Reference Re: Steven Murray Truscott

Reference Re: Steven Murray Truscott
Collection
Supreme Court Judgments
Date
1967-05-04
Report
[1967] SCR 309
Judges
Taschereau, Robert; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Reference Re: Steven Murray Truscott, [1967] S.C.R. 309
Date: 1967-05-04
In the Matter of a Reference Re: Steven Murray Truscott
1967: January 25, 26, 27, 30; 1967: May 4.
Present: Taschereau C.J. and Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie, Hall and Spence JJ.
Criminal law—Murder—Youth of 14½ years convicted of murder—Circumstantial evidence—Whether proper trial—Reference to Supreme Court of Canada—Supreme Court Act, R.S.C. 1952, c. 259, s. 55.
In 1959, the accused, a boy of 14½ years, was found guilty by a jury of the murder of a girl of 12 years and 9 months. Most of the evidence was circumstantial and the accused did not give evidence at his trial. The conviction was unanimously affirmed by the Court of Appeal. An application for leave to appeal to this Court was refused in February 1960.
Pursuant to s. 55 of the Supreme Court Act, R.S.C. 1952, c. 259, the governor general in council, in April 1966, referred to this Court for hearing and consideration the following question: “Had an appeal by Steven Murray Truscott been made to the Supreme Court of Canada, as is now permitted by Section 597A 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?”
At this hearing, the Court received a large body of evidence, much of it relating to the medical aspects of the case and also heard the oral evidence of the accused who had not given evidence at the trial.
Held: Taschereau C.J. and Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie and Spence JJ. would have dismissed such an appeal; Hall J. would have allowed the appeal, quashed the conviction and directed a new trial.
Joint opinion of the Chief Justice, Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie and Spence JJ.: The verdict of the jury, read in the light of the charge of the trial judge, makes it clear that they were satisfied beyond a reasonable doubt that the facts, which they found to be established by the evidence which they accepted, were not only consistent with the guilt of the accused but were inconsistent with any rational conclusion other than that he was the guilty person. On a review of all the evidence given at the trial, the verdict could not be set aside on the ground that it was unreasonable or could not be supported by the evidence. The verdict was in accordance with the evidence. Furthermore, the judgment at trial could not have been set aside on the ground of any wrong decision on a question of law or on the ground that there was a miscarriage of justice. It follows that the judgment of the Court of Appeal dismissing the appeal made to it was right. The effect of the additional evidence which was heard by this Court, considered in its entirety, strengthens the view that the verdict of the jury ought not to be disturbed.
Per Hall J., dissenting: The trial was not conducted according to law. There were grave errors in the trial. Nothing that transpired on the hearing in this Court or any evidence tendered before this Court can be used to give validity to what was an invalid trial. Droit criminel—Meurtre—Garçon de 14½ ans trouvé coupable de meurtre—Preuve circonstancielle—Le procès a-t-il été instruit correctement—Question déférée à la Cour Suprême du Canada—Loi sur la Cour Suprême, S.R.C. 1952, c. 259, art. 55.
En 1959, l’accusé, un garçon de 14½ ans, a été trouvé coupable par un jury du meurtre d’une fillette de 12 ans et 9 mois. La majorité de la preuve était circonstancielle et l’accusé n’a pas témoigné à son procès. Le verdict de culpabilité fut confirmé unanimement par la Cour d’Appel. Une requête pour permission d’appeler devant cette Cour a été refusée en février 1960.
Conformément aux dispositions de l’art. 55 de la Loi sur la Cour Suprême, S.R.C. 1952, c. 259, le gouverneur général en conseil, en avril 1966, a déféré à cette Cour la question suivante pour audition et considération: «Si un appel avait été présenté par Steven Murray Truscott à la Cour Suprême du Canada, tel que cela est maintenant permis par l’article 597A du Code Criminel du Canada, comment la Cour aurait-elle disposé de cet appel après avoir considéré le dossier existant ainsi que toute preuve additionnelle que la Cour peut, à sa discrétion, entendre et considérer?»
Lors de cette audition, un grand nombre de témoignages et de documents ont été présentés, dont une grande quantité se rapportait aux aspects médicaux de la cause, et la Cour a aussi entendu le témoignage de l’accusé qui n’avait pas témoigné lors de son procès.
