|
January 25,
2005: The
Federal government released the first
national examination of the reasons for so many wrongful convictions
in Canada.
This should be required reading for every prosecutor, cop and
criminal defence lawyer in the country. News reports
Previous
on Robert Baltovich
| Previous reports on this
appeal | Kyle Unger | James Driskell | Greg
Parsons | Robert Sanderson
| James Lockyer | Brian Greenspan | December 2,
2004: New trial granted
Robert Baltovich
- After 8 days, Baltovich's
fate rests with appeal judges
Despite
heated exchanges, panel of three praises both sides for 'tireless
efforts'
By KIRK MAKIN, JUSTICE
REPORTER, Globe and Mail, Sep 30, 2004
A major murder appeal ended
in a shower of sparks yesterday, as a lawyer for Robert Baltovich
accused authorities of negligence and a judge attacked the Baltovich
defence team for skewering its own chances at his 1992 trial.
The heated exchanges forged
a dramatic ending to a hard-fought appeal of Mr. Baltovich's
conviction in the murder of his 22-year-old girlfriend, Elizabeth
Bain.
After peppering lawyers on
both sides with probing questions for eight days, the three-judge
panel reserved judgment in the case and praised all counsel for
the depth of their submissions and their "tireless efforts."
Minutes earlier, lawyer James
Lockyer closed his case by accusing Toronto Police Detective
Brian Raybould and Crown prosecutors of negligently failing to
disclose important evidence before Mr. Baltovich's trial.
Mr. Lockyer singled out one
key piece of undisclosed evidence -- a witness sighting that
apparently corroborates Mr. Baltovich's alibi -- as having been
enough on its own to have proved his client's innocence.
"It is like there is an
enormous sign on it, with an arrow pointing in the direction
of innocence," Mr. Lockyer said.
However, Mr. Justice Michael
Moldaver angrily took issue with Mr. Baltovich's trial lawyers
for failing to follow up obvious investigative leads. Visibly
frustrated, he said that both Mr. Baltovich and his lawyers could
not have failed to recognize the need to ferret out every possible
witness capable of attesting to Mr. Baltovich's whereabouts on
June 19, 1990, when Ms. Bain vanished from the University of
Toronto's Scarborough campus.
"Speaking for myself,
I won't accept that!" Judge Moldaver said. "Nor will
I accept that this critical piece of evidence wasn't even mentioned
to the jury in its closing address."
He pointed out that a private
detective hired by the defence team went so far as to urge the
defence lawyers on several occasions to ask the Crown for important
items of evidence, yet they did not.
"It seems to me that to
the extent you want to portray this [the witness alibi evidence]
as the starting point that proves your client's innocence, it
sure doesn't look like the defence team thought that at the first
trial," Judge Moldaver said.
"I'm not here to defend
or attack the position of defence counsel at the trial,"
Mr. Lockyer replied. He said the police or Crown are the ones
who should be blamed for burying vital evidence.
Judge Moldaver also tore a
strip off Mr. Lockyer yesterday for slanting each piece of evidence
to favour his client. In reality, Judge Moldaver said, the court
has been forced into guessing at how Mr. Baltovich would account
for his actions in the days after Ms. Bain disappeared.
"You're asking us to assume
what's in his mind," Judge Moldaver said. "How can
we do that? It seems that you're asking us to make a call that
favours your client, but we don't know because he didn't take
the witness stand to subject himself to cross-examination."
During the appeal, Judge Moldaver,
Mr. Justice Robert Sharpe and Madam Justice Eileen Gillese repeatedly
returned to several key themes that troubled them, including:
Whether they can overturn a
jury verdict when so many shortcomings in the case are rooted
in strategic mistakes by the defence itself;
A jury charge by Ontario Superior
Court Judge John O'Driscoll that consistently emphasized the
Crown's theory and underplayed or ridiculed the defence;
 The fact that numerous
items of evidence can be read in sharply different ways, yet
the appeal judges must assess them without seeing or hearing
witnesses.
Earlier in the day, Crown counsel
Howard Leibovich ridiculed evidence that the defence believes
identifies serial rapist and convicted murderer Paul Bernardo
as the real killer. He said that every piece of evidence used
to link Mr. Bernardo to the Bain murder is speculative, unreliable
or fanciful.
"All of his crimes involved
a need for sexual gratification, but there is no evidence of
a sexual assault," Mr. Leibovich said. "There is also
no evidence of the use of a knife at the murder scene,"
he added.
