THE APPLICATION

The Applicant, Steven Murray Truscott ("Truscott"), has applied to the Minister of Justice, pursuant to section 690 (now 696.1, as amended) of the Criminal Code, for relief against his conviction on a charge of first degree murder. Subsection 696.1(1) reads as follows:

(1) An application for ministerial review on the grounds of miscarriage of justice may be made to the Minister of Justice by or on behalf of a person who has been convicted of an offence under an Act of Parliament ... and whose rights of judicial review or appeal with respect to the conviction ... have been exhausted.

On January 8, 2002, Mr. Justice Fred Kaufman was retained by the Minister of Justice to "assist the Minister in the review of the ... application." Shortly thereafter, Mark Sandler was retained to assist Mr. Justice Kaufman as Counsel.

BACKGROUND

Lynne Harper ("Lynne"), 12 years of age, was murdered in June 1959. At the time, she, her parents and two brothers resided at the Royal Canadian Air Force ("RCAF") station in Clinton, Ontario. Her father held the rank of Flying Officer.

Steven Truscott was then 14 years of age. At the time, he resided with his parents, two brothers and a sister, at 2 Quebec Road, within the Permanent Married Quarters ("PMQ") on the RCAF station in Clinton. His father served as a Warrant Officer. He and his family had previously lived in Vancouver (where he was born), Winnipeg and Edmonton.

Both Lynne and Truscott attended Grade 7 at the A.V.M. Hugh Campbell School located on the north side of the Air Force base. The County Road, frequently referred to in the proceedings, led north from the school. It crossed the Bayfield River about a mile from the school and continued on to Highway 8, an east-west route, with Goderich to the west and Seaforth to the east.

In the early evening of Tuesday, June 9, 1959, Lynne was in the company of Steven Truscott, who gave her a ride on the crossbar of his bicycle. They proceeded from the vicinity of the school northbound along the County Road. The timing and duration of their encounter, and what transpired while they were together, remain contentious issues to this day.

In later court proceedings, the Crown contended that Truscott and Lynne left the County Road prior to reaching the bridge over the Bayfield River and that, in a wooded area alongside the County Road, known as Lawson's Bush, Truscott raped and murdered Lynne. Truscott maintained that he took Lynne on his bicycle to the intersection of the County Road and Highway 8, where she left him unharmed. He then turned around and headed towards the bridge, where he looked back to the intersection and observed that a vehicle had stopped at the intersection and that Lynne was in the process of entering it.

At about 11:20 that evening, Lynne's father reported her missing. Two days later, on Thursday, June 11, 1959, at about 1:50 p.m., her partially nude body was found by an organized search party in Lawson's Bush. She had been strangled by her own blouse which was knotted around her neck. Various articles of her clothing were found in the vicinity of her body.

The following evening, shortly after 7:00 p.m., Truscott was taken into custody, and later that night, at about 2:30 a.m. on June 13, 1959, he was charged with first degree murder under the provisions of the Juvenile Delinquents Act, as it then existed.

On June 30, 1959, Truscott was ordered to be tried as an adult, pursuant to section 9 of the said Act. An appeal from that order was later dismissed.

On July 14, 1959, after a preliminary inquiry that lasted two days, Truscott was committed to stand trial for capital murder. He remained in custody pending his trial.

On September 14 and 15, 1959, the Grand Jury heard evidence pertaining to this matter and returned a True Bill of Indictment against Stephen Truscott. (The Grand Jury proceedings, since abolished in Canada, were, as then required by law, held in secret.)

On September 16, 1959, Truscott's trial commenced in the Supreme Court of Ontario in Goderich, Ontario before Mr. Justice Ferguson and a jury. Glen Hays Q.C. appeared for the Crown. Frank Donnelly Q.C. represented Truscott. Mr. Justice Ferguson, Mr. Hays (later to become Magistrate Hays) and Mr. Donnelly (later to become Mr. Justice Donnelly) have since passed away.

On September 30, 1959, the jury returned a verdict of guilty, with a recommendation for mercy. Mr. Justice Ferguson, as was then required under the law, sentenced Truscott to be hanged.

On January 21, 1960, Truscott's appeal to the Ontario Court of Appeal was dismissed. John G.J. O'Driscoll Q.C. (now Mr. Justice O'Driscoll) represented the Appellant. W.C. Bowman Q.C. represented the Crown. Immediately thereafter, the Government of Canada commuted Truscott's sentence to life imprisonment.

Leave to appeal to the Supreme Court of Canada was then sought. At that time, absent a dissent on a point of law in the Court of Appeal, there was no appeal as of right in capital cases. (In 1961, the law was changed to provide for such an appeal as of right.) On February 24, 1960, Truscott was denied leave to appeal his conviction.

From his arrest until the commutation of his death sentence, Truscott remained in custody at the Huron County Jail in Goderich. After commutation of the sentence, he was transferred to the Kingston Penitentiary for assessment. From February 1960 to January 1963, he was incarcerated at the Ontario Training School for Boys in Guelph. On January 14, 1963, just before his 18th birthday, he was transferred to Collins Bay Penitentiary.

