DATE: 20061018 DOCKET: C42726/M34189

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., DOHERTY, WEILER, ROSENBERG and MOLDAVER JJ.A.

IN THE MATTER OF SECTION 696.3 OF THE CRIMINAL CODE, S.C. 2002, C. 13;

AND IN THE MATTER OF AN APPLICATION FOR MINISTERIAL REVIEW (MISCARRIAGES OF JUSTICE) SUBMITTED BY STEVEN MURRAY TRUSCOTT IN RESPECT OF HIS CONVICTION AT GODERICH, ONTARIO, ON SEPTEMBER 30, 1959, FOR THE MURDER OF LYNNE HARPER;

AND IN THE MATTER OF THE DECISION OF THE MINISTER OF JUSTICE TO REFER THE SAID CONVICTION TO THE COURT OF APPEAL FOR ONTARIO FOR HEARING AND DETERMINATION AS IF IT WERE AN APPEAL BY STEVEN MURRAY TRUSCOTT ON THE ISSUE OF FRESH EVIDENCE, PURSUANT TO SUBSECTION 696.3(3)(a)(ii) OF THE CRIMINAL CODE.

B E T W E E N :

HER MAJESTY THE QUEEN Respondent (Applicant)

James Lockyer, Philip Campbell, Marlys Edwardh and Hersh E. Wolch, Q.C., for the appellant (respondent on application)

• and -

STEVEN MURRAY TRUSCOTT Appellant (Respondent)

Rosella Cornaviera, Gregory J. Tweney, Alexander Alvaro and Leanne Salel, for the respondent (applicant)

BY THE COURT:

I

Overview

[1] In October 2004, the Minister of Justice for Canada directed a Reference pursuant to s. 696.3(3)(a)(ii) of the Criminal Code to this court in the matter of the conviction of Steven Truscott in September 1959 on a charge of murder. The Minister directed the Reference in these terms:

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.

[2] In an earlier endorsement setting out the scope of the Reference, this court said:

When one reviews the terms of the Reference, including the recitals, it is clear that “fresh evidence” refers to material that was not before the trial court, the Ontario Court of Appeal, or the Supreme Court of Canada. The “new information” referred to in the terms of Reference refers to material that was not presented in prior court proceedings. The determination of the admissibility of the “new information” for purposes of the Reference will depend on our application of the principles for admitting fresh evidence.

[3] The court spent several days in June and July 2006 listening to the testimony of witnesses called by both Mr. Truscott and the Crown. The court has not heard submissions concerning the admissibility of any of that evidence and has not decided what part, if any, will be received as “fresh evidence” on appeal.

[4] The Crown seeks to lead the evidence of a witness to whom we will refer as Ms. X. She gave evidence before the Honourable Fred Kaufman concerning an incident involving her and Mr. Truscott that she believed probably occurred in August 1958, almost a year before Lynne Harper’s murder. The Crown argues that the court should follow the established format of hearing the evidence of Ms. X. viva voce and reserving on its ultimate admissibility until all of the evidence has been heard and the parties have made their arguments.

[5] Counsel for Mr. Truscott submits that the admissibility of Ms. X.’s evidence can be fairly determined without hearing her testimony. Counsel submit that the substance of her evidence is well known to the Crown and Mr. Truscott and has been placed before the court in transcript form. Counsel argue that the purported evidence of Ms. X. cannot constitute legally admissible evidence and, therefore, cannot be received as “fresh evidence” on appeal. Counsel add that a public airing of this testimony, especially if it is ultimately ruled inadmissible, would result in a significant and wholly unwarranted embarrassment to Mr. Truscott and would infringe on his reasonable privacy expectations.

[6] The court received extensive written arguments. Those arguments address both the procedural question, that is, whether the court should hear the evidence of the witness before making any ruling on admissibility, and the substantive admissibility issues raised by this evidence.

