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Earlier on Robert Baltovich
| Kyle Unger | James
Driskell | Greg Parsons
| Robert Sanderson | James Lockyer | Brian
Greenspan | New trial ordered
Dec. 2, 2004 | Another Brian
Greenspan appeal, Don Smith set fpr Feb. 2005
Robert Baltovich
(3)
Grossly 'unfair' charge
to jury: appeal
Colin Perkel, Canadian
Press, September 24, 2004
TORONTO -- The jury that convicted
Robert Baltovich of murder in 1992 got ''inflammatory'' and ''unfair''
guidance from a trial judge who failed to give equal weight to
both the Crown and the defence, a court heard Thursday.
Lawyer James Lockyer took direct
aim at Justice John O'Driscoll for projecting an ''aura of guilt''
over Baltovich, charged with killing 22-year-old Elizabeth Bain,
instead of providing an impartial summation of the evidence.
''He dominated the jury with
his own opinions, and he made his own opinions very clear, and
on occasions even belittled the defence,'' Lockyer told a three-judge
panel of the Ontario Court of Appeal.
''The charge was most unfair.''
Lockyer said O'Driscoll made
it seem as if there were ''mountains of evidence'' to show Baltovich
killed Bain in a jealous rage in 1990 and then ''concocted''
alibis to avoid getting caught.
In fact, the case against Baltovich
was circumstantial, weak and based heavily on eyewitness evidence
that was highly suspect - a fact O'Driscoll failed to warn the
jury about, Lockyer said.
At one point during his charge
to the jury, O'Driscoll even tried to suggest that Baltovich's
drastic, close-cropped prison haircut could be interpreted as
a sign he was trying to alter his appearance, Lockyer said.
''The poor man had a haircut
during his preliminary hearing at the jail,'' he sneered. ''I
do not suppose barbers that go into the jail are haute couture.''
Coming as it did 10 days after
closing Crown and defence arguments, O'Driscoll's 60-page charge
would have carried more than its usual weight and been ''overwhelming''
for jurors, Lockyer argued.
He said O'Driscoll used ''inflammatory
expressions'' and played down evidence favourable to the accused.
Innocent actions, such as Baltovich
calling his brother to talk about Bain's disappearance, became
a sign of guilt, Lockyer said.
''That is such an unfair depiction
of the evidence that the jury heard.''
The appeal court is being asked
to throw out Baltovich's conviction or at least order a new trial.
Baltovich's lawyers argue Bain
most likely died at the hand of notorious sex killer Paul Bernardo,
who was prowling the neighbourhood at the time as the unidentified
Scarborough rapist.
Over the course of the hearing,
Justice Michael Moldaver has at times vigorously challenged Lockyer,
even complaining at one point the lawyer was ''building great
conspiracy theories.''
But he seemed unequivocal Thursday
as he sided with the defence about the lopsided approach O'Driscoll
had taken with jurors.
''If your point is the judge
did not deal with (evidence) fairly and did not set out Mr. Baltovich's
position fairly, you are absolutely right,'' Moldaver told Lockyer.
''He never got around, for
the most part, to telling them the defence's position.''
Bain vanished from University
of Toronto's east-end Scarborough campus in June 1990. Her body
has never found. Her bloodstained car was located on a nearby
street a few days later.
At his original trial, the
Crown said Baltovich killed his girlfriend in a jealous rage
because she wanted to end their relationship. He was convicted
of second-degree murder and served eight years of a life sentence
until he was freed on bail four years ago.
Baltovich, who was 26 at the
time of his trial, has always denied killing Bain, who was known
to be a troubled young woman. Initially, he expressed fears that
she might have killed herself.
But O'Driscoll interpreted
that concern as a sign of guilt, devoting nearly half his charge
to a discussion of whether Bain had committed suicide, Lockyer
said.
The judge even ridiculed the
defence for ''promoting'' the idea of suicide - comments Lockyer
called ''grossly over the top,'' since the Crown went out of
its way to discount suicide and the defence never advanced it
as a theory.
Baltovich's high-powered legal
team was scheduled to wrap up its arguments Friday morning, at
which point Crown lawyers are expected to lay out their arguments
for why the conviction should stand.
Moldaver hinted Thursday they're
facing an uphill battle.
''We need to hear from you
on everything we've heard so far,'' Moldaver told the Crown.
''You've got your work cut out for you.''
© Canadian Press 2004
- Judge belittled Baltovich
defence, appeal court told
Ordinary behaviour was read as a sign of guilt
TRACEY TYLER, LEGAL AFFAIRS
REPORTER, Sep. 24, 2004.
The prosecution was so determined
to "squeeze every last drop" out of its pathetically
weak case against Robert Baltovich that something as simple as
getting his hair cut was transformed into the conduct of a devious
killer, the Ontario Court of Appeal was told yesterday.