Truscott's case was the focus of considerable public attention. In early 1966, Isabel LeBourdais, now deceased, contended in her published book "The Trial of Steven Truscott" that Truscott had been convicted of a crime he did not commit. Her book rekindled public debate and interest in the case.

On April 26, 1966, the Government of Canada referred the Truscott case to the Supreme Court of Canada. The preamble to the Reference reflected 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 question referred to the Supreme Court of Canada for its determination was:

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?

G. Arthur Martin Q.C. (later to become a Justice of the Court of Appeal), E.B. Jolliffe Q.C. and R.J. Carter (later R.J. Carter, Q.C.) represented Truscott. Mr. Bowman and D.H. Scott, Q.C. represented the Attorney General of Ontario. D.H. Christie, Q.C. (later Chief Judge of the Tax Court of Canada) appeared for the Attorney General of Canada. All of these counsel have since passed away.

Five days of evidence were heard by the Supreme Court of Canada in October 1966, followed by submissions in January 1967. That evidence included the testimony of Truscott, who had not testified at trial.

On May 4, 1967, the Supreme Court of Canada (Hall J. dissenting) held that, if Truscott's appeal had been heard by the Court, it would have been dismissed. All of the Justices who sat on the Reference have since passed away.

On May 7, 1967, Truscott was transferred to the Farm Annex of Collins Bay Penitentiary. On October 21, 1969, he was released on parole. He had served over 10 years in custody. He had an unblemished institutional record.

After his release, Truscott lived under the name Bowers (his mother's maiden name), first in Kingston with his parole officer and thereafter in Vancouver for a short time before settling in Guelph. He has now been married for many years and has three children and three grandchildren.

On November 12, 1974, the National Parole Board relieved Truscott of the terms and conditions of his parole, so long as he remained of good conduct and deportment and informed the National Parole Service of any change of address. By all accounts, he has been gainfully employed and free from any criminal involvement since his release from custody to the present day.

Commencing in 1997, counsel for Truscott sought out relevant documentation pertaining to this case. The Application refers to archival and other information obtained from the following sources:

• The archives of Ontario
• The archives of the Supreme Court of Canada
• Freedom of Information requests to the Department of Justice
• The Military Police archives
• The archives of the Centre of Forensic Sciences ("CFS")
• The archives of Huron County
• The archives of the Ontario Provincial Police, as well as disclosures made by the OPP detachment in Sebringville, Ontario
• The archives of the Attorney General's Laboratory (the CFS' predecessor)
• Information disclosed by the Crown Law Office, Attorney General of Ontario, Toronto

Counsel for Truscott have also obtained various affidavits or additional information from their own independent efforts.

All the material, as well as the documentary and viva voce evidence uncovered in the investigation, figure prominently in the evaluation of this Application and are extensively examined in this Report.

Truscott is represented on the present Application by counsel for AIDWYC (Association in Defence of the Wrongly Convicted), James Lockyer, Marlys Edwardh and Phillip Campbell. Rosella Cornaviera and Greg Tweney have represented the Attorney General of Ontario throughout.

In support of the Application, counsel for Truscott have presented the Minister of Justice with a four-volume factum, containing their analysis of the available evidence, accompanied by many volumes of documents reproducing relevant judicial authorities, the transcripts of the court proceedings at the various stages, documentary exhibits, affidavits containing what is alleged to be 'fresh' evidence bearing upon Truscott's innocence, and relevant correspondence and files, all elaborated upon in this Report. As noted above, extensive materials have been acquired through Freedom of Information legislation from government archives, most particularly from relevant police and Crown files.

After reviewing these extensive materials, Mr. Justice Kaufman determined, in consultation with Mr. Sandler and with input from counsel for both Truscott and the Attorney General of Ontario, that a number of witnesses should be examined under oath or solemn affirmation to assist him in evaluating the merits of the Application. A number of these witnesses also produced relevant documents. Their evidence was transcribed and provided to counsel for Truscott and for the Attorney General of Ontario. The documents produced were also disclosed to the parties, subject only to statutory or privacy restrictions. Some editing was done to comply with these restrictions.

In addition to the evidence tendered by the Applicant, the following was considered:

1. The viva voce evidence of 26 witnesses examined by counsel for Mr. Justice Kaufman. Some of these witnesses had earlier provided affidavit evidence tendered in support of the Application.
2. Documentary evidence obtained as part of the investigative process, largely through the efforts of Inspector McGuire.

Once the investigative work was completed, an Investigative Summary was prepared and distributed to the interested parties. Counsel for Truscott and for the Attorney General of Ontario were each invited to make written submissions following their receipt of the Investigative Summary and both parties did so.

