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Robert Baltovich

Robert Baltovich

Grossly 'unfair' charge to jury: appeal

TORONTO -- The jury that convicted Robert Baltovich of murder in 1992 got "inflammatory" and "unfair" guidance from a trial judge who failed to give equal weight to both the Crown and the defence, a court heard Thursday.

Lawyer James Lockyer took direct aim at Justice John O'Driscoll for projecting an "aura of guilt" over Baltovich, charged with killing 22-year-old Elizabeth Bain, instead of providing an impartial summation of the evidence.

"He dominated the jury with his own opinions, and he made his own opinions very clear, and on occasions even belittled the defence," Lockyer told a three-judge panel of the Ontario Court of Appeal.

"The charge was most unfair."

Lockyer said O'Driscoll made it seem as if there were "mountains of evidence" to show Baltovich killed Bain in a jealous rage in 1990 and then "concocted" alibis to avoid getting caught.

In fact, the case against Baltovich was circumstantial, weak and based heavily on eyewitness evidence that was highly suspect - a fact O'Driscoll failed to warn the jury about, Lockyer said.

At one point during his charge to the jury, O'Driscoll even tried to suggest that Baltovich's drastic, close-cropped prison haircut could be interpreted as a sign he was trying to alter his appearance, Lockyer said.

"The poor man had a haircut during his preliminary hearing at the jail," he sneered. "I do not suppose barbers that go into the jail are haute couture."

Coming as it did 10 days after closing Crown and defence arguments, O'Driscoll's 60-page charge would have carried more than its usual weight and been "overwhelming" for jurors, Lockyer argued.

He said O'Driscoll used "inflammatory expressions" and played down evidence favourable to the accused.

Innocent actions, such as Baltovich calling his brother to talk about Bain's disappearance, became a sign of guilt, Lockyer said.

"That is such an unfair depiction of the evidence that the jury heard."

The appeal court is being asked to throw out Baltovich's conviction or at least order a new trial.

Baltovich's lawyers argue Bain most likely died at the hand of notorious sex killer Paul Bernardo, who was prowling the neighbourhood at the time as the unidentified Scarborough rapist.

Over the course of the hearing, Justice Michael Moldaver has at times vigorously challenged Lockyer, even complaining at one point the lawyer was "building great conspiracy theories."

But he seemed unequivocal Thursday as he sided with the defence about the lopsided approach O'Driscoll had taken with jurors.

"If your point is the judge did not deal with (evidence) fairly and did not set out Mr. Baltovich's position fairly, you are absolutely right," Moldaver told Lockyer.

"He never got around, for the most part, to telling them the defence's position."

Bain vanished from University of Toronto's east-end Scarborough campus in June 1990. Her body has never found. Her bloodstained car was located on a nearby street a few days later.

At his original trial, the Crown said Baltovich killed his girlfriend in a jealous rage because she wanted to end their relationship. He was convicted of second-degree murder and served eight years of a life sentence until he was freed on bail four years ago.

Baltovich, who was 26 at the time of his trial, has always denied killing Bain, who was known to be a troubled young woman. Initially, he expressed fears that she might have killed herself.

But O'Driscoll interpreted that concern as a sign of guilt, devoting nearly half his charge to a discussion of whether Bain had committed suicide, Lockyer said.

The judge even ridiculed the defence for "promoting" the idea of suicide - comments Lockyer called "grossly over the top," since the Crown went out of its way to discount suicide and the defence never advanced it as a theory.

Baltovich's high-powered legal team was scheduled to wrap up its arguments Friday morning, at which point Crown lawyers are expected to lay out their arguments for why the conviction should stand.

Moldaver hinted Thursday they're facing an uphill battle.

"We need to hear from you on everything we've heard so far," Moldaver told the Crown. "You've got your work cut out for you."

Judge belittled Baltovich defence, appeal court told
Ordinary behaviour was read as a sign of guilt

The prosecution was so determined to "squeeze every last drop" out of its pathetically weak case against Robert Baltovich that something as simple as getting his hair cut was transformed into the conduct of a devious killer, the Ontario Court of Appeal was told yesterday.

The crown's heavy reliance on so-called "consciousness of guilt" evidence was a sign of how anemic its case was, lawyer James Lockyer, who represents Baltovich, told a three-judge panel yesterday.

But the jury wouldn't have appreciated that by the time Mr. Justice John O'Driscoll delivered his "over the top" instructions, in which he "dominated" jurors with his opinions and "occasionally belittled the defence," he said.

