You cannot be declared innocent under Canadian law because well you are innocent, until proven guilty. Once proven guilty you can only be 'acquitted'. Is that so hard to understand?
You can however be declared 'innocent' by the court, however that cannot be done in an appeal case. It requires a new court case.
Though the court concluded that Truscott's conviction was a "miscarriage of justice," they fell short of declaring him factually innocent. Lockyer said without DNA evidence available to clear him once and for all, the declaration of complete innocence is impossible.
Of course the Blogging Tories are the same folks who considered Maher Arar a terrorist even after he was found to have been framed up by the RCMP and CSIS.
And like the Arar case they are all upset over the idea that a man wrongfully jailed may be entitled to compensation.
The judge mulling Steven Truscott’s right to compensation says the issue turns on the fact Truscott was not declared innocent.
In this case the bleeding heart Tory is sympathetic to the Harper family who believes in their heart of hearts that Truscott is guilty. Of course Lynne's father believes that, he has too. His world shattered the day his daughter died.
Like a lot of other folks he was stationed at the military base in the town.
At the time of Lynne's killing, the Harpers had only been living at RCAF Clinton, a base in southwestern Ontario, for about two years. Mr. Harper was a flight lieutenant. His wife, Shirley, stayed home to care for their three children, Lynne, 12, Barry, who was in Grade 10, and Jeffrey, who was only four years old when Lynne's body was found in Lawson's Bush.
And he would have known this guy who may have been the real killer.
A convicted pedophile stationed at the RCAF base at Clinton at the time of Lynne Harper's death. The OPP learned about him in 1997 after being contacted by a retired London, Ont., police detective, who felt the man was capable of murdering a child.
The man had pleaded guilty to sexual offences and possession of child pornography in the late 1980s. When police searched his house in connection with those offences, they found an eight-volume transcript of Truscott's hearing before the Supreme Court of Canada in 1966-67.
An airman who had been stationed at Clinton prior to 1959. He was stationed at Aylmer at the time of the murder, but had a home in Seaforth, close to the base, which he visited frequently.
He was identified by CBC's the fifth estate as Sgt. Alexander Kalichuk, who died in 1975.
A new investigation into the case is needed since this was clearly a 'miscarriage of justice'. Now it is a case of actually finding Truscott innocent that would require a new police investigation.
MACINTYRE: In the 1950's Clinton was a military base … home and workplace for thousands of airmen …among them, at least one troubled individual whose medical files should have flagged him as a suspect.
Two years ago the fifth estate, assisted by the National Archives in Ottawa, retrieved a 900 page dossier on an acquaintance of the Harper family, once stationed at Clinton … a sexual predator with an unhealthy interest in young girls.
His name was Alexander Kalichuk.
Sgt. Kalichuk was a troubled man, a heavy drinker with a history of sexual offenses. He lived in this farmhouse with his wife and three children ... less than a 20 minute drive from the Clinton base. He worked as a supply technician there until 1957... He transferred to another base, in Aylmer, about a one hour drive away ... but made frequent trips back to Clinton ... where Lynn Harper's father was the senior supply officer.
Kalichuk's record of sex offenses went back at least a decade. In 1950 he had two convictions for indecent exposure in Trenton, where he was stationed.
About three weeks before Lynne Harper's murder he stalked three young girls on a country road outside St. Thomas. When two of them had gone home, he tried to lure the third into his car. Nancy Knowles … now Nancy Davidson …was 10 years old.
Today she remembers how the car followed at a distance until she was alone.
DAVIDSON: He asked me if I would come around and get in the car because he wanted me to pick out the prettiest present and I said, No. And then he pulled out - he had this brown paper bag and he pulled out this underwear.
MACINTYRE: Little kid's underwear.
DAVIDSON: Yeah, yeah.
MACINTYRE: And what did he want?
DAVIDSON: He wanted me to pick out the prettiest pair of underwear. He had a bottle between his legs. His eyes were bulgy and he had that glassy look and there were dark circles and I knew he was drinking and I just wanted to get away.
MACINTYRE: Kalichuk was caught and charged and appeared in Elgin County court a week later.
In spite of his prior convictions, the judge released him with a warning.
Three weeks after Lynne Harper's murder, Kalichuk entered a psychiatric hospital. According to records he was suffering from anxiety, depression and guilt.
Kalichuk was released but apparently far from cured. A heavily censored confidential military memo about "Sgt Kalichuk's aberrations" warned cryptically that when he was later posted at a base near Clinton, ongoing incidents were serious enough to get into the local paper.
In fact, police were warning about the activities of an unidentified molester who was preying on young girls from a car ... through all of which, Sgt. Kalichuk managed to avoid particular attention as a suspect ....in those incidents ... and, most significantly of all, in the murder of 12-year old Lynn Harper.
Kalichuk spent the rest of his life in and out of psychiatric hospitals and died in 1975 from alcoholism.
JULIAN SHER: Alexander Kalichuk is really just the worst example of a long list of potential suspects ignored that showed that the military and the police really were not interested in a serious investigation into who killed Lynn Harper.
The producer of the fifth estate documentary on Truscott two years ago continued to investigate the case independently … and has now written a book: Until You are Dead. Julian Sher.