The crown's heavy reliance
on so-called "consciousness of guilt" evidence was
a sign of how anemic its case was, lawyer James Lockyer, who
represents Baltovich, told a three-judge panel yesterday.
But the jury wouldn't have
appreciated that by the time Mr. Justice John O'Driscoll delivered
his "over the top" instructions, in which he "dominated"
jurors with his opinions and "occasionally belittled the
defence," he said.
Baltovich's behaviour in the
hours and days after 22-year-old victim Elizabeth Bain disappeared
on June 19, 1990, was nothing out of the ordinary, and simple
explanations were available for any questions it raised, Lockyer
told the court. But these were ignored in a one-sided jury charge
that was littered with provocative and "loaded" phrases
and cast an unwarranted aura of suspicion, Lockyer said.
A "classic" example,
he said, was O'Driscoll mocking Baltovich's ability to recall
minute details of what he did the day Bain disappeared, including
what he had for breakfast, while he was unable to remember what
he wore.
One reason Baltovich could
remember what he had for breakfast was because he had the same
thing every day, Lockyer said.
"So of course he can say
how many shredded wheat he had ... he can say how many shredded
wheat he had for breakfast 365 days a year."
The Ontario Superior Court
judge also made a "habit" of posing rhetorical questions
that left room for only one answer, Lockyer said.
He queried, for instance, whether
Baltovich's "failure" to return three calls from Bain's
former boyfriend late on June 21 could be explained by the fact
he was the man seen driving Bain's car at an intersection north
of Whitby early the following morning.
The prosecution argued that
Baltovich was returning from the Lake Scugog area after disposing
of her body, which was never found.
`I mean, the poor man had a
haircut ... How you can let that be used against him is beyond
me.'
In fact, there was no "failure"
to return calls, because the message from Bain's former boyfriend
was to "call any time," Lockyer noted. Baltovich didn't
get the messages from his mother until the evening of the 22nd,
and when he did, he called right away, he said.
Mr. Justice Michael Moldaver,
who heads the panel, suggested that while it was open to the
crown to use the evidence, it would have been "appropriate"
to lay out the positions of both crown and defence.
"If your point is the
judge didn't deal with it fairly and didn't deal with Mr. Baltovich's
position, speaking for myself, you're absolutely right,"
he said. Similarly, said Lockyer, Baltovich's decision to get
a haircut partway through his preliminary hearing took on sinister
connotations when the prosecution was permitted to lead evidence
at trial about how he had dramatically changed his appearance.
The visit to the barber took
place just before his preliminary hearing was set to hear from
two crown witnesses, who identified Baltovich from a police photo
lineup as the person who most closely resembled a man seen with
Bain beside a tennis court the day she disappeared, and later,
driving her car.
"I mean, the poor man
had a haircut ... at the jail," Lockyer added in his oral
argument yesterday. "Now, I don't imagine these barbers
who are going to the jails are haute couture, to say the least.
How you can let that be used against him is beyond me."
Over the past 10 years there
has been a trend, in everything from case law to the report by
former Quebec judge Fred Kaufman into the wrongful conviction
of Guy Paul Morin, toward discouraging the use or misuse of this
sort of evidence, Lockyer noted.
Yet it consumed more than 60
pages of O'Driscoll's charge, he said.
"It must have been dreadfully
prejudicial to (Baltovich)," he said. "But more important,
it didn't reflect the reality of the appellant's conduct at a
broad level."
Lockyer also urged the court
to consider whether the jury should have heard from witnesses
whose evidence was enhanced by hypnosis. They included Marianne
Perz, a tennis instructor at the University of Toronto's Scarborough
campus, who claimed she saw Bain sitting with someone at the
courts at 5:40 p.m. June 19.
While Perz was at first only
able to say the person was Caucasian with dark hair, under hypnosis
her description became more detailed and she eventually picked
Baltovich out of a police photo lineup as the person who most
closely resembled the man she saw.
Lockyer acknowledged that asking
for an outright ban on the use of hypnotically enhanced testimony
is unrealistic, since the appeal court refused to do so last
July in a case involving Stephen Trochym, a former Canada Post
worker convicted of murdering his girlfriend.
Moldaver told crown lawyers
that when they begin their argument today, the court wants to
hear their response to every ground of appeal Baltovich's lawyers
have raised.
- Bernardo haunts Bain
case appeal
Woman's
killing fits his style: Lawyer
Baltovich seeks re-trial or dismissal
TRACEY TYLER, Toronto Star
LEGAL AFFAIRS REPORTER, Sep. 22, 2004
It would have been entirely
within the repertoire of a sexual psychopath like Paul Bernardo
to have befriended Elizabeth Bain before killing her instead
of ambushing her in a random attack, the Ontario Court of Appeal
has been told.
