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on Robert Baltovich 2004| Previous
reports on this appeal | Kyle
Unger | James Driskell
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Robert Sanderson | James
Lockyer | Brian Greenspan
| Ontario
Court overview of the trial | Steven
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Deputy Chief takes power job at Magna |
Robert Baltovich
(4)
An unacceptable waste
of taxpayers' money
Editorial, Orangeville Citizen,
July 28, 2005
AMONG THE UNASSAILABLE truths
facing the current Ontario government are the fact that it is
continuing to amass budgetary deficits and that despite efforts
to boost spending in other areas, it is unable to provide legal
aid to many of those who really need it.
In such circumstances, it strikes
us as inconceivable that the provincial Crown should have announced
this month that it is proceeding with a plan to retry Robert
Baltovich for murder in the death of his girlfriend, Elizabeth
Bain.
True, the Ontario Court of
Appeal used its normal phraseology when it quashed Mr. Baltovich's
conviction on grounds he didn't get a fair trial, "ordering"
a new trial.
However, we strongly suspect the three judges were as stunned
as Mr. Baltovich's supporters at the news that the Crown plans
to do just that.
Ordinarily, in a case where
the homicide occurred so long ago - sometime in June 1990 - the
Crown would simply return to Superior Court and advise the presiding
judge that because of the passage of so many years and the death
or unavailability for other reasons of important witnesses, a
new trial was no longer appropriate.
But the Baltovich case was
no ordinary one; far from it. One of the homicide officers used
the conviction as a stepping-stone to his current job as one
of Toronto's deputy police chiefs. The successful prosecution
was accomplished by a Crown attorney who is now a judge.
Normally, the appropriate test
that must be passed before the Crown proceeds to trial is whether
there is "a reasonable prospect of conviction." In
other words, is it reasonably likely that a properly instructed
jury at the conclusion of a fair trial will be left with no reasonable
doubt that the accused did indeed commit the crime?
We think the appropriate answer
to that question is "Not a chance in the world!"
In this case, the Crown proposes to call witnesses whose memories
will have faded to the point where it's inevitable that they
will have to be shown their testimony at the first trial perhaps
14 or 15 years previously.
Then there's the problem of
the mountain of fresh evidence that delayed Mr. Baltovich's appeal
for more than a decade, evidence which strongly suggests that
the real killer of Ms. Bain was serial rapist/killer Paul Bernardo.
Some trial judges have taken
the position historically that jurors should not be confronted
with any such evidence; that the Crown isn't required to call
witnesses who would weaken their case and the defence ought not
to be allowed to point fingers at other potential offenders.
One thing that has become clear
is that the police showed no interest whatsoever in any role
played by an unidentified male who had been seen in Ms. Bain's
company on several occasions in the month before her disappearance.
All the jury at the first trial heard was that he had blondish
hair and perhaps a swarthy complexion. But even the defence lawyers
didn't point out what perhaps to them was too obvious - that
this male party, whoever he was, had never come forward to assist
in the search for Ms. Bain.
Simply put, why would any such
person not have come forward unless he had something to hide?
In a second trial, at which
the public purse will once more be paying the costs of both sides
plus those of the justice system itself, Mr. Baltovich's lawyers
are certainly not likely to make the potentially fatal mistake
of not having their client testify in his own defence - in our
view, the main reason any jury will return a guilty verdict.
(Although jurors are told there is no requirement in our law
that an accuse testify, in murder cases they inevitably conclude
that if the man in the prisoner's box really isn't guilty he
will proclaim his innocence in the witness box.)
In objecting to the Crown's surprise decision, lawyer James Lockyer
again declared his personal belief in his client's innocence.
Apart from the fact the original
conviction was secured without a scintilla of physical evidence
pointing to Mr. Baltovich's guilt, there is strong evidence that
police actively suppressed evidence that points to his innocence,
including one witness's observation of Ms. Bain being a terrified
passenger in her own car as it was driven east on Highway 401
at a time when Mr. Baltovich was working out in a gymnasium and
the Crown theory had her already dead.