Baltovich's behaviour in the hours and days after 22-year-old victim Elizabeth Bain disappeared on June 19, 1990, was nothing out of the ordinary, and simple explanations were available for any questions it raised, Lockyer told the court. But these were ignored in a one-sided jury charge that was littered with provocative and "loaded" phrases and cast an unwarranted aura of suspicion, Lockyer said.

A "classic" example, he said, was O'Driscoll mocking Baltovich's ability to recall minute details of what he did the day Bain disappeared, including what he had for breakfast, while he was unable to remember what he wore.

One reason Baltovich could remember what he had for breakfast was because he had the same thing every day, Lockyer said.

"So of course he can say how many shredded wheat he had ... he can say how many shredded wheat he had for breakfast 365 days a year."

The Ontario Superior Court judge also made a "habit" of posing rhetorical questions that left room for only one answer, Lockyer said.

He queried, for instance, whether Baltovich's "failure" to return three calls from Bain's former boyfriend late on June 21 could be explained by the fact he was the man seen driving Bain's car at an intersection north of Whitby early the following morning.

The prosecution argued that Baltovich was returning from the Lake Scugog area after disposing of her body, which was never found.

`I mean, the poor man had a haircut ... How you can let that be used against him is beyond me.'

In fact, there was no "failure" to return calls, because the message from Bain's former boyfriend was to "call any time," Lockyer noted. Baltovich didn't get the messages from his mother until the evening of the 22nd, and when he did, he called right away, he said.

Mr. Justice Michael Moldaver, who heads the panel, suggested that while it was open to the crown to use the evidence, it would have been "appropriate" to lay out the positions of both crown and defence.

"If your point is the judge didn't deal with it fairly and didn't deal with Mr. Baltovich's position, speaking for myself, you're absolutely right," he said. Similarly, said Lockyer, Baltovich's decision to get a haircut partway through his preliminary hearing took on sinister connotations when the prosecution was permitted to lead evidence at trial about how he had dramatically changed his appearance.

The visit to the barber took place just before his preliminary hearing was set to hear from two crown witnesses, who identified Baltovich from a police photo lineup as the person who most closely resembled a man seen with Bain beside a tennis court the day she disappeared, and later, driving her car.

"I mean, the poor man had a haircut ... at the jail," Lockyer added in his oral argument yesterday. "Now, I don't imagine these barbers who are going to the jails are haute couture, to say the least. How you can let that be used against him is beyond me."

Over the past 10 years there has been a trend, in everything from case law to the report by former Quebec judge Fred Kaufman into the wrongful conviction of Guy Paul Morin, toward discouraging the use or misuse of this sort of evidence, Lockyer noted.

Yet it consumed more than 60 pages of O'Driscoll's charge, he said.

"It must have been dreadfully prejudicial to (Baltovich)," he said. "But more important, it didn't reflect the reality of the appellant's conduct at a broad level."

Lockyer also urged the court to consider whether the jury should have heard from witnesses whose evidence was enhanced by hypnosis. They included Marianne Perz, a tennis instructor at the University of Toronto's Scarborough campus, who claimed she saw Bain sitting with someone at the courts at 5:40 p.m. June 19.

While Perz was at first only able to say the person was Caucasian with dark hair, under hypnosis her description became more detailed and she eventually picked Baltovich out of a police photo lineup as the person who most closely resembled the man she saw.

Lockyer acknowledged that asking for an outright ban on the use of hypnotically enhanced testimony is unrealistic, since the appeal court refused to do so last July in a case involving Stephen Trochym, a former Canada Post worker convicted of murdering his girlfriend.

Moldaver told crown lawyers that when they begin their argument today, the court wants to hear their response to every ground of appeal Baltovich's lawyers have raised.

Bernardo haunts Bain case appeal

Woman's killing fits his style: Lawyer
Baltovich seeks re-trial or dismissal

It would have been entirely within the repertoire of a sexual psychopath like Paul Bernardo to have befriended Elizabeth Bain before killing her instead of ambushing her in a random attack, the Ontario Court of Appeal has been told.

There is no evidence that Bain, whose body has never been recovered, was sexually assaulted, Brian Greenspan, a lawyer representing her former boyfriend, Robert Baltovich, told a three-judge panel yesterday.

But, he said, there is enough credible circumstantial evidence linking Bernardo to her disappearance from the University of Toronto's Scarborough campus sometime after 5:30 p.m. on June 19, 1990, that a judge presiding over a retrial for Baltovich would have to instruct the jury to consider him as an alternate suspect.

Earlier this week, the court unsealed several volumes of evidence gathered by the defence since 1992, when Baltovich was convicted of second-degree murder and sentenced to life with no parole eligibility for 17 years in the slaying of 22-year-old Bain.

