Volume 1 Parts I and II

C42726
COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and-
STEVEN TRUSCOTT
Appellant
APPELLANT'S FACTUM
VOLUME 1
PARTS I to III
JAMES LOCKYER
Lockyer Campbell Posner
1515-180 Dundas Street West
Toronto, ON M5G 1Z8
Tel: (416) 847-2560
Fax: (416) 847-2564
PHILIP CAMPBELL
Lockyer Campbell Posner
1515-180 Dundas Street West
Toronto, ON M5G 1Z8
Tel: (416) 847-2560
Fax: (416) 847-2564
MARLYS EDWARDH
Ruby & Edwardh
11 Prince Arthur Ave.
Toronto, ON M5R1B2
Tel: (416)964-9664
Fax: (416)964-8305
HERSH WOLCH
Wolch, Ogle, Wilson, Hursh, & deWitt
1500-633 6 Ave. S.W
Calgary, AB T2P 2Y5
Tel: (403) 265-6500
Fax:(403)263-1111
Counsel for the Appellant
JENNY FRIEDLAND
1515-180 Dundas Street West
Toronto, ON M5G 1Z8
Tel: (416) 847-2560
Fax: (416) 847-2564
COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
RESPONDENT
- and-
STEVEN TRUSCOTT
APPELLANT
APPELLANT'S FACTUM
VOLUME 1
PARTS I to III
INDEX
Page
PARTI
STATEMENT OF THE CASE
1.
2.
1
STEVEN TRUSCOTT'S LIFE (1945-2001)
(a)
1945-1959: His Childhood until His Arrest for Lynne's Murder
4
(b)
1959-1969: His Years of Imprisonment
4
(c)
1969-2006: The Appellant's Life since His Release
5
THE EVENTS LEADING UP TO THIS APPEAL
7
PART II
AN OVERVIEW
1.
A SYNOPSIS OF THE CROWN'S CASE AND DEFENCE CASE AT
THE APPELLANT'S TRIAL AND ON THE REFERENCE
IN 1966-1967
11
(a)
The Case for the Crown at Trial, and on the 1966 Reference
13
(i)
(ii)
(Hi)
14
17
18
J
(b)
The County Road Evidence
Physical and scientific evidence
Evidence called by the Crown on the Reference
The Case for the Defence at Trial and on the Reference
(i)
(ii)
(Hi)
2.
11
The County Road evidence
The response to the physical and scientific evidence
Evidence called by the Defence on the Reference
THE UNDISCLOSED EVIDENCE AND THE FRESH EVIDENCE
(a)
19
20
21
22
Undisclosed Evidence Affecting the County Road Case
(i)
The County Road evidence
24
(ii)
Arnold George
25
(Hi) Jocelyne Gaudet
25
(iv)
Gerald Durnin
26
(v)
Doug Oates and Gord Logan
26
(vi)
Karen Daum
27
(vii) The Appellant's view from the bridge to the Highway 8 intersection . . . 27
(viii) Swimming and hitchhiking
28
(b)
Undisclosed Evidence Regarding the Pathology Evidence
29
(c)
New Pathology and Gastroenterology Evidence
30
(d)
New Entomology Evidence
31
3.
OTHER SUSPECTS
31
4.
THE REMEDY FOR STEVEN TRUSCOTT
31
-ii-
Page
PART III
THE WHEREABOUTS OF STEVEN TRUSCOTT
AND LYNNE HARPER ON JUNE 9,1959:
TRIAL AND REFERENCE EVIDENCE
Introduction
1.
THE EVENTS LEADING UP TO THE APPELLANT AND
LYNNE HARPER'S ENCOUNTER
(a)
Lynne's Whereabouts Before She Met Steven
(b)
Steven's Whereabouts before He Met Lynne
(i)
(ii)
(Hi)
(iv)
(c)
2.
3.
33
Steven's whereabouts before dinner
Jocelyne Gaudet's testimony that Steven came to her house
Evidence that challenged Jocelyn Gaudet's testimony
Steven's whereabouts after dinner; his first ride to the bridge
Steven and Lynne's Familiarity
35
38
38
40
44
46
STEVEN AND LYNNE CYCLE DOWN THE COUNTY ROAD
47
(a)
Steven and Lynne Pass Richard Gellatly
48
(b)
The Grey Plymouth or Dodge seen by Steven
49
DID STEVEN TAKE LYNNE INTO LAWSON'S
BUSH OR DID THEY GO TO THE HIGHWAY?
51
(a)
The County Road Witnesses - The Case for the Crown
51
(i)
(ii)
(Hi)
(iv)
(v)
(vi)
52
55
57
61
62
63
Philip Burns
Jocelyn Gaudet (and Bob Lawson)
Arnold George
Thomas Gillette and Bryan Glover
Richard Gellatly
Teunis Vandendool
-in-
Page
(b)
The County Road Witnesses - The Case for the Defence
63
(i)
(ii)
(Hi)
52
69
(iv)
What the Appellant told the police
The white house
The Appellant's memory of whom he saw
on his way to and from Highway 8
Witnesses at the river who saw Steven Truscott
(and Lynne Harper) at the bridge
THE APPELLANT'S RETURN HOME
70
73
85
EVENTS AFTER LYNNE'S DISAPPEARANCE
(a)
The Evening Hours of Tuesday, June 9
92
(b)
Wednesday, June 10
92
(c)
Thursday, June 11,1959
100
(d)
Friday, June 12,1959
101
THE APPELLANT'S INTERVIEWS
WITH ADULT AND POLICE OFFICERS
(a)
(b)
(c)
(d)
(e)
102
Wednesday, June 10 at 7:45 a.m. - Conversation
with Leslie Harper
103
Wednesday, June 10, 9:30 a.m. - the First Police Interview
(P.C. Hobbs and FltSgt. Johnson)
104
Wednesday, June 10,12:20 p.m. the Second Police Interview (P.C. Trumbley
and Flt.Sgt. Johnson)
104
Wednesday, June 10, 5:00 p.m. - the Third Police Interview
including a Drive to the Bridge (P.C. Trumbley and Cpl.
Lipscombe)
105
Wednesday, June 10, 8:15 p.m. - the Fourth Police Interview
during a Reconstruction of Lynne Harper's Ride with the Appellant
(Cpl. Anderson and Flt.Sgt. Johnson)
106
-iv-
Pag
(f)
(g)
(h)
(i)
(j)
Thursday, June 11,10:30 a.m. - The Fifth Police Interview
(P.C. Hobbs and Sgt. Wheelhouse)
107
* Friday, June 12,10:45 a.m. - the Sixth Police Interview
(Insp. Graham and P.C. Trumbley)
108
Friday, June 12 at 7:50 p.m. - the Seventh Police Interview
(Insp. Graham and P.C. Trumbley)
109
*Friday, June 12 at 10:30 p.m. - the Meeting
with Dr. Brooks and Dr. Addison . . . .