The Bain murder would also
depart from Mr. Bernardo's usual modus operandi in that he had
never previously abducted a victim in daylight or used the victim's
car in his crime, Mr. Leibovich said.
© 2004 Bell Globemedia
Publishing Inc. All Rights Reserved.
Bernardo theory doesn't
carry the freight
ROSIE DIMANNO, Toronto Star,
Oct. 1, 2004
Those were eyeball-riveting
headlines last week, when appeal lawyers for convicted murderer
Robert Baltovich unleashed their Paul Bernardo-as-real-killer
evidentiary construct in the 1990 death of Elizabeth Bain.
The prosecution's rebuttal
on Wednesday received comparatively short shrift, as Baltovich's
appeal hearing wound up.
I suspect Baltovich will get
his re-trial, but not on these grounds. And it would be wrong
to leave an impression that the Bernardo canard ever had strong
merit. So I will revisit some of the more pertinent points raised
by the defence and countered by the crown in their 65-page brief
relating to the Bernardo "evidence.''
There is precisely one (1)
witness who has ever claimed that Bernardo even knew Miss Bain,
because she had introduced them in the mid-'80s. This woman,
A.B., dated Bernardo from 1984 to 1987, during which time he
sexually, physically and emotionally abused her.
A.B. was interviewed by police
in 1993. She said she knew Bain, had gone to school and mass
with her, and thought Bernardo might have had something to do
with the murder. She did not tell police that she had introduced
the two. A year later, in a second police interview, A.B. again
made no mention of it. One might reasonably wonder why.
The first mention of this alleged
introduction occurred when A.B. was interviewed by Brian King,
a private investigator then working for Baltovich's defence team.
(King would subsequently turn over tons of documents to a crusading
writer who produced an absurdly partisan book about the case.)
Yet even during that interview, A.B. didn't at first mention
anything about the Bain-Bernardo meeting. That kernel is introduced
only after King shuts off the tape recorder, then turns it back
on, at which point A.B. suddenly recalls a church play in 1985
where the encounter is said to have taken place.
Imagine how far a police investigator
in the witness stand would get with that kind of suspect taped
evidence. About from here ... to here.
Cross-examined later, A.B.
was far less certain that such an introduction ever happened.
When it's suggested it never occurred, she responds: "Can
I answer I'm not sure now?''
A.B. had further recalled,
in her affidavit, that after introducing Bernardo to Bain, the
former had said: "Yeah, we have seen each other around campus.''
That being the University of Toronto Scarborough campus.
Bain was not attending university
in 1985.
Was it possible, A.B. was then
asked, that she had jumbled together a bunch of different memories
to come up with the scenario as she now recalled it?
"Yeah, it's possible that
it's all jumbled - time and moments are jumbled up together,
very possible ... I'm very, like - I'll say everything in my
head's like a tornado whirling around.''
Obviously, it's not necessary
for Bernardo to have known Bain in order to kill her. He didn't
know the women he attacked so viciously in his Scarborough Rapist
period (as opposed to the later St. Catharines drug-'em-and rape-'em
period), either. Nor did he know two of the three women he ultimately
killed. But this tenuous familiarity between Bernardo and Bain
is a big part of the scenario underpinning one aspect of the
argument promoted by Baltovich's appeal lawyers.
But let's look at what's behind
door No. 2 instead.
A.B. had once been a classmate
of Bain's brother Mark, even had a crush on him. After she became
involved with Bernardo, A.B. kept an envelope on which Mark had
written his name and number, this "as a reminder of happier
times,'' according to the appellant factum. When Bernardo saw
the envelope, he forced A.B. to tear it up and promise never
to see or talk to Mark Bain again.
I'm not quite sure where the
defence was going with this point, unless the objective was to
suggest that Bernardo could have killed Elizabeth Bain as some
weird payback because he was jealous of her brother. But in her
affidavit, A.B. says she used only first names when she allegedly
introduced Bernardo to Elizabeth. There's no evidence that Bernardo,
even if he'd met her, ever knew that Elizabeth was Mark's sister.
Turning our attention to the
ghostly traces of Bernardo in Bain's life, or her death, we come
now to the "evidence'' extrapolated from the victim's car:
A radio tuned to CFNY and a pack of DuMaurier Lights.
Bernardo, according to a close
(and disreputable) cohort, was a fan of CFNY and smoked DuMaurier
Lights. So here is evidence that might put Bernardo in Bain's
car, in the state it was found after she vanished.