The Report to the Minister is organized as follows. Part I provides an introduction to the Report. Part II articulates the basic positions of the parties at trial and at the Reference. Part III sets out the applicable test for the Minister and how it is to be applied in a case of this kind. Parts IV to XII set out the evidence at trial, at the Reference and on this Application, divided into topics of interest. Part XII sets out Mr. Justice Kaufman's conclusions and recommendations to the Minister.

EVIDENCE RELIED UPON BY THE APPLICANT

The Applicant relies upon two types of evidence:

1. allegedly 'undiscovered' or 'undisclosed' information found in archives;
2. allegedly 'fresh' affidavit evidence from witnesses, some of whom testified at the original trial, and

to the extent that the investigation yielded additional information, documentary or viva voce, the Applicant also addresses, and sometimes places reliance upon, that evidence.

The evidence provided by the applicant in support of his application may be divided into two categories:

1. Documents obtained by the Applicant's counsel, largely from archival sources. Most of these are said to be officers' notes or statements taken by the police from prospective witnesses prior to Steven Truscott's trial. Some were prepared by or for the authorities in anticipation of the Supreme Court Reference. The Applicant has alleged that these documents were not disclosed to the defence at the trial or at the Reference and have since been discovered. For convenience, these documents are referred to as the 'undisclosed' or 'undiscovered' documents, to distinguish them from the 'new' evidence described in paragraph (b) immediately below.
2. Affidavit evidence from various witnesses recently obtained by Applicant's counsel.

That being said, it should be noted here that the Attorney General places heavy reliance upon the fact that the Applicant's innocence and the fairness of his trial were fully and exhaustively explored through trial, the appellate process and a Reference to the Supreme Court of Canada. It is said that the purportedly undiscovered or fresh evidence is neither fresh nor truly undisclosed, and that, in any event, it falls far short of demonstrating a likely miscarriage of justice.

The Attorney General disputes that the documents obtained from archival sources, or the substance of what they contain, were not disclosed to the defence, and submits, in any event, that they were 'accessible' to the defence, had it chosen to seek them out. Similarly, the Attorney General does not concede that the affidavits represent anything that is truly 'new' or that any of the evidence tendered by the Applicant is truly 'fresh' in any legal sense.

APPLICABLE LEGAL PRINCIPLES FOR CONSIDERING EVIDENCE RECEIVED ON THIS APPLICATION

Both parties agree that part of the Minister's task involves an assessment whether the evidence received, particularly the allegedly 'undisclosed' evidence, was known to the defence in 1959 or 1966. The Minister's role also involves some evaluation of the credibility or reliability of the evidence. As well, the Minister must consider the potential importance of this evidence to the Applicant's guilt or innocence or to the fairness of the earlier proceedings. However, beyond the acknowledgement that these are relevant considerations for the Minister, the parties have very different views as to how the Minister is to consider these matters, and ultimately what legal principles inform his decision.

Mr. Justice Kaufman made reference to, and relied upon, the guidelines articulated by The Honourable Alan Rock, Minister of Justice at the time, in his reasons for decision in the Thatcher case, which he states have been incorporated either explicitly or implicitly in the new legislation.

He adds that the decision of the Minister has been said to be discretionary. The Minister is not bound by rules of evidence or criminal procedure in the manner in which the matter is investigated or considered. The Charter of Rights and Freedoms demands that the Minister act in good faith and conduct a meaningful review of an application that is not frivolous.

MISCARRIAGE OF JUSTICE DEFINED

Mr. Justice Kaufman then discussed the Milgaard Reference to the Supreme Court of Canada and suggested that the meaning of "miscarriage of justice" for the purposes of section 696.3(3) should take into consideration what was said in Milgaard. Simply put, if the Minister is satisfied beyond a reasonable doubt or even upon a preponderance of evidence that Steven Truscott is factually innocent of murder, relief should be granted under section 696.3 of the Code. If the Minister is not so satisfied, but concludes that there is new evidence placed before him on this Application which is relevant to the issue of Truscott's guilt, which is reasonably capable of belief, and which, taken together with the evidence adduced at trial, could reasonably be expected to have affected the verdict, relief should generally also be granted under section 696.3 of the Code. The nature of the relief to be granted will be dependent upon the strength of the Minister's conclusions in this regard, as well as other considerations discussed in Part XII of his Report.

He went on to suggest that the existence of new evidence which could reasonably be expected to have affected the verdict may also provide a reasonable basis for concluding that a miscarriage of justice likely has occurred, not because the accused is likely innocent, but because it would be unfair to maintain the accused's conviction without an opportunity for the trier of fact to consider the new evidence.