Arrêt: Le Juge en Chef Taschereau et les Juges Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie et Spence auraient rejeté un tel appel; le Juge Hall aurait maintenu l’appel, annulé le verdict de culpabilité et ordonné un nouveau procès.
L’opinion collective du Juge en Chef et des Juges Cartwright, Fauteux, Abbott, Martland, Judson, Ritchie et Spence: Le verdict du jury, considéré à la lumière de l’exposé du juge au procès, démontre qu’ils étaient satisfaits hors de tout doute raisonnable que les faits, qu’ils ont trouvé avoir été établis par la preuve qu’ils ont acceptée, étaient non seulement compatibles avec la culpabilité de l’accusé mais étaient incompatibles avec toute autre conclusion rationnelle que celle qu’il était la personne coupable. Sur un examen de toute la preuve qui a été présentée au procès, le verdict ne peut pas être mis de côté pour le motif qu’il était déraisonnable ou ne pouvait pas s’appuyer sur la preuve. Le verdict était d’accord avec la preuve. Bien plus, le jugement de première instance ne peut pas être mis de côté pour le motif qu’il y avait eu erreur sur une question de droit ou pour le motif qu’il y avait eu une erreur judiciaire. Il s’ensuit que le jugement de la Cour d’Appel rejetant l’appel qui lui avait été présenté n’était pas erroné. L’effet de la preuve additionnelle qui a été entendue par cette Cour, considérée en entier, renforce l’opinion que le verdict du jury ne devrait pas être changé.
Le Juge Hall, dissident: Le procès n’a pas été instruit selon la loi. Il y a eu de graves erreurs dans le procès. Pour rendre valide ce qui était un procès invalide, on ne peut pas se servir de ce qui s’est passé lors de l’audition devant cette Cour ou de la preuve qui a été présentée à la Cour. Son Excellence le gouverneur général en conseil (C.P. 760, en date du 26 avril 1966) a déféré à la Cour Suprême du Canada dans l’exercice des pouvoirs conférés par l’article 55 de la Loi sur la Cour Suprême, S.R.C. 1952, c. 259, la question telle qu’énoncée plus haut.
Reference by His Excellency the governor general in Council (P.C. 760, dated April 26, 1966) to the Supreme Court of Canada in exercise of the powers conferred by section 55 of the Supreme Court Act, R.S.C. 1952, c. 259, of the question stated above.
G.A. Martin, Q.C., E.B. Jolliffe, Q.C., and R.J. Carter, for Steven Murray Truscott.
W.C. Bowman, Q.C., and D.H. Scott, Q.C., for the Attorney General for Ontario.
D.H. Christie, Q.C., for the Attorney General for Canada.
Joint opinion of THE CHIEF JUSTICE, CARTWRIGHT, FAUTEUX, ABBOTT, MARTLAND, JUDSON, RITCHIE and SPENCE JJ.:—On September 16, 1959, Steven Murray Truscott, a boy of 14½ years, went on trial for the murder of Lynne Harper, a girl of 12 years and 9 months. The trial lasted until September 30, 1959, when the jury returned a verdict of guilty with a recommendation for mercy. An appeal to the Court of Appeal for Ontario[1] against the conviction was dismissed on January 21, 1960. On the same date the sentence of death was commuted to a term of life imprisonment. An application for leave to appeal to this Court from the judgment of the Court of Appeal was refused on February 24, 1960. At that time this Court had jurisdiction to entertain an appeal only in two cases: (a) where there was dissent by a judge of the Court of Appeal on any question of law (there was no such dissent in this case), or (b) on any question of law with leave of this Court.
By Order-in-Council P.C. 1966/760, dated April 26, 1966, pursuant to s. 55 of the Supreme Court Act, His Excellency the Governor General referred to this Court for hearing and consideration the following question:
Had an Appeal by Steven Murray Truscott been made to the Supreme Court of Canada, as is now permitted by section 597A 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?
Section 597A of the Criminal Code of Canada was enacted by 1960-61, c. 44, s. 11, in the following terms:
597A. Notwithstanding any other provision of this Act, a person
(a) who has been sentenced to death and whose conviction is affirmed by the court of appeal, or
(b) who is acquitted of an offence punishable by death and whose acquittal is set aside by the court of appeal,
may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact.
