Still grieving, Lynne Harper's family presses its case that Truscott deserves nothing

The family of Lynne Harper, the 12-year-old girl who was slain half a century ago near a Southern Ontario air force base, has until Tuesday to piece together a last-ditch attempt to bolster their belated effort to avenge the girl's death.

Leslie and Barry Harper, Lynne's father and oldest brother, are making submissions to retired appeal court judge Sydney Robins detailing how their lives were marred in the wake of Lynne's death. The judge will decide whether Steven Truscott, the man whose 1959 conviction for killing Lynne was overturned when he was acquitted this year, should be given monetary compensation for spending 48 years under the cloud of conviction.

In the Harpers' minds, the answer is blatant: He should not.

“They haven't declared him innocent,” Barry Harper said, staunch in a recent interview. “How can they possibly compensate him?”

Photogallery
Harper family photos
Mr. Truscott's acquittal was preceded by a long and arduous fight; he's been battling to clear his name since he was sentenced to death as a teen for Lynne's killing.

Still, the Harpers refuse to divest themselves of the belief that Mr. Truscott is responsible for her death.

In the nearly 50 years since, the Harpers have remained purposefully tucked away from the public. For most of that time they were satisfied, Mr. Harper said, that the courts had taken care of Lynne's case. However, the Ontario Court of Appeal's decision last August to acquit Mr. Truscott reopened a deep wound. Their lives, Mr. Harper said, have now been doubly spoiled, by the loss of young Lynne and by the enduring saga the mystery of her death has become.

It has also created somewhat of an obsession. Since learning of Mr. Truscott's acquittal, Barry Harper, who handles the family's public affairs, has been trying to block the massive provincial payout some legal experts have been forecasting.

Aside from believing that Mr. Truscott does not deserve any money, he worries news of a cash windfall could jeopardize the precarious health of his father, who fell ill in the days after the acquittal.

“He is not taking this well,” Mr. Harper said of his father. “He's gone into some sort of depression. If anything ever does come as far as compensation for [Mr. Truscott], I hope my father is gone to the grave.”

The Harpers' experience sheds new light on an element of wrongful conviction cases that rarely make it into the public view: the dark experience for families of the original victims in the case.

“When there's clearing of an individual … they become a sort of folk hero. They're seen as someone who braved the justice elements and eventually won,” said Bruce MacFarlane, a former deputy attorney-general of Manitoba who now studies wrongful convictions at the University of Manitoba. “Everybody tends to forget there is someone who was killed, and there is a family who remembers that person who was killed, and is grieving.

“That grieving process has been completely reopened. They don't know what to direct their anger towards.”

For now, Barry Harper has chosen Mr. Truscott. It is unclear how much impact, if any, the Harpers' submission will have on Mr. Truscott's compensation. The main argument they'll make to Mr. Robins (with the help of Toronto lawyer Ian Brown, who will be paid by the province of Ontario) will centre around the fact that the Court of Appeal stopped short of declaring Mr. Truscott “factually innocent.”

The current federal/provincial compensation guidelines, written in 1988, stipulate that compensation should be granted only in cases where it is proven that the person did not commit the crime for which he or she was convicted. And, in news media interviews this year, Mr. Robins said himself that the compensation issue will turn on the fact that the court did not find factual innocence.

The question is to what degree.

“In the environment that has developed in Canada in the last five to eight years, factual innocence is a prerequisite,” Mr. MacFarlane said. The hitch, he said, is that there is no way to establish it.

“An innocence hearing is not currently provided for in the Criminal Code,” Mr. MacFarlane said. “What we've seen develop in the last two years is a growing recognition we can't show factual innocence. We have no mechanism for that. And yet, some cases cry out for compensation.”

Working against Mr. Truscott is the fact that many other high-profile wrongful conviction cases in Canada have been resolved in a more clear-cut manner than his, either with the help of DNA or the conviction of the true perpetrator.

For example, both Guy Paul Morin and David Milgaard, who each spent significant time in prison for killings they did not commit, were exonerated with the help of DNA evidence and given large compensation packages ($1.2-million and $10-million, respectively).However, Kent Roach, professor of law at the University of Toronto, said the unique elements of Mr. Truscott's case, including his young age at the time of conviction and the long period of time over which it played out, adds weight to his argument for compensation.

If he is paid, Prof. Roach suggested that the Harper family should also be compensated.

“You don't have to declare a winner between those two sets of victims,” he said.

“The state has obviously let down both sides, albeit in different ways.”

Mr. Harper, though, rejects the notion.

“If someone gave us money, we'd give it away,” he said.