As anyone who closely followed
the Bernardo trial might recall, Bernardo was well into his rap
music era by 1990, when Bain went missing. Indeed, he fancied
himself a nascent rap star, and it was this type of music that
played in the background - as a sort of vile orchestral score
- of the notorious videotapes Bernardo and then-wife Karla Homolka
made to capture their sex attacks on two girls Bernardo was later
convicted of killing.
It doesn't mean Bernardo couldn't
have tuned the radio dial to CFNY. So could have Bain ... or
Baltovich. As for the cigarettes, they were a brand Bain smoked
too, though not the light version in her case. But many of us
who happen to smoke DuMaurier often find ourselves in possession
of the light brand instead, for insignificant reasons. Routinely,
we tear off the filter to render them more nicotine-potent. Cigarettes
found in Bain's car had the filter removed.
We move now from the picayune
to more ostensibly probative - specifically, a woman who'd gone
on a blind date with Bernardo in 1987. This woman, according
to the fresh evidence application, would three years later -
on the night Bain disappeared - catch a glimpse of a man at the
Scarborough campus, this while she was on the phone to her fiancé.
For reasons she couldn't explain, she had a "horrible feeling
about him.''
She never got a good look and
believed he was trying to keep his face averted from her. It
never crossed her mind, at the time, that this was the Bernardo
she had dated exactly once. She noted only that he had fair skin
and a blonde hairstyle - short at the back and long on top with
a straight swoop to the side, a style then widely popular. Yet,
though she never knew Bain nor had any knowledge about her disappearance,
she went around telling people that she thought the man she'd
seen on campus was responsible for Bain's disappearance. It was,
as she would repeatedly state, "a feeling.''
It was not till this woman
saw a composite sketch of the Scarborough Rapist on TV, a week
later, that she struck on the belief that the man she'd seen
on campus was the rapist in the picture. But she as yet didn't
attach that sketch to Bernardo. That came later, when she saw
home videos of Bernardo on television. She began to harbour suspicions
that Bernardo was connected with Bain's murder but didn't come
forward until after reading news reports in 2000 of Baltovich's
bail application.
Under cross-examination, this
witness repeated that she hadn't clearly seen the face of the
man she'd spotted on campus and that he'd been standing "pretty
distant.'' Nor had she any clue where he'd gone after he left.
She could assert only that he was white, with blond hair cut
in a certain fashion. "I never said I saw Paul Bernardo
on campus,'' she flatly states.
One of the crown's strongest
rebuttals lies in the date when a composite sketch of Bernardo
was circulated. The last known victim of his Toronto sexual attacks
- on May 26, 1990 - provided a description. The resulting sketch
of the Scarborough Rapist was released two days later - three
weeks before Bain disappeared - and there is no evidence Bernardo
ever struck again on those stomping grounds. It was seven months
later, on Christmas Eve in St. Catharines, that he and Homolka
drugged and sexually assaulted Homolka's sister, causing the
teenager's death.
- Police lax, Baltovich
defence team says
Crown says report proves nothing
Judges reserve decision as appeal ends
TRACEY TYLER, LEGAL AFFAIRS
REPORTER, Toronto Star, Sep. 30, 2004.
An extraordinary eight-day
appeal hearing ended yesterday with a lawyer for Robert Baltovich
accusing Toronto police of "gross negligence" for failing
to disclose evidence that could have helped his client prove
he didn't murder Elizabeth Bain.
Baltovich, 39, isn't accusing
police or prosecutors of misconduct - at least not at this point
- but "one cannot do anything but conclude" that Detective
Sergeant Brian Raybould in particular, one of the two lead investigators
in the case, "was grossly negligent," James Lockyer
told the Ontario Court of Appeal.
"He is the one, really,
who gathered all this evidence," Lockyer told a three-judge
panel. "Interestingly enough, on all these occasions, he
was always alone."
Lawyers for the crown have
told the court that Baltovich's trial lawyers, Mike Engel and
Bill Gatward, failed to exercise due diligence in tracking down
the information or take crown attorney John McMahon up on his
standing offer to look at the investigative file.
The evidence includes a police
report that Baltovich's lawyers say is "virtual proof"
of his innocence.
It confirms he went to meet
Bain outside her class at the University of Toronto's Scarborough
campus at 9 p.m. on June 19, 1990, the day she vanished.