He addressed another scenario. The Minister may conclude that the new evidence may be relevant to the issue of Truscott's guilt, may be reasonably capable of belief or may be such that it could reasonably be expected to have affected the verdict, but is unable to conclude that any or all of these criteria have been met. This may occur, for example, where the Minister is of the view that these determinations are better made by the court based upon a more fulsome record, including the examination and cross-examination of witnesses by the Crown and the defence. (The same observation would apply to the preliminary question whether the allegedly undisclosed or fresh evidence is truly undisclosed or fresh. The Minister may or may not be in a position to determine that question.) In these circumstances, the Minister may still conclude that there is a reasonable basis for concluding that a miscarriage of justice likely occurred and allow the Application, or be unable to so conclude, and refer to the court of appeal, for its opinion, the question as to whether the new evidence meets these criteria under section 696.3(2) to assist him in determining whether relief should be granted under section 696.3(3). It is not a precondition to a referral under section 696.3(2) that there is a reasonable basis for concluding that a miscarriage of justice likely occurred.

There is precedent for the Minister referring to the court of appeal for its opinion the admissibility of purported fresh evidence, or a determination of the legal effect of new evidence on the accused's culpability, to assist the Minister in the exercise of his discretion under section 690 of the Code. Indeed, in the past, the Minister has, on occasion, referred such questions to the court of appeal together with a further referral that, if the new evidence is admissible as fresh evidence, the court should hear and determine the matter as if it were an appeal by the convicted person. For example, in R. v. Gruenke (1999), 131 C.C.C. (3d) 72 (Man. C.A.); aff'd (2000), 146 C.C.C. (3d) 319 (S.C.C.), the Minister made the following order:

I hereby refer to this Honourable Court, pursuant to paragraph 690(c) of the Criminal Code, with directions to the said Court to hear evidence and provide its opinion on the following question:

In the circumstances of this case, would the information obtained by the Self Defence Review conducted by Judge Lynn Ratushny, of the Ontario Court of Justice (Provincial Division), relating to whether the killing of Phillip Barnett was planned and deliberate on the part of Adele Rosemarie Breese (Gruenke), be admissible as fresh evidence on appeal to the Court of Appeal?

If this Honourable Court concludes that the information referred to in the question above would be admissible on appeal, I do hereby respectfully refer to this Honourable Court, pursuant to paragraph 690(b) of the Criminal Code, based on a consideration of the existing record herein, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider, to determine the case as if it were an appeal by Adele Rosemarie Breese (Gruenke) on the issue of Fresh Evidence.

The Kelly Reference to the Ontario Court of Appeal in 1996 is another example.

THE CHANGING DISCLOSURE OBLIGATIONS SINCE 1966

Mr. Truscott's application is based in large part upon allegedly undisclosed information found in government archives. It is maintained that the Crown failed to disclose this evidence and that a miscarriage of justice thereby resulted. However, this trial was conducted in 1959 and the Reference was heard in 1966. As discussed in Part V of this Report, the jurisprudence and the practices governing Crown disclosure at the time were significantly different than those which exist today. Indeed, the right to full disclosure is now constitutionally protected by section 7 of the Canadian Charter of Rights and Freedoms. Accordingly, the following issue arises:

What if the Crown met its disclosure obligations at the trial and at the Reference, such that the proceedings were fair by the standards that then existed, but would not meet standards of fairness that now exist?

As a general rule, unless an accused is still 'in the judicial system,' he is unable to reopen his or her case and rely on subsequently decided judicial authorities, even where the provision under which the accused was convicted is subsequently declared to be constitutionally invalid: R. v. Sarson (1996), 107 C.C.C. (3d) 21 (S.C.C.). This is a reflection of the principle of finality. No judicial proceedings would ever be regarded as final if their legitimacy would always be subject to changes in the law.

Here, the Attorney General contends that the Applicant is asking the Minister to conclude that both his trial in 1959 and the Reference in 1966, while fair by the standards of the day, were unfair by modern standards:

Specifically, he argues that his present right to full disclosure of the investigative file was breached; thus, his fair trial rights were violated and his verdict should be set aside. The Applicant's argument necessarily depends upon a retrospective application of an accused person's constitutional right to full disclosure of the investigative file, a right that did not exist in 1959 or in 1966.

In law, the principle of finality demands that the validity of a verdict imposed before the coming into force of a subsequently enacted law be determined by the law as it existed at the time of the commission of the offence. It is uncontroversial that the Charter right upon which the applicant now relies cannot be retroactively applied. Further, the Charter does not provide a basis for the re-examination of convictions validly pronounced before the coming into force of the Charter, even though the application of the Charter would lead to a different result.

The rule of law demands that the Minister of Justice respect the principle of finality. A post-conviction change in the law, therefore, does not prima facie, warrant the intervention of the Minister of Justice. The Minister will not consider a section 690 application on these grounds, unless the application reveals other circumstances that might reasonably lead to the conclusion that a miscarriage of justice likely occurred.

