Tuesday, 28 August 2007

Ontario Court of Appeal throws out Truscott's conviction in murder of Lynne Harper

ntario Court of Appeal throws out Truscott's conviction in murder of Lynne Harper

Tuesday, August 28, 2007 - 02:07 PM

By: Kevin Misener and The Canadian Press

The court has ruled Truscott was the victim of a miscarriage of justice and he should be acquitted of the crime (Photo by: Kevin Misener/680News)

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Toronto - The Ontario Court of Appeal has thrown out Steven Truscott's conviction in the murder of Lynne Harper who was raped and murdered nearly 50 years ago.

The court has ruled Truscott was the victim of a miscarriage of justice and he should be acquitted of the crime.

"The conviction, placed in the light of the fresh evidence, constitutes a miscarriage of justice and must be quashed," reads the unanimous judgment from the Ontario Court of Appeal.

"The fresh evidence related to the issue of the time of Lynne Harper's death is sufficient to quash the conviction."

That evidence dealt in large part with the original autopsy notes made at the time by forensic medical examiner Dr. John Penistan, who testified that Harper died before 7:45 p.m. on June 9 -- a conclusion that made Truscott the prime suspect.

Last year, the Appeals Court heard evidence that Penistan's original autopsy conclusions allowed for a time of death much later than 7:45, perhaps even the next day, when Truscott was in school.

"Armed with the two unofficial and earlier versions of the autopsy report, the defence may have secured an admission by Dr. Penistan that he had changed his mind as to the likely time of Lynne Harper's death," the Appeals Court ruled.

"We agree with the appellant's contention that the documents could have had a dramatic impact on the jury's assessment."

The judgment, which means Truscott is no longer a convicted murderer, falls short of his lawyers' request that the court not only acquit their client but find him innocent as well.

"The appellant has not demonstrated his factual innocence," the court wrote. "At this time, and on the totality of the record, we are in no position to make a declaration of innocence."

Ontario Attorney General Michael Bryant told a news conference within minutes of the decision being released that the Crown had no plans to mount an appeal.

He also delivered an abject apology.

"On behalf of the government, I am truly sorry," Bryant said. "It is a decision that will not be appealed by the Crown _ it is over."

Bryant also said he has asked Justice Sydney Robins -- a former Ontario Court of Appeal judge and "one of our greatest jurists" -- to advise the government on the issue of compensation.

"The government of Ontario will fully co-operate with Justice Robins, as will all counsel."

Truscott and his lawyers were expected to react to the decision at a news conference later Tuesday afternoon.

While the court's finding would usually result in a new trial being ordered, the panel of judges said the Truscott case was unique.

We are satisfied that were a new trial possible, the acquittal of Mr. Truscott, while not the only possible verdict, would clearly be the more likely result."

Truscott was convicted of the rape and murder of Harper on Sept. 30, 1959, some three months after her body was found in a wooded area near the CFB Clinton air force base in southwestern Ontario.

Truscott had long claimed he gave Harper a ride on his bicycle and saw his schoolmate get into a passing car on a rural highway.

The Crown successfully argued in 1959 that Harper never made it to the highway because Truscott veered down a path south of that location where he raped and strangled the girl.

At 14, Truscott became the youngest Canadian to be sentenced to hang -- a sentence that was commuted to life in prison in 1960, the same year he lost his first appeal.

Six years later, journalist Isabel LeBourdais' book The Trial of Steven Truscott became the first published document to poke holes in the police investigation and the prosecution's case, prompting a review by the Supreme Court of Canada.

But the conviction was upheld and Truscott spent 10 years in prison before he was released on parole in 1969. He later married his wife Marlene and moved to Guelph, Ont., where he raised his now-grown sons Devon and Ryan and daughter Leslie in anonymity under an assumed surname.

The Association in Defence of the Wrongly Convicted, led by prominent lawyer James Lockyer, took on his case and in 2000, Truscott went public with his story for the first time in a television documentary.

Less than a year later, his lawyers asked the federal justice minister to reopen the case. Retired Quebec Justice Fred Kaufman was given the task and concluded there was likely a miscarriage of justice.

Irwin Cotler, who was justice minister at the time, nonetheless sent the case to the Ontario Court of Appeal to examine whether new evidence might have altered the outcome of the original trial.

During the review -- part of which was broadcast live on television _ Truscott's lawyers argued previously undisclosed witness testimony that put Harper and Truscott on a bridge north of the wooded trail where her remains were found contradicts the original Crown's murder theory and proves Truscott's innocence.

They also introduced forensic evidence related to Harper's stomach contents and the process of her body's decomposition that suggested she was likely killed some time after the girl and Truscott were know to be hanging out together.

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