DATE: 20060525

DOCKET: M33835

(C42726)

COURT OF APPEAL FOR ONTARIO

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.

BEFORE:

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

COUNSEL:

James Lockyer, Philip Campbell, Marlys Edwardh and Hersh E. Wolch, Q.C.

for the appellant, Steven Murray Truscott

Rosella Cornaviera, Gregory J. Tweney, Alexander Alvaro and Leanne Salel

for the respondent, Her Majesty the Queen in Right of Ontario

E N D O R S E M E N T

[1] In the context of a Reference to this court directed by the Minister of Justice under s. 696.3(3)(a)(ii) of the Criminal Code, the parties seek the direction of the court on the scope of the issues to be raised on this Reference. We are prepared to decide the matter on the basis of the detailed written submissions that the parties have provided.

[2] Before setting out the scope of the Reference, we provide a brief background of the legal events preceding it in order to put the current Reference in context.

[3] The appellant was convicted of capital murder on September 30, 1959, when he was fourteen-years old. The Court of Appeal dismissed his appeal on January 20, 1960. The Supreme Court of Canada refused his application for leave to appeal on February 24, 1960.

[4] On April 26, 1966, the Governor General in Council directed a Reference of the case to the Supreme Court of Canada, motivated in part by “widespread concern as to whether there was a miscarriage of justice in the conviction of Steven Murray Truscott”. The question referred to the Supreme Court 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?

[5] After hearing the evidence of 26 witnesses, the majority of the Supreme Court of Canada (Hall J. dissenting) concluded that it would have dismissed the appeal: see 1967 66 (SCC), [1967] 2 C.C.C. 285.

[6] On November 28, 2001, the appellant applied to the federal Minister of Justice under s. 690 [now s. 696.1] of the Criminal Code to review his conviction to determine if there was a reasonable basis to conclude that a miscarriage of justice likely occurred. On January 24, 2002, the Honourable Fred Kaufman was retained to conduct an investigation and to provide advice and recommendations to the Minister. His lengthy investigative report was provided to the Minister in April 2004.[^1]

[7] On October 28, 2004, the Minister of Justice granted the Appellant’s s. 696.1 application and referred the appellant’s case to the Court of Appeal on the following terms:

I HEREBY respectfully refer this matter to this Honourable Court pursuant to s. 683.3(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.

[8] The Crown’s position is that the current Reference is limited to the issue of fresh evidence. The Crown further submits that factual issues that the appellant raised on his s. 696.1 application for ministerial review, which the Honourable Fred Kaufman did not view as significant, fall outside the scope of this Reference. According to the Crown, the scope of the Reference should be limited to a consideration of the following two

questions:

(a) Whether the proposed fresh evidence tendered to establish that the “new and significant” archival documents that existed in 1959 and 1966, were not disclosed to the defence, is admissible.

(b) Whether the proposed fresh evidence of witnesses found to offer “new and significant” information, relied upon by the Appellant, is admissible.

[9] The Crown also contends that it is not the function of our court to evaluate the reasoning and decision of the Supreme Court of Canada in the 1966 Reference.

[10] The appellant agrees that the Reference is limited to the issue of fresh evidence. He does not agree that the Honourable Fred Kaufman’s conclusions on what evidence is “significant” should be used by our court to limit the scope of the Reference.

[11] According to the appellant, there are two distinct categories of fresh evidence upon which this court is being asked to admit and act upon. The first relates to witness statements and other documents that were not disclosed to counsel for the appellant at his trial in 1959 nor at the Reference to the Supreme Court of Canada in 1966. The second body of fresh evidence arose between 1959 to the present day and “addresses matters on which the Crown’s case at trial rested”. Some of this second body of evidence was before the Supreme Court in 1966, while other aspects were uncovered during or after the Honourable Fred Kaufman’s investigation.

[12] The appellant submits that he does not seek relief in the Reference on the ground that the Supreme Court’s judgment exhibits legal error; but he does contend that this judgment “is not an impediment to this Court’s plenary jurisdiction, conferred by the Reference, to consider the effects of all the undisclosed and fresh evidence which has come into existence since 1959 on the conviction registered by the jury”.