112
Saturday, June 13 at 2:30 a.m. - The Appellant's Arrest
115
THE APPELLANT'S POST-CONVICTION STATEMENTS
116
THE APPELLANT'S PSYCHIATRIC PROFILE:
THE REFERENCE EVIDENCE
122
j
-v-
COURT OF APPEAL FOR ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
RESPONDENT
- and
STEVEN TRUSCOTT
APPELLANT
APPELLANT'S FACTUM
PARTI
STATEMENT OF THE CASE
1.
Lynne Harper was 12 years old when she was murdered. She was born in Moncton, New
Brunswick on August 31, 1946. Her father, Leslie Harper, joined the Royal Canadian Air Force
(RCAF) in 1940 and held the rank of Flying Officer at the time of Lynne's murder. The family
moved to the Clinton RCAF station in Clinton, Ontario in July, 1957. Lynne, her parents and two
brothers lived in the married quarters at the RCAF base.
2.
Lynne was last known to have been alive in the early evening of Tuesday, June 9,1959 when
she was in the company of the Appellant Steven Truscott who had given her a ride on the crossbar
-2of his bicycle. At 11:20 p.m. that evening, Lynne's father reported her missing. Two days later, at
1:50 p.m. on Thursday, June 11, her body was found partially nude in a wooded area known as
Lawson's Bush. She had been strangled by her own blouse which had been knotted around her neck.
3.
The next day, Friday, June 12, shortly after 7:00 p.m., the Appellant was taken into custody.
Later that night, at 2:30 a.m. on Saturday June 13, he was charged with Lynne Harper's murder
contrary to the provisions of the Juvenile Delinquents Act.1 On June 30,1959, he was ordered to be
tried as an adult pursuant to section 9 of the Juvenile Delinquents Act.2 An appeal from this order
was dismissed.3 On July 14,195 9, after a two day preliminary hearing, the Appellant was committed
to stand trial on a charge of capital murder.
4.
On September 16, 1959, the Appellant's trial began in the Supreme Court of Ontario in
Goderich before Mr. Justice Ferguson and an all male jury. Glen Hays Q.C. appeared for the Crown,
Frank Donnelly Q.C. appeared for the defence. On September 30,1959, the jury returned a verdict
of guilty of capital murder with a recommendation for mercy. The Appellant was forthwith
sentenced to be hanged.
5.
On January 21,1960, the Appellant's appeal to the Ontario Court of Appeal was dismissed.
By Order in Council, his sentence was commuted on the same date to one of life imprisonment. On
February 24,1960, his application for leave to appeal to the Supreme Court of Canada was denied.4
1
Information and Complaint, June 13, 1959, Record before the Minister, Vol. 1, Tab 1, p. 1.
2
Transfer Order ofD.E. Holmes, June 30, 1959, Record before the Minister, Vol. 1, Tab 2, p. 2.
3
Decision ofShatzl, July 9,1959, R. v. Truscott (1959), 125 C.C.C. 100, Record before the Minister, Vol.
1, Tab 2, p. 6.
In 1959 there was no appeal as of right to the Supreme Court of Canada in capital cases unless there had
been a dissent in the court below. On September 1, 1961, the Criminal Code was amended to provide for
such a right of appeal in capital cases.
" ,
-36.
From the day of conviction, the Appellant's guilt or innocence was the subject of national
public interest and there was continuing comment in the media and in Parliament about the case.
Pierre Burton and Stanley Knowles became two of his best known champions. In early 1966, Isabel
LeBourdais wrote "The Trial of Steven Truscott", a book which renewed national interest in the case.
The Governor in Council responded and, by Order in Council dated April 26, 1966, referred the
Appellant's case to the Supreme Court of Canada pursuant to section 55 of the Supreme Court Act
for hearing and consideration.5 The Reference included a preamble:
WHEREAS there has been laid before His Excellency the Governor General in Council a
report from the Solicitor General substantiating
THAT there exists widespread concern as to whether there was a miscarriage of justice in
the conviction of Steven Murray Truscott and it is in the public interest that the matter be
inquired into..."
The Court was asked the following question:
Had an appeal by Steven Murray Truscott been made to the Supreme Court of Canada, as
is now permitted by section 597 A of the Criminal Code of Canada, what disposition would
the Court have made of such an appeal on a consideration of the existing Record and such
further evidence as the Court, in its discretion, may receive and consider?
On the Reference, W.C. Bowman Q.C. and D.H. Scott Q.C. appeared for the Attorney General of
Ontario, D.H. Christie Q.C. appeared for the Attorney General of Canada, and G. Arthur Martin
Q.C, E.B. Jolliffe Q.C. and R.J. Carter appeared for the defence. The Supreme Court of Canada
heard viva voce evidence over five days in October, 1966, and heard submissions in January, 1967.
After reserving judgment, on May 4, 1967 the Supreme Court of Canada, Hall J. dissenting, held
that, if the Appellant's appeal had been heard by the Court in 1960, it would have been dismissed.6
Order in Council, April 26, 1966, Record before the Minister, Vol. 1, p. 59.
In the Matter of a Reference re: Steven Murray Truscott [1966] S.C.R. 309 (hereafter Ref re: Truscott
(SCC).
-4-
1.
STEVEN TRUSCOTT'S LIFE (1945-2001)
(a)
7.
1945-1959: His Childhood until His Arrest for Lynne's Murder
Steven Truscott was born on January 18, 1945 in Vancouver. His father, Daniel Truscott,
was in the RCAF. During the Appellant's childhood, his family lived in Vancouver, Winnipeg and
Edmonton. In 1959, they lived at 2 Quebec Road, Clinton, in the Permanent Married Quarters
(P.M.Q.) at the RCAF station. The Appellant's father (41) was now a Warrant Officer, his mother,
Doris Truscott, a housewife. The Appellant was 14 years of age. He was in Grade 7 at the A.V.M.
Hugh Campbell School located on the Air Base. He had two brothers, Ken (15) and William (8),
and a sister, Barbara (5).7
Reference Evidence ofSteven Truscott, 135/1-30
8.
After his arrest, the Appellant was held in custody at the Huron County Jail. His father was
transferred to the Rockcliffe Base in Ottawa before the preliminary hearing. His mother and siblings
remained in Goderich, living in a trailer opposite the gaol, until the trial was concluded.
(b)
9.
1959-1969: His Years of Imprisonment
Following his conviction, the Appellant remained in custody at the gaol in Goderich awaiting
his execution. After his sentence was commuted on January 21,1960, he was transferred to Kingston
Penitentiary for assessment. On February 2,1960, he was admitted to the Ontario Training School
Reference Evidence of Steven Truscott, 135/1-30
-5for Boys in Guelph. While there, he completed grades 9 and 10 and also took courses in machine
shop, mechanical drafting, carpentry and architectural drafting. He remained at Guelph until his
transfer to Collin's Bay Penitentiary on January 14, 1963, four days before his 18th birthday. At
Collin's Bay, he was assigned to the machine shop. On May 7,1967, he was transferred to the Farm
Annex of Collin's Bay. On October 21, 1969, he was released on parole. In the words of the
Appellant's parole officer, Mac Steinberg:
Truscott's institutional record is unblemished. He has reached a high degree of proficiency
in machine shop work and has maintained a spotless record involving discipline."
