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 PHILIP CAMPBELL Lockyer Campbell Posner Lockyer Campbell Posner 1515-180 Dundas Street West 1515-180 Dundas Street West Toronto, ON M5G 1Z8 Toronto, ON M5G 1Z8 Tel: (416) 847-2560 Tel: (416) 847-2560 Fax: (416) 847-2564 Fax: (416) 847-2564 MARLYS EDWARDH HERSH WOLCH Ruby & Edwardh Wolch, Ogle, Wilson, Hursh, & deWitt 11 Prince Arthur Ave. 1500-633 6 Ave. S.W Toronto, ON M5R1B2 Calgary, AB T2P 2Y5 Tel: (416)964-9664 Tel: (403) 265-6500 Fax: (416)964-8305 Fax:(403)263-1111 JENNY FRIEDLAND 1515-180 Dundas Street West Toronto, ON M5G 1Z8 Tel: (416) 847-2560 Counsel for the Appellant 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 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 2. THE EVENTS LEADING UP TO THIS APPEAL 7 PART II AN OVERVIEW 11 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 J (i) The County Road Evidence 14 (ii) Physical and scientific evidence 17 (Hi) Evidence called by the Crown on the Reference 18 (b) The Case for the Defence at Trial and on the Reference (i) The County Road evidence 19 (ii) The response to the physical and scientific evidence 20 (Hi) Evidence called by the Defence on the Reference 21 2. THE UNDISCLOSED EVIDENCE AND THE FRESH EVIDENCE 22 (a) 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 33 1. THE EVENTS LEADING UP TO THE APPELLANT AND LYNNE HARPER'S ENCOUNTER (a) Lynne's Whereabouts Before She Met Steven 35 (b) Steven's Whereabouts before He Met Lynne (i) Steven's whereabouts before dinner 38 (ii) Jocelyne Gaudet's testimony that Steven came to her house 38 (Hi) Evidence that challenged Jocelyn Gaudet's testimony 40 (iv) Steven's whereabouts after dinner; his first ride to the bridge 44 (c) Steven and Lynne's Familiarity 46 2. 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 3. 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) Philip Burns 52 (ii) Jocelyn Gaudet (and Bob Lawson) 55 (Hi) Arnold George 57 (iv) Thomas Gillette and Bryan Glover 61 (v) Richard Gellatly 62 (vi) Teunis Vandendool 63 -in- Page (b) The County Road Witnesses - The Case for the Defence 63 (i) What the Appellant told the police 52 (ii) The white house 69 (Hi) The Appellant's memory of whom he saw on his way to and from Highway 8 70 (iv) Witnesses at the river who saw Steven Truscott (and Lynne Harper) at the bridge 73 THE APPELLANT'S RETURN HOME 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 102 (a) Wednesday, June 10 at 7:45 a.m. - Conversation with Leslie Harper 103 (b) Wednesday, June 10, 9:30 a.m. - the First Police Interview (P.C. Hobbs and FltSgt. Johnson) 104 (c) Wednesday, June 10,12:20 p.m. - the Second Police Interview (P.C. Trumbley and Flt.Sgt. Johnson) 104 (d) Wednesday, June 10, 5:00 p.m. - the Third Police Interview including a Drive to the Bridge (P.C. Trumbley and Cpl. Lipscombe) 105 (e) 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) Thursday, June 11,10:30 a.m. - The Fifth Police Interview (P.C. Hobbs and Sgt. Wheelhouse) 107 (g) * Friday, June 12,10:45 a.m. - the Sixth Police Interview (Insp. Graham and P.C. Trumbley) 108 (h) Friday, June 12 at 7:50 p.m. - the Seventh Police Interview (Insp. Graham and P.C. Trumbley) 109 (i) *Friday, June 12 at 10:30 p.m. - the Meeting with Dr. Brooks and Dr. Addison .... 112 (j) 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 -2- of 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. " , -3- 6. 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.