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 (right) 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 (right) 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.
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.
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.
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 (right).
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.
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.
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.
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.
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.