II

The Proposed Evidence

[7] The substance of the proposed evidence of Ms. X can be garnered from three sources: her statement in October 2002 to a police officer who was assisting the inquiry conducted by Justice Kaufman at the request of the Minister, Ms. X’s testimony before Justice Kaufman also in October 2002, and Ms. X’s recorded interview in November 2005 with Crown counsel.

[8] Ms. X came to the attention of Justice Kaufman in connection with a matter that arose out of testimony provided to Justice Kaufman by another witness. Ms. X was mentioned as being involved in an incident described by this witness. Justice Kaufman eventually determined that the evidence concerning that incident was unreliable and it played no role in his assessment. On this Reference, neither Mr. Truscott nor the Crown suggest that the incident occurred or place any reliance on the evidence relating to that incident.

[9] Ms. X was subsequently interviewed before Justice Kaufman. In the course of responding to Justice Kaufman’s inquiries about the incident referred to above, Ms. X described another incident. It is that incident which is now the subject of the fresh evidence proffered by the Crown. She had not spoken to anyone connected to the Truscott matter about this incident before speaking to the police officer in October 2002.

[10] Ms. X indicated that she and Mr. Truscott were friends in the summers of 1957 and 1958. Ms. X., Mr. Truscott and a number of other young teenagers regularly congregated at the school near the Air Force base in Clinton. There was apparently very little for them to do in the summertime around the Air Force base. Ms. X. indicated that she and her friends, including Mr. Truscott, spent a lot of their time playing on or near the school property.

[11] Ms. X recalled an occasion, probably in the late summer of 1958 (almost a year before Ms. Harper was murdered), but possibly late in the summer of 1957, when she and Mr. Truscott were at the school looking for something to do. They rode off together on Mr. Truscott’s bike looking for their friends. They found themselves at a cornfield near the Lawson farmhouse. They were both thirteen in 1958.

[12] Ms. X testified that she and Mr. Truscott were having fun together. She could not recall how they came to go into the cornfield. She thought they went about twenty-five feet into the field. The corn was quite high, but Ms. X. could not say whether she and Mr. Truscott could be seen by anyone standing outside of the cornfield.

[13] Ms. X testified that she and Mr. Truscott were running around in the cornfield in a playful manner when Mr. Truscott made advances towards her. He tried to hug and kiss her and tried to put his hand down her pants. They tussled briefly and may have fallen to the ground. Ms. X yelled at Mr. Truscott to stop and pushed him away. Mr. Truscott stopped and they left the cornfield. Ms. X could not say how many minutes they were in the cornfield. They left together on Mr. Truscott’s bike. Ms. X could not recall whether Mr. Truscott took her back to the school or to her home.

[14] Ms. X testified that she did not recall being scared by what Mr. Truscott did, although she said she was surprised when he tried to put his hand down her pants and upset because he nearly ripped her new underwear. Ms. X. remembered the incident because it was the first encounter she had of that nature. When she learned of Ms. Harper’s death a year later, she thought to herself that it could have been her. Ms. X did not mention the incident to anyone until a few years after it had happened. As far as she was concerned at the time, she had “handled it”.

[15] Ms. X. also testified that she had never seen Lynne Harper hitchhike. She did not know whether anyone who lived on the base routinely hitchhiked into the nearby towns. She did not hitchhike.

[16] Mr. Truscott was asked about Ms. X.’s statement by Justice Kaufman. He denied that the event described by Ms. X. occurred. Counsel for Mr. Truscott stand by that denial, however, they acknowledge that for the purpose of assessing the claim that Ms. X.’s evidence is inadmissible, the court should assume that the evidence is accurate and reliable.

III

Should the Court Rule on Admissibility Without Hearing the Evidence?

[17] The parties agree that the court can receive this evidence if its admission is “in the interests of justice”. The parties further agree that the exercise of this court’s discretion is guided by the well-known criteria for the admissibility of fresh evidence on appeal: see Criminal Code, R.S.C. 1985, c. C-46, s. 683(1); R. v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C); R. v. Babinski (1999), 135 C.C.C. (3d) 1 (Ont. C.A.).