There is no evidence that Bain,
whose body has never been recovered, was sexually assaulted,
Brian Greenspan, a lawyer representing her former boyfriend,
Robert Baltovich, told a three-judge panel yesterday.
But, he said, there is enough
credible circumstantial evidence linking Bernardo to her disappearance
from the University of Toronto's Scarborough campus sometime
after 5:30 p.m. on June 19, 1990, that a judge presiding over
a retrial for Baltovich would have to instruct the jury to consider
him as an alternate suspect.
Earlier this week, the court
unsealed several volumes of evidence gathered by the defence
since 1992, when Baltovich was convicted of second-degree murder
and sentenced to life with no parole eligibility for 17 years
in the slaying of 22-year-old Bain.
Among other things, the evidence
says Bernardo and Bain met in 1985-86 and that he took girlfriends
for sexual encounters in Colonel Danforth Park, where Bain's
car was seen on June 19, 1990, the day she disappeared.
The new material also includes
evidence that a man fitting Bernardo's description was seen that
same day at the University of Toronto's Scarborough campus, inside
a building where Bain had psychology classes.
There were also receipts showing
that, while Bernardo was spending weekends in St. Catharines,
home of his then girlfriend Karla Homolka, he was spending his
weekdays that month in Scarborough.
"Is it your theory that
Mr. Bernardo jumped out from behind some bushes ... or that he
befriended her?" asked Mr. Justice Michael Moldaver, who
suggesting that befriending someone was not Bernardo's "modus
operandi back in those days."
But Greenspan disagreed.
Bernardo "stands out in
the history of Canadian criminal law" as someone who "defies
profiling" and has proven himself capable of carrying on
seemingly normal long-term relationships with women while brutalizing
others and having "serial rapes and homicides all going
on at the same time," Greenspan said.
"To suggest, with great
respect, that on June 19, 1990, Paul Bernardo was not capable
of engaging in a relationship with Elizabeth Bain ... misses
Paul Bernardo," he told the court.
Bernardo's last attack as the
Scarborough rapist took place on May 26, 1990, and involved an
assault on a 19-year-old he bound and raped in the yard of Agincourt
Collegiate on Midland Avenue. It was also the first time he used
a knife.
The release of a police composite
sketch shortly afterward may have put him on high alert to avoid
being identified and moved him to switch from simply raping to
killing his victims, Greenspan suggested yesterday, adding that
the possibility Bernardo killed Bain may also explain why her
body has never been found.
Prosecutors believe Bain's
body was dumped in Lake Scugog. The dismembered remains of Leslie
Mahaffy, 14, who, along with 15-year-old Kristen French, was
killed by Bernardo and Homolka, were entombed in cement and tossed
into a Niagara reservoir.
Earlier yesterday, lawyer James
Lockyer, who heads Baltovich's appellate team, told the court
the long-standing prosecution theory that his client killed Bain
because she tried to end their relationship appears to have been
demolished by 16-year-old pages from her diary, which were discovered
in Toronto police files only last spring.
Far from amounting to a "Dear
John" letter, as the prosecution alleged at Baltovich's
trial, the diary entry from Sept. 16, 1988, includes Bain talking
about how she wanted to marry Baltovich almost immediately after
meeting him, Lockyer noted.
While Lockyer opened the appeal
by urging the court to acquit Baltovich outright, or at least
order a new trial, another option for the panel is entering a
stay of proceedings, he suggested yesterday, based on the "weakness
of the case," the "volume of undisclosed material"
and the seven years Baltovich spent behind bars before being
released pending appeal.
Despite their ups and downs,
Bain and Baltovich were very much in love on June 19, 1990, and
had every expectation their relationship would survive, Lockyer
suggested.
Two days before she disappeared,
when Bain met Baltovich outside the home for developmentally
disabled children where she worked and handed him the diary pages
in an envelope, it was really an expression of love, he said.
More important, they are just
one of many pieces of evidence that would have proved Baltovich
was at all times honest when he spoke with police investigating
the Bain case - evidence that instead lay buried in police files,
he said.
It was Baltovich himself who
first alerted police to the diary pages when he was interviewed
on July 5, 1990. Though he was puzzled by their meaning, he said
he felt they were important because they were the last thing
Bain gave to him before she vanished. Baltovich said he turned
the pages over to Bain's father after she disappeared.
On the basis of what Baltovich
told them, police in turn interviewed one of his friends, who
saw the envelope in the car and assumed, after hearing Baltovich
and another friend talk about how Bain's diary entries were inside,
that it was a "Dear John" letter.