National Parole Board Report, October 22,1968, Appellant's Selected Materials, Vol. 9, Tab 7
An Act for the Parole of Steven Murray Truscott, Record before the Minister, Vol. 1, p. 137
(c)
10.
1969-2006: The Appellant's Life since His Release
After his release, the Appellant immediately began to live under the name Steven Bowers.8
For the first six months after his release, he lived in Kingston with Mac Steinberg, his parole officer.
In April 1970, he moved to Vancouver. In October 1970, he moved to Guelph, Ontario. On October
31, 1970 he married his wife, Marlene. They still live together in Guelph today. They have three
children, Lesley (35), Ryan (32 ) and Devon (26). Lesley is now married with three children and
lives in Kitchener, Ontario. Ryan and Devon are both single, and work and live in Guelph.
11.
On November 12,1974, the Parole Board wrote the Appellant as follows:
Dear Mr. Truscott:
Bowers was his mother's maiden name.
-6This is to inform you that the National Parole Board has had your case under consideration
and has directed that you be relieved of all the terms and conditions of the Certificate of
Parole issued to you on October 23,1969 and of the parole amendments you signed on April
13,1970 and October 23,1970 as long as you are of good conduct and deportment and keep
our District Representative, Mr. John H. Lawrence, National Parole Service, 2 Quebec
Street, Guelph, Ontario informed of any change in your address.
In addition, I must draw to your attention the fact that, should you ever be convicted of an
indictable offence punishable by a term of two years or more, your Certificate of Parole
would become automatically forfeited according to law.
However, I intend rather to stress the fact that your being granted a relief from the
conditions of your Certificate of Parole, with the exception of the obligation to keep our
District Representative informed of any change of address, is the result of your own good
efforts and your own work. I am pleased to be able to say this and I wish you the very best
for the future.
i
Issued under the Hand and Seal of the National Parole Board, this twelfth day of November,
nineteen hundred and seventy-four.
Yours truly
M. Cronier"
The Appellant's status with the Parole Board has not changed since his receipt of this letter.
Letter to Steven TruscottfromM. Cronier, November 12,1974, Appellant's Selected Materials, Vol. 9, Tab 10
12.
The Appellant has been gainfully employed throughout the 36 years that he has lived in
Guelph. He worked as a millwright at Linread Manufacturing in Guelph for 17 years (he learned the
trade in Collin's Bay Penitentiary). In 1987, he commenced employment at Fibreglass Canada (now
known as Owens Corning) in Guelph as a millwright. He continues to work for Owens Corning
today. Neither the Appellant nor any members of his family have had contact with the criminal
justice system since his release in 1969.
\
-7-
2.
THE EVENTS LEADING UP TO THIS APPEAL
i
13.
The Appellant avoided all publicity after his release and continued to live under his assumed
name. Then, in 1997, members of CBC's fifth estate approached the Appellant and asked him to
consider allowing them to do a story on his case. The Appellant was aware of the development of
DNA technology in the 1980s and 1990s, and understood that this new technology had resulted in
the exoneration of Guy Paul Morin in 1995 and David Milgaard in 1997. The Appellant decided to
cooperate with the fifth estate. Counsel from the Association in Defence of the Wrongly Convicted
(AIDWYC) was consulted, and they agreed to represent the Appellant's interests.
14.
On Friday, August 15, 1997, AIDWYC counsel and members of'fifth estate traveled to the
Appellant's home in Guelph. The Appellant went for a walk in the neighbourhood with counsel.
After a 30 minute conversation, the Appellant gave unconditional instructions to counsel to
commence a search for exhibits with the intention of requesting DNA testing on any relevant
exhibits. The Appellant gave these instructions in the belief that relevant exhibits could, and likely
would, be located, and with the knowledge that DNA typing of any semen or other bodily substances
recovered would probably be a simple task. He also understood that DNA testing could not be
conducted under the umbrella of secrecy or solicitor-client privilege and that any results would
become known to the authorities and, likely, the public.
15.
On August 28,1997, AIDWYC telephoned Murray Segal, Director ofthe Crown Law Office,
to advise him of these developments. A follow-up letter was written to Mr. Segal on September 3,
-81997. In the ensuing years, several meetings were held with officials from the Solicitor General's
office including then Deputy Minister Dr. James Young, then Chief Pathologist Dr. David Chiasson,
and the Director of the Centre of Forensic Sciences Dr. Ray Prime, among others. By late 2000, it
had become apparent that no exhibits could be found that might contain bodily substances suitable
for DNA testing. A decision was then made by AIDWYC to bring an application for ministerial
review of his conviction under the then section 690 of the Criminal Code.
See Letters re: Search for DNA, Appellant's Selected Materials, Vol. 10
16.
In preparing the section 690 application (later to become a section 696.1 application under
Part XXI. 1 of the Criminal Code), AIDWYC counsel accessed archival material and information
from the following sources:
•
The Archives of Ontario
•
The Archives of the Supreme Court of Canada
•
Freedom of Information requests to the Department of Justice
•
The Military Police archives
•
The Archives of the Centre of Forensic Sciences (formerly the Attorney-General's
Laboratory)
•
The Archives of Huron County, in Stratford, Ontario
•
The Archives of the Ontario Provincial Police
•
Some tissue samples from the Stratford General Hospital - Histology Department
•
Ms. Isabel LeBourdais's personal files
As well, the OPP in Sebringville, Ontario, provided some disclosure of their own investigation into
the case, particularly of other possible suspects.
-917.
18.
Attempts to obtain materials from the Appellant's previous counsel were unsuccessful.
•
In 1997, AIDWYC contacted G. Arthur Martin through the good offices of Alan
Gold but were advised Mr. Martin was unable to help as a result of ill health. On
August 22, 2001, AIDWYC spoke on the telephone to Arlene Martin, Arthur
Martin's sister. As far as she knew, her brother had not kept any files from the case.
•
In 1997, AIDWYC approached Mr. Justice O'Driscoll who had been the Appellant's
counsel in the Ontario Court of Appeal. He had no files or materials on the case.
•
In 1999, AIDWYC wrote to Mr. Justice Donnelly of the Superior Court of Ontario
and asked whether his father had kept any files and, if so, where they might be stored.
He advised that he was unable to help.