[18] The Crown argues that the ultimate admissibility of Ms. X’s evidence will depend on the issues raised on the Reference and the content of any other evidence that this court may receive. The Crown submits that this evaluation can only be made at the end of the proceedings when all of the issues have clearly crystallized and all of the proposed fresh evidence is before the court.

[19] Counsel for Mr. Truscott contend that the proffered evidence is clearly irrelevant and that this court can so rule without hearing the testimony of Ms. X. Counsel analogize the present situation to that which arises at trial where there is an issue as to the admissibility of evidence. If the dispute over the admissibility of the evidence turns on its relevance or some other precondition to admissibility, trial judges routinely determine the admissibility of the evidence based on a summary of the anticipated evidence rather than hearing the entirety of that evidence on a voir dire: e.g. see R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.), leave to appeal to S.C.C. refused (1970), 1 C.C.C. (2d) 68n (S.C.C.).

[20] The Crown’s submission that we should hear the evidence and reserve on its ultimate admissibility would have great force if the challenge to the admissibility of this evidence depended on whether the evidence, taken with the rest of the proffered fresh evidence, could reasonably be expected to affect the result of the Reference. That kind of assessment, which ultimately goes to the probative value of proffered evidence, can only be made in the context of the entire record and argument: see R. v. Stolar (1988), 40 C.C.C. (3d) 1 at 10 (S.C.C.).

[21] The objection made to the admissibility of the proffered evidence does not go to its probative value. The objection is directed at relevance, a precondition to the admissibility of evidence. Counsel for Mr. Truscott submit that a review of the substance of the proffered evidence demonstrates beyond peradventure that it is irrelevant to any material fact in issue in these proceedings. Fresh evidence offered on appeal is only potentially admissible if it complies with the rules governing the admissibility of evidence in a criminal trial: R. v. O’Brien (1977), 35 C.C.C. (2d) 209 at 216-17 (S.C.C.). Relevance is the first rule of admissibility.

[22] Evidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely: R. v. J.(J.-L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487 at para. 47 (S.C.C.); R. v. Watson (1996), 108 C.C.C. (3d) 310 at 323-24 (Ont. C.A.); R. v. B.(L.) (1997), 116 C.C.C. (3d) 481 at 492-93 (Ont. C.A.), leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 524. Evidence will be irrelevant either if it does not make the fact to which it is directed more or less likely, or if the fact to which the evidence is directed is not material to the proceedings.

[23] Relevance is contextual in that it depends on the facts in issue, the position taken by the parties in respect of those facts, and the other evidence adduced in relation to those facts: see R. v. Arp (1998), 129 C.C.C. (3d) 321 at 338 (S.C.C.). Because relevance is contextual, a court will often be unable to determine relevance at the time the evidence is proffered, but will receive the evidence conditionally and determine the relevance of the evidence after the evidentiary picture has been fully developed. It does not follow, however, that because relevance often cannot be determined when the evidence is tendered, that relevance should not be addressed when the evidence is tendered. If a court is satisfied when the evidence is tendered that the evidence is irrelevant, it should so hold and refuse to admit the evidence. A court should not hear evidence on the chance that it might somehow, at some time, in some way become relevant in the proceedings.

[24] We are satisfied that we can rule on the relevance of the proffered evidence without hearing the testimony. It is clearly irrelevant to any material fact in issue in these proceedings. The four arguments made by the Crown in support of admissibility will be addressed in more detail below. It is sufficient at this juncture to say that these arguments fail either because the fact to which the Crown contends Ms. X.’s evidence is relevant is not a material fact in issue in these proceedings, or because the evidence of Ms. X. as a matter of logic and human experience does not render more or less likely a fact that is in issue in these proceedings.

