TORONTO - Steven Truscott's right to compensation, and how much he will ultimately receive, turns on the fact Ontario's top court failed to find him factually innocent of Lynne Harper's murder, the judge reviewing the issue said Wednesday.
Ontario's top court has declared Truscott the victim of a miscarriage of justice and acquitted him of Harper's 1959 rape and murder. Still, the Ontario Court of Appeal said it could not declare him innocent based on the evidence.
Former Appeal Court Justice Sydney Robins, tasked by the Ontario government with reviewing the compensation issue, said he must first decide whether Truscott is entitled to an award before recommending how much, if any.
"The issue turns on the fact that there was no explicit finding of factual innocence in the case,'' Robins said in a telephone interview.
But it's too early to speculate whether Truscott could be denied compensation based on the innocence issue, he added.
"I'm going to be speaking to all of the stakeholders in that matter and getting such assistance as I can from them before I make any recommendations,'' Robins said.
"It's not going to be my decision. The recommendations will be made to the attorney general.''
On Tuesday, Truscott's lawyer, James Lockyer, said his client should get "every penny he can'' out of the government for the 48 years he spent as a convicted murderer.
Last February, during closing submissions before the Appeal Court, Lockyer asked for an explicit declaration of Truscott's innocence.
"An acquittal and a belief in innocence go hand in hand,'' he argued. "As you move towards one, it is our submission that you inevitably move toward the other.''
The Appeal Court, however, ruled that Truscott -- while a victim of a miscarriage of justice -- had not "demonstrated his factual innocence.''
"To do so would be a most daunting task absent definitive forensic evidence such as DNA,'' the judgment reads.
"Despite the appellant's best efforts, that kind of evidence is not available.''
Lockyer did not return phone calls Wednesday.
All the physical evidence in the case was destroyed in 1967. Harper's body was exhumed last year, but a forensic examination failed to yield any DNA evidence.
With Truscott acquitted, Ontario police are examining the court's decision, Insp. Dave Ross said when asked if Harper's murder would become a cold case file.
"Then we'll be meeting with the Crown attorney's office to evaluate the decision and determine next steps, if any,'' Ross said.
The exonerating power of DNA has proven instrumental in awarding compensation to the wrongly convicted.
David Milgaard spent 23 years in prison for the murder of Saskatoon nursing aide Gail Miller and received $10 million after DNA evidence helped catch the real killer.
Guy Paul Morin was tried twice for the 1984 killing of Christine Jessop, 9, just north of Toronto. Exonerated in 1995 on the strength of DNA evidence, he was awarded $1.2 million in compensation.
Thomas Sophonow, however, was acquitted without the help of DNA by the Manitoba Court of Appeal in 1985 for the murder of a doughnut shop waitress. But it wasn't until 2000 that the province called for a public inquiry and apologized to Sophonow.
Truscott, the youngest Canadian ever handed the death penalty, spent months on death row until his sentence was commuted to life in prison. After a decade behind bars, Truscott was paroled in 1969 and later married and raised a family in Guelph, Ont., under an assumed name.
He has always maintained his innocence, and said Tuesday he was satisfied the Appeal Court's decision has cleared his name.