Fresh evidence placed before
the appeal court but not considered by the judges shows Mr. Bernardo
was acquainted with Bain and was seen at her university campus
the day she disappeared.
As well, Ms. Bain's disappearance
on June 19, 1990, was shortly after Mr. Bernardo's last admitted
rape and prior to the first murder he's known to have committed;
that Mr. Bernardo had sexual encounters with former girlfriends
in the park where Ms. Bain went missing, and that after her disappearance,
Ms. Bain's car was spotted at a chicken restaurant on Highway
7, near Port Perry, a restaurant Mr. Bernardo is said to have
frequented.
When Ms. Bain's abandoned car
was found in Scarborough, the radio was tuned to Mr. Bernardo's
favorite station, and a pack of his favorite brand of cigarettes
was it the glove compartment.
Clearly, the fresh evidence
would fall far short of proving Mr. Bernardo's guilt. It would
at best portray him as having an opportunity as an admitted serial
rapist and convicted killer. (Mr. Baltovich, now 39, has never
been even accused of any criminal act apart from the Bain homicide.)
In our view, something is horribly
wrong with Ontario's criminal justice system when so much time
and effort is to be spent on trying to prove the impossible,
with the only apparent benefit being to boost the image of some
police or judicial officials and to provide "closure"
to Ms. Bain's family.
One thing that's absolutely
certain is that if Paul Bernardo was the killer, there is no
reasonable likelihood that he will ever admit his guilt, even
though it's equally unlikely he will ever be released from jail.
Baltovich gets new murder
trial
By KIRK MAKIN, JUSTICE
REPORTER, Globe and Mail, Dec 3, 2004
A "one-sided" trial
judge undermined the fairness of Robert Baltovich's 1992 murder
trial, forcing a full replay of the controversial whodunit, the
Ontario Court of Appeal ruled yesterday.
The 3-0 ruling refused Mr.
Baltovich's request for an outright acquittal, but disparaged
Superior Court Judge John O'Driscoll for undercutting and ridiculing
the defence in his jury instructions.
"Suffice it to say that
taken cumulatively, they indicate the trial judge's contempt
for the defence position," the court said. "In our
opinion, that view would not have been lost on the jury.
"Our system of justice
is already overburdened," the judges added. "We do
not need to add to this problem with new trials that could have
been avoided."
Mr. Baltovich's 22-year-old
girlfriend, Elizabeth Bain, disappeared on June 19, 1990.
The University of Toronto student's
body has never been found, and is believed to be buried in the
mud of Lake Scugog.
Mr. Baltovich, now 39, was
convicted of her murder in March, 2002, and was jailed for life
without parole for 17 years.
He was released on bail after
nine years in prison, pending his appeal.
Early yesterday morning he
had to again surrender himself at Toronto's Don Jail, in keeping
with court requirements, but was later released on $200,000 bail
after the appeal court's ruling.
As he emerged from the jail,
Mr. Baltovich said the ruling was "a small step, but it's
a step in the right direction."
His defence team, dispirited
at the prospect of retrying the sprawling, circumstantial case,
told reporters after the ruling that Mr. Baltovich faces a difficult
ordeal.
 "
We would be worried that things
can go terribly wrong," lawyer James Lockyer said.
"Rob has dealt with this
for 14 years of his life. He has gone from youthfulness to being
a middle-aged man.
"It just doesn't seem
right that he has got to endure this until a new trial is completed."
Meanwhile, a spokesman for
the Ministry of the Attorney-General, Brendan Crawley, said senior
lawyers are reviewing the ruling to decide whether to appeal.
In their ruling, the appellate
judges -- Mr. Justice Michael Moldaver, Mr. Justice Robert Sharpe
and Madam Justice Eileen Gillese -- said Judge O'Driscoll's references
to defence evidence were sketchy, laden with contempt or, in
one instance, "entirely one-sided."