If Baltovich was the killer,
it would make no sense for him to go to the class because the
prosecution theory was that Bain was dead by 7 p.m., Lockyer
told the court.
The evidence also includes
pages from Bain's diary, dated Sept. 16, 1988, which Baltovich's
lawyers say undermines the crown's theory of motive. The crown
obviously read them, because passages were highlighted, yet apparently
didn't appreciate the need to disclose them, Lockyer said.
To that extent, the crown was
also negligent, he argued.
But Madam Justice Eileen Gillese
asked Lockyer what efforts the defence team made to track down
the witness who ultimately confirmed Baltovich was outside Bain's
classroom. One place to start was by asking for a class list,
she suggested.
Lockyer said at the time of
Bain's disappearance, the defence had no reason to; Baltovich
wasn't arrested until five months later, on Nov. 19. At that
point, the defence would presumably have waited until the prosecution
disclosed what evidence it planned to use in its case, he said.
"Why?" asked Mr.
Justice Michael Moldaver.
"Why? To say the defence
will just sit back and say, `We'll just wait until the police
have found out, or tell us what they've found out'...
"I don't think so,"
he said. "Speaking for myself, I don't accept that."
Crown counsel Gillian Roberts
told the court yesterday the "classroom evidence" still
doesn't account for Baltovich's whereabouts earlier in the evening,
and argued he could have still killed Bain between 7 and 7:15
p.m. or between 8 and 9 p.m. A witness last reported seeing him
at the campus gym at 8:30, she said.
Roberts also suggested Baltovich
could have crawled out a window of his basement bedroom in the
early morning hours of June 22, 1990 - when his mother says he
was at home sleeping - and driven Bain's body north to Lake Scugog
to bury it.
While Baltovich's lawyers have
pointed to Scarborough rapist and serial killer Paul Bernardo
as the likely killer, what they call a compelling circumstantial
case is no more than unreliable and speculative evidence, argued
crown counsel Howard Leibovich.
With few exceptions, Bernardo
never abducted women in broad daylight, he said. Kristen French
was an exception, but Bernardo's then-wife, Karla Homolka, helped
him, Leibovich said. He argued the fresh evidence purporting
to link Bernardo to the crime shouldn't be considered by the
court.
But Brian Greenspan, who also
represents Baltovich, said that's not how the Supreme Court of
Canada felt when it was presented with evidence that serial rapist
Larry Fisher - and not David Milgaard - might have been the person
responsible for killing Saskatoon nursing aide Gail Miller in
1969.
The appeal hearing ended with
Greenspan handing the panel extracts from what the Supreme Court
said after a historic hearing into the Milgaard case more than
a decade ago. In the Milgaard case, the Supreme Court concluded
that to deprive a jury of the evidence of Fisher's rapes would
be a "miscarriage of justice."
The court reserved its decision.
- Crown theory in Bain
killing 'ridiculous'
Baltovich
lawyers pick apart the case
Issue is when or how body was dumped
TRACEY TYLER, LEGAL AFFAIRS
REPORTER, Toronto Star, Sep. 23, 2004
It requires "Cirque du
Soleil contortions" to make the prosecution's theory that
Robert Baltovich killed Elizabeth Bain correspond with the evidence
and common sense, Ontario's highest court heard yesterday.
"It's not a coherent,
logical and sensible theory," lawyer James Lockyer told
a three-judge panel of the Ontario Court of Appeal. "In
my submission, it's a ridiculous theory."
Lockyer told the judges that
when they look at the evidence, they should have a "feeling
of unease" about a jury's decision to convict Baltovich
of second-degree murder in 1992. The case fits squarely within
a line of Canadian court decisions that have found certain jury
verdicts to be unreasonable, he argued.
At Baltovich's trial, the prosecution
theorized that Baltovich killed Bain, his 22-year-old girlfriend,
sometime before 7 p.m. Tuesday, June 19, 1990, and left her body
near Colonel Danforth Park at the University of Toronto's Scarborough
campus. Then, the prosecution argued, he drove her car to an
auto-body shop on Morrish Rd., two minutes away. The car was
seen at the lot on the Wednesday and Thursday after she disappeared.
About 6 a.m. Friday, motorist
David Dibben spotted the car, with a set of distinctive plastic
novelty fingers on the passenger door, at an intersection north
of Whitby. That afternoon, it was back at the car lot, where
it was discovered. Blood was pooled on the floor in the back,
but Bain's body was never found.