In Mr. Justice Kaufman's view, the fact that a trial or a Reference was fair by standards then in existence is a relevant consideration for the Minister. The fact that the trial was not fair by modern standards is not determinative in favour of an application. However, Mr. Justice Kaufman goes on to suggest that it must also be recognized that there has been a significant evolution in criminal law, particularly in the rules of evidence and procedure. A number of these rules, particularly those associated with disclosure, are designed to prevent, to the extent possible, wrongful convictions. Since the very function of the Minister of Justice under section 696.3 of the Code is to address and rectify potential miscarriages of justice, particularly wrongful convictions, the principle of finality cannot immunize a trial from scrutiny. Minister Rock, in Thatcher, recognized this in stating that "[t]he doctrine of finality does not operate so as to prevent me from granting a remedy in an appropriate case." In that particular case, the Minister considered not only the fact that the Crown's conduct accorded with the standards then existing, but that the alleged non-disclosure could not reasonably be expected to have affected the result. In Reference re Milgaard, the Court took into consideration the fact that the trial was fair by the standards then existing, but concluded that the fresh evidence compelled relief from continued conviction.

In the context of non-disclosure, this means that even if the Crown conformed to the standards of disclosure existing in 1959 and in 1966 (which the Applicant does not concede), but that credible information was not disclosed that would reasonably be expected to have affected the result, the fact that the trial was fair by standards then existing does not immunize these proceedings from ministerial review. Accordingly, the Minister must consider the extent to which this language has equal application where it has been shown that the Crown failed to disclose evidence now relied upon, and must also consider the interplay between the applicable test for fresh evidence and the ultimate determination whether there is "a reasonable basis to conclude that a miscarriage of justice likely occurred."

Mr. Justice Kaufman then went on to discuss the recent decision of the Supreme Court of Canada in R. v. Taillefer; R. v. Duguay (2003), 179 C.C.C. (3d) 353, which is arguably the most important case in the Minister's approach to the specific kinds of evidence tendered by the Applicant here. The most important findings of the court in Taillefer in relation to the Truscott case are enunciated by LeBel J., speaking for a unanimous Court and are as follows:

1. Various items that were undisclosed here could have been used to impeach the credibility of Crown witnesses, cast doubt on the Crown's theory, might have supported the alibi defence and, if disclosed on a timely basis, would have made it possible to discover and explore new avenues of investigation. Accordingly, under the current rules governing disclosure, the information should have been disclosed.
2. The Crown submitted that the trial here predated Stinchcombe, that the law relating to disclosure prior to that decision was uncertain and may even have permitted the Crown, in its complete discretion, to decide whether or not to disclose its evidence. This submission is to be rejected. Notwithstanding the fact that there may have been disagreements during the development of the law prior to Stinchcombe, the duty to disclose all relevant evidence to the defence had already been recognized at common law as a component of the accused's right to a fair trial.

Where the evidence shows that the Crown breached its disclosure obligations as they were understood back in 1959 or 1966, it may be more appropriate for the Minister to be mindful of the Dixon test (known but undisclosed fresh evidence) rather than the Palmer test (simply fresh evidence) in determining whether a remedy should be granted under section 696.3 of the Code. However, unlike an appellate court, the Minister need not bifurcate his decision making process by first determining whether evidence is admissible in a court of law and then determining the result. He is to consider all relevant matters in determining whether there is a reasonable basis for concluding that a miscarriage of justice likely occurred.

OVERVIEW

The Applicant has alleged that the materials retrieved from government archives reveal a number of items of material non-disclosure which demonstrate, either when viewed singly or cumulatively, that a miscarriage of justice likely occurred.

Although the prime focus of this Application is on allegedly undiscovered or undisclosed evidence that existed at the time of the trial or the Reference, Mr. Justice Kaufman also considered the allegedly fresh evidence tendered by the Applicant, as well as new evidence obtained during his own investigation, bearing upon the same topics. Other Parts of his Report separately address topics such as forensic evidence as to the time of death, penis lesions, other physical evidence relating to the Applicant, the deceased or the body site, and other suspects. Part IX of the Report considers allegedly fresh or new evidence that is not neatly encompassed by these topics, such as the nature and quality of the original police investigation.

THE ATTORNEY GENERAL'S POSITION

Counsel for the Attorney General provided a summary of the Attorney General's position which is partly reproduced here:

The Applicant has filed a comprehensive brief in support of his Application for ministerial review. Indeed, no stone has been left unturned in his quest for 'new' and 'significant' information that might challenge the correctness of the jury's verdict in 1959 or the Supreme Court of Canada's conclusion in 1966. However, a careful examination of the Application demonstrates that none of the information and evidence upon which the Applicant now relies is either 'new' or sufficiently 'significant' that it could provide a basis to believe that a miscarriage of justice has occurred.

The Applicant relies on the "cumulative effect" of all the 'new' evidence (the archived documents and the affidavits) filed in support of his Application. As demonstrated in the preceding sections, no single item of evidence relied upon by the Applicant provides any basis to believe that a miscarriage of justice likely occurred in this case. What the 'new' evidence lacks in strength cannot be made up in numbers. The information relied upon by the Applicant, whether considered individually or in totality does not provide "a reasonable basis to believe that a miscarriage of justice likely occurred" in this case. In short, it is the Attorney General's position that no new matters of significance have arisen since 1966 that could form the basis to believe that a miscarriage of justice likely occurred in this case. For this reason, and for the more detailed reasons articulated in these submissions, the Attorney General recommends that the Minister of Justice dismiss Steven Murray Truscott's Application for ministerial review pursuant to s. 696.3(3)(b) of the Criminal Code.

