The anniversary of Steven Truscott’s death sentence: From guilt to innocence

Steven Truscott speaks with the media during a news conference in Toronto in August 2007. Truscott’s 48-year fight to clear his name ended when Ontario’s highest court acquitted him of the 1959 rape and murder of 12-year-old Lynne Harper. (CP PHOTO/Adrian Wyld)

The anniversary of Steven Truscott’s death sentence: From guilt to innocence

On Oct. 1, 1959, Canadians awoke to stunning news: A fourteen-year-old boy had been sentenced to death for the rape and murder of a schoolmate. The two-week trial that ended with the judge’s statement – that Steven Truscott be “hanged by the neck until dead” – was closed to the media. But that was about to change.

Truscott was “wrongfully convicted” of the murder of Lynne Harper, his 12-year-old schoolmate in southwestern Ontario. Although his name is now synonymous with the term wrongful conviction in Canada, it wasn’t a phrase widely used until the 1980s, when DNA evidence was first employed to save convicts from death row in the United States and to release Canadian prisoners serving life sentences for murder.

Why did it take so long for Truscott’s conviction to turn into a wrongful conviction?

The short answer is that no viable DNA remained to rule out Truscott as Lynne Harper’s killer, nor to identify the person responsible for the crime. But a deeper explanation lies within the politics of the death penalty in Cold War Canada.

Sex murder in the Cold War era

Former prime minister John Diefenbaker sits in his office in Ottawa in August 1966. THE CANADIAN PRESS/Chuck Mitchell

In 1959, it was unusual for a teenager to be sentenced to death, but the execution of men convicted for sex murders wasn’t uncommon. In 1957, for example, two men — Gerald Eaton and Joseph-Pierre Richard — were hanged for the murders of girls in British Columbia and New Brunswick, respectively. Both executions took place after John Diefenbaker’s Conservatives put an end to the Liberals’ 22-year hold on government.

Diefenbaker came to office proud of his reputation as a criminal defence lawyer. None of the homicide suspects he represented was accused of committing a sexual murder. However, he did defend one man, executed for murder, whom he believed was innocent.

This may have contributed to his inclination to spare Truscott the death penalty, because when news broke that the teenager faced execution, Diefenbaker did not approach the case as a miscarriage of justice.

Instead, he proceeded on the assumption that the boy’s death sentence could be commuted.

Mindful of public opinion

Since 1869, federal statutes in Canada set the terms by which cabinet members could advise the governor general — the British monarch’s representative in Canada — to exercise the royal prerogative of mercy.

That means that since Canada became a nation, elected politicians who served in the federal cabinet effectively determined the fate of people condemned to death. The 1950s was the first decade in which ministers exercised discretion over the death penalty with public opinion in mind.

Polling on Canadians’ attitudes toward capital punishment showed that in 1953, seven of 10 Canadians supported the death penalty. But by 1958 and 1960, polls showed that only half of Canadians believed the death penalty was the appropriate punishment for murder.

The Conservative cabinet likely felt confident that the majority of Canadians would approve of their decision, made on Jan. 21, 1960, to spare Steven Truscott the death penalty.

Truscott’s 1959 mugshot. (Court handout/Creative Commons)

The announcement occurred on the same day the Ontario Court of Appeal dismissed the Truscott defence lawyer’s claim that the trial had been conducted in a manner that favoured the prosecution. The commutation came with the usual commuted sentence: Life imprisonment.

For most Canadians, the proceedings probably confirmed that their criminal justice system worked. The investigation of a murder had produced a suspect who was properly indicted and tried before a jury. He was granted the benefit of legal representation.

The verdict confirmed his guilt. And the commutation of his sentence showed that Canadian justice was tempered with mercy.

Soviet influence?

Why did Canadian attitudes about capital punishment change?

In the late 1950s, the abuse of individual rights in the Soviet Union and its satellites was big news and had captured the attention of Canadians, especially miscarriages of justice.

Totalitarian states conducted show trials in which the verdict was a foregone conclusion. In contrast, Canada’s Criminal Code allowed appeals on the basis that a “substantial wrong or miscarriage of justice” had occurred if a criminal verdict appeared inconsistent with the evidence.

The Canadian Bill of Rights, which came into effect eight months after the commutation of Truscott’s sentence, exemplified the distinction between the free world and the Communist regime, which valued the collective over the individual.

The bill included the right to a fair trial and the presumption of innocence. But it also declared that “institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law.”

To question the outcome of the Truscott trial and the court’s dismissal of the appeal was, in 1960, equivalent to challenging the rule of law and the heritage of British justice, which was the foundation of Canada’s justice system.

Freedom of the press

Another principle enshrined in the 1960 Bill of Rights, the freedom of the press, led to a shift in public opinion. Truscott may have faded from public consciousness if journalist Isabel Le Bourdais had not published her book on his case in 1966. Innocuously titled The Trial of Steven Truscott, it convinced most readers that Truscott’s conviction was unfair.

The cover of Le Bourdais’s book. (Amazon)

The numerous books, articles and documentaries that followed Le Bourdais’ exposé, together with further appeals argued before the Supreme Court of Canada and the Ontario Court of Appeal, resulted in the official affirmation from the federal government in 2004 that “a miscarriage of justice had likely occurred” in the investigation into Lynne Harper’s murder and the prosecution of Steven Truscott.

In 2008, Truscott received substantial compensation a year after the Ontario Court of Appeal acquitted him of the charge of murder. Yet it did not declare him innocent.

Why?

In 1966, after Parliament debated the abolition of capital punishment, Diefenbaker, no longer in office, revealed that his cabinet would likely have authorized Truscott’s execution if he had been older. Le Bourdais’ book convinced him that the government must offer Truscott a new trial, “the facts ascertained, and justice be in fact done.”

As the 60th anniversary of Steven Truscott’s conviction approaches next year, a distinct pronouncement of his innocence would be justice delayed — but finally done.

CBC’s The Fifth Estate.