On November 28, 2001, counsel for AIDWYC filed the Appellant's application for
ministerial review with the then Minister, the Honourable Anne McLellan. In January, 2002, the
Minister appointed retired Justice Fred Kaufman as her counsel to advise her on the case. For the
ensuing three years, Justice Kaufman investigated the case. He secured the services of Inspector Jeff
McGuire of the Toronto Police Service to assist him and, with Mark Sandler as his assisting counsel,
interviewed a number of witnesses including the Appellant himself. Justice Kaufman also accessed
further archival materials and information from the following sources:
G. Arthur Martin's file through the offices of Joseph Irving, Mr. Martin's executor
A portion of the trial files from Mr. Justice Donnelly
The personal files of Dr. Penistan
Some materials obtained from Mr. Hays's family
Inspector Sayeau's files
Some previously undiscovered boxes in the Archives of Ontario.
AIDWYC also located the original Court file from the Goderich courthouse.
-1019.
Justice Kaufman retrieved Lynne Harper's locket from her father in 2002 and, with the
agreement of the Appellant and the Respondent, had it examined at the Centre of Forensic Sciences
for DNA purposes. No DNA was found.
Report of The Centre of Forensic Sciences, March 14/03, Kaufman 2002 Investigative Summary by Insp. McGuire,
Appellant's Selected Materials, Vol. IV, Tab 6
20.
On October 28, 2004, the Minister of Justice for Canada, the Honourable Irwin Cotler,
directed a Reference pursuant to section 693.3(a)(ii) of the Criminal Code to this Court. Since the
Reference was ordered, a number of other archival-typedocuments have been located, including the
following:
The Department of Justice's materials from their archives
The materials retained on the case by the Goderich Crown's Office
The files of a number of individuals including Dr. Fred Jaffe, Dr. Francis Camps, Dr.
John Addison, Noble Sharpe and Morris Manning
The Stratford General Hospital's materials through the Stratford Perth Archives
A number of police officers' diaries and notes
Further files from the Archives of Ontario
The Goderich Jail's records through the Huron County Museum
Further materials at the Centre of Forensic Sciences.
21.
Since 1997,the Appellant has interviewedmanywitnesses and secured affidavits from some.
Justice Kaufman interviewed a number of witnesses under oath. Since the Reference was ordered,
the Respondent has interviewed many witnesses and secured affidavits from some. Commencing
on June 19,2006, 17 witnesses were examined before this Court.
-11-
PART II
AN OVERVIEW
1.
A SYNOPSIS OF THE CROWN'S CASE AND DEFENCE CASE AT
THE APPELLANT'S TRIAL AND ON THE REFERENCE IN 1966-1967
22.
A popular summer spot in 1959 for the adults and children who lived on the RCAF Station
in Clinton was a section of the Bayfield River where the County Road crossed the river
approximately a mile north of the airbase training school. Adults and children swam, fished,
searched for turtles and picnicked at the river.
23.
The local school, the A.V.M. Hugh Campbell School, was on the north side of the RCAF
base. The County Road led north9 from the school directly to the bridge over the river. The local
residents drove, cycled or walked to the river. On their way to the bridge, they passed Bob Lawson' s
Farm on their right (east), and then Lawson's Bush along the north side of which was an unpaved
lane way known as the tractor trail. Further north along the County Road, the road crossed the
railway tracks, continued to the bridge over the Bayfield River and across Highway 8, the GoderichSeaforth east-west highway, approximately one-third of a mile north of the bridge. To the east of
the County Road, the railway crossed over the Bayfield River (the railway bridge). Between the
Country Road bridge and the railway bridge was a popular swimming hole.
9
Local residents referred to going north on the County Road as going down the County Road, and referred
to returning south as going up the County Road.
-1224.
During the evening of Tuesday, June 9, 1959, numerous adults and children, including
several boys and girls of the Appellant's age, were congregated at the river off the County Road. It
had been a very hot day and there was steady traffic north and south on the County Road throughout
the evening. Between 6:00 and 6:30 p.m., Steven, himself, cycled alone from his home along the
County Road to the bridge, and then cycled back up the County Road towards the school and base.
25.
Lynne Harper wanted to go swimming that evening at the RCAF Station pool but could not
because neither of her parents were prepared to accompany her. After dinner, Lynne left her parent's
home on the base and, at some point, arrived at the school grounds where she assisted some ladies
in organizing a Brownie scavenger hunt. While there, she encountered Steven Truscott who had his
bicycle. It was somewhere between 7:00 and 7:30 p.m. She asked him for a ride. They walked
north through the school grounds and, upon reaching the County Road, Lynne climbed onto the
crossbar of Steven's bike, whereupon he cycled north down the County Road in the direction of the
bridge and Highway 8. Shortly after leaving the school grounds, they passed Richard Gellatly who
was cycling home from the bridge. Whether the Appellant, or an unknown assailant, raped and
murdered Lynne Harper depends on the route that the Appellant and Lynne took after they passed
Richard Gellatly: whether they went to Highway 8 where Steven dropped Lynne off or whether, as
the Crown theorized, they left the County Road and went along the tractor trail into Lawson's Bush.
Certainly, Steven Truscott was the last identified person in Lynne's company.
26.
Steven returned within 25 minutes to an hour (depending on whose evidence of timing is
accepted) to the school grounds where he was seen by several witnesses. To all outward
appearances, he was normal. He exchanged bikes with his brother, Ken, on the school grounds and
-13rode home to babysit his younger siblings. He arrived home at 8:30 p.m and stayed there for the
remainder of the evening.
27.
(
Shortly before midnight, Lynne' s parents, concerned that she had not returned home, notified
the police. Over the next two days, the search for Lynne intensified. At 1:50 p.m. on Thursday,
June 11, a search party found her body in Lawson's Bush.! approximately 280 feet east of the County
Road, and 80 feet south of the tractor trail. She was lying on her back, naked from the waist down.
She had been strangled with her blouse. An autopsy was conducted that evening.
28.
The Appellant was charged by the OPP with Lynne's murder at about 2:00 a.m. on Saturday,
June 13 after more than eight hours of questioning in police custody.
(a)
29.
The Case for the Crown at Trial, and on the 1966 Reference
Jocelyne Gaudet (13) testified that she and the Appellant had a tentative date to look for
calves in Lawson's Bush that evening. Steven Truscott, the Crown alleged, had made these plans
as a pretext for having sexual relations with her. When their plans to meet did not work out, he
found "a substitute in Lynne Harper".10 According to the Crown, after Steven met Lynne on the
school grounds, they cycled north down the County Road, with Lynne on the crossbar, to the tractor
trail. They then left the road, and went east on the tractor trail into Lawson's Bush. There, the
Crown alleged, the Appellant raped and murdered Lynne. He then cycled directly back from the
Crown Closing Address, Vol. 4B, 1999/30
-14bush to the school grounds. The Crown urged the jury to reject the Appellant's claim that he had
cycled past the tractor trail to Highway 8, dropped Lynne off, and thereafter seen her get into a car
travelling east.
30.
The Crown's case was entirely circumstantial. No one saw the Appellant and Lynne leave
the County Road and travel along the tractor trail. No one saw them in Lawson's Bush. No one saw
his bicycle on the tractor trail or near the bush.
31.