Counsel for the Attorney General were invited to comment upon the appropriate remedy in the event that the Minister determines that there is a reasonable basis to conclude that a miscarriage of justice likely occurred.

It is the Attorney General's position that, although a panoply of options may now be available to the Minister as a matter of law, should the Minister conclude that there has likely been a miscarriage of justice, the only appropriate remedy in this particular case is a further Reference to the Supreme Court of Canada. The Attorney General rejects the Applicant's position that the recent legislative amendments suggest that a new trial should become the preferred remedy on a successful application to the Minister. A new trial is an extraordinary remedy. It is tantamount to executive interference with a judicial decision, and a step which should not be taken lightly. While this may be an appropriate remedy in a case where the "new matters of significance" are uncontroversial, or in a case where the Crown consents to a new trial, it is decidedly not an appropriate remedy in cases like this one, where the effect of the 'new evidence' is vigorously disputed. In this case, the evidence offered in support of the Application should be tested through the adversarial process, in a court of law, before a final determination is made about the continued validity of the Applicant's conviction.

POSITION OF THE APPLICANT

The Applicant's position on the merits of the Application is outlined in detail throughout this Report. It need not be summarized further here. It is important, however, to articulate the Applicant's position on the appropriate remedy, in the event that the Minister determines that the Applicant is entitled to some relief. The Applicant's primary position is that the Minister should exercise his discretionary powers to grant him a new trial suggesting that the Minister, through Justice Kaufman, is now in as good a position as any appellate court will ever be to assess the strengths of Mr. Truscott's Application. In fact, it is doubtful that the appellate court could, after a Reference, acquire such a thorough and intimate knowledge of the case, and many of the individuals involved in it, as has Justice Kaufman.

SUMMARY OF FINDINGS

In earlier Parts of this Report, it was determined that there is undisclosed evidence that might or does (depending upon the evidence), in Justice Kaufman's view, contribute to a reasonable basis for concluding that a miscarriage of justice likely occurred.

The Legal Approach to This Application

If the Minister is satisfied beyond a reasonable doubt or even upon a preponderance of evidence, that Steven Truscott is factually innocent of murder, relief should be granted under section 696.3 of the Code. If the Minister is not so satisfied, but concludes that there is new evidence placed before him on this Application which is relevant to the issue of Truscott's guilt, which is reasonably capable of belief, and which, taken together with the evidence adduced at trial, could reasonably be expected to have affected the verdict, relief should also generally be granted under section 696.3 of the Code. The nature of the relief to be granted will be dependent, in part, upon the strength of the Minister's conclusions in this regard.

While the continued conviction of a person shown to be factually innocent is the most obvious "miscarriage of justice," the existence of new evidence which could reasonably be expected to have affected the verdict may also provide a reasonable basis for concluding that a miscarriage of justice likely has occurred, not because the accused is likely innocent, but because it would be unfair to maintain the accused's conviction without an opportunity for the trier of fact to evidence.

Another scenario arises. The Minister may conclude that the new evidence may be relevant to the issue of Truscott's guilt, may be reasonably capable of belief or may be such that it could reasonably be expected to have affected the verdict, but is unable to conclude that any or all of these criteria have been met. This may occur, for example, where the Minister is of the view that these determinations are better made by the court based upon a more fulsome record, including the examination and cross-examination of witnesses by the Crown and the defence. (The same observation would apply to the preliminary question whether the allegedly undisclosed or fresh evidence is truly undisclosed or fresh. The Minister may or may not be in a position to determine that question.) In these circumstances, the Minister may still conclude that there is a reasonable basis for concluding that a miscarriage of justice likely occurred and allow the Application, or be unable to so conclude, and refer to the court of appeal, for its opinion, the question as to whether the new evidence meets these criteria under section 696.3(2) to assist him in determining whether relief should be granted under section 696.3(3). It is not a precondition to a referral under section 696.3(2) that there is a reasonable basis for concluding that a miscarriage of justice likely occurred.

The impact of undisclosed evidence must be evaluated cumulatively. It is error to analyze each piece of undiscovered evidence in isolation to determine whether it contains credible evidence and what its probative value is. It is also error to compare the undiscovered information, item by item, to the evidence introduced at trial, taking the latter evidence as a given and asking whether in each instance the evidence confirms or disproves the evidence presented at trial. The Supreme Court of Canada in Taillefer, albeit in the context of the Court's function, made these points.