That, in turn, formed the catalyst
for the prosecution's theory that Baltovich killed Bain because
she rejected him, the court was told.
But Baltovich certainly didn't
see it that way, Lockyer said. If he did consider it a Dear John
letter and subsequently killed Bain, he never would have mentioned
the pages to detectives, he added.
Further evidence presented
by the prosecution that the relationship was in trouble included
testimony from Cathy Bain, Elizabeth's sister, who claimed Bain
and Baltovich had a blow-up five days before she disappeared.
However, an earlier statement
from Cathy Bain, which was also recently discovered in police
files, shows she originally told police the argument took place
the night before Bain disappeared, a contradiction which would
have undermined her credibility, Lockyer said.
In addition to not being disclosed
to the defence at Baltovich's trial, Cathy Bain never mentioned
her previous statement when she was interviewed on July 3, 1990,
by Detective Brian Raybould, who spent 7.5 hours that day at
the Bain house, he said.
At Baltovich's preliminary
hearing, Cathy Bain also claimed for the first time that, the
night before her sister died, she was asleep on her bed, clutching
a rose, and appeared to be crying.
As another example of how Baltovich's
relationship with Bain was allegedly rocky, prosecutors pointed
to her diary entries, addressed to a fictitious "Dear Meg,"
from the week of June 19, Lockyer noted.
While Baltovich was mentioned,
presumably because he was the closest person to her at the time,
Bain's anger was directed to "anyone and everyone"
and fuelled by her general feeling that "life sucks,"
Lockyer argued.
"She said she wanted to
put a bullet through your client's head. That's significant,"
Moldaver suggested.
"Putting a bullet through
one's head is a manner of speaking," Lockyer replied. "We
all say things in a manner of speaking we don't mean. There were
childish, immature thoughts being expressed here."
The case continues today before
the panel, which also includes Justices Robert Sharpe and Eileen
Gillese.
- Court told of links
to Bernardo
Lawyers
argue evidence points to serial killer
Former boyfriend fights conviction in woman's slaying
TRACEY TYLER. Toronto Star,
LEGAL AFFAIRS REPORTER, Sep. 21, 2004
On the very afternoon Elizabeth
Bain "seemingly vanished from the face of the earth,"
a man bearing a striking resemblance to Scarborough rapist and
serial killer Paul Bernardo was seen in the university building
where she had classes.
Bain, 22, a third-year psychology
major at the University of Toronto's Scarborough campus, disappeared
on June 19, 1990. Before leaving home between 4 and 4:30 p.m.,
Bain told her mother she was going to check schedules at the
campus tennis courts.
Late that same afternoon -
sometime between 4 and 6 p.m. - another woman, who was also a
student, felt the presence of someone staring at her while she
spoke with her fiancé from a pay phone outside the university's
humanities building, the Ontario Court of Appeal was told in
documents unsealed yesterday.
For reasons she can't explain,
the woman, known only as R.A., was "scared" of the
blond-haired man and "just got a horrible feeling about
him," the court was told.
In fact, she whispered her
fears to her fiancé over the phone.
Later, when she saw how much
a composite sketch of the Scarborough rapist resembled the man
who had frightened her, she nearly "jumped out of (her)
skin," she said.
The woman's story is one of
several "chilling" pieces of circumstantial evidence
which, taken together, strongly suggest it was Bernardo who killed
Bain, say lawyers for Robert Baltovich, Bain's former boyfriend.
He was convicted and sentenced to life for Bain's murder.
Baltovich's lawyers present
their argument in a 40-page brief to the court, one of several
volumes of material that became public yesterday as the appeal
court began hearing a marathon eight-day appeal of Baltovich's
1992 conviction for second-degree murder.
The evidence "presents
a far more compelling case against Paul Bernardo, the Scarborough
rapist, than the speculative case mounted against the appellant,"
Brian Greenspan and Sharon Lavine, two of Baltovich's lawyers,
argue in their written material, which they are hoping the court
will consider in deciding whether Baltovich's conviction should
be overturned.
It includes evidence from three
women, including former girlfriends of Bernardo, along with Van
Smirnis, his childhood friend. While the defence at Baltovich's
trial pointed to the Scarborough rapist as a possible suspect
in Bain's disappearance, that theory was discounted by the prosecution
on the grounds that the then-unidentified sexual attacker was
someone who neither abducted nor murdered his victims.
The jury's verdict against
Baltovich, however, might well have been different if jurors
had known, for example, that Bain and Bernardo met briefly at
a Scarborough church in 1985-86 and that Bernardo used to have
sex with his girlfriends in Colonel Danforth Park, where Bain's
car was seen after she disappeared, Greenspan and Lavine say
in their brief.
