August 28th, 2007
Forty years ago the Supreme Court of Canada refused to intervene in the case of Steven Truscott (see Reference re R. v. Truscott,  2 C.C.C. 285). The case came before that Court not as an appeal but on a Reference. The Reference was ordered in response to public concerns regarding Truscott’s 1959 murder conviction for the death of his twelve-year-old classmate, Lynne Harper. Based on the information before the Court at that time, a majority of judges (with Justice Hall writing a strong but lone dissenting judgment) refused to intervene.
From then until today, Mr. Steven Truscott was in the eye’s of the law a convicted murderer and subject to a life sentence. Although Truscott was at liberty, and used his freedom to work and live under an assumed name in Guelph, Ontario where he went on to marry and raise a family, he remained a convicted killer whose status in the community was forever subject to the possibility of parole revocation.
And so things stood until today. Minutes ago the Court of Appeal for Ontario released its judgment in a second judicial reference on the case. See Reference re: R. v. Steven Murray Truscott 2007 ONCA 575 . Unlike the Supreme Court, the Court of Appeal for Ontario concluded that the guilty verdict could not safely stand. In an unusual step, the court allowed Mr. Truscott’s appeal, overturned his conviction and entered an acquittal. Steven Truscott is finally an innocent man in the eyes of the law.
Although much will be written about how the justice system failed Steven Truscott, and there is no doubt it did fail him, miserably in fact. It is also true that it failed Lynne Harper, her family and the community, none of whom benefited from the arrest, prosecution and conviction of an innocent young man while the real perpetrator of this horrible crime escaped justice. No doubt, some will be careful to point out that the Court’s judgment acquitting Truscott is not the equivalent of a declaration of innocence (see Tim Shufelt, “Acquittal, but not innocence, likely for Trustcott” The Globe and Mail (August 28, 2007). But this is a rather artificial distinction. The fact is, like anyone whose guilt has not been proven beyond a reasonable doubt, Truscott is now subject to the presumption of innocence. He is innocent in the eyes of the law, and should be so regarded in the eyes of the community.
To be sure, there is also a success story here. Not the one that will likely be trumpeted by politicians, who will point to the result as proof that the system works. The fact is, the system did not work for nearly four decades! The true success story is the one that few will notice or write about, and that is of the Charter‘s impact on the criminal justice system. You might wonder what the Charter has to do with any of this. The truth is, it has everything to do with the vindication of Steven Truscott.
Much of the evidence that the Court relied upon today to acquit Truscott was not made available to him by the Crown at the time of his trial. Before the Supreme Court’s landmark decision in R. v. Stinchcombe,  3 S.C.R. 326 the quality of disclosure received by those accused of crimes in Canada varied from jurisdiction to jurisdiction, and from one prosecutor to the next. Stinchcombe concluded the right found in s. 7 of the Charter to make full answer and defence required that prosecutorial officials hand over all relevant information in their possession or under their control to the defence.
It has only been because of Stinchcombe, and the Charter right that it recognized, that the cases of so many wrongfully convicted individuals – Steven Truscott included – have come to the forefront. So, although Steven Truscott’s case is simply tragic, it does effectively answer those critics who claim that the Charter hasn’t really made a positive difference in Canadian society. Today Steven Truscott joined the ranks of countless innocent Canadians who have benefited profoundly from a constitutional document that is too often, in the public consciousness at least, associated with the guilty.[filed: Truscott (2007)]