Some evaluation of potential credibility or reliability is warranted: evidence that is not reasonably capable of belief, when considered in the context of all of the evidence, will not form the foundation for a finding that its non-disclosure affected the outcome of the trial or trial fairness. Evidence that is reasonably capable of belief must be considered.

Credibility and reliability may relate both to the issue whether the prior statements were made by the witnesses as well as the content of those statements, if made. However, where, as here, the undiscovered evidence is relied upon in large measure to challenge the credibility of what the witnesses said differently at trial, the fact that it can reliably be said that the prior statements were made may represent the most important consideration.

Some of the undiscovered materials were not significant. They were unlikely, even when viewed cumulatively, to have affected the outcome of the trial or the Reference or the fairness of the process, even had they been disclosed. However, in relation to some of the archival materials, their non-disclosure deprived the defence of a considerable amount of information that could have been used to impeach the credibility of witnesses, cast doubt upon the prosecution's theory of the case, or support the defence case. In some instances, the evidence would have made it possible to discover and explore new avenues of investigation. Some of these undisclosed statements would have been more useful than others. Viewed cumulatively, they contribute to a reasonable basis for concluding that there was a likely miscarriage of justice.

The importance of disclosure to the ability of the defence to effectively cross-examine witnesses is now well recognized in the jurisprudence. Where the non-disclosed materials are retained by the Crown, and utilized to challenge defence witnesses, the deleterious effects of non-disclosure are compounded.

In this case, the dangers associated with the non-disclosure of civilian witness statements in particular were profound. This was a circumstantial case. It was dependent upon the observations and recollections of various civilian witnesses, many of them children. None of the witnesses were said to have prepared their own contemporaneous notes of the relevant events, nor would they be expected to have done. Their recollections were captured in original witness statements, the accuracy of which was, in part, dependent upon the objectivity and skill of the questioner. Both the questioner and the witness may be coloured by their perceptions of guilt or innocence or the status of the investigation. Similarly, witnesses who are subjected to multiple interviews, particularly by the authorities, may be susceptible to influences that shape and alter their memories, however inadvertently, of the relevant events. They may tell the questioner what they think he or she wants to hear. Or, the written statement may not reflect precisely what the witness said or thought. These concerns are particularly manifest where impressionable child witnesses are involved.

There was evidence heard during this investigation that also invites particular scrutiny of the way in which statements were taken from witnesses after Truscott was identified by police as the suspect. In this case, the investigation focussed very quickly on Truscott. There was a perceived urgency to the resolution of the case.

Mr. Kaufman agrees with the Applicant that the non-disclosure of a number of statements significantly reduced the ability of the defence to properly challenge the Crown's case. Mr. Donnelly's ability to interview potential witnesses was also unlikely to rectify deficiencies in disclosure. He also concluded that the non-disclosure of a number of items was not remedied at or before the Reference. As a result, the defence's ability to properly challenge the Crown's case was significantly diminished.

RECOMMENDATION AS TO WHETHER THE APPLICATION SHOULD SUCCEED

There was a substantial amount of evidence that was undisclosed to the Applicant in the prior judicial proceedings. Much of that evidence was extremely relevant, and a great part of it consisted of statements attributed to witnesses who were called at the time or at the Reference. The evidence that these statements were made (apart from the truth of their contents) was reasonably capable of belief and indeed, at times, demonstrably true. In Mr. Kaufman's view, one cannot avoid the conclusion that this undisclosed evidence, taken together with the evidence previously adduced, could reasonably be expected to have affected the verdict. It impacts upon substantial aspects of the prosecution's case.

There was also allegedly 'new' evidence, not emanating from archival documents, but from the viva voce evidence of witnesses heard during the investigation. Some of this evidence, if accepted, could also reasonably be expected to have affected the verdict. Again, it impacts upon substantial aspects of the prosecution's case. Mr. Kaufman did not regard this evidence as incapable of belief, but he concludes that it remains untested through examination and cross-examination by the parties. Accordingly, it may contribute to a reasonable basis for concluding that a miscarriage of justice likely occurred, but does not inevitably do so.

In Mr. Justice Kaufman's view, the undisclosed evidence not only could reasonably be expected to have affected the verdict, but affects the overall fairness of the proceedings. In this regard, he is mindful of the standards that existed at the time, as opposed to now, but considered the evidence, to paraphrase the English authorities "in the whole."

The prosecution's case was not an overwhelming one. In Mr. Justice Kaufman's view, it is highly likely that the undisclosed evidence, if not the 'new' evidence, would further substantially weaken that case. That being said, there are features of the prosecution case that largely remain unaffected by the evidence now relied upon by the Applicant. These were previously articulated in Part X and elsewhere in this Report. The Applicant's innocence has not been demonstrated. However, in Mr. Justice Kaufman's respectful view, the continuation of the Applicant's conviction, without an opportunity for the courts to consider the evidence now available to him, would be unfair.

Put succinctly, in his opinion viewing the evidence cumulatively, there is clearly a reasonable basis for concluding that a miscarriage of justice, as earlier defined, likely occurred.