Bain's car was also seen the
next morning at a chicken restaurant on Highway 7, near Port
Perry, to which Bernardo was introduced by Smirnis. Bernardo
smoked Du Maurier cigarettes, which were later found in the ashtray,
their brief says.
Three days after she disappeared,
Bain's car was found abandoned in a roadside lot on Kingston
Rd., not far from her home. There was a pool of blood on the
back seat, but her body has never been found.
Baltovich became a suspect
almost immediately and was arrested five months later. The prosecution's
theory was that he killed Bain in a fit of jealousy, after she
rejected him. But no forensic evidence linked him to the crime.
Baltovich, who was sentenced
to life with no chance of parole for 17 years, spent seven years
behind bars before the appeal court released him on $500,000
bail in 2000.
It was a relatively unusual
step, but one the court felt was justified, given what it said
were, in many ways, "highly arguable" grounds of appeal.
Given that assessment - and the fact the appeal was also expected
to take some time, even years, to prepare - keeping Baltovich
locked up would not be seen as reasonable, the court said.
In another unusual move, the
court agreed to extend his release. As a result, he was not required
to surrender into custody on Sunday night.
In arguing to have his client's
conviction quashed, James Lockyer, who heads Baltovich's legal
team, told a three-judge panel that he is not simply asking the
court to order a new trial for the 39-year-old holder of a recent
graduate degree in library studies - but to go further and acquit
him outright, arguing the verdict is unreasonable when weighed
against the evidence. That includes new evidence that was never
disclosed at the time of Baltovich's trial, Lockyer said.
The "single most powerful"
piece of evidence pointing to Baltovich's innocence, Lockyer
said yesterday, is a report that lay buried in police files until
the defence asked for access to the investigating officers' notes
in 1999.
"It is, in fact, virtual
proof of his innocence," he argued.
The report confirms Baltovich's
long-standing claim that, after noticing Bain's car uncharacteristically
abandoned with its windows down at Colonel Danforth Park, he
headed to the humanities building about 9 p.m. on June 19, 1990,
to wait for her to come out of her child psychology class.
He also said, however, that
he thought she might have gone to the park earlier to meet someone,
so he decided to remain inconspicuous and wait from a second-floor
balcony until her class was over. While Bain herself never emerged
from the classroom, Baltovich said one person he did see leaving
was a "Mediterranean" looking man who resembled her
description of a former boyfriend.
At his trial, the crown argued
Baltovich had completely fabricated the story and had no reason
to wait for Bain because he had killed her by 7 p.m. Moreover,
the prosecution noted, there were no witnesses to support his
story, making it all the more likely it was simply a false alibi.
But the police report now shows
that, within a week of speaking with Baltovich, investigators
assigned an officer to check out his story. Police found the
man described by Baltovich and the report also shows that what
he was wearing that night accords perfectly with Baltovich's
recollection, the court was told yesterday.
The report is an important
sign of Baltovich's innocence because, if he was there simply
to create some explanation of his whereabouts around the time
of the murder, he would have made sure someone saw him instead
of remaining hidden on the second floor, Lockyer said.
But Mr. Justice Michael Moldaver,
who heads the three-judge panel, suggested another explanation.
"What if he killed her in a jealous rage and then went back
to see who this guy was who she was seeing? Now, don't get me
wrong. I'm not saying it happened, but aren't we all kind of
speculating here, as to what's going on? Can we really say that,
because he went back (to the class) he's innocent?" Moldaver
asked.
Moldaver suggested the evidence,
while helpful to Baltovich's case, is "not as perfect"
as Lockyer might like and suggested there are "hurdles"
to cross before it could be considered the basis for an outright
acquittal.
The hearing continues.
Baltovich's lawyers finger
Bernardo
Colin Perkel, Canadian Press,
September 21, 2004
TORONTO -- Evidence suggests
notorious sex killer Paul Bernardo knew Elizabeth Bain and was
the ''likely perpetrator'' of her 1990 murder, say court documents
released Tuesday by lawyers for Robert Baltovich, the man convicted
of the crime in 1992.
The documents, presented in
support of Baltovich's bid for an acquittal before the Ontario
Court of Appeal, paint a strong circumstantial case against Bernardo,
the confessed Scarborough rapist who was convicted in 1995 of
the murder of two Ontario schoolgirls.
''The totality of the chilling
circumstantial evidence . . . presents a far more compelling
case against Paul Bernardo, the Scarborough rapist, than the
speculative case mounted against (Baltovich),'' the legal submission
states.
''This evidence was not available
at the time of the trial, nor could its relevance have possibly
been known at the time.''
Submitted by one of Baltovich's
lawyers, Brian Greenspan, the documents string together a series
of details and events that suggest Bernardo is ''not only a plausible
suspect, but the likely perpetrator of Elizabeth Bain's murder.''