It came into force on July 13, 1961. On this Reference, therefore, we have power to review law or fact or mixed law and fact.
The Court also received a large body of evidence, much of it relating to the medical aspects of the case. It also heard the oral evidence of the accused. He had not given evidence at the trial.
The case against Steven Truscott was that he met Lynne Harper in the school grounds on the Clinton R.C.A.F. Station at about 7.10 on the evening of June 9, 1959; that he travelled north with her on the cross-bar of his bicycle on the county road; that he turned into Lawson’s bush, which is about half way between the school grounds and Highway No. 8; and that he murdered the girl there. His defence was that the girl had asked him to take her to the intersection of Highway No. 8 and the county road; that he took her to this intersection and left her there, and when he was part way on his return journey, he saw a car stop at the intersection and pick her up, and that he never saw her again.
For an understanding of the evidence, it is necessary to describe the neighbourhood, a sketch plan of which is attached to these reasons. The R.C.A.F. Station is at the southerly end of a county road which goes north to King’s Highway No. 8. This highway runs east and west. On leaving the Station, immediately on the right is the Robert Lawson farm property. Close to the road there are the usual buildings, including a barn. On the left is the O’Brien farm property. At the northerly limit of the Lawson property there are 20 odd acres of bush, mostly second growth ash, elm, maple and basswood. The wire fencing between the bush and the road is not in very good condition. There is an entrance to the bush along the northerly limit. It is referred to throughout the evidence as the “tractor trail”. From the southerly end of the county road to the tractor trail is 3,366 feet. 1,568 feet farther north the Canadian National Railway crosses the road at right angles. Then, 491 feet farther north there is a bridge over the Bayfield River. This bridge is referred to frequently in the evidence. Then, 1,300 feet farther north is the intersection of the county road with King’s Highway No. 8. East from the bridge over the Bayfield River and visible from the bridge there is a swimming hole about 640 feet away.
We will first describe the movements of Lynne Harper in the late afternoon and early evening of June 9. She arrived home from school between 5.15 and 5.30 p.m. and she had finished her supper by 5.45 p.m. After supper she left the house for a short time to apply for a permit for the swimming pool for that evening. She could not get the permit because it was necessary for an infant to be accompanied by a grown-up person. Her parents were unable to go with her that evening. About 6.35 she went to the schoolhouse to assist a Mrs. Nickerson, who was conducting a meeting of Junior Girl Guides. Mrs. Nickerson confirms the time of her arrival. Mrs. Nickerson said that Truscott came along shortly before 7 p.m. and that Lynne Harper went over to speak to him and that after a few minutes they left together on foot in a northerly direction, Truscott pushing his bicycle. She puts the time between 7.00 and 7.10 p.m.
An estimate of the time was also made by a Mrs. Bohonus, an officer of the Brownie Pack, who came to assist Mrs. Nickerson. Mrs. Bohonus said that shortly after she arrived, she looked at her watch and it was ten minutes to seven. According to her, not more than five or ten or, at most, fifteen minutes later, Steven Truscott appeared and talked to Lynne Harper. Mrs. Bohonus does not say how long they talked or at what time they left.
Three boys, Hatherall, Westey and McKay, were at the football field adjoining the school and the county road. They saw Truscott and Lynne Harper come from the school area to the county road. Lynne Harper got on the cross-bar of Truscott’s bicycle and the two went north on the county road.
We will now deal with Steven Truscott’s movements during the early evening of June 9th before he met Lynne Harper. We begin with the evidence of Jocelyne Goddette. She, Lynne Harper and Steven Truscott were all in the same class, Grade VIII, at school. Jocelyne Goddette’s story was that Steven Truscott had made an arrangement to meet her at Lawson’s wood to show her anew calf. He told her to keep the arrangement quiet because Mr. Lawson did not like people trespassing on his property. She says that he called at her house about 5.50 p.m. and that she told him that she could not come out at the moment because of domestic duties and that she would meet him later if possible. Truscott denies that he made such an arrangement and the call at the house. Jocelyne Goddette’s father said that there was a call such as his daughter described but that he did not know who the caller was.