The prosecution's theory, Lockyer
recalled yesterday, had it that Baltovich was "desperate"
to ensure Bain's body wasn't found, so he decided to dispose
of it near Lake Scugog - but he knew he had to do so before Saturday,
when a search party was to scour the campus.
According to prosecutors, he
returned to the park Thursday night, loaded the body into Bain's
car and headed north.
Lockyer argued, however, that
Baltovich would have been taking an "immense risk"
driving through Scarborough, noting that a bulletin had advised
police to be looking for the car.
If Baltovich was the killer,
only "idiocy" could explain his decision to return
the car the next day to a lot only a few blocks from the Bain
home, he said.
Baltovich's time was well accounted
for that Thursday, not only in the day, when he searched the
campus with Bain's father, but at night, Lockyer added. From
7:30 p.m. to well past 9 p.m., Baltovich was at Bain's house,
helping her mother replace paving stones. If he decided to move
the body after just leaving the dead woman's home, "that's
a pretty complicated individual we're dealing with here,"
Lockyer said.
But there's another problem,
he added. Baltovich was at 42 Division, being interviewed by
officers, from 10 p.m. to 1 a.m.
It only takes about an hour
to drive to the Lake Scugog area, which begs the question of
what Baltovich would have been doing between leaving the police
station and Dibben's alleged 6 a.m. sighting, Lockyer told Justices
Michael Moldaver, Robert Sharpe and Eileen Gillese.
"I don't know how long
it takes to bury a body so no one will find it," Moldaver
replied.
But other things don't add
up, Lockyer contended.
Whoever returned Bain's car
to the lot reversed it - for the second time - into its parking
space, which he argued would have been a feat for Baltovich,
who doesn't know how to handle a standard transmission.
And if Baltovich moved the
body into the car Thursday night, Bain would have been dead two
days. While it's "not impossible" her blood could have
discharged onto the floor, it's "highly unlikely,"
he said.
"Is there any evidence
of that?" asked Moldaver.
"No. But it's a matter
of common sense," said Lockyer. "I don't mean to be
ghoulish, my lord. But I believe it's important to make that
point."
Baltovich's lawyers argue Scarborough
rapist and serial killer Paul Bernardo is a more plausible suspect.
The crown will argue that it makes no sense that the person who
so perfectly disposed of Bain's body could be the same Bernardo
who bungled the disposal of the bodies of Leslie Mahaffy and
Kristen French, the court was told by another of Baltovich's
lawyers, Brian Greenspan.
But, in fact, how Bain's killer
got rid of her body is "consistent" with how Bernardo
disposed of the teens' bodies, and part of a "very logical
progression in the mind of this ... sick human being," he
said.
After Bain was killed, Greenspan
suggested, Bernardo tried to improve his technique by encasing
Mahaffy's remains in cement. But he was more familiar with Lake
Scugog than Lake Gibson, where Mahaffy's body parts were discovered
as the water level fell, Greenspan said.
By the time French was killed,
Bernardo had developed a "repulsive and disgusting and revolting"
method of cleansing the body he thought would eliminate any links
to him, and he did not care if it was found. The hearing continues
today.
Baltovich appeal trial
in last day
Jennifer Kwan, Canadian
Press, September 29, 2004
TORONTO -- In an unusual move,
Ontario's highest court asked Crown counsel Tuesday to consider
the option of a judicial stay in the appeal trial of Robert Baltovich,
who was convicted in 1992 of killing his former girlfriend.
Ontario Court of Appeal Justice
Michael Moldaver made the comment just minutes before Day 7 of
the appeal hearing came to an end.
"At some point we would
like the Crown to address that issue,'' Moldaver said, referring
to defence lawyer James Lockyer's request last week to consider
a stay of proceedings.
Lockyer had asked the three-judge
panel to either acquit Baltovich, order a new trial or consider
a stay.
Baltovich's lawyers explained
a judicial stay is a middle-ground remedy -- a solution
somewhere between an outright acquittal and the ordering of a
new trial.
A judicial stay can be applied
when evidence presented at an appeal trial doesn't necessarily
meet the test for an outright acquittal or provide grounds for
a new trial.
In Baltovich's case, his hearing
has seen disputes over undisclosed evidence, fresh evidence and
the way in which the trial judge charged the 1992 jury.
A judicial stay would halt
the court proceedings, meaning Baltovich would remain free but
would not technically be acquitted of murder.