Among other things, the evidence says Bernardo and Bain met in 1985-86 and that he took girlfriends for sexual encounters in Colonel Danforth Park, where Bain's car was seen on June 19, 1990, the day she disappeared.

The new material also includes evidence that a man fitting Bernardo's description was seen that same day at the University of Toronto's Scarborough campus, inside a building where Bain had psychology classes.

There were also receipts showing that, while Bernardo was spending weekends in St. Catharines, home of his then girlfriend Karla Homolka, he was spending his weekdays that month in Scarborough.

"Is it your theory that Mr. Bernardo jumped out from behind some bushes ... or that he befriended her?" asked Mr. Justice Michael Moldaver, who suggesting that befriending someone was not Bernardo's "modus operandi back in those days."

But Greenspan disagreed.

Bernardo "stands out in the history of Canadian criminal law" as someone who "defies profiling" and has proven himself capable of carrying on seemingly normal long-term relationships with women while brutalizing others and having "serial rapes and homicides all going on at the same time," Greenspan said.

"To suggest, with great respect, that on June 19, 1990, Paul Bernardo was not capable of engaging in a relationship with Elizabeth Bain ... misses Paul Bernardo," he told the court.

Bernardo's last attack as the Scarborough rapist took place on May 26, 1990, and involved an assault on a 19-year-old he bound and raped in the yard of Agincourt Collegiate on Midland Avenue. It was also the first time he used a knife.

The release of a police composite sketch shortly afterward may have put him on high alert to avoid being identified and moved him to switch from simply raping to killing his victims, Greenspan suggested yesterday, adding that the possibility Bernardo killed Bain may also explain why her body has never been found.

Prosecutors believe Bain's body was dumped in Lake Scugog. The dismembered remains of Leslie Mahaffy, 14, who, along with 15-year-old Kristen French, was killed by Bernardo and Homolka, were entombed in cement and tossed into a Niagara reservoir.

Earlier yesterday, lawyer James Lockyer, who heads Baltovich's appellate team, told the court the long-standing prosecution theory that his client killed Bain because she tried to end their relationship appears to have been demolished by 16-year-old pages from her diary, which were discovered in Toronto police files only last spring.

Far from amounting to a "Dear John" letter, as the prosecution alleged at Baltovich's trial, the diary entry from Sept. 16, 1988, includes Bain talking about how she wanted to marry Baltovich almost immediately after meeting him, Lockyer noted.

While Lockyer opened the appeal by urging the court to acquit Baltovich outright, or at least order a new trial, another option for the panel is entering a stay of proceedings, he suggested yesterday, based on the "weakness of the case," the "volume of undisclosed material" and the seven years Baltovich spent behind bars before being released pending appeal.

Despite their ups and downs, Bain and Baltovich were very much in love on June 19, 1990, and had every expectation their relationship would survive, Lockyer suggested.

Two days before she disappeared, when Bain met Baltovich outside the home for developmentally disabled children where she worked and handed him the diary pages in an envelope, it was really an expression of love, he said.

More important, they are just one of many pieces of evidence that would have proved Baltovich was at all times honest when he spoke with police investigating the Bain case - evidence that instead lay buried in police files, he said.

It was Baltovich himself who first alerted police to the diary pages when he was interviewed on July 5, 1990. Though he was puzzled by their meaning, he said he felt they were important because they were the last thing Bain gave to him before she vanished. Baltovich said he turned the pages over to Bain's father after she disappeared.

On the basis of what Baltovich told them, police in turn interviewed one of his friends, who saw the envelope in the car and assumed, after hearing Baltovich and another friend talk about how Bain's diary entries were inside, that it was a "Dear John" letter.

That, in turn, formed the catalyst for the prosecution's theory that Baltovich killed Bain because she rejected him, the court was told.

But Baltovich certainly didn't see it that way, Lockyer said. If he did consider it a Dear John letter and subsequently killed Bain, he never would have mentioned the pages to detectives, he added.

Further evidence presented by the prosecution that the relationship was in trouble included testimony from Cathy Bain, Elizabeth's sister, who claimed Bain and Baltovich had a blow-up five days before she disappeared.

However, an earlier statement from Cathy Bain, which was also recently discovered in police files, shows she originally told police the argument took place the night before Bain disappeared, a contradiction which would have undermined her credibility, Lockyer said.

In addition to not being disclosed to the defence at Baltovich's trial, Cathy Bain never mentioned her previous statement when she was interviewed on July 3, 1990, by Detective Brian Raybould, who spent 7.5 hours that day at the Bain house, he said.

