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Posted on 07/12/2008 3:32:18 AM PDT by Clive

On Monday the province of Ontario announced it is paying $6.5-million to Steven Truscott in compensation for nearly hanging him about 50 years ago. Back then all except a handful of people believed that Truscott, 14 in 1959, raped and killed 12-year-old Lynne Harper. Today all except a handful of people believe that he didn't.

Did some cutting-edge science, such as DNA, change our minds? Or did somebody confess? Not really. What changed was the Zeitgeist, the spirit of the times. That's how we saw it then, and that's how we see it today.

Last year's Ontario Court of Appeal's acquittal of Truscott rested essentially on the same evidence that was available to the tribunals that convicted Truscott decades earlier -- a 1959 jury in Goderich, Ont., an appeal court in 1960 and an 8-1 majority of the Supreme Court of Canada in a special referendum in 1967 -- with one exception. A pathologist's estimate of an alternate time of death for the victim in an earlier report wasn't made available to previous courts. That report gave Truscott an indisputable alibi. Had it been available, it may have raised a reasonable doubt in the minds of the original jurors. It certainly did in the minds of the Appeal Court judges.

To put it another way, when the spirit of the times came calling, it gave Chief Justice Roy McMurtry and his brother justices a peg to hang their hats on. It wasn't much different, though, from the evidentiary peg the jury seemed ready to hang Truscott from in 1959. What was different were the times.

Hindsight, as the popular saying goes, is 20-20. Looking at things in retrospect, it's amazing how self-evident they seem. One can't believe that a generation ago they appeared in a different light. Yet they did, to eminent, erudite, fair-minded people -- all except a handful. Most would have said, well, 12 of Truscott's peers convicted him in a trial unanimously upheld as fair by an appeal court, then reconfirmed by the highest court of the land seven years later.

Fifteen judges reviewed Truscott's case in three levels of court, and 14 of them said it was okay to convict him.

Guess what? The one judge out of fifteen who said it wasn't okay turned out to be right. At least, it was Justice Emmett Hall's opinion that was endorsed to the tune of $6.5-million by posterity. Justice Hall wrote in his 1967 dissent that Truscott didn't have a fair trial--and it turns out he didn't.

In the early 1990s, I scripted (with Guy Gavriel Kay) and produced a TV movie about the Truscott case for the CBC series The Scales of Justice, hosted by the criminal lawyer Eddie Greenspan. We came away from our research feeling that the evidence raised a reasonable doubt about Truscott's guilt, and since the law entitled him to the benefit of such a doubt, a properly instructed jury ought to have acquitted him. In other words, we concluded pretty much as the Ontario Court of Appeal did 15 years later.

At the time, several correspondents wrote to say that it was unseemly, even impertinent, for journalists, writers, TV-types, maverick lawyers, or crusading activists not to acquiesce in jury verdicts or appellate court opinions. How did dissenting scribblers such as Kay and me -- or Isabel Lebourdais, whose 1966 book was the first to champion Truscott's innocence --have the gall to question the authorities? Who did we think we were?

"If a competent court makes a finding," an acquaintance said to me around that time, "I consider the matter settled. Are you telling me I am wrong?"

I assured him it wasn't wrong for any person to take the word of duly constituted authorities, if that's how he or she wanted to live. Only it meant living dangerously. Thinking for oneself was safer.

Electing not to think for oneself, letting the authorities do one's thinking, is a human right. I'd never blame anyone for exercising his or her inalienable right to take the government's word -- any branch of government's, including the judiciary's --for anything.

But acquiescing uncritically in the last word of duly constituted authorities means acquiescing uncritically in a miscarriage of justice. It means acquiescing in the wrongful arrest of a Susan Nelles or the wrongful conviction of a Donald Marshall Jr., a Thomas Sophonow, a David Milgaard, a Guy Paul Morin, and many others. It means, as we will discover one day, acquiescing in the wrongful conviction of Conrad Black. It means acquiescing in the possibility of a 14-year-old boy being innocently hanged. (At least theoretically; Truscott was never in any real danger of being executed.)

Anyway, you take the authorities' word if you like. I'm not adventurous enough for that. As a timid soul, I'll play it safe and try figuring things out for myself.

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