They made no findings of misconduct
against the Crown. In addition, they stressed that Mr. Baltovich
can still obtain a fair trial. If a jury were given proper instructions,
they said, it "could reasonably convict" him.
"Indeed, a new trial will
provide the opportunity for both sides to deal with the fresh
evidence, with the result that the jury will have the benefit
of more complete evidence upon which to make the necessary and
critical factual determinations," the court said.
The Crown's theory was that
Mr. Baltovich was a possessive lover who murdered his girlfriend
upon realizing she was about to leave him.
The defence contended that
Mr. Baltovich had no idea Ms. Bain might be planning to dump
him, that he had a valid alibi, and that he did everything he
could to search for her and help police investigators.
The appeal court paid little
attention to a raft of fresh evidence yesterday, saying it fell
short of sinking the prosecution's case.
Still, the retrial will feature
new evidence that sheds doubt on the Crown's theory and on evidence
obtained from witnesses under hypnosis.
Defence counsel Brian Greenspan
said it will also likely include evidence that points toward
serial killer Paul Bernardo as being a viable suspect in the
Bain murder.
Yesterday, the appeal judges
faulted Judge O'Driscoll for not adequately warning jurors about
the shortcomings of three Crown eyewitnesses. All three had their
recollections sharpen dramatically under hypnosis.
The court also said that Judge
O'Driscoll confused the jury about the evidence they required
before they could conclude that Mr. Baltovich fabricated his
alibi.
"Leaving the jury to rummage
about the evidence in that fashion was particularly perilous
in this case," the court said.
It also said the trial judge
failed to help the jury assess the testimony of an eyewitness,
Marianne Perz, whose account of seeing Mr. Baltovich and Ms.
Bain together shortly before her disappearance was enhanced by
hypnosis.
The court also faulted the
trial judge for making the same mistake with David Dibben, a
witness who claimed to have seen Mr. Baltovich driving a car
similar to Ms. Bain's vehicle near Lake Scugog three nights after
she disappeared.
The appeal judges also waved
aside defence allegations of police misconduct and the contention
that strategic errors by Mr. Baltovich's trial lawyers, Mike
Engel and Bill Gatward, betrayed their incompetence.
© 2004 Bell Globemedia
Publishing Inc. All Rights Reserved.
Appeals court chastises
judge
By KIRK MAKIN, JUSTICE
REPORTER Globe and Mail, Dec 3, 2004
Ontario Superior Court Judge
John O'Driscoll got a stern scolding yesterday as the Ontario
Court of Appeal ordered a new trial for Robert Baltovich on the
basis of his errors.
The appeal court held up the
73-year-old judge as an example of the havoc a judge can wreak
on the trial process by failing to remain impartial. Mistakes
are bound to occur in a long trial involving complex issues that
must be explained to jurors, the court said. "But not all
mistakes are alike," it said. "Some can easily be avoided.
"Failing to provide the
jury with a fair and balanced charge is one of them. There is
no justification for jury charges that are not evenhanded. We
cannot stress enough the importance of a fair and balanced charge."
The court said that Judge O'Driscoll's references to defence
evidence were sketchy, laden with contempt or, in one instance,
"entirely one-sided."
One instance involved the question
of whether Ms. Bain might have actually committed suicide, the
court said. In light of the scant attention both Crown and defence
had paid to the issue, it said, "We do not understand why
the trial judge felt the need to devote 25 pages of his charge
to the issue of suicide.
"His treatment of the
matter was, to say the least, unfortunate," the court said.
"If not by design, it certainly had the effect of devaluing
the appellant's primary defence by conveying the impression that
in staying with the defence of suicide, the defence was grasping
at straws.
"In our view, it was wrong
and unfair for the trial judge to give the issue of suicide the
extensive treatment he did, only to demean it in the end."
In contrast, the court said, he dwelt at great length on key
elements of the Crown case.
It said that he also unfairly
employed rhetorical questions to show his personal distaste for
aspects of the defence -- such as whether Mr. Baltovich was seen
driving Ms. Bain's car three nights after her disappearance.