Baltovich, now 39, was convicted
and jailed for life without parole for 17 years for killing former
girlfriend Elizabeth Bain after she disappeared in June 1990.
Her body was never found.
Baltovich served eight years
before the Appeal Court, in a highly unusual move four years
ago, freed him on bail pending his current hearing.
Much of Tuesday's hearing consisted
of the Crown arguing the trial judge's charge to the jury was
fair and balanced, despite defence characterizations it was prejudicial.
Baltovich's lawyers have attacked
the trial judge's direction to jurors, saying he left out key
defence evidence.
The defence has said that,
among other things, the judge should have told the jury to consider
the possibility that the Scarborough rapist, later identified
as serial killer Paul Bernardo, murdered Bain.
But Crown lawyer Gillian Roberts
dismissed that, saying defence lawyers at the trial did not even
enter into evidence composite drawings of the notorious sex killer
to the jury or Crown witnesses.
Earlier in the day, Crown lawyer
Brian McNeely highlighted the issue of hypnosis, which has been
slammed by the defence as being dangerous. Citing case law, McNeely
suggested the use of hypnosis is no better or worse when it comes
to the credibility of witness identification.
A key Crown witness originally
wasn't even sure the person she'd seen hours before the Crown
said Baltovich killed Bain was a man or a woman. But after seeing
Baltovich's picture in a newspaper, the witness's description,
given under hypnosis, improved dramatically.
"It's not what the law
knows about this, it's what everybody in this room knows,'' McNeely
said. "Nobody would know what they were doing on a routine
day eight months ago.''
McNeely also argued the judge
fairly directed the court on how to assess disputed discrepancies
with the witness's photo identification of Baltovich.
Justice Robert Sharpe noted
the witness didn't remember anything except seeing Bain, but
under hypnosis, all that changed.
"All the perils of identification
evidence seem to be present,'' Sharpe said.
"It seems to me there
are problems with hypnosis,'' Moldaver added.
The Crown emphasized evidence
now being disputed was not noted at trial, nor was it included
in the defence's closing arguments.
As well, any perceived imbalance
was due significantly to the fact that Baltovich refused to testify
and give his side of the story, the Crown said.
Earlier, the Crown dismissed
defence arguments that several pieces of key evidence, which
came to light only after Baltovich was convicted in 1992, prejudiced
his trial because they were improperly withheld from his lawyer.
Baltovich's lawyers have attacked
the guilty verdict as "unreasonable'' in light of non-disclosed
evidence. They have dismissed the Crown's theory on the murder
as absurd.
The unusually long eight-day
hearing is expected to conclude Wednesday.
Crown rejects judicial
stay in Baltovich case
Canadian Press, September
29, 2004
Toronto - Crown lawyers rejected
the notion of a judicial stay for convicted murderer Robert Baltovich
Wednesday, suggesting the defence didn't make a case to justify
such a move.
A three-judge panel hearing
the appeal of Mr. Baltovich's 1992 conviction of the second-degree
murder of girlfriend Elizabeth Bain had asked the Crown on Tuesday
to consider such a stay.
But Crown lawyer John Corelli
said Wednesday that no snap decisions should be made in the matter
of a judicial stay, calling it one of the most "Draconian"
remedies known to law.
He added that the manner in
which the defence raised the issue of a stay is "prejudicial"
to the Crown's case and noted that no formal application for
a stay had been submitted to the court.
"We still don't know what
the basis for the stay is," Mr. Corelli said. He said the
defence did not make clear why a stay should be considered.
And if a stay of conviction
is considered, Mr. Corelli told court, the Crown would prefer
to have the power to grant it. A retrial would not be allowed
under a judicial stay, while one granted by the Crown could see
a case retried within one year.
Ms. Bain vanished from a campus
of the University of Toronto in June 1990. Although her body
was never found, Mr. Baltovich was convicted in 1992 of second-degree
murder.
He spent eight years in prison
and was released on bail in 2000 to await his appeal, in which
the defence focused on fresh evidence and notorious sex-killer
Paul Bernardo as a possible suspect.
The Crown argued earlier that
it's completely unreasonable to believe Mr. Bernardo murdered
Ms. Bain. As such, there was no reason for the jury to hear evidence
related to Mr. Bernardo, who was terrorizing Toronto's east end
at the time as the still-unidentified Scarborough rapist, at
Mr. Baltovich's trial.