[13] The terms of the Reference ask us to decide the case as if it were an appeal on the basis of fresh evidence. We are asked to consider the fresh evidence in the context of the entire record to date, not just the trial record, but also the record as it was expanded on the 1966 Reference before the Supreme Court of Canada. We do not agree with the appellant’s suggestion that evidence that was before the Supreme Court in 1966 can constitute fresh evidence for the purpose of the current Reference. 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.

[14] Nor do we agree with the Crown’s submission that the Honourable Fred Kaufman’s comments in his Report on the significance of some of the material placed before him can in anyway serve to limit our determination of what constitutes fresh evidence for the purpose of the Reference. There is nothing in the terms of Reference that would suggest that the Minister of Justice intended that the Honourable Fred Kaufman’s findings should act as a filter on the material that the appellant or the Crown can put before us on the Reference.

[15] The parties agree that the appellant cannot seek to quash his conviction based on legal error in the Supreme Court of Canada’s judgment on the Reference. We also agree that the current Reference is not concerned with reviewing the judgment on the earlier Reference for legal errors. The determination of how, if at all, the Supreme Court’s judgment affects the consideration of the current Reference is best left until after the witness examinations and until after the parties have made their submissions in the final facta and in oral argument.

[16] The appellant also cites jurisprudence from the United Kingdom for the view that the safety of a conviction that occurred in a different legal era can be judged against present day legal standards. Again, the issue of how contemporary legal principles and standards of fairness are to be applied to a case that was prosecuted 46 years ago can be resolved after the fresh evidence is tendered and the parties’ submissions received.

[17] A final point of contention between the parties is the meaning of certain directions that were given by our court on December 14, 2004 to facilitate the fair, just and expeditious hearing of the Reference. In these directions, the court defined the “Record” for the Reference as follows:

The Record shall consist of the entire record available to the Honourable Fred Kaufman in the preparation of his Report to the Minister. The Record may be supplemented by such further material as the parties see fit to tender and the court sees fit to receive (Supplementary Record). Unless otherwise ordered, the Report prepared by Mr. Kaufman shall not form part of the Record.

[18] The Crown submits that the record before the court on the Reference does not include the testimony taken by the Honourable Fred Kaufman under oath and since filed with this Court under seal. The appellant submits that this material is part of the record because of the language of the Reference, which refers to “evidence already heard”, and by virtue of our December 2004 ruling.

[19] We agree with the appellant’s submission that this material is part of the record by virtue of our ruling. However, this does not mean that the transcript evidence will necessarily qualify as fresh evidence. It simply means that the transcripts are available to the parties and to the court on the Reference. The parties will need to satisfy the court that the transcripts of the examinations before the Honourable Fred Kaufman on which they seek to rely are admissible before this court. We point out that absent agreement of the parties dispensing with this requirement, an examination taken under oath before the Honourable Fred Kaufman, but not put in the usual form for fresh evidence applications is not admissible for its truth unless some exception to the hearsay rule applies; either an existing exception or by application of the principled approach to hearsay.

[20] The appellant also submits that the court’s broad definition of the “Record” in this endorsement permits the court to rely on a large background of documentary information that was before the Honourable Fred Kaufman. Again, we agree that by virtue of our December ruling, the documentary information that was before the Honourable Fred Kaufman is available to both the parties and the court. It will be open to the parties to argue whether or not this evidence meets the test for fresh evidence. However, the fact that evidence forms part of the record does not determine the basis of admissibility; in particular, whether it is admissible for its truth. Materials that the parties rely on for their truth must be shown to fall within an established hearsay exception or be otherwise admissible through application or extension of a principled approach as, for example, by application or extension of the principles in R. v. Finta (1992), 1992 2783 (ON CA), 73 C.C.C. (3d) 65 (Ont. C.A.) at 196-204. Additionally, materials forming part of the record may be admissible for non-hearsay purposes on grounds analogous to cases such as R. v. Dixon (1998), 1998 805 (SCC), 122 C.C.C. (3d) 1 (S.C.C.) and R. v. Taillefer (2003), 2003 SCC 70, 179 C.C.C. (3d) 353 (S.C.C.).

“R. Roy McMurtry C.J.O.”

“Doherty J.A.”

“Karen M. Weiler J.A.”

“M. Rosenberg J.A.”

“M. Moldaver J.A.”

[^1]: The Honourable Fred Kaufman’s Report, edited for privacy concerns, was publicly released on November 28, 2005.