The Crown's circumstantial case can be conveniently divided into two evidentially distinct
categories which, as the Crown argued at trial, demonstrated individually and cumulatively that the
Appellant was Lynne's killer. The Crown alleged that:
(i)
evidence of civilian witnesses as to the whereabouts of the Appellant, Lynne and
others during the evening proved that the Appellant and Lynne did not cycle north
of the tractor trail,
(ii)
forensic and expert evidence proved that Lynne was murdered by the Appellant; in
particular, the state of Lynne's stomach contents proved that she died in the time
frame when it was known that the Appellant was with her, and sores found on his
penis were caused when he raped her.
(i)
32.
The County Road Evidence
Steven Truscott told the police that he cycled with Lynne along the County Road, over the
Bayfield River bridge and dropped her at the Highway 8 intersection north of the bridge. He then
cycled south to the bridge, looked back and saw Lynne get into a car that had stopped at the
intersection where he had left her. The Crown asserted that the Appellant's claim was false, and
relied on the evidence of civilian witnesses as proof that the Appellant never took Lynne to the
highway intersection but, in fact, took her into Lawson's Bush where he raped and killed her:
-15The Appellant's first trip to the bridge that evening was, the Crown suggested, to find
Jocelyne Gaudet so that he could take her into the bush. Rob Harrington (14), Ken
Geiger (11) and Paul Desjardine (14) testified that they saw the Appellant around
6:30 p.m. stopped on the County Road adjacent to Lawson's Bush some distance
south of the tractor trail entrance. The Crown asserted that when Gaudet did not
appear as expected, he cycled back to the school where, by chance, he ran into Lynne.
They then left the school in the direction of the County Road at 7:00 p.m. or shortly
thereafter.
At around 7:00 p.m., a Crown witness, Ms. Donna Dunkin, saw Philip Burns (9)
walking south towards the railway crossing on foot at the same time as Richard
Gellatly was cycling south towards it on his bike. They were both heading towards
the school. Richard Gellatly passed the Appellant and Lynne on his bike between
Lawson's Bush and the school. Philip Burns did not see the Appellant and Lynne as
he walked towards the school some distance behind Gellatly. This, the Crown
alleged, established that the Appellant and Lynne had left the County Road and gone
along the tractor trail and into the bush before Burns reached the entrance to the
tractor trail as he proceeded south on foot behind Gellatly.
Jocelyne Gaudet and Arnold George, both of whom were looking for the Appellant,
were on the County Road in the Lawson' s Bush area at around the time the Appellant
and Lynne were said to have been cycling north from the school. They saw Philip
Burns as he walked south. They did not see the Appellant and Lynne cycling north.
Another witness, Bryan Glover, saw Gaudet and George as he cycled from the school
grounds towards the bridge but did not see the Appellant. The Crown alleged these
witnesses provided further proof that the Appellant and Lynne had left the County
Road shortly after passing Richard Gellatly.
Numerous adults and children who were at the river that evening would have had an
opportunity to see the Appellant and/or Lynne as they crossed the bridge but did not
see them. Those who testified that they did see them were, the Crown alleged, "liars"
who had been counseled by the Appellant to support his claim that he took Lynne to
the highway intersection.
Teunis Vandendool (15), who cycled from the Highway 8 intersection to the bridge,
and back, that evening, did not see anyone else on that stretch of the road. Since, the
Crown alleged, Vandendool was on that stretch of road at the approximate time that
the Appellant and Lynne would have been if they had cycled as far as the highway,
Vandendool's evidence helped establish that the Appellant and Lynne never cycled
to the intersection.
The Appellant told the police that after taking Lynne to the intersection, 1 e cycled
back to the bridge, turned and saw her get into a car stopped at the intersection. He
claimed to describe the make of the car from where he was standing on the bridge,
and told the police that he saw that it had a yellow licence plate. This claim, the
Crown suggested, was demonstrably false. The distance from the bridge, where the
-16Appellant said he was standing at the time, to the Highway, was such that he would
not have been able to see such details.
The Crown alleged that the time from when the Appellant left the school grounds with Lynne until
he returned alone to the school grounds, a period of between 45 and 60 minutes, was ample for him
to rape and murder her. The Crown's position then continued:
•
The Appellant's exterior normalcy on his return to the school was said to be
indicative of a person able to commit such a crime. As the Crown said in his closing
address, "if you are bold enough to do it and have what it takes, that is the thing to
do".11
•
The Appellant's interviews with the police, during which he consistently maintained
his innocence, were proof that "he had his answer(s) ready".12 The Crown further
alleged that aspects of the Appellant's statements to the police were false and proved
him to be a liar; in particular, the Appellant told the police that as he crossed the river
he saw Gerald Durnin swimming below. Gerald Durnin, however, testified that he
was not in the area that evening.
•
Arnold George (13) testified that the Appellant tried to convince him to lie to the
police. The Crown suggested that George's evidence should be believed and that the
Appellant's conduct in this regard demonstrated his guilt.
•
Conversations that the Appellant had with classmates in the days following Lynne's
disappearance about whether he had gone into Lawson's Bush with her were said by
the Crown to be indicative of his guilt.
The Crown urged the jury to reject the evidence of two defence witnesses who testified that they saw
the Appellant and Lynne cycle across the bridge to Highway 8, and a third witness who saw the
Appellant when he recurned alone to the bridge. The Crown suggested that the three witnesses, Gord
Logan, Doug Oates and Alan Oates, were lying and that, in Gord Logan's case, he had been proven
to be a liar because he could not have seen the Appellant and Lynne from where he was situated at
the time.
Crown Closing Address, Vol. 4B, 2063/30
12
Crown Closing Address, Vol. 4B, 2064/5
-17(ii)
33.
Physical and scientific evidence
The Crown position at trial, based on the evidence of the attending pathologist, Dr. Penistan,
was that the state of Lynne's stomach contents, when examined at the autopsy, fixed the time of
Lynne' s death between 7:00 and 7:45 p.m. on Tuesday evening. This effectively established that the
Appellant murdered Lynne since the defence acknowledged that the Appellant was with Lynne until
a time within minutes of 7:45 p.m. Dr. Penistan also considered that the extent of the decomposition
of Lynne's body, and the degree of rigor mortis that it showed, supported his conclusion as to the
time of her death.
34.
The Crown further pointed to evidence of two doctors who examined the Appellant on the
night of his arrest and found two lesions on his penis. The doctors testified that the lesions were two
to four days old and were likely caused by intercourse with a young girl.
35.
Other less compelling forensic evidence, it was argued, supported the Crown position:
•
The Appellant, when arrested, had minor scratches on his knees, elbows and arms.
It was argued that these scratches were consistent with a struggle in a wooded area.
•
The Appellant's underwear that he was wearing when arrested four days after
Lynne's disappearance contained evidence of semen. The Crown suggested that he
had continued to wear this underwear since the day of Lynne's disappearance.
•
An impression in the ground of a footprint that was found near the left foot of
Lynne's body was said to be similar to the soles of a pair of shoes belonging to the
Appellant.