"There is a real risk
that if the evidence was admitted at trial, it would have induced
in the minds of the jury sentiments of revulsion and condemnation,"
the Crown states in a written factum.
The appeal hearing was expected
to conclude Wednesday.
© 2004 Bell Globemedia
Publishing Inc. All Rights Reserved.
Baltovich's trial silence
questioned
Never
testified in court in 1992
Crown wonders why during appeal
TRACEY TYLER, Toronto Star
LEGAL AFFAIRS REPORTER, Sep. 29, 2004.
If the jury at Robert Baltovich's
1992 murder trial headed into its deliberations with a one-sided
impression of the evidence, it was because Baltovich himself
didn't step into the witness box and testify, the Ontario Court
of Appeal has been told.
Although Baltovich complains
that Mr. Justice John O'Driscoll delivered an unbalanced jury
charge favouring the prosecution, the defence, in many instances,
failed to offer explanations for Baltovich's conduct, said crown
counsel Brian McNeely.
It wasn't the trial judge's
job to "invent" them, he said yesterday.
"If there is one true
explanation for all this suspicious conduct, surely the best
source of it would have been for the accused to get in the box
and explain it," he told Justices Michael Moldaver, Robert
Sharpe and Eileen Gillese.
In written materials filed
with the court, Baltovich's lawyers say he wanted to testify,
but his trial lawyers made a strategic decision that he shouldn't.
The court was in its seventh
day of hearings into Baltovich's appeal of his conviction for
the murder of his girlfriend, Elizabeth Bain, 22, who disappeared
on June 19, 1990. Her body has never been found. Baltovich's
lawyers for the appeal hearing - James Lockyer, Brian Greenspan
and Joanne McLean - argue his conviction is a miscarriage of
justice.
O'Driscoll, they argue, abandoned
all fairness and used his influential position to guide the jury
toward its verdict of second-degree murder.
His jury instructions, they
say, were laced with contempt for the defence and effectively
endorsed the prosecution's theory that Baltovich killed Bain
in a fit of jealousy and attempted to cover his tracks.
But McNeely argued yesterday
that O'Driscoll did an "incredible" job and his jury
instructions were a fair and balanced representation of the case
put forward by the prosecution and defence.
Moldaver, however, asked McNeely
to point to one place in the charge where O'Driscoll referred
the jury to Baltovich's explanation in connection with a key
issue - his failure to return calls from Bain's former boyfriend,
Eric Genuis, any sooner than the afternoon of Friday, June 22,
1990. Not mentioning Baltovich's side of the story might be seen
as "but one example" of not presenting the case fairly,
from the defence point of view, Moldaver said.
Genuis left several phone messages
at Baltovich's home late on June 21 and early June 22, while
Baltovich was being interviewed by Toronto police officers investigating
Bain's disappearance. Lockyer told the court earlier in the appeal
that his client didn't get those messages from his mother until
late Friday and called Genuis as soon as he did.
Baltovich's friend, Jim Issacs,
confirmed this in his testimony at the trial, he added.
But before sending jurors to
deliberate, O'Driscoll told them they might want to ask themselves
if the reason Baltovich didn't return the calls was because he
was the man seen driving Bain's car at an intersection north
of Whitby early on June 22. The crown says Baltovich went to
Lake Scugog to bury Bain's body and was driving back to Toronto
at that time.
The crown's interpretation
of testimony from Baltovich's mother at the trial is that, on
Friday afternoon, she was simply "reminding" her son
to call Genuis, not telling him for the first time, crown Gillian
Roberts said.
"I ask you to consider
whether any perceived imbalance (in the charge) was partly or
indeed substantially a reflection of the appellant's refusal
to get in the box and give his side of the story," McNeely
said.
In other aspects of his jury
instructions, O'Driscoll actually skipped over evidence that
would have helped the prosecution, he said.
For example, much has been
made of the fact that, in commenting on Baltovich's inability
to drive a car like Bain's, which had a standard gearshift, O'Driscoll
asked rhetorically, `Is it a big deal for a 26-year-old male
to drive a so-called four-on-the-floor,'" McNeely noted.
In fairness, O'Driscoll "did
date himself " because it probably was no big deal when
he was a young man, he said. However, one thing he never bothered
to mention in his charge was that there were problems with the
car's clutch and transmission, which might have indicated it
was driven by someone who didn't know what they were doing, McNeely
said.