Among the key points, a long-time
ex-girlfriend of Bernardo's told police that he had once met
Bain, but officers discounted her story on the grounds she was
angry with him.
Another witness described a
man who looked like the blonde killer outside the victim's classroom
on the day she was killed.
The woman, who had once had
a date with Bernardo, told investigators she noticed the man
looking at her as she spoke to her fiancee on the phone and ''just
got a horrible feeling about him.''
After Bain's disappearance,
she called a tip line but was told police weren't looking for
the Scarborough rapist in connection with the case.
Although that encounter haunted
her for years, it was only in 2000, when Baltovich was finally
freed on bail, that she finally decided to call a lawyer and
disclose her suspicions.
The documents also indicate
that receipts recovered from his home show Bernardo had been
in the area where the 22-year-old Bain lived and went to school
prior to her disappearance in June 1990.
A pack of Bernardo's preferred
brand of cigarettes was also found in the glove compartment of
Bain's bloodstained car, which was found a few days after she
vanished from the Scarborough campus of the University of Toronto.
Bernardo was also intimately
familiar with school and its surroundings.
The murder, for which the then-26-year-old
Baltovich was convicted in 1992, occurred three weeks after Bernardo
brutally attacked and raped a young woman in Scarborough.
At his trial, the defence raised
the possibility that the Scarborough rapist was responsible for
Bain's death but the Crown argued that the then-unknown attacker
had never killed anyone.
Bernardo would later admit
to a string of 13 increasingly vicious sexual assaults before
he was convicted in 1995 of killing Ontario teenagers Kristen
French and Leslie Mahaffy.
''Even the known facts relating
to the Scarborough rapist at the time of trial created a significant
and plausible link (to Bernardo),'' the document states.
Ironically, in the days before
she died, a depressed Bain wrote in her diary that she wanted
to ''put a bullet through (Baltovich's) head.''
While the Crown argued the
entry helped show Bain was breaking up with Baltovich and that
he killed her in a jealous rage, Lockyer argued other diary notations
show that wasn't the case.
''I hate this life. I want
to get up and kill somebody,'' Bain wrote.
The point, lawyer James Lockyer
argued, was that Bain - who worked two jobs alongside her studies
- was angry at the world, not particularly at Baltovich.
Lockyer also reprised new evidence
that indicates everything Baltovich told police in the days after
Bain disappeared turned out to be true.
The same couldn't be said for
statements given by Bain's sister and father, which new evidence
has shown to be wrong, he told the court.
Lockyer also questioned the
integrity of the police investigation, including pointing out
that Bain's sister had changed her version of events significantly,
something the officers never told the Crown.
© Canadian Press 2004
Convicted killer Robert Baltovich
finally in court in bid to clear his name
Colin Perkel, Canadian
Press, September 20, 2004
TORONTO (CP) - Lawyers for
Robert Baltovich, convicted 12 years ago in the murder of his
girlfriend, began a long-awaited legal bid to clear his name
Monday in an appeal that's expected to resurrect the grim spectre
of sex killer Paul Bernardo.
Armed with fresh evidence that
only emerged long after Baltovich was convicted in 1992 in the
killing of Elizabeth Bain, his lawyers urged the Ontario Court
of Appeal to either acquit their client or order a new trial.
Baltovich's case is based largely
on allegations of police misconduct, dubious and changing witness
testimony, and a trial judge his lawyers claim ignored crucial
pieces of evidence in his charge to the jury.
But the centrepiece is expected
to be fresh evidence that suggests Bain's real killer was Bernardo,
who in 1995 was sentenced to life in prison and declared a dangerous
offender for the murder of schoolgirls Kristen French and Leslie
Mahaffy.
Baltovich, who has insisted
from the outset that he's innocent, spent eight years behind
bars until he was freed on bail four years ago.
"It's been a long time
coming," said Brian King, a private investigator who worked
for years on the case for the defence.
"Robert is finally getting
his chance to get his side heard."
Bain vanished in June 1990
from the Scarborough campus of the University of Toronto. Her
car was found a few days later, traces of blood on the seat.
Her body was never found.
A crowd of spectators jammed
the courtroom as lawyer James Lockyer called on the three judges
to view the case "through the prism of a young man whose
girlfriend had seemingly vanished off the face of the earth."
In that light, Lockyer said,
it's easy to see Baltovich's behaviour in the days after Bain's
disappearance as that of an innocent man.
Police, however, saw things
differently, Lockyer noted: within days, investigators had focused
their suspicions on Baltovich, who was 24 years old at the time.
Records also show that just
hours after taking on the case, one of the lead detectives had
already decided Baltovich was the killer and shared his conclusions
with Bain's family and friends.