•
Bicycle tire marks in an area of dried mud on the tractor trail leading into Lawson's
Bush were said to match the impressions left by the tires of the Appellant's bicycle.
•
A tear in the Appellant's pants, and a scratch on his leg, were said to suggest that he
had climbed over the barbed wire fence that enclosed Lawson's Bush.
-18-
36.
In summary, the Crown at trial, through a combination of forensic evidence, and testimony
about the Appellant's intentions and movements that evening, presented a powerful case for
conviction. In fact, the time of death evidence, if accepted by the jury, was itself conclusive of the
Appellant's guilt. The evidence of his penis lesions was presented in the same light. The County
Road evidence, if true, also made an unanswerable case for his guilt.
(Hi)
37.
Evidence called by the Crown on the Reference
The Crown called evidence on the Reference to buttress Dr. Penistan' s testimony that Lynne
had been killed between 7:00 and 7:45 p.m. Dr. Simpson, a pathologist, Dr. Helpern, a medical
examiner, and Dr. Gerber, a coroner, all gave evidence that provided support for Dr. Penistan's
position that he could pinpoint a time of death based on the contents of Lynne's stomach, he rigor
mortis of her body, and its state of decomposition. In the result, the majority of the Court decided
that "the weight of the new evidence supports Dr. Penistan's opinion".
38.
Dr. Simpson also addressed the finding of lesions on the Appellant's penis. His suggestion
that the lesions could have been consistent with a pre-existing condition13 further aggravated by a
sexual assault of Lynne, was accepted by the majority of the Court.
There was no evidence at the Appellant's trial of pre-existing sores on his penis. As a result of evidence
called on the Reference, it was established that he did have such a pre-existing condition.
/
-19(b)
The Case for the Defence at Trial and on the
(i)
3 9.
Reference
The Response to the County Road evidence
The defence at trial sought to satisfy the j ury that the Appellant had cycled with Lynne to the
intersection of Highway 8 and the County Road, and had dropped her off there as she had asked.
The Appellant then cycled back to the bridge, looked back to the highway and saw Lynne
hitchhiking. A car that he was able to describe in some detail stopped for her and she got in. The
Appellant did not see her again.
40.
The evidence that the defence relied upon in support ofthe Appellant's claim that he dropped
Lynne at the highway was as follows:
41.
•
The Appellant consistently told the police that he left Lynne at the Highway.
•
Doug Oates testified that he was at the bridge looking for turtles and, while there,
saw the Appellant and Lynne cross the bridge in the direction of the highway on the
Appellant's bike.
•
Gordon Logan testified that he was swimming in the river and, from there, saw the
Appellant and Lynne cross the bridge going in the direction of the highway, and then
saw the Appellant stop, alone, at the bridge on his way back.
•
Alan Oates was riding in the vicinity of the bridge between 7:30 and 8:00 p.m. He
saw the Appellant on the bridge at a time consistent with the Appellant's return to the
bridge after dropping Lynne at the highway.
The defence argued that other factors were also consistent with the Appellant's innocence:
•
If the Appellant had gone along the tractor trail into Lawson's Bush with Lynne,
since it would have been daylight and the County Road was a well traveled road, they
would be bound to have been seen by someone. The Crown's case was predicated,
in part, on the substantial number of children going up and down the County Road
at the relevant time. Yet there was no witness who claimed to have seen the
Appellant and Lynne go in that direction.
-20-
42.
•
Jocelyne Gaudet and Arnold George would surely have seen the Appellant's
distinctive bike on the trail where he would have to have left it if he and Lynne had
gone into the bush.
•
On the evidence, the Appellant had insufficient time to rape and murder Lynne
(according to the defence, less than half an hour).
•
The Appellant's demeanour on his return to the school grounds, which everyone who
saw him said was normal, was inconsistent with him having just raped and murdered
Lynne.
•
The absence of any blood on the Appellant's clothes when he returned to the school
grounds was inconsistent with the theory that he had just raped and strangled her.
The defence attempted to counter the evidence of the Appellant and Lynne's whereabouts
that incriminated the Appellant in several ways:
•
The defence urged the jury to reject Jocelyne Gaudet's evidence of a secret
rendezvous with the Appellant at Lawson's Bush by challenging her demeanour on
the witness stand.
•
The defence urged the jury to find that Philip Burns was so young that they could not
rely on his powers of observation, or memory, when he claimed that he had not seen
the Appellant and Lynne on the County Road.
•
The defence urged the jury to reject Arnold George's evidence that the Appellant
asked him to lie to the police.
•
The defence suggested that the jury should not rely on the evidence of what the
Appellant had allegedly said to friends in the days following Lynne's disappearance
because they only heard snippets of the conversations, and the witnesses gave varying
versions of what was said during the conversations.
(ii)
43.
The response to the physical and scientific evidence
The defence suggested that Dr. Penistan's time of death estimate based on Lynne's stomach
contents should not be relied on by the jury. Rather, the defence urged the jury to accept the
evidence of Dr. Berkeley Brown, a defence expert, who testified that, based on Lynne's stomach
-21contents at autopsy, her death likely occurred after the Appellant was last known to have been in her
company.
44.
The defence challenged the evidence of the Crown's doctors regarding the two lesions on the
Appellant's penis. It urged the jury to accept Dr. Brown's evidence that it was highly unlikely that
the lesions could have been caused by any type of sexual intercourse.
45.
As regards the balance ofthe Crown's theories, based on the physical and scientific evidence,
the defence submitted as follows:
•
That there was no evidential value in the fact that the underpants seized from the
Appellant at the Goderich gaol on Saturday, June 13, contained semen stains because
he would not have been wearing the same (unwashed) underpants in the gaol as he
had been wearing the previous Tuesday when Lynne had disappeared.
•
The jury should place no value on the bicycle tire marks that could have come from
the tires on the Appellant's bicycle. The tire marks, when viewed in photographs,
had obviously been made when the ground was very wet and muddy. There had been
insufficient rainfall since May to create these ground conditions, so, regardless of
what made the tire marks, they must have been made sometime before June 9.
•
The "crepe-soled" shoe mark near Lynne's foot to which F.O. Sage had testified, and
the fact that the Appellant wore crepe soled shoes, was of no significance since
Sage's evidence was not supported by the testimony of Cpl. Erskine who was the
OPP Identification Officer at the scene.
(Hi)
46.
Evidence called by the Defence on the Reference
On the Reference, the basic defence positions did not change except insofar as they were
reinforced or modified by the fresh evidence. The defence called expert evidence to show that Dr.
Penistan's conclusions concerning the time of Lynne's death based on stomach contents, the extent
-22of the decomposition of her body, and its rigor mortis, were unreliable and that death likely occurred
at a time significantly later than that advanced by the Crown at trial. The condition of the
Appellant's penis on June 12 was also revisited. The defence led evidence suggesting that the
lesions on the Appellant's penis could not have been caused by sexual intercourse with a young girl
but were the result of a pre-existing skin disorder.