- Oral arguments in the appeal
are expected to wrap up today.
-
-
- Sister's testimony called
irrelevant
Lawyers question if Bain's sibling was telling truth
She changed dates, Baltovich appeal hearing told
TRACEY TYLER, LEGAL AFFAIRS
REPORTER, Toronto Star, Sep. 28, 2004
Trying to get a jury to believe
that Elizabeth Bain's sister lied to help convict Robert Baltovich
of murder would be about as useless as his 1992 defence theory
that Bain might not be dead, Ontario's highest court has been
told.
There was ample evidence that
Elizabeth Bain's relationship with Baltovich was in trouble -
with or without Cathy Bain's testimony, crown counsel John Corelli
told a three-judge panel of the Ontario Court of Appeal yesterday.
Bain, a third-year psychology
student at the University of Toronto's Scarborough campus, disappeared
June 19, 1990. Her body has never been found.
Cathy Bain testified that on
June 14, five nights before her sister vanished, Bain emerged
from an encounter with Baltovich in the basement of her family's
home, crying and complaining that "Rob is such an asshole,"
the court was told.
James Lockyer, one of Baltovich's
lawyers, told the panel earlier that among several pieces of
new evidence that was buried in police files is a report that
now casts doubt on Cathy Bain's credibility and "strikes
at the heart" of the crown's theory that Baltovich killed
Bain in a fit of jealousy when she ended their relationship.
The previously undisclosed
statement shows that Cathy Bain first told Toronto police investigators
that the basement incident happened June 18, the night before
her sister disappeared. During a subsequent police interview,
she changed the date to June 14.
It is difficult to see how
she could have been so mistaken about the last night of her sister's
life, Lockyer said.
Corelli said yesterday the
new evidence could be the basis for ordering a new trial if it
means Baltovich was not given a reasonable opportunity to respond
to the crown's case in 1992. But he argued the new evidence relating
to Cathy Bain is likely to have little impact on a jury.
If Cathy Bain were to have
fabricated evidence, she could have come up with a more powerful
story by telling the jury that her sister had, in fact, broken
up with Baltovich, he said, noting the sisters has spoken briefly
the day Bain disappeared.
Instead, when she was questioned
about it during her cross-examination in 1992, she said Bain
never mentioned anything to her about a break-up, Corelli added.
Meanwhile, there was evidence
from Bain's brother, Mark, as well as his girlfriend, that Bain's
relationship with Baltovich had been going downhill for several
months and that Bain herself had told her doctor in May, 1990,
that she was not sexually active, he said.
Trying to persuade the jury
that what Cathy Bain described wasn't true, "when we have
all the supporting evidence that it happened, would not have
succeeded and would only have found disfavour with the jury,"
Corelli said.
Corelli also argued that another
recently discovered police report does little to help the defence,
even though it appears to confirm that Baltovich did wait for
Bain outside her psychology class at 9 p.m. the day she disappeared
- just as he claimed.
Last week, Lockyer said the
report "goes very far" toward establishing that Baltovich
did not kill Bain, who, on the crown's theory, was dead by 7
p.m.
If Baltovich was the killer,
Lockyer said, he would have no need to go to her class by 9 p.m.
because he would have known she was dead; if he went as part
of a ruse, to make it appear as though he had nothing to do with
the crime, he would certainly make sure someone saw him.
Instead, he waited on a second-floor
balcony. Baltovich told investigators he decided to go there
to wait after noticing a man standing outside the classroom -
a man he thought might be waiting for Bain.
Unknown to the defence, Toronto
police had managed to confirm Baltovich's story by tracking down
the man, Nazar Tonbazian, within a week.
Their report, discovered only
this year, destroys the prosecution's theory that Baltovich was
lying about the incident, Lockyer said.
Corelli said the report may
well "address that concern" but it also supports the
crown's theory that Baltovich was involved in some very strange
behaviour.
There were also numerous inconsistencies
in Baltovich's account, he said.
Baltovich said he decided to
wait for Bain after her class after seeing her abandoned car
on Old Kingston Rd., beside Colonel Danforth Park. But at another
point, he said it wasn't unusual to see her car parked there,
Corelli said.
He also gave evolving descriptions
of the man he saw outside the classroom, he said.
Corelli also disputed Lockyer's
suggestion that a Sept. 16, 1988, diary entry, which Bain gave
to Baltovich the weekend before she disappeared, was an expression
of her love for him.
The appeal continues.
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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