Truscott arrived home for supper between 5.15 and 5.30 p.m. His mother sent him to the store at the end of the street to get some coffee. She fixes the time as close to six o’clock because there was need to hurry in order to get there before closing time. He obtained the coffee and returned home. After supper he went out. His mother had told him that he had to be back by 8.30 p.m. because she and her husband were going out and he was needed for baby sitting.
Paul Desjardine, à fourteen year old boy, rode north on his bicycle to go fishing at the bridge over the Bayfield River at about 6.10 p.m. He met Steven Truscott a short distance south of Lawson’s bush. Steven was alone and was riding his bicycle around in a circle on the road. There was no conversation. Truscott denies that there was such a meeting.
Mrs. Beatrice Geiger left her house in the married quarters on the Base riding one of her sons’ bicycles to go to the bridge. This was about ten minutes past six. On the way to the bridge Steven Truscott passed her in the bush area riding his bicycle. They were both going north. Steven went as far as the bridge, stopped a second or two, took a look around and headed south again. She met him the second time at about the railroad tracks. This would be around twenty-five minutes past six or half past six. Truscott said that he did not remember seeing Mrs. Geiger.
Kenneth Geiger, the twelve year old son of Mrs. Geiger, left his home about a quarter or twenty minutes after six to go swimming. He walked to the school and met Robb Harrington and the two boys rode double on one bicycle down to the river. On the way down from the school area to the bridge he saw Steven Truscott. He was sitting on his bicycle in the middle of the road almost opposite the “tractor trail”, which is on the northerly limit of Lawson’s bush. He was facing towards the station. They passed Steven at about 6.25 or 6.27 p.m. Steven said to Kenneth Geiger that Mrs. Geiger was at the bridge and Kenneth Geiger said that he knew that. Robb Harrington estimates the time as being a quarter to seven. Truscott denies that he ever saw or spoke to Kenneth Geiger.
Ronald Demaray saw Steven on the bridge just before he went home. He believes that he got home between 6:30 and 7 p.m. and that it would take him ten minutes to get home from the bridge. As far as he could see, Steven was alone and just seemed to be looking around.
Richard Gellatly, a boy of twelve years, was at the river on the evening of June 9. He had to return home to get his swimming trunks. He met Steven riding Lynne Harper towards the bridge on the county road about one-quarter of the way from O’Brien’s farm. Gellatly was riding south on his bicycle and Steven Truscott and Lynne Harper were riding north. He met them on the station side of Lawson’s bush, that is, on the south side. He gives the time as 7:25 p.m. He says that he could be a few minutes out. He put on his trunks at home and returned to the river. It was about ten minutes after he passed Steven and Lynne that he went back to the river. He did not see Steven again. He was familiar with Steven’s bicycle. He did not see the bicycle. He said that if it had been lying alongside the road by Lawson’s bush or anywhere alongside the road, he would have seen it.
Mrs. Donna Dunkin drove to the river on the county road from the married quarters on the evening of June 9. She travelled from the married quarters at the station and pulled off the road just north of the railroad tracks. She saw Richard Gellatly riding his bicycle towards the station just as she pulled off the road to park. She also saw Philip Burns, who was walking behind Richard Gellatly. At the time she saw them, they were between the railway tracks and the bridge over the river. Philip Burns would be no more than ten feet behind Richard Gellatly. She placed the time between 7:05 and 7:15 p.m.
Philip Burns, a boy of eleven years, who was unsworn, started to go south to the Air Force Station from the bridge on foot. He was behind Richard Gellatly. Gellatly started from the bridge on a bicycle. Burns left at approximately 7 o’clock. He fixes the time because he asked Mrs. Geiger what time it was. She did not have a watch. Sergeant McCafferty was close and he said it was around five to seven. Sergeant McCafferty gave evidence on the point and said that when Mrs. Geiger asked him for the time he looked at his watch and said either ten to seven or ten past seven, he could not remember which. Philip Burns says that he swam over to the south side of the river, put on his clothes and went up on the bridge where he waited around for five or ten minutes after being told the time, then he started for home.
Gellatly had left the swimming hole at about the same time. He went along the north bank of the river and Burns along the south bank of the river. Both were on their way home. They left the bridge at about the same time, Burns on foot and Gellatly on his bicycle. This was between 7 and 7:15 p.m.