RECOMMENDATION AS TO THE FORM OF RELIEF

The issue of remedy is complex and unique. As the parties have noted, the Applicant's case has already been referred by the Governor in Council to the Supreme Court of Canada. That attempt to overturn his conviction was dismissed. This is the first time that an Application for Ministerial relief has followed an unsuccessful Reference to the Supreme Court of Canada. Second, since the Applicant's trial, and indeed his Reference, substantial changes in the law have taken place. Third, the passage of time since the Applicant's trial makes a retrial in his case unrealistic. Fourth, the investigation on behalf of the Minister in this case has been more extensive and, arguably, more transparent to the parties than any other.

A consideration of these and other factors led Mr. Justice Kaufman to recommend that the Minister refer the matter to the Court of Appeal for Ontario. The suggested terms of referral are as follows:

I hereby refer to this Honourable Court, pursuant to section 696.3(2) of the Criminal Code, with directions to the said Court to hear evidence and provide its opinion on the following question:

In the circumstances of this case, would any or all of the information presented to the Minister, relating to whether Steven Murray Truscott was guilty or not guilty of the murder of Lynne Harper, be admissible as fresh evidence on appeal to the Court of Appeal?

If this Honourable Court concludes that any or all of the information referred to in the question above would be admissible on appeal, I do hereby respectfully refer to this Honourable Court, pursuant to subsection 696.3(3)(a)(ii) of the Criminal Code, based on a consideration of the existing record herein, the evidence already heard, and such further evidence as this Honourable Court in its discretion may receive and consider, to determine the case as if it were an appeal by Steven Murray Truscott on the issue of fresh evidence.

The factors that favour such a recommendation, as opposed to the other forms of relief available either to the Minister or to the Governor in Council, are as follows:

1. The Applicant seeks his exoneration. Indeed, the Applicant contends that a verdict of guilt would be unreasonable, having regard to what is now known about the case.
2. The Minister has no power to direct an acquittal. The Court of Appeal has the power to do so, either because the new evidence demonstrates that a verdict of guilt would be unreasonable or, in the exercise of its discretion, having regard to all of the circumstances.
3. The evidence presented to me, taken at its highest, does not demonstrate innocence, but only that there is a reasonable basis to conclude that a miscarriage of justice likely occurred. In this context, a miscarriage of justice is not confined to the conviction of an innocent person.
4. The determination of whether a miscarriage of justice did occur in this case is dependent, in part, upon the assessment of credibility and reliability of living witnesses, and the inferences to be drawn from all of the available evidence.
5. There was no opportunity for the Attorney General to cross-examine the witnesses to test their evidence or elicit additional evidence favourable to the Crown. Nor was there an opportunity for the Attorney General to call his own evidence bearing upon these issues, despite his right (which his counsel exercised) of proposing potential witnesses for us to investigate and examine. Of course, the Applicant was similarly situated.
6. The Court of Appeal is well placed to consider these issues, and regularly addresses the admissibility of allegedly fresh evidence tendered before it.
7. The Minister's discretion to order a new trial must continue to be regarded as an extraordinary remedy, particularly in the context of a case which has been adjudicated upon by the Ontario Court of Appeal and the Supreme Court of Canada. This is a reflection of the exceptional nature of the remedy. To be clear, it is a remedy that is more likely to be adopted - and is contemplated - where factual innocence has been demonstrated to the Minister.

Mr. Justice Kaufman agreed that the innocent are entitled to their public exoneration, and that it is important to provide them with the opportunity to obtain that exoneration. With respect, the existing record does not, in Mr. Justice Kaufman's view, enable the Minister to provide that exoneration; nor do his powers under the Criminal Code, unless his order for a new trial is coupled with the Attorney General's consent that an acquittal be entered without the necessity of a trial based upon the accused's innocence. That is unlikely to occur here. Exoneration, if at all, must come, in this case, from the courts.

Mr. Justice Kaufman acknowledges that any Reference of this matter to the courts would be cumbersome and prolonged, absent agreement as to the appropriate disposition. He also acknowledges that one advantage to the matter being referred to the Supreme Court of Canada is that it would be less constrained than the Ontario Court of Appeal by its earlier decision in 1966. However, this Application is largely based upon the allegedly new and significant information now available. It could not - and should not - succeed either before the Minister or before the courts unless that new evidence is compelling. Accordingly, he does not regard a referral to the Ontario of Appeal as being problematic, and agrees with the Applicant that the Court of Appeal is better situated to address the factual issues that arise here.

In Mr. Justice Kaufman's view, should the Minister adopt the recommendation to refer this matter to the Court of Appeal, the parties can and should seek direction from the Court of Appeal on these issues. Otherwise, the materials to be available to the public should be appropriately edited to address the concerns raised herein.

Dated at Toronto, this 19th day of April, 2004.

Respectfully submitted,

Hon. Fred Kaufman