These sorts of pointed questions make judges look like advocates
for the Crown, the court said. It said they only serve to unfairly
diminish the accused in the eyes of the jury. At another point
in his jury charge, the court said, Judge O'Driscoll went into
minute detail about possible discord between Ms. Bain and Mr.
Baltovich. Yet, it said he glossed over defence evidence that
refuted it.
"The trial judge's failure
to include such evidence resulted in a review that was unfair,
unbalanced and prejudicial to the appellant," the court
said. "Read as a whole, it unduly promoted the case for
the Crown and effectively ignored and denigrated the case for
the defence. Additionally, the charge contained significant errors
of law that were prejudicial to the appellant."
The appeal court showed sympathy
for trial lawyers yesterday, noting that jury charges are a central
feature of any trial -- and gain their power from their objectivity.
Judge O'Driscoll, appointed
to the bench in 1971, did not respond to a request for an interview
yesterday.
Ontario court orders
new trial for Baltovich 12 years after murder conviction
Cassandra Szklarski, Canadian
Press, December 02, 2004
TORONTO (CP) - Robert Baltovich,
convicted on circumstantial evidence 12 years ago in the murder
of his girlfriend, will get another chance to clear his name
after Ontario's Appeal Court ruled Thursday he'd get a new trial
- where his defence said they planned to point to notorious sex
killer Paul Bernardo as a stronger suspect.
Once released from prison,
Baltovich called the ruling "a small step, but it's a step
in the right direction."
His elderly father, James Baltovich,
and brother Terry Chadwick, greeted him as he emerged from the
facility.
Earlier in the day, a tribunal
set aside Baltovich's conviction in the murder of 22-year-old
Elizabeth Bain, saying the "charge to the jury was unfair
and unbalanced."
"It also contained significant
errors of law that were prejudicial to the appellant," the
tribunal said.
One of Baltovich's lawyers,
James Lockyer, said he was disappointed the Appeal Court didn't
declare Baltovich an innocent man, but looked forward to the
opportunity to clear his name in a new trial.
"We're confident that
in the near future we're going to be able to do this again with
Robert Baltovich beside us actually having been found an innocent
man," Lockyer said.
At the eight-day appeal hearing,
Lockyer had argued that Bernardo made more sense as a suspect
in Bain's murder.
At the time of her disappearance
in June 1990, Bernardo was known only as the Scarborough Rapist
and was terrorizing the east-end Toronto neighbourhood where
Bain resided.
"We think Paul Bernardo
is more than a viable suspect in the death of Elizabeth Bain,"
Lockyer told reporters.
Baltovich, who was immediately
granted $200,000 bail pending the retrial, appealed his March
1992 conviction for second-degree murder. He was convicted despite
the fact the 22-year-old's body was never found.
The Crown portrayed Baltovich as a jealous and obsessed boyfriend
who murdered Bain when she tried to break off their relationship.
Crown lawyer Howard Leibovich
(left) ridiculed evidence used to link Bernardo to the Bain murder
as speculative or unreliable. He said Bernardo had never previously
abducted a victim in daylight nor used the victim's car in his
crimes.
Bain was last seen on June
19, 1990, when she told her mother she was going to a University
of Toronto campus. Her blood-stained car was found several days
later.
Baltovich was convicted of
the slaying two years later and was jailed for life without parole
for 17 years. He was released on bail after nine years in prison,
pending his appeal, but had to return to a Toronto jail Thursday
morning until the decision was released. He was still there mid-day
waiting for paperwork to be completed.
The defence had pressed for
an acquittal, arguing that a fair retrial would be impossible.
But Justices Michael Moldaver,
Robert Sharpe and Eilleen Gillese ruled a new trial would give
both sides an opportunity to deal with fresh evidence.
"In that sense, the remedy
of a new trial appears reasonably capable of removing any prejudice
suffered."
The justices heard the eight-day
appeal at the end of September.
© The Canadian Press 2004
|
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