Gellatly gave evidence that he met Truscott and Lynne Harper south of Lawson’s bush at a point between the bush and O’Brien’s farm. Burns says that he never did meet Truscott and Lynne Harper or either of them. While walking on his way home, he did meet Jocelyne Goddette and had some brief conversation with her. She was on her bicycle and she was near the south side of the bush closest to the station. She was going north towards the river. Further south along the road near O’Brien’s farm and about two minutes later, he also met Arnold George, who was also going north and was behind Jocelyne Goddette. When Burns met Jocelyne Goddette he had been walking for about ten minutes after leaving the bridge with Gellatly. Michael Burns, a brother of Philip Burns, says that Philip got home about 7:30 p.m.
Jocelyne Goddette, who was thirteen years of age at the time, says, in more detail than we have already outlined, that on Monday, June 8, she had a conversation at school with Steven Truscott. She said to him that on Sunday, the day before, she had gone to Lawson’s barn and had seen a calf there. Steven asked her if she wanted to see two more new-born calves. She said “Yes” and he asked her if she could make it on Monday, and she said “No”. He asked her if she could make it on Tuesday and she said she would try. Then on Tuesday, he repeated his invitation and she told him she did not know whether she could go and he invited her to meet him if she could go on the right-hand side of the county road just outside the fence by the woods. He repeated his warning not to tell anybody. The time for the appointment was six o’clock. She says that he called at the house at ten to six when she told him that she could not go but that she would try later. She had her supper and left the house about 20 minutes after 6 or 6:30, and went towards Lawson’s barn to see if Steven was there. It would take but a few minutes to get to Lawson’s barn. She stayed there for about five minutes. Steven was not at Lawson’s and she went to see if he was at the meeting place. The meeting place was on the right-hand side of the county road just outside the fence by the woods. She met Philip Burns at the southerly limit of Lawson’s bush and had a brief conversation with him. She bicycled north and got off her bicycle and walked slowly looking into the woods. She turned in the tractor trail and went three-quarters of the way in and then looked towards the railway bridge. She shouted Steven’s name twice and then looked towards the woods and shouted it three or four times. She turned her bicycle around on the hard part of the ground and at that point she saw Arnold George going past. Arnold George also saw her on the tractor trail forty feet back. She did not see any sign of Steven on the tractor trail. When she saw Arnold George he was just going past the entrance to the tractor trail. She and George were both looking for Steven Truscott and they had a brief conversation. While they were talking Bryan Glover passed on his way to the bridge. He noticed them but did not stop. She came out of the tractor trail and went towards the river to the bridge. She did not see Steven at the river. She stayed there five or ten minutes and went back to Lawson’s farm. She estimated that she got back to Lawson’s a little before seven. She remained in the barn with Mr. Lawson for an hour and a half while he was doing his chores. The next morning at school she asked Steven why he had not been there and he just shrugged his shoulders.
Bryan Glover says that he arrived at the bridge a minute or two before George. He then looked for some friends on the west side of the river and about five minutes later returned to the bridge, saw his friends on the railway bridge over the river and went to join them. When George arrived at the bridge he says that he went over to the swimming hole, still looking for Truscott.
There is obviously something very wrong with Jocelyne Goddette’s times. The jury would have to test her estimate of time along with the evidence of the time when Philip Burns and Arnold George were on the road and spoke to her and Bryan Glover who passed and noticed her, and also the evidence of Mr. Lawson. Lawson says that she first arrived at his barn at approximately 7:15. She left at 7:25. He fixes this time because she asked him the time before she left. She returned in twenty minutes to half an hour later.
Teunis Vandenpool, a boy of 15 years of age, lived on a farm on Highway No. 8 about a mile and a quarter east of the county road. On June 9 after supper he went swimming. He left his home at five or ten minutes after seven. He went west on Highway No. 8 and then down the county road. He was travelling by bicycle and was at the junction of Highway No. 8 and the county road about 7:15 or 7:20 o’clock. He didn’t see any persons at or near the corner. He didn’t see a car stopped. After he reached the corner he went down towards the bridge.