[25] Before addressing the specific arguments made by the Crown, we stress that this ruling is given in the context of the record on the Reference and the proposed fresh evidence offered by the parties at this stage of the proceedings. We do not agree with Crown counsel that statements or assertions allegedly made by Mr. Truscott that are in the public domain, but form no part of this record can somehow give the proposed evidence of Ms. X. relevance in these proceedings. Nor do we agree with Crown counsel that we can find relevance and hence admissibility based on arguments or material put before Justice Kaufman on Mr. Truscott’s behalf. Finally, we do not agree with Crown counsel’s submission that we can find relevance based on arguments or further evidence that may or may not be advanced or adduced on behalf of Mr. Truscott in these proceedings. If at some stage of these proceedings Mr. Truscott should advance evidence or make an argument that Crown counsel contends gives relevance to Ms. X.’s evidence, Crown counsel can renew the motion to adduce Ms. X’s evidence.

IV

The Specific Arguments Made by the Crown

(a) Is the evidence of Ms. X. admissible to rebut Mr. Truscott’s evidence of good character?

[26] The Crown submits that Mr. Truscott has put his character in issue in these proceedings and that the evidence of Ms. X. can rebut Mr. Truscott’s assertion that he is a person of good character and, therefore, he is both credible and unlikely to have raped and murdered Lynne Harper. To succeed on this argument, the Crown must show first that Mr. Truscott has put his character as a fourteen-year-old boy in issue in these proceedings, and second, that if his character is an issue, the evidence of Ms. X. is admissible to rebut evidence of good character.

[27] We doubt Ms. X.’s evidence would be admissible to rebut evidence of good character even if it could be said that Mr. Truscott’s character as a fourteen-year-old boy is in issue on this Reference. Generally speaking, the Crown cannot lead evidence of specific acts suggesting bad character to rebut character evidence led by an accused: R. v. Brown (1999), 137 C.C.C. (3d) 400 at 414-15 (Ont. C.A.).

[28] In any event, there is nothing before the court to support the claim that Mr. Truscott will ask the court to consider fresh evidence to the effect that when he was fourteen, his character was such that he was not the kind of person who would have committed the crime alleged against him.

[29] In their written submissions, Crown counsel put considerable reliance on statements allegedly made by Mr. Truscott that are not part of the record on this Reference. For example, Crown counsel refers to certain statements allegedly made by Mr. Truscott in a book he co-authored in 1971. The submission that an accused can put his character in issue in criminal proceedings through statements made outside of the confines of those proceedings, which form no part of the record thereof, is both novel and meritless.

[30] Crown counsel’s further submission in its reply factum to the effect that because Mr. Truscott’s statements are potentially admissible, the court can have regard to the statements even though they are not before the court is equally devoid of merit. If the Crown wishes to make certain out-of-court statements made by Mr. Truscott part of the proposed “fresh evidence” for the purposes of this Reference, it is free to attempt to do so. We would add, although it should be unnecessary to do so, that Mr. Truscott does not put his character in issue if the Crown chooses to adduce statements made by Mr. Truscott which amount to assertions of good character: see R. v. Bricker (1994), 90 C.C.C. (3d) 268 at 278 (Ont. C.A.), leave to appeal to S.C.C. refused (1994), 92 C.C.C. (3d) vi; R. v. Wilson (1999), 136 C.C.C. (3d) 252 at 265 (Man. C.A.), leave to appeal to S.C.C. refused (1999), 139 C.C.C. (3d) vi (S.C.C.).

[31] We also reject the submission that Mr. Truscott has put his character in issue in these proceedings by statements he made before Justice Kaufman. Those statements, like all other testimony before Justice Kaufman, are part of the record on this Reference. The court has, however, distinguished between material that forms part of the record and material that the parties may seek to rely upon as fresh evidence: see our endorsement dated May 25, 2006. To this stage of the proceedings, counsel for Mr. Truscott has not attempted to put any testimony from Mr. Truscott before this court as fresh evidence. Were counsel to do so, the question of whether that testimony puts Mr. Truscott’s character in issue would depend on the content of the particular testimony offered as fresh evidence and not on the content of all that Mr. Truscott said to Justice Kaufman. The issue insofar as the admissibility of Ms. X.’s evidence turns on whether Mr. Truscott has put his character in issue on the Reference, not whether his character was somehow in issue before Justice Kaufman.

