 26 to 37.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 17].

R. v. Babinski (R.R.) (1999), 122 O.A.C. 1; 135 C.C.C.(3d) 1 (C.A.), refd to. [para. 17].

R. v. Dietrich (1970), 1 C.C.C.(2d) 49 (Ont. C.A.), leave to appeal refused (1970), 1 C.C.C.(2d) 68 (S.C.C.), refd to. [para. 19].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46; 40 C.C.C.(3d) 1, refd to. [para. 20].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271; 35 C.C.C.(2d) 209, refd to. [para. 21].

R. v. J.-L.J. (2000), 261 N.R. 111; 148 C.C.C.(3d) 487 (S.C.C.), refd to. [para. 22].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 108 C.C.C.(3d) 310 (C.A.), refd to. [para. 22].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), leave to appeal refused [1997] S.C.C.A. No. 524, refd to. [para. 22].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 321, refd to. [para. 23].

R. v. Brown (W.J.) (1999), 123 O.A.C. 258; 137 C.C.C.(3d) 400 (C.A.), refd to. [para. 27].

R. v. Bricker (J.E.) (1994), 71 O.A.C. 383; 90 C.C.C.(3d) 268 (C.A.), leave to appeal refused (1994), 180 N.R. 399; 82 O.A.C. 400; 92 C.C.C.(3d) vi (S.C.C.), refd to. [para. 30].

R. v. Wilson (G.R.) (1999), 138 Man.R.(2d) 139; 202 W.A.C. 139; 136 C.C.C.(3d) 252 (C.A.), leave to appeal refused (1999), 252 N.R. 193; 148 Man.R.(2d) 158; 224 W.A.C. 158; 139 C.C.C.(3d) vi (S.C.C.), refd to. [para. 30].

R. v. McMillan (1975), 23 C.C.C.(2d) 160 (Ont. C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20; 33 C.C.C.(2d) 360, refd to. [para. 33].

R. v. Parsons (G.) (1993), 65 O.A.C. 61; 84 C.C.C.(3d) 226 (C.A.), refd to. [para. 33].

R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 36].

R. v. Knuff (1980), 19 A.R. 168; 52 C.C.C.(2d) 523 (C.A.), refd to. [para. 40].

R. v. Davison, DeRosier and MacArthur (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), leave to appeal refused [1974] S.C.R. viii; 4 N.R. 448; 20 C.C.C.(2d) 424, refd to. [para. 43].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 53].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (2006 Looseleaf Update), c. 6 [para. 43].

Counsel:

James Lockyer, Philip Campbell, Marlys Edwardh and Hersh E. Wolch, Q.C., for the appellant/respondent on application;

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

This motion was heard by McMurtry, C.J.O., Doherty, Weiler, Rosenberg and Moldaver, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on October 18, 2006.