"You can't imagine a quicker
jumping to conclusions," Lockyer said. "Suddenly, everything
he did, or is to do, is put under a microscope (of guilt)."
Dressed in a green-grey tweed
jacket, the gaunt Baltovich helped carry in file boxes - some
labelled "Fresh Ev" - as a court official handed out
seating tickets to reporters, family and members of the public.
Others were forced to stand.
With Bain's parents watching,
Baltovich showed no emotion as Lockyer outlined his reasons for
asking the court to quash the conviction or acquit his client
outright.
At the heart of the Crown's
case against Baltovich were supposed inconsistencies in what
he told police. He was, the Crown told the jury, a cunning liar.
But one part of Baltovich's
story - that he had visited Bain's classroom barely two hours
after he was supposed to have killed her - proved true despite
the Crown's insistence it was a lie, Lockyer said.
Police actually confirmed Baltovich's
version of events but did not tell the prosecution, he added.
The omission called into question
the "integrity of the police investigation," said Lockyer.
"It is virtual proof of his innocence."
Police also failed to pass
on another key piece of evidence, a statement from Bain's sister.
At first, she told police the
couple had had an argument the night before the murder, only
to change her story five months later to say the fight occurred
four days earlier. Neither the jury nor the defence was told
about the change.
The statements, Lockyer asserted,
were a fabrication by a grieving sister to incriminate a man
everyone believed was the killer.
"No one seemed to have
any doubt he was the right man."
At his trial, the Crown depicted
Baltovich as a spurned boyfriend who acted out of jealous rage
brought on by Bain's efforts to end the relationship.
In March 2000, eight years
after his conviction, an Ontario judge took the highly unusual
step of granting him bail pending his appeal.
The court has set aside eight
days for the hearing.
If exonerated, Baltovich would
join a growing list of Canadians incarcerated for years for murders
they didn't commit.
Derek Finkle, who wrote a book
in 1998 on the case, said the only issue was whether the court
would order a new trial or acquit Baltovich outright.
"The real question here
is: Is he going to be acquitted at this level?"
© The Canadian Press 2004
Murder-conviction review
to hear Bernardo theory
By KIRK MAKIN, Globe
and Mail, Sep 18, 2004
Twelve years after a disbelieving
Robert Baltovich was led away in 1992 to serve a life sentence
in prison for murder, his bid for exoneration will begin to unfold
in the Ontario Court of Appeal.
An extraordinary, eight-day
hearing commencing on Monday promises to feature a list of the
allegations typical in wrongful-conviction cases: claims of dubious
police conduct, compromised eyewitness testimony, doubtful evidence
obtained through hypnosis, a prosecution-oriented judge, undisclosed
evidence and justice denied.
Unlike some attempts to overturn
a conviction, however, this case has no DNA evidence to give
the scientific lie to a Toronto jury's 1992 verdict.
Instead, there are thousands
of pages of police documents and legal arguments that defence
lawyers James Lockyer, Brian Greenspan and Joanne McLean believe
will demolish any suggestion that Mr. Baltovich killed his girlfriend,
Elizabeth Bain.
One central tussle will involve
the question whether serial killer Paul Bernardo - not Mr. Baltovich
- murdered the petite University of Toronto student and disposed
of her body so efficiently that her remains have never been found.
"I think the press are
going to be drawn like moths to a flame by the Bernardo stuff,
but people are going to end up being blown away by other elements
of the story," said Derek Finkle, author of a book that
championed Mr. Baltovich's innocence, No Claim To Mercy.
"It doesn't really matter which element of his trial you
look at, it has been undermined."
If lawyers persuade the appeal
judges that the investigation was unfair and the trial botched,
Mr. Baltovich will win a new trial or even an admission of outright
defeat from the Crown.
"I have a feeling that
once the judges hear some of the fresh evidence, they may close
the whole thing down," Mr. Finkle said. "The worst-case
scenario will be that he gets a new trial."
Ms. Bain disappeared early
on the evening of June 19, 1990. Her car was found three days
later with blood on the floor of the back seat. Mr. Baltovich,
who had no criminal record and at first co-operated with police,
became a suspect after police reasoned that Ms. Bain had been
trying to break off their relationship. He was arrested on Nov.
19 of that year.
The case against him was circumstantial.
The Crown portrayed him as a brooding lover who had the opportunity
- barely - to abduct Ms. Bain and who may have been seen driving
toward a secluded lake to dispose of her body.
Mr. Baltovich was released
on bail in mid-2000. Since then, he has led a quiet, largely
anonymous life, looking after his ailing father, acquiring a
degree from the University of Toronto, and working as a librarian.