[32] We add one further observation. It seems strained, if not inaccurate, to speak in terms of Mr. Truscott putting his character in issue before Justice Kaufman. The proceedings before Justice Kaufman were not adversarial and Mr. Truscott was not a party to those proceedings. Justice Kaufman was conducting an inquiry to assist the Minister of Justice in the exercise of his discretion. Mr. Truscott, like many other individuals, appeared voluntarily before Justice Kaufman and answered questions posed by Justice Kaufman and his counsel. Those questions were wide-ranging and were not constrained by the rules of evidence or by an existing lis between parties, as would be the case in adversarial proceedings. It is difficult to understand how the concept of putting one’s character in issue has any application in the type of inquiry conducted by Justice Kaufman.

[33] The Crown further submits that Mr. Truscott has put his character in issue by suggesting in his proposed fresh evidence and elsewhere that there are other persons who were more likely to have killed Ms. Harper than him. Crown counsel equates Mr. Truscott’s position to that of an accused who points to a third party as the perpetrator and leads evidence of that third party’s disposition to commit the criminal act in issue. In those cases, courts have held that an accused has put his own disposition to commit the criminal act in issue: see R. v. McMillan (1975), 23 C.C.C. (2d) 160 (Ont. C.A.), aff’d, (1977), 33 C.C.C. (2d) 360; R. v. Parsons (1993), 84 C.C.C. (3d) 226 (Ont. C.A.).

[34] The Crown’s analogy fails. We do not understand counsel for Mr. Truscott to tender fresh evidence for the purpose of identifying a third party perpetrator. Counsel for Mr. Truscott claim that the police failed to identify and adequately investigate other named and unnamed potential suspects because the police had rushed to judgment against Mr. Truscott. Counsel also argue that inadequate disclosure by the Crown of the potential involvement of others prevented Mr. Truscott’s counsel from effectively investigating other potential suspects and assisting Mr. Truscott in establishing his innocence. As we understand it, counsel will argue that the inadequate investigation and the failure to provide the required disclosure taints both the fairness of the process and the reliability of the verdict.

[35] The arguments outlined above do not purport to identify a third party as the likely killer of Ms. Harper or to assert that the third party had a propensity to commit acts of violence. Mr. Truscott does not put his character as a fourteen-year-old boy in issue by alleging that the initial police investigation was badly flawed and that he was unfairly treated by the prosecution at his trial.

[36] The final argument made by the Crown to support its claim that Mr. Truscott has put his character in issue rests on the assertion that Mr. Truscott has attacked the character of the victim, thereby putting his own character in issue: see R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 at 497-98 (Ont. C.A.).

[37] There is nothing in the record as a whole, much less in the fresh evidence proffered on behalf of Mr. Truscott, that offers the faintest support for the contention that Mr. Truscott has attacked the character of the victim. Counsel for Mr. Truscott have expressly disavowed any intention of impugning the victim’s character in any way.

(b) Is the evidence of Ms. X. admissible to challenge the credibility of Mr. Truscott?

[38] The Crown submits that Mr. Truscott’s credibility is a material fact in issue in these proceedings and that Ms. X.’s testimony can be used to undermine that credibility.

[39] This submission is not easy to understand. It rests on the assertion that Mr. Truscott, having been disbelieved by the Supreme Court of Canada when he testified on the 1966 Reference, must “rehabilitate” his credibility in these proceedings. In effect, the Crown argues that Mr. Truscott starts this Reference with a presumption that he is not credible and must convince this court that his denial of any involvement in Ms. Harper’s death is credible.

[40] The Crown’s submission misconceives the nature of these proceedings. As directed by the Minister of Justice, the Reference turns on the effect of the fresh evidence received by this court. Mr. Truscott’s testimony before the Supreme Court of Canada in 1966 and the assessment of his credibility by the majority of that court are part of the record before this court on the Reference, but are not part of the fresh evidence. Credibility can only be a fact in issue in these proceedings insofar as it relates to the credibility of persons whose evidence is offered as fresh evidence on the Reference. To this juncture, Mr. Truscott has not given any testimony in these proceedings. His credibility cannot be a fact in issue unless and until he offers testimony which he contends should constitute part of the fresh evidence considered by this court: see R. v. Knuff (1980), 1980 ABCA 23, 52 C.C.C. (2d) 523 at 531-32 (Alta. C.A.).