Between the bridge and the railroad is a field and he went down the path leading towards the river. This would be west of the bridge. He had his bathing suit on and he took off his clothes and went in the water. He remained in the water for ten or fifteen minutes and went home. He estimates that he made the return trip to the intersection of the county road between 7:30 and 7:35 o’clock. He arrived home at a quarter to eight. He noticed that when he started to do his homework, which was immediately after he got home. He didn’t know Lynne Harper or Steven Truscott. He did not see a girl on a bicycle on the county road or a boy in red jeans. Truscott was wearing red jeans that evening. There were bicycles parked on the bridge but no persons on the bridge.
Steven Truscott was back at the schoolyard at 8 p.m. or shortly after that hour. He was back at home by between 8:25 and 8:30 p.m. according to the evidence of Mrs. Truscott, and he was seen at his home by his friend Arnold George about 8:45 p.m. We deal later with the conversation between these two at that time.
Truscott admitted that he had met Gellatly. He made this admission to F/Sgt. Johnson and Sgt. Anderson of the Ontario Provincial Police on Wednesday, June 10, and to Sgt. Wheelhouse of the R.C.A.F. and Constable Hobbs of the O.P.P. on Thursday morning, June 11. F/Sgt. Johnson said that Truscott’s definition of the place of meeting was “just about the brow of the hill,” which is a short distance south of the tractor trail; Sergeant Anderson that it was “halfway between the intersection at the school, the public school and the bush”, which is about where Gellatly said it was; Sergeant Wheelhouse that is was “about halfway between where I had picked up Lynne and the crest of the hill”, which is much the same as the admission to Sergeant Anderson.
The case went to the jury with five witnesses saying that they did not see Truscott and Lynne on the road. Two of these were actively looking for him.
The Crown’s submission was that after he passed Gellatly he turned into the bush with Lynne and that this accounted for the failure of the other witnesses to see him on the road with Lynne. On the other hand, three witnesses who were called by the defence, Douglas Oats, Gordon Logan and Allan Oats, say that they did see Truscott on the road. The first two, Douglas Oats and Gordon Logan, say that they saw him cross the bridge with Lynne on his way to the highway. Allan Oats says that he saw Steven on the bridge alone some time between 7:30 and 8 p.m. Douglas Oats, aged 11 years, said that he was on the bridge over the Bayfield River on the evening of June 9 looking for turtles. Steven Truscott and Lynne Harper came by him on the bridge. He turned around and put up his hand and said “Hi”. Lynne was seated on the cross-bar of the bicycle. They were going north towards No. 8 highway. He did not see Lynne again and did not see Steven again that night. He stayed on the bridge until about 7.30 and got home about a quarter to eight. The only time that he saw Steven that night, Lynne was with him.
Gordon Logan, aged 13, first heard that Lynne Harper was missing on the morning of June 10 just before school started. The previous evening he had been down at the Bayfield River fishing and swimming. He saw Steven and Lynne go by on the bridge on Steven’s bicycle. Lynne was sitting on the cross-bar on the bicycle. He made this observation when he was down at the swimming hole. He was out of the water. The two were near the north side of the bridge when he last saw them travelling towards Highway No. 8. He was standing just by the bend in the river on a big rock. This rock is 642 feet from the bridge at water level. He saw Steven about five minutes later when Steven rode back to the bridge, stopped and got off his bicycle. He does not know what Steven did from then on.
The presence of Gordon Logan at the swimming hole at 7:30 p.m. was confirmed by Beatrice Geiger, who was at the swimming hole at that time. She also said that there were people on the bridge. She could not tell whether they were men or women or children, or boys or girls. She did not pay too much attention. She thought that from where she was, had she been looking for someone she knew, she could have recognized him.
Allan Oats, 16 years of age, says that he went for a ride on his bicycle towards the river. He turned back when he was about 800 feet from the bridge. He saw Steven standing on the bridge wearing red pants and a light coloured shirt. He places the time between 7:30 and 8 o’clock.
The prosecution suggested that Douglas Oats was mistaken; that on his own admission he only saw Truscott once that evening and that the time must have been 6:30 p.m., when Douglas Oats was looking for turtles at the bridge and Truscott was alone at the bridge. This was based on the evidence of Mrs. Geiger and Demaray.
Gordon Logan’s evidence was questioned on the ground of credibility and ability to make the observation that he claimed to have made.