47.
The defence also called evidence on the Reference in an attempt to prove that, contrary to the
evidence heard at trial, it was possible to identify the colour of a licence plate and the make of a
vehicle at Highway 8 when looking from the County Road bridge. The defence also sought to
establish that a person on the bridge could be identified from Gordon Logan's vantage point so that
his claim to have seen the Appellant and Lynne cycle north across the bridge in the direction of the
highway intersection should be believed.
48.
The Appellant, himself, testified before the Court. He reiterated his claim that he had seen
Lynne get into a car at the intersection of the County Road and Highway 8. The majority of the
Court rejected his evidence as unbelievable.
2.
THE UNDISCLOSED EVIDENCE AND THE FRESH EVTOENCE
49.
The documents that have been collected from the Ontario Archives and other sources contain
the police and Crown briefs, notes of the police investigation, pathology reports and other
documents, none of which were disclosed to the Appellant's defence at his trial, or to his counsel
-23at the Reference. An analysis of the material reveals that the pillars upon which the Crown's case
against the Appellant rested no longer withstand scrutiny. The undisclosed materials undermine the
County Roadevidence and theory, Dr. Penistan's opinions, the opinions of other pathologists called
by the Crown on the Reference, and the penis lesion claims. Every aspect of the Crown's case is
called into question by the undisclosed evidence. At the same time, the undisclosed evidence
buttresses the evidence called by the defence at the Appellant's trial, and establishes that the
Appellant was not Lynne Harper's murderer.
50.
The undisclosed evidence has led to further exploration of a number of issues by the
Appellant and others who have been involved in the case. For example, Dr. Penistan's original
autopsy reports and his agonizing reappraisal have led to consultations with contemporary
pathologists who have elaborated on the inadequacy of the opinions heard by the jury and the
Supreme Court of Canada. Newly discovered original statements of Arnold George have led to his
further examination under oath, and the further erosion of his credibility. Newly discovered original
statements of Jocelyne Gaudet have led to similar results. The likelihood that Lynne Harper would
hitchhike has been re-examined. Two elderly local townsfolk, Mr. and Mrs. Townsend (now
deceased) likely saw her hitchhike the night of her death. Karen Daum (9) gave a statement of the
utmost significance in 1959. The nature of the police investigation, and its exclusive focus on the
Appellant from the outset, has been explored. All these additional inquiries and investigations have
undermined the Crown's case and, at the same time, shown that the Appellant was not the murderer.
51.
Fresh evidence - in the sense of evidence that formed no part of the original trial or
Reference, and does not arise out of the undisclosed evidence - plays an essential role in the
-24Appellant's appeal. The most striking new evidence which fits the traditional Palmer model is the
entomological evidence, an area of science which was not explored in 1959 or 1966. Ironically, Mr.
Elgin Brown had come the closest to seeing its potential importance in 1959. The forensic
entomologists (apart from Dr. Haskell) have cast a new light on the case; their evidence, if accepted,
goes far to establishing the Appellant's innocence.
(a)
Undisclosed Evidence Affecting the County Road Case
(i)
52.
The County Road evidence
The undisclosed materials refute the Crown's position that the Appellant and Lynne must
have turned down the tractor trail towards Lawson Bush because there was no other explanation for
their "disappearance" on the County Road after they passed Richard Gellatly on his bike. < The
original statements of Anne Nickerson, Donna Dunkin, Beatrice Geiger, Philip Burns, Jocelyne
Gaudet, Bob Lawson, Arnold George, Bryan Glover, Gary Geiger, Chris Higgins, Robb Harrington,
Teunis Vandendool, and others, reveal that by the time the Appellant and Lynne came onto the
County Road from the school grounds, only Richard Gellatly was travelling on the County Road.
Those whom the Crown alleged should have seen the Appellant and Lynne as they cycled past the
tractor trail and onto the highway did not see them because they had already left the County Road
before the Appellant and Lynne set out on their ride from the school.
t\
-25(ii)
53.
•
Arnold George
Arnold George's testimony was relied upon by the Crown as supportive of the Appellant's
guilt. He testified that he did not see the Appellant and Lynne cycle across the bridge. Meanwhile,
the Appellant had told the police that he and George waved to each other as he cycled across it.
George claimed that the Appellant had counseled him to lie to the police and support his position.
George was also involved in several apparently incriminating conversations that he, and other
witnesses, had had with the Appellant in the two days following Lynne's disappearance. The
archival materials, including George's original statements to the police, contradict his claims. Most
importantly, one of George's statements provides exculpatory evidence which, if it could have been
further explored at his trial, may in itself have proved the Appellant's innocence. Further to Arnold
George's undisclosed statements, he was interviewed under oath before Justice Kaufman in 2002.
His testimony suggested that he was, and remains, thoroughly dishonest.
(Hi)
54.
Jocelyne Gaudet
Jocelyne Gaudet's evidence was used at trial to suggest that the Appellant's modus operandi
on the evening of Lynne's disappearance was to lure a girl into Lawson's Bush. Her original
statements to the police, which have been found in the archives, undermine her credibility. For
example, her claim that she and the Appellant had a plan to meet that evening was supported at trial
by the evidence that she was looking for the Appellant on the County Road. However, in her own
original statement she told the police that she was on the County Road looking for Lynne, not the
Appellant. As well, two witnesses, Elizabeth Hulbert and Sandra Stolzman, who were Ms. Gaudet's
-26fellow students in 1966, have come forward and testified that Ms. Gaudet admitted to them in 1966
that she had not told the truth at the Appellant's trial. As a result of her undisclosed witness
statements, Ms. Gaudet was interviewed under oath by Justice Kaufman. The results of the interview
further strain her credibility.
(iv)
55.
Gerald Dumin
The Appellant told the police that he saw, among others, Gerald Durnin (11) during his ride
with Lynne on Tuesday evening. Durnin, however, testified that he was in Bayfield with his parents,
and friends of his parents that evening. No evidence was called to corroborate his claim. A
handwritten note by Inspector Graham, which was in the archives, discloses that, two days after
Lynne's disappearance, Gerald Durnin told the police that he was on the Base that evening
swimming at the pool. His subsequent statement, that he was in Bayfield with his family, was made
more than two weeks later. It was not corroborated by statements from his parents. His first
statement calls the reliability of his trial testimony into question.
(v)
56.
Doug Oates and Gord Logan
The Crown urged the jury to conclude that Doug Oates and Gord Logan lied in testifying that
they saw the Appellant and Lynne cycle across the bridge. The Crown alleged that Oates had left
the bridge and gone home well before the Appellant and Lynne would have reached the bridge and
that Logan could not have seen the Appellant and Lynne on the bridge from his vantage point in the
river where he was. The archival materials, in the form of original witness statements, refute the
evidence that Oates had already gone home. As regards Gord Logan's ability to have seen the
-27Appellant and Lynne on the bridge, the Reference evidence helped refute this theory. But
undisclosed evidence found in the archives, supplemented by 'life-sized' photographs prepared on
behalf of the Appellant, establishes that Logan certainly could have seen the Appellant and Lynne
on the bridge as they cycled to the Highway.