[41] Nor, as argued by the Crown, does Mr. Truscott put his credibility in issue by leading evidence in these proceedings that challenges the veracity and reliability of various aspects of the Crown’s case. The effectiveness of the attack on parts of the Crown’s case is in no way dependent on Mr. Truscott’s credibility. For example, the probative force of the fresh evidence challenging Ms. Gaudet’s credibility in no way depends on Mr. Truscott’s credibility as a witness.

[42] There is also no merit to the suggestion that Mr. Truscott has put his credibility in issue by adducing evidence in these proceedings that potentially supports the exculpatory version of events that he gave in his statements to the police in 1959. Those statements were introduced at trial by the Crown who then set out to demonstrate that they were false. It would be passing strange if the Crown could effectively put an accused’s credibility in issue and open the door to evidence challenging his credibility at large by leading evidence of an exculpatory statement. Certainly, the Crown can challenge the veracity of the contents of the exculpatory statement, but it cannot do so by attacking the accused’s credibility at large as though he had testified and presented the exculpatory version of events in his testimony.

[43] Our conclusion that Mr. Truscott’s credibility is not in issue in these proceedings should not be taken as an implicit acceptance of the Crown’s submission that Ms. X.’s evidence could be received to challenge his credibility. To the contrary, even if Mr. Truscott were to testify, it may well be that he could not be cross-examined on the event described by Ms. X.: see R. v. Davison (1974), 20 C.C.C. (2d) 424 at 444 (Ont. C.A.), leave to appeal to S.C.C. refused (1974), 20 C.C.C. (2d) 424n. Furthermore, even if he could be cross-examined on the event, and assuming he denied that it occurred, the collateral fact rule might foreclose the Crown from leading the evidence of Ms. X. to contradict that denial: see S.C. Hill et al., McWilliams Canadian Criminal Evidence, 4th ed. (Aurora: Canada Law Book, 2006), Ch. 6.

(c) Is Ms. X.’s testimony admissible to support the credibility of Jocelyne Gaudet’s testimony?

[44] At Mr. Truscott’s trial in 1959, Ms. Gaudet, who was then thirteen years old, testified for the Crown. She testified that she knew Mr. Truscott and Ms. Harper. She did not “hang around” with Mr. Truscott and considered him an acquaintance rather than a friend. She testified that a day or two before the homicide, Mr. Truscott had invited her to go into the woods on Lawson’s property to see some newborn calves. She gave evidence that on June 9, the day Ms. Harper disappeared, Mr. Truscott came to her home around supper time and invited her to go see the calves. She told him that she would try to meet him on the road later that evening. Ms. Gaudet gave evidence about going to the road and to Lawson’s property and looking for Mr. Truscott in the early evening of June 9. She never did find him.

[45] It was the Crown’s position at trial that Mr. Truscott was on the county road and around the area of the school waiting for Ms. Gaudet. The Crown theorized that when Ms. Gaudet did not show up, Mr. Truscott went off with Ms. Harper as a substitute.

[46] The defence challenged Ms. Gaudet’s evidence at trial. In these proceedings, counsel for Mr. Truscott are tendering fresh evidence to challenge her credibility and the reliability of her trial testimony. Whether or not Mr. Truscott had arranged to meet Ms. Gaudet as she testified to at trial is a fact in issue in these proceedings. Consequently, unlike the Crown’s arguments based on Mr. Truscott’s character and credibility, this argument clears the first relevance threshold. The evidence is offered in respect of a fact in issue. Its relevance depends on whether Ms. X.’s evidence could, as a matter of logic and human experience, make it more probable that the events described by Ms. Gaudet occurred.

