Entitlement To Compensation - Proof Of Innocence In The Present Case

Mr. Truscott faces insurmountable hurdles to establishing his factual innocence.

Before the Court of Appeal, he sought not only an acquittal, but an affirmative declaration of his innocence. His counsel argued that the entirety of the record established that he did not kill Lynne Harper. 1 The Court of Appeal declined to issue the declaration. It was of the view that Mr. Truscott had not, in fact, demonstrated his innocence. 2

At the same time, the Court acknowledged that, in the circumstances, such proof of innocence would, as a practical matter, be impossible. Definitive forensic evidence, such as DNA, is not available "despite the appellant's best efforts". 3 Without such forensic evidence, the Court stated that the passage of time and certain immutable facts casting suspicion on Mr. Truscott - in particular, the fact that he was the last person known to have seen Lynne Harper alive, and the fact that he was with her close to the location where she was murdered - made demonstrating his innocence particularly difficult. 4

The Court of Appeal's refusal to declare Mr. Truscott innocent does not, of course, end my consideration of this question of factual innocence. It must be remembered that the Court of Appeal found Mr. Truscott's conviction to be a "miscarriage of justice". The term "miscarriage of justice" can be used in one of two ways: first, to refer to the conviction of an innocent person (which, given its refusal to find innocence, the Court of Appeal cannot have intended in the present case); or, second, to refer to a conviction which cannot stand because of the discovery of new evidence which could reasonably be expected to have affected the verdict. When used this second way, "miscarriage of justice" refers to the fact that "it would be unfair to maintain the accused's conviction without an opportunity for the trier of fact to consider the new evidence". 5

Of course, because of the passage of time and the consequent fading of memories, as well as the death or unavailability of witnesses, and the loss or destruction of evidence, Mr. Truscott will never have the opportunity of having a trier of fact consider the newly discovered evidence in his case. Moreover, while counsel for Mr. Truscott at the Kaufman Reference identified a number of individuals who might have been the actual perpetrators of the offence, it is impossible at this late stage~to come to any conclusion about the likelihood of any of those persons having committed the offence, let alone determining that question with certainty.

The factors that made it impossible for the Court of Appeal to order a new trial would equally prevent a full and searching investigation into Mr. Truscott's innocence, in light of the new evidence. Mr. Truscott is, accordingly, through no fault of his own, left in a situation where his miscarriage of justice cannot be fully corrected. He will never have the opportunity to seek factual vindication. He will never be able to establish conclusively that he did not commit the offence.

At the same time, while the Court of Appeal refused to make any finding of innocence, and while it said that there remained a reasonable prospect of conviction if a new trial were held, it repeatedly said that the prospect of a conviction was clearly less likely than the prospect of an acquittal. The court stated:

[W]hile a conviction is still a possibility, an acquittal is clearly the more probable result. 6

This statement that an acquittal was "clearly the more probable result", or words to that effect, appear throughout the reasons for judgment. 7 While such statements are obviously not tantamount to a judicial finding that Mr. Truscott did not commit the crime, they are indicative of the Court's view of the weakness of the prosecution's case.

Moreover, the Court of Appeal recognized that, notwithstanding the deficiencies of the appellate forum insofar as fact-finding is concerned, there will never be another forum in a better position to make an assessment of the appellant's innocence based on a complete record. 8 For that reason and for reasons of fairness, the Court of Appeal engaged in the highly unusual approach of considering a hypothetical new trial in order to weigh the evidence that remained against Mr. Truscott.

The same reasons that led the Court of Appeal to embark on the hypothetical trial exercise are applicable here, and I adopt a similar approach. That is to say, I have considered the evidence against Mr. Truscott in an effort to determine whether, on a balance of probabilities, Mr. Truscott would be able to prove his innocence if a forum existed for doing so. It should be emphasized that this approach is justifiable only because of the very unusual circumstances of this case.

Adopting that unique approach and considering the evidence, I believe that it can fairly be concluded that, if a hearing could be held to determine Mr. Truscott's innocence, it would be more likely than not that he would be found, on a balance of probabilities, to be innocent in fact.

I rely in particular on the following conclusions reached by the Court of Appeal. 9

  • The pathology evidence admitted as fresh evidence demonstrated that the time of Lynne Harper's death could not be pinpointed as occurring prior to 8 p.m. Therefore, it could no longer be alleged that Mr. Truscott had the exclusive opportunity to murder Lynne Harper.
  • Entomology evidence, if it were admitted and if it were accepted by the trier of fact, could go so far as to exclude Mr. Truscott as the killer.
  • The eyewitness evidence (referred to by the Court of Appeal as the "County Road evidence") is consistent with Mr. Truscott having taken Lynne on his bike along the County Road to the junction with Highway 8.
  • Archival and photographic evidence shows that it would have been possible for Mr. Truscott to have been standing at the bridge and to have made out certain details on a car stopped at the junction with Highway 8, as he claimed.
  • Other potentially exculpatory evidence includes the evidence of Doug Oates, Gordon Logan, and Karen Daum as to where and when they saw Lynne Harper and Mr. Truscott on the night of Lynne's disappearance, which supported Mr. Truscott's claim that he left Lynne at the junction of the County Road and Highway 8.
  • The evidence of post-offence conduct - specifically, evidence that Mr. Truscott asked a friend to he to the police for him - is open to attack as lacking in credibility.
  • The penis lesion evidence "that so vividly demonstrated [Mr. Truscott's] guilt at trial has been weakened to the extent that it is virtually no evidence at all".
  • Important aspects of the crime scene evidence "seem inconsistent with the theory that [Mr. Truscott] was the perpetrator".

Just as the Court of Appeal concluded that if a new criminal trial were held an acquittal would "clearly be the more likely result", so I conclude that, if it were possible to hold a trial to determine Mr. Truscott's innocence, a finding of innocence would be the more likely result. My finding in this regard is key to my conclusion that Mr. Truscott should receive compensation.


  1. Decision of the Court of Appeal, supra note 10 at para. 251.
  2. Decision of the Court of Appeal, supra note 10 at para. 264.
  3. Decision of the Court of Appeal, supra note 10 at para. 264.
  4. Decision of the Court of Appeal, supra note 10 at para. 264.
  5. 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 51.
  6. Decision of the Court of Appeal, supra note 10 at para. 276.
  7. Decision of the Court of Appeal, supra note 10 at paras. 3, 11, 268-269, 270, 751 and 787.
  8. Decision of the Court of Appeal, supra note 10 at para. 260.
  9. Summarized at paragraphs 777-786 of the Court of Appeal's reasons..

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