The credibility of Allan Oats was also attacked. He had evidence highly favourable to Truscott on Tuesday, June 9. He said that he mentioned it to nobody except his mother and no one else knew about it until Tuesday, June 16, when he was approached by Mrs. Durnin at the request of Truscott’s father.
This conflict between evidence pointing to a disappearance into Lawson’s bush and evidence asserting that Steven Truscott had crossed the bridge with Lynne Harper on his way to the highway and had returned alone, was the critical issue in this case and it was entirely a jury problem. The Judge’s instruction to the jury on the issue was emphatic and clear:
Now then, it is the theory of the Defence, and they brought evidence to show that, as I say this little Douglas Oats saw them going across the bridge and then, in a few minutes, according to the boy by the name of Gordon Logan—Gordon Logan also says he saw them going north on the bridge and in about five minutes he says he saw Steven return alone. Well, as regards Gordon Logan, it will be for you Gentlemen to say whether you believe his evidence, and it is very important, Gentlemen, because if you believe the Defence theory of this matter and believe Steven’s statement to the police and to other people, that the girl was driven to Number Eight Highway and entered an automobile which went east; it is my view that you must acquit the boy if you believe that story.
In other words, I will put it this way. In order to convict this boy, you have to completely reject that story as having no truth in it, as not being true. You have to completely reject that story.
Arnold George says that on the evening of Lynne Harper’s disappearance he went to Truscott’s house about 8.45 p.m. He gives the following account of their conversation:
Q. What was said?
A. Well, I asked him where he had been that night and he said: “Down at the river”. I said: “I heard that you had given Lynne a ride down to the river,” and he said: “Yes, she wanted a lift down to Number Eight Highway.” And I said: “I heard you were in the bush with her”. And he said: “No, we were on the side of the bush looking for a cow and calf.” And he said: “Why do you want to know for?” and I said: “Skip it and let’s play ball.” At the preliminary hearing he had not said anything about Steven saying that he was on the side of the bush looking for a cow and calf.
Truscott in his oral evidence denied that there was ever any such visit from Arnold George or any such conversation.
Next, on the evening of Wednesday, June 10, Arnold George says that he had another conversation with Steven:
Q. And what was said on that occasion?
A. Well he said that he—like the Police had questioned him and that he had told them he had seen me down there, and it wasn’t me, it was Gordie Logan; and he thought that Gordie was me and he said that I had seen him, so he told the Police that. And down there at his house he told that to me and he said that the Police were going to go down to my place to check up, so I agreed that I would tell them what was just said.
George did support Truscott’s story in his statements to the police but after the discovery of the body the following day, Thursday, July 11, he retracted them. His evidence at the trial we have already outlined. It was that he had been looking for Steven and had not seen him.
Truscott, on the reference, denied that this conversation ever took place either on the evening of Wednesday, June 10, or at any other time.
On Wednesday evening, June 10, there was talk about the disappearance among five boys who were together at the bridge. These were Paul Desjardine, Arnold George, Thomas Gillette, Bryan Glover and Steven Truscott. Paul Desjardine was telling Truscott that he had heard that he had taken Lynne into the bush. The account of the conversation varies from boy to boy but there is no doubt, according to these witnesses, that a suspicion was being voiced and that Truscott was appealing to Arnold George in support of his denial and that George was supporting him to the extent of saying that Steven was at the side of the bush looking for the cow and the calf.
Truscott did not give oral evidence at the trial. His defence that he had taken Lynne Harper to the intersection where she had been picked up by a strange car was before the jury in the form of exculpatory statements given to the police. On the reference he did give oral evidence in more detail. He described his movements from the time he left school until he went home to supper. Before supper and just before the store closed, he went to get the coffee for his mother. He left home about 6.30 p.m. and went first to the school grounds. He found no one there and rode down to the railroad tracks on his bicycle. He could see no one at the river so he turned around a couple of times and went back to the station. He said that he met no one on the waydown or back. He stopped at the end of the school and was watching the Brownies. Lynne Harper came over and asked him for a lift down to No. 8 Highway. After a few minutes they walked to the county road and then got on the bicycle. He says that they left at 7.30 p.m. He fixed the time by the school clock. On the way down to No. 8 Highway he passed Douglas Oats on the bridge. He let Lynne Harper off at the highway and rode back to the bridge. When he arrived at the bridge, he looked back and saw “there was a car pulled in off the highway and she got in the front seat”. He said the car was facing northeast. He described the car as a 1959 grey Chevrolet with what appeared to be a yellow coloured licence plate. He next said that he stayed at the bridge for five or ten minutes and from there saw Arnold George and Gordon Logan at the swimming hole. He then went back to the school, arriving there about 8 p.m.