[47] The Crown submits that Ms. X.’s testimony is relevant because of the many similarities between the event described by Ms. X. in her proposed testimony and Ms. Gaudet’s testimony. The Crown contends that in the absence of any possibility of collusion between Ms. X. and Ms. Gaudet, the fact that Ms. X. describes an incident involving Mr. Truscott that was very similar to the event described by Ms. Gaudet gives the latter’s evidence added credibility and, therefore, makes it more probable that the event described by Ms. Gaudet occurred.

[48] The relevance argument depends on the existence of similarities between the two events in question. We see no similarity of any significance. According to Ms. X.’s proposed testimony, she and Mr. Truscott were friends who routinely “hung around” at the school. On the day in question, they happened to be at the school together, as they often were, and went looking for friends. They ended up in the cornfield where playful interaction turned to an unwanted sexual advance.

[49] Ms. Gaudet’s evidence described a very different situation. She testified that although she was not a friend of Mr. Truscott, he approached her more than once in the day or two before Ms. Harper went missing with the suggestion that they go to a specific place, the bush on Mr. Lawson’s property, for a specific purpose, to see newborn calves. She also gave evidence about Mr. Truscott’s efforts to firm up their plans to go to this location.

[50] In our assessment, the fact that Mr. Truscott and a girl from his circle of friends ended up in a cornfield near or on Mr. Lawson’s property in the summer of 1958 does not assist in any way in deciding whether he invited an acquaintance to go to the bush on Mr. Lawson’s property to see newborn calves almost a year later.

[51] Finally on this point, even if there were sufficient similarities between the proposed evidence of Ms. X. and the evidence of Ms. Gaudet to justify admitting the evidence to buttress Ms. Gaudet’s testimony, that reasoning would not justify admitting the evidence of Ms. X. pertaining to the sexual assault. Ms. Gaudet’s evidence included nothing about a sexual purpose on the part of Mr. Truscott in inviting her to go see the newborn calves. As counsel for Mr. Truscott observed in their submissions, a sexual purpose can be assigned to the arrangement with Ms. Gaudet only if one first assumes that Mr. Truscott raped and killed Ms. Harper. As Ms. Gaudet’s evidence made no reference to any sexual purpose, Ms. X.’s testimony concerning Mr. Truscott’s sexual advances while they were in the cornfield could not possibly make Ms. Gaudet’s evidence more credible. Consequently, even if the Crown’s argument were to succeed, it would justify receiving only the evidence that Ms. X. and Mr. Truscott went to a cornfield together on or near Mr. Lawson’s property about a year before the homicide.

(d) Is Ms. X.’s testimony admissible as circumstantial evidence identifying Mr. Truscott as Ms. Harper’s murderer?

[52] The identity of Ms. Harper’s killer, or more accurately whether Mr. Truscott was her killer, is a fact in issue in these proceedings. The Crown submits that there are “remarkable similarities” between the evidence of Ms. X. and the known facts surrounding the murder of Ms. Harper that would reasonably support the inference that the same person committed both acts.

[53] Where acts of other discreditable conduct by an accused are offered as evidence to identify the accused as a perpetrator, similarities between the events in issue must be sufficient to warrant a finding that the acts were likely committed by the same person: R. v. Arp (1998), 129 C.C.C. (3d) 321 at 338 (S.C.C.). Put somewhat differently, the events must be sufficiently similar that the possibility that those similarities are the product of mere chance is so slight as to justify an inference that the acts were committed by the same person: see R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at para. 91 (S.C.C.).

[54] In our view, if the event described by Ms. X. is sufficiently similar to the circumstances surrounding Ms. Harper’s death so as to reasonably justify the inference that the same person committed both acts, then the Crown has established the relevance of Ms. X.’s evidence to the issue of identity. The ultimate admissibility of her evidence would depend on an evaluation of its probative value versus its potential prejudicial effect: see R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at para. 91 (S.C.C.).