"It is mind-boggling that
the Crown continues to fight this," said Brian King, a private
detective who has spent thousands of hours on the case, much
of it unpaid. "I never understood how anyone could have
convicted him. I felt overwhelmed that an injustice had occurred,
and I hope the appeal judges see it."
If symbolism counts for anything,
Mr. Baltovich's chances leaped last week. At a pre-appeal hearing,
Mr. Justice Michael Moldaver ruled that Mr. Baltovich does not
have to go back into custody until his appeal. Convicted murderers
are very rarely granted bail pending their appeals. To be allowed
to remain free after the appeal commences is extraordinary.
While most of the material
underlying the appeal is sealed, the Bernardo connection looms
large. Mr. Baltovich had always said that a man who attacked
numerous women around the time of Ms. Bain's disappearance, and
was known at the time only as the Scarborough Rapist, was likely
the killer.
Mr. Bernardo was later shown
to be the rapist. He is believed to have met Ms. Bain once, and
they had some hangouts in common. Most of his victims were attacked
in the area from which she disappeared.
He was arrested after Mr. Baltovich
was already in prison, and various aspects of his physical appearance
and his crimes were startling.
Mr. King noted that the Crown
always maintained that the Scarborough Rapist never abducted
his victims in daylight and had never killed one. It turned out
that both beliefs were wrong. "I know that a lot of people
pooh-poohed the Bernardo syndrome, but I have never seen any
information that would discredit the possibility that he did
it," Mr. King said
© 2004 Bell Globemedia
Publishing Inc. All Rights Reserved.
Man's lawyers to implicate
Bernardo in killing
Sep. 19, 2004 , CTV News
staff
Lawyers for a convicted murder
will try Monday to pin their man's crime on one of Canada's most
notorious killers: Paul Bernardo.
Robert Baltovich was convicted
in 1992 of killing his girlfriend Elizabeth Bain. The 22-year-old
Scarborough woman's body was never recovered. Baltovich
was sentenced to life in prison with no possibility of parole
for 17 years.
Bain was killed in 1990
-- the same time a criminal known as the Scarborough Rapist was
operating. That person was later revealed to be Bernardo, who
was convicted in the deaths of three teenage girls.
"Ah, I'm afraid I can't,"
Baltovich said to an interview request from Toronto's CFTO News
as he carried his recycling bins back into his apartment building.
Baltovich was freed on bail
in 2000, pending the appeal. He will try to clear his name at
a court hearing starting this Monday.
"I certainly do not think
so," said private investigator Brian King when asked if
he thought Baltovich killed Bain.
But as to who did, "You
know what? There's a lot of speculation. Certainly a lot of the
evidence we developed points to the Scarborough Rapist,"
he said.
CFTO's John Lancaster said
that evidence was enough to convince the Ontario Court of Appeal
to release Baltovich four years ago pending his appeal.
Back in June 1990, Bain's blood-stained
car was found three blocks from her home three days after she
was reported missing.
Police didn't charge Baltovich
until November of that year. The Crown's theory at trial was
that he killed Bain on the University of Toronto's Scarborough
campus, left her there, then disposed of her body a few days
later in a marsh northeast of Toronto.
There was no forensic evidence
linking him to the crime.
"While Bernardo was a
convenient scapegoat for Bain's killing, he was unknown to police
at the time," Lancaster said.
Bernardo, arrested in 1993,
and his ex-wife, Karla Homolka, have both denied any involvement
in Bain's murder. But there are some links to Bernardo and Bain.
"Both Bain and Bernardo
attended Scarborough's (University of Toronto) campus. All of
Bernardo's rapes occurred within blocks of the campus where Bain
was last seen alive," Lancaster said.
"Also it's alleged that
investigators never disclosed some of Baltovich's statements
that may have backed up his alibi."
In a 480-page brief filed to
the court last year, Baltovich's lawyers said his conviction
rested on "shaky" evidence from eyewitnesses and some
serious errors by the trial judge.
They also presented about 5,000
pages of new evidence. There is a publication ban on that evidence.
Baltovich may be the only convicted
killer in Canada out on bail pending an appeal. The judge who
granted it to him said at the time there was no public interest
in keeping him incarcerated considering the likelihood of a successful
appeal was so high and it would likely be a long time before
the appeal was heard.
Lancaster said the justice
system hasn't kept Bain's family informed of what's going on.
"Never once were they told Baltovich would be free. They
only learned of next week's appeal through a third party,"
he said.
King, who has worked on the
case for years, said, "certainly I would like, in my lifetime,
to know the real answer what happened to Elizabeth Bain."
Lancaster said the Crown plans
to fight this appeal tooth and nail.
With a report from CFTO's
John Lancaster
© Copyright 2004
Bell Globemedia Inc. > >
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