On Truscott’s return to the school grounds there is evidence that there was some curiosity among a group of children about what had happened to Lynne Harper. Several children had seen him leave with her. He came back alone. When asked whether they made any comment to him or whether there was any conversation with them, he replied in the following words:
I believe one of them asked me—they said “What did you do with Harper, feed her to the fish?” and I replied that I had taken her and let her off at Highway No. 8.
When Truscott returned to the schoolyard at approximately 8 p.m, no one noticed anything unusual about his demeanour, conduct or the condition of his clothing. Most of his conversation appears to have been with his older brother Kenneth. This conversation was testified to by three witnesses who were standing fairly close. These witnesses were John Carew, Lorraine Wood and Lyn Johnston. It had to do with an exchange of bicycles and an exchange of shoes. Kenneth Truscott had with him a smaller bicycle belonging to a younger brother. Steven Truscott was going home and he left his own bicycle and took the smaller one with him. There was also some conversation between the two about shoes. Steven Truscott was wearing crepe-soled canvas shoes belonging to Kenneth. Kenneth was wearing a pair of Steven’s high boots. No exchange was actually made.
The crepe-soled canvas shoes did not enter into the trial because of a ruling of the trial judge that the prosecution had no right to call more expert evidence. But on the reference a photograph was introduced of the impression of a shoe near the girl’s body. The marks of the rubber in a foot impression near the body of Lynne Harper corresponded with the marks of the shoe worn by Truscott to this extent: The shoes were of similar manufacture, the marks resembled each other, but the most that the evidence proves is that someone wearing shoes similar to those worn by Truscott on the night of the disappearance made a foot impression close to the body of Lynne Harper. There was no further identification. The evidence does not prove that the impression was made by the very shoes worn by Steven Truscott.
Truscott was unable to state the exact time of his arrival at home but his father and mother were still there. He says that he spent the rest of the evening at home and that the first occasion on which he knew that anything unusual had happened to Lynne Harper was when her father came to the house the following morning, which would be June 10, before he had left for school. The following is his account on the brief conversation at the house:
Q. What happened when he came?
A. He asked me if I had seen Lynne.
Q. Did he ask you or did he ask your mother?
A. I believe he asked my mother and my mother called me over and
I informed him that I had given her a ride to the highway.
Q. Anything else?
A. I don’t remember anything else.
Q. Do you remember when the first time you mentioned, if you did mention it, a grey 1959 Chevrolet car to anybody?
A. I don’t remember who the first one was that I mentioned it to.
Q. Do you remember when you mentioned it, even if you do not remember who you mentioned it to?
A. I believe it was the police.
Mr. Harper’s account of the conversation is that Truscott did say on this occasion that Lynne “had hitched a ride on No. 8 Highway”. There is nothing in the record to indicate that Truscott had mentioned the car to anyone on his return to the schoolyard.
We have already said in dealing with the evidence of Arnold George that George said that he visited Truscott soon after Truscott’s return to the house to enquire about Lynne Harper. He also gave evidence of another conversation the following evening when he said that he was asked to say that he had seen Truscott at the bridge. We have also mentioned Truscott’s denial of both these conversations.
Truscott gave his own version of the conversation among the five boys at the bridge on Wednesday evening, June 10. It differs from the account given by the boys at the trial. Their evidence is summarized above. This is Truscott’s account:
Q. Was there any conversation about Miss Harper?
A. One of the fellows mentioned something about it, yes.
Q. Do you remember what it was he said?
A. He said, “I. heard you had Lynne in the bush”.
Q. What did you say?
A. I asked him who had told him this and he said Arnold George did.
I went over and asked Arnold George and he said he had never told anybody that.
Q. Were you in the bush with her?
A. No, sir.
Q. How was this said when it was said, that he heard you had her in the bush?
A. More or less kidding with each other.
Q. Did you make any statement that you were not in the bush, you had just been at the edge of the bush looking for calves, or anything of