[55] The Crown’s contention that there are “remarkable similarities” between Ms. X.’s evidence and the circumstances surrounding Ms. Harper’s murder focuses on relatively innocuous similarities between the events, such as that they both occurred on or near the Lawson property, while ignoring striking, if not overwhelming, differences between the two events. Ms. Harper was the victim of rape and murder. Ms. X. was the “victim” of a clumsy sexual advance by a young friend that she quickly and effectively brought to an end before any harm was done. If anything, Ms. X.’s testimony would suggest that Mr. Truscott would not react violently had he made sexual advances to Ms. Harper that were rejected by her.

[56] In their factum, counsel for Mr. Truscott say this:

A similar fact analysis requires that [Ms. X.’s] evidence about a brief, non-consensual, sexual overture in one of Lawson’s fields which came to a halt when she resisted makes it likely that the appellant took Lynne Harper into Lawson’s Bush, made sexual advances to her, and responded to resistance by raping and strangling her. Insisting upon a comparison between a ride on a bicycle that culminated in a minor tussle and a return home with the savagery which killed Lynne Harper in Lawson’s Bush ignores the vast gulf between the two incidents (assuming there was an incident between the appellant and [Ms. X.]). [Ms. X.] describes an episode which is commonplace among young teenagers in human interaction.

[57] We agree with this submission. The evidence of Ms. X. has no forensic ability to identify Mr. Truscott as the killer.

V

The Request for a Non-Publication Order

[58] The final point we must consider is counsel for Mr. Truscott’s request for a non-publication order. In particular, counsel request that in the event that this court rules Ms. X.’s evidence to be inadmissible, there should be a ban on publication of the testimony and statements of Ms. X., and all evidence and submissions associated with it, until the court’s judgment has been delivered on the appeal. Counsel further submit that once judgment is delivered, the publication ban should continue unless and until there is a successful application to set it aside.

[59] Following the usual procedure in fresh evidence applications, the statement provided by Ms. X. to Justice Kaufman’s investigator, her testimony before Justice Kaufman and the transcript of her interview with the Crown were filed under seal pending a ruling on their admissibility. The facta filed on the motion to determine admissibility necessarily referred to the contents of the statement, testimony and interview and were also filed under seal. In light of our conclusion that the evidence of Ms. X is inadmissible, counsel for the Crown and Mr. Truscott agree that the material filed under seal should remain under seal.

[60] Our reasons for judgment on this application have set out in summary form the evidence given by Ms. X. The position of counsel for Mr. Truscott is that this part of our reasons should not be available for perusal by the public. Counsel’s position is that public disclosure of even this summary of the incident described by Ms. X., which of course Mr. Truscott denies, could unduly embarrass Mr. Truscott and hurt a reputation he has spent years rebuilding. Counsel also submit that any public disclosure of the incident described by Ms. X. in the course of the Reference proceedings could deter others who were wrongfully convicted from following the difficult route taken by Mr. Truscott for fear that the process could lead to public dissemination of previously unknown and ultimately untrue, embarrassing allegations against them.

[61] Limitations on public access to court proceedings, including reasons for judgment, are very much the exception. The public is entitled to know why our court has decided this motion in the way that it did. A summary of the relevant factual background is essential to this understanding.

[62] We are satisfied that any reasonable person reviewing our reasons would not regard Ms. X.’s description of the incident involving her and Mr. Truscott as speaking to his character when he was a young teenage boy, much less to his character now. Nor do we think public dissemination of information pertaining to an incident like that described by Ms. X. has any realistic chance of deterring anyone from pursuing their legal remedies if they believe they were wrongfully convicted.

[63] We conclude that justice requires that our ruling on this motion and our reasons for our ruling should be a matter of public record.

VI

Conclusion

[64] The proposed evidence of Ms. X. is irrelevant at this stage of the proceedings to any fact in issue and the Crown’s application to tender it is dismissed.

RELEASED: “RRM” “OCT 18 2006”

“R.R. McMurtry C.J.O.”

“Doherty J.A.”

“K.M. Weiler J.A.”

“M. Rosenberg J.A.”

“M.J. Moldaver J.A.”