Reference to the Court of Appeal
In November 2001, Mr. Truscott applied to the federal Minister of Justice pursuant to what is now section 696.1 of the Criminal Code, seeking to have the minister review the case on the grounds that the conviction was a miscarriage of justice.
In response, in January 2002, the federal government appointed the Honourable Fred Kaufman to review the case. Justice Kaufman engaged in an exhaustive consideration of all available evidence, comprising not only the historical record, but also a substantial volume of fresh documentary evidence and the fresh viva voce testimony of over 20 witnesses.
In 2004, Justice Kaufman delivered his report, which ran to 700 pages, not including appendices. He concluded that there was "clearly a reasonable basis for concluding that a miscarriage of justice . . . likely occurred". He accordingly recommended that the Minister of Justice refer the matter to the Court of Appeal for Ontario. 1
In accordance with Justice Kaufman's recommendation, on October 28, 2004, the federal Minister of Justice directed a Reference to the Ontario Court of Appeal pursuant to section 693.3(a)(ii) of the Criminal Code to consider whether new evidence would have changed the 1959 verdict. The Court was to hear and determine the matter as if it were an appeal by Mr. Truscott from his conviction.
The Reference to the Court of Appeal was heard over ten days in January and February 2007. On August 28, 2007, the Court rendered its decision. Its reasons fill almost 800 paragraphs.
The Court concluded that Mr. Truscott's conviction was a miscarriage of justice and must be quashed. However, the Court of Appeal did not go so far as to hold that Mr. Truscott was innocent of the crime. Nor did it hold that, if a new trial were held, an acquittal would be the inevitable result. Rather, the Court determined as follows:
We are further satisfied upon a review of the entirety of the evidentiary record and the additional material available to this court and not previously judicially considered, that if a new trial were possible, an acquittal would clearly be the likely result. The interests of justice dictate that we make that order. Mr. Truscott should stand acquitted of the murder of Lynne Harper. 2
Following the delivery of the Court of Appeal's decision, Attorney General Michael Bryant issued a press release which included an apology on behalf of the government:
The court has found in this case, in light of fresh evidence, that a miscarriage of justice has occurred. And for that miscarriage of justice, on behalf of the government, I am truly sorry.
At this same time, the Attorney General announced that I had been appointed to advise the government on the issue of compensation for Mr. Truscott.
In the section which follows, I review in greater detail the specific findings made by the Court of Appeal that led to their ultimate decision. This review, while somewhat lengthy, is relevant to the question of Mr. Truscott's entitlement to compensation.
- Report to Minister of Justice in the Matter of an Application by Steven Murray Truscott Pursuant to Section 690 of the Criminal Code, prepared by the Honourable Fred Kaufman, April 2004 at 699.
- R. v. Truscott,  ONCA 575 at para. 3 (hereinafter "Decision of the Court of Appeal").