(vi)
57.
Karen Daunt
Karen Daum' s name was mentioned at the Appellant's trial but she was not called to testify.
Her statement to the police, given within days of Lynne's disappearance, was in the Archives. It
establishes that she saw the Appellant and Lynne cycle toward the bridge, as had Doug Oates and
Gord Logan. Neither the defence nor the jury had knowledge that there was another witness who
saw them at the bridge. Given the Crown's position that Oates and Logan were lying on behalf of
the Appellant, this young girl's observations were highly material to the Appellant's defence. Her
statement only became known to the defence in 1966 after it was disclosed in response to a specific
request from Mr. Martin; likely by this time she had significantly modified her story.
(vii)
58.
The Appellant's viewfrom the bridge to the Highway 8 intersection
At the Appellant's trial, the Crown posited that the Appellant must have been lying about the
most crucial moment - the moment when he turned back from the bridge and saw Lynne get into a
car at the highway intersection - because it was impossible for him to see a yellow licence plate, as
he reported, from that distance. The evidence called by the defence on the Reference challenged this
position. An undisclosed report of a police officer, who was assigned by the OPP in preparation for
- 28 the Reference to determine this issue, was found in the archives. The officer's tests verified the
Appellant's testimony on the Reference that he could see what he had always claimed to see. Further
evidence, in the form of photographs which accurately depict the actual distance and viewing ability
r
of an observer, proves categorically that the Appellant's claim was valid. The Crown's attack on his
credibility, and the suggestion at trial that his "lie" established his culpability, are now proven to be
meritless.
(viii) Swimming and hitchhiking
59.
The Crown at trial contended that Lynne was in a normal mood on Tuesday evening despite
her inability to go swimming as she desired. This contradicted the Appellant's claim that Lynne had
told him as they cycled north that she was mad at her parents. However, undisclosed evidence from
the archives suggests that she was, in fact, angry that she could not go swimming. This corroborates
the Appellant's account and supports the inference that she may have acted impulsively when she
left home. The Appellant's claim that he saw Lynne hitchhiking after he dropped her off at the
highway was also undermined by her parents who testified that they had never known her to
hitchhike. Undisclosed evidence, including statements made by Lynne's parents found in the
archives, and interviews arising out of the undisclosed evidence, establish that it was not unusual for
Lynne, and other children at the RCAF base, to hitchhike. The undisclosed evidence and its fruits
therefore provide a framework within which the Appellant's claims emerge as credible and the attack
on them as unfair. As well, two days after Lynne disappeared, the Townsends told the police that
on Tuesday evening they had seen a girl hitchhiking at the intersection, and a car stopped and picked
her up.
-29-
(b)
60.
Undisclosed Evidence Regarding Pathology
The defence at trial did not have the benefit of Dr. Penistan's first two drafts of his post-
mortem report, nor its final version. The two undisclosed drafts establish that Dr. Penistan's
apparent certainty in his trial testimony that Lynne Harper died within two hours of her last meal,
was ephemeral. The reasonable conclusion is that his first (and second) opinions, as the presiding
pathologist, were that Lynne had died a number of hours after her disappearance, and certainly after
sunset on June 9. It can be concluded that his eventual two hour window came from a desire to fit
his pathology evidence with the police determination that the Appellant had murdered her. Dr.
Penistan's actual opinions, made at the time of his observations of Lynne Harper's body, were, if
correct, proof not of the Appellant's guilt but of his innocence.
61.
In its decision on the Reference, the majority of the Supreme Court of Canada concluded that
Dr. Penistan' s trial testimony that Lynne must have died at a time no later than 7:45 p.m. was reliable
despite opinions to the contrary.
More documents found in the Archives, and elsewhere,
demonstrate that neither the Appellant's counsel on the Reference, nor the Court, had essential
information that undermined this conclusion.
62.
In 1966, Dr. Penistan was asked by the Crown to provide a review of his pathological
findings at the autopsy. He wrote a document that he characterized in a covering letter as an
agonizing reappraisal of his testimony at the Appellant's trial, which he forwarded to Inspector
Graham and the Crown. In light of its contents, it is remarkable that this document was kept from
the defence at the Reference. Also, in 1966, Dr. Simpson and Dr. Sharpe both wrote memoranda of
-30their own which undermined their evidence at the Reference, and the evidence of Dr. Penistan which
they purported in their testimony to support. All of this demonstrates that the three professionals
lacked an appreciation of the proper role of the forensic scientist. These undisclosed documents
would have been of incalculable benefit to the defence and the Court if they had been disclosed, and
would likely have been sufficient in themselves to cause the Court to recommend reversal of the
Appellant's conviction.
(c)
63.
New Pathology and Gastroenterology Evidence
New pathology evidence, which meets the Palmer tests, is now before the Court in the
reports and testimony of Dr. Pollanen, the Chief Forensic Pathologist for the Province of Ontario,
and Professor Bernard Knight, a world-renowned pathologist. Both have provided unqualified
opinions that Dr. Penistan's testimony that Lynne Harper must have been dead by 7:45 pm is wrong
and unscientific. Their evidence-based opinions establish that her death at any time in the night of
June 9, was compatible with the pathological evidence, and that the state of her body's
decomposition supported a finding that she died sometime after midnight. Dr. Diamant, a
>
gastroenterologist, and the first member of his profession to provide an opinion on the case, has
confirmed that the state of Lynne's stomach contents was consistent with her death having occurred
before or after midnight. The Respondent's attempt to answer this evidence with Dr. Spitz's
evidence failed.
-31-
(d)
New Entomology Evidence
i
64.
A substantial body of entomological evidence has been introduced into the case for the first
time. With the lone dissenting voice of Dr. Haskell (and one Dr. Higley), the forensic entomologists
whose evidence is before the Court, and the empirical evidence, prove that Lynne Harper probably
died after sunset on June 9. In fact, it was expressed by the experts in terms of a "high probability".
This evidence meets all four limbs of the Palmer tests, and is material not just to the safety of the
verdict but also to the Appellant's actual innocence.
3.
OTHER SUSPECTS
65.
As a result of previously undisclosed materials in the archives, and more recent police
investigations, there is now substantial evidence of other potential suspects in Lynne's murder. None
of it decisively proves who her killer was, but raises feasible suspects whom, at this late date, it is
impossible to investigate properly. The evidence, without proving who Lynne Harper's killer was,
goes to the safety of the Appellant's conviction, and provides insight into the nature of the police
investigation in 1959, and the Crown's role in the prosecution of the case.
4.
THE REMEDY FOR STEVEN TRUSCOTT
66.
The Appellant has lived with the consequences and stigma of Lynne Harper's murder for
more than 47 years. It is respectfully submitted that on all the evidence this Court should quash his
conviction and enter a verdict of acquittal.
-32-