SHER: In any rape case it would be normal for the police to investigate likely suspects in the area, people with a history of, of rape convictions, sexual deviants. In this case police didn't do that. Within 24 hours they focused on Steven. We uncovered names of people the police could have looked at. There was a man doing electrical repair work on the base who knew the Harper's who, according to one member of his family, said after Lynn Harper's murder, She had it coming to her. He had a rape conviction several years prior to the murder. He was never looked at. There was a lifeguard on the base and Lynn Harper was a very active swimmer who, according to members of his family, continued to engage in forms of sexual abuse and assault throughout the '60s and always was very nervous about the Harper case. He was never investigated by police. There were other men around the area who had known convictions and the police clearly didn't do their basic homework.
Ontario Provincial Police Commissioner Julian Fantino is not ruling out a renewed search for Lynne Harper's real killer, but he admits his officers would face "major hurdles" in trying to solve the murder for which Steven Truscott was wrongly convicted in 1959.But the likelihood of that happening is moot.
"The trail has gone cold," Sher said. "A lot of these people are dead. I think that unlike the cold cases on TV, this case is going to stay cold because there was never a serious investigation back in 1959."
The point remains that this was a case of a miscarriage of justice from the start,and the result could have meant the hanging of a 14 year old Steven Truscott.
In 1959, Truscott, then 14 years old, was sentenced to hang for the rape and murder of 12-year-old Lynne Harper. The case was a spectacle from the start, as Truscott became Canada's youngest death row inmate, spending 31/2 months in a "death cell" before his sentence was commuted to life in prison.
And it appears that part of the problem was an over zealous cop who decided not to investigate further since he had his boy. Unfortunately this is a common practice that has led to other innocents being railroaded for crimes they did not commit.
Pathologist's kin supports rulingIn the end Justice has been served. The Truscott case opened the debate on capital punishment in Canada, and for fifty years stood as the example of the horror of state murder of someone who could be innocent.
In October 2004, Julia Penistan told the Stratford Beacon-Herald she thought Truscott's conviction should be overturned and she believed her father faced pressure to support the police theory that Truscott was the murderer.
MACINTYRE: The lead investigator in the Harper murder case was a senior Ontario Provincial Police officer from Toronto … Inspector Harold Graham.
His quick disposition of the case and the conviction of Steven Truscott made Graham a legend among Ontario policemen and, before he retired, he'd become the OPP commissioner.
Graham died recently … adamantly rejecting our requests to discuss his biggest bust.
But at least one of his colleagues harboured serious misgivings. He was Corporal John Erskine …one of the three lead officers in the Harper murder investigation.
HARRIS: Well, he was a perfectionist in everything he did. Like it had to be done right or it wouldn't be done at all.
MACINTYRE: Dee Harris is Corporal Erskine's widow and she remembers how he became increasingly distressed by the case.
HARRIS: Oh not right at the start. It was later on in the investigation. He said at that time after he had looked at different fact that he said, I'm sure he's not guilty.
MACINTYRE: But the boss … Inspector Graham … had his mind made up, so the corporal kept his opinion to himself … His widow is still troubled by it.
HARRIS: All the police officers would come back to our house. I know Graham definitely felt he was guilty. He was convinced right at the start. The first day pretty well. You can't decide an investigation in the first day whether they're guilty or not guilty. You don't have enough facts to go on.
MACINTYRE: But after the first day of the Harper murder investigation Inspector Graham clearly believed he had his murderer … even though he originally thought the murder probably happened at 9 o'clock … when Truscott was home watching television.
MACINTYRE: That crucial detail quickly changed. As the police and prosecution prepared their case against their prime suspect in the fall of 1959.
Documents recently uncovered suggest that they suppressed crucial evidence supporting Truscott's claim of innocence.
There was a statement by a nine year-old girl, in clear and accurate detail, that Steven and Lynne crossed the bridge on his bike just as he and two other boys said he did. Neither the defense nor the jury ever saw that statement.
Mrs. Harper testified that is was unlikely that Lynn would ever hitch-hike. But according to three police reports, that's exactly what she and her husband first suspected when Lynn went missing. Neither defense nor jury ever saw those reports.
If there was one piece of evidence that sealed Steven Truscott's fate it was the report by the pathologist, Dr. Penistan, that she died shortly before eight o'clock in the evening of June ninth, 1959. But Dr. Penistan changed his mind about that seven years later … after what he called "an agonizing reappraisal".
He told Harold Graham … by then the assistant OPP commissioner … that Lynne Harper's death could have been at any time in a 48 hour period. Significantly, this was in May of 1966 … just as the Supreme Court of Canada was about to review the Truscott case … It might have been a bombshell … if the justices had known about it. But somebody struck Penistan's name from the list of prospective witnesses before the hearing started.
We've come a long way from the good old days when hanging anyone - let alone a teenager - was an acceptable form of justice. Each time we hear of a murder conviction overturned we give thanks that Canadian lawmakers rejected the state's role as executioner. Each time a conviction is overturned we become more determined that our prison system is one that protects the public, but also treats its inmates with some dignity.Amen.
Ironically it was a Conservative government which commuted Truscott's death sentence.
The Conservative government under then prime minister John Diefenbaker commutes Truscott's sentence to life in prison.
Our New Conservative government would not be so forgiving given their rhetorical fixation on Law and Order and punishing Young Offenders as Adults. After all Harper ain't no Dief the Chief.
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