At Baltovich's preliminary hearing, Cathy Bain also claimed for the first time that, the night before her sister died, she was asleep on her bed, clutching a rose, and appeared to be crying.

As another example of how Baltovich's relationship with Bain was allegedly rocky, prosecutors pointed to her diary entries, addressed to a fictitious "Dear Meg," from the week of June 19, Lockyer noted.

While Baltovich was mentioned, presumably because he was the closest person to her at the time, Bain's anger was directed to "anyone and everyone" and fuelled by her general feeling that "life sucks," Lockyer argued.

"She said she wanted to put a bullet through your client's head. That's significant," Moldaver suggested.

"Putting a bullet through one's head is a manner of speaking," Lockyer replied. "We all say things in a manner of speaking we don't mean. There were childish, immature thoughts being expressed here."

The case continues today before the panel, which also includes Justices Robert Sharpe and Eileen Gillese.

Court told of links to Bernardo

Lawyers argue evidence points to serial killer
Former boyfriend fights conviction in woman's slaying

On the very afternoon Elizabeth Bain "seemingly vanished from the face of the earth," a man bearing a striking resemblance to Scarborough rapist and serial killer Paul Bernardo was seen in the university building where she had classes.

Bain, 22, a third-year psychology major at the University of Toronto's Scarborough campus, disappeared on June 19, 1990. Before leaving home between 4 and 4:30 p.m., Bain told her mother she was going to check schedules at the campus tennis courts.

Late that same afternoon - sometime between 4 and 6 p.m. - another woman, who was also a student, felt the presence of someone staring at her while she spoke with her fiancé from a pay phone outside the university's humanities building, the Ontario Court of Appeal was told in documents unsealed yesterday.

For reasons she can't explain, the woman, known only as R.A., was "scared" of the blond-haired man and "just got a horrible feeling about him," the court was told.

In fact, she whispered her fears to her fiancé over the phone.

Later, when she saw how much a composite sketch of the Scarborough rapist resembled the man who had frightened her, she nearly "jumped out of (her) skin," she said.

The woman's story is one of several "chilling" pieces of circumstantial evidence which, taken together, strongly suggest it was Bernardo who killed Bain, say lawyers for Robert Baltovich, Bain's former boyfriend. He was convicted and sentenced to life for Bain's murder.

Baltovich's lawyers present their argument in a 40-page brief to the court, one of several volumes of material that became public yesterday as the appeal court began hearing a marathon eight-day appeal of Baltovich's 1992 conviction for second-degree murder.

The evidence "presents a far more compelling case against Paul Bernardo, the Scarborough rapist, than the speculative case mounted against the appellant," Brian Greenspan and Sharon Lavine, two of Baltovich's lawyers, argue in their written material, which they are hoping the court will consider in deciding whether Baltovich's conviction should be overturned.

It includes evidence from three women, including former girlfriends of Bernardo, along with Van Smirnis, his childhood friend. While the defence at Baltovich's trial pointed to the Scarborough rapist as a possible suspect in Bain's disappearance, that theory was discounted by the prosecution on the grounds that the then-unidentified sexual attacker was someone who neither abducted nor murdered his victims.

The jury's verdict against Baltovich, however, might well have been different if jurors had known, for example, that Bain and Bernardo met briefly at a Scarborough church in 1985-86 and that Bernardo used to have sex with his girlfriends in Colonel Danforth Park, where Bain's car was seen after she disappeared, Greenspan and Lavine say in their brief.

Bain's car was also seen the next morning at a chicken restaurant on Highway 7, near Port Perry, to which Bernardo was introduced by Smirnis. Bernardo smoked Du Maurier cigarettes, which were later found in the ashtray, their brief says.

Three days after she disappeared, Bain's car was found abandoned in a roadside lot on Kingston Rd., not far from her home. There was a pool of blood on the back seat, but her body has never been found.

Baltovich became a suspect almost immediately and was arrested five months later. The prosecution's theory was that he killed Bain in a fit of jealousy, after she rejected him. But no forensic evidence linked him to the crime.

Baltovich, who was sentenced to life with no chance of parole for 17 years, spent seven years behind bars before the appeal court released him on $500,000 bail in 2000.

It was a relatively unusual step, but one the court felt was justified, given what it said were, in many ways, "highly arguable" grounds of appeal. Given that assessment - and the fact the appeal was also expected to take some time, even years, to prepare - keeping Baltovich locked up would not be seen as reasonable, the court said.

In another unusual move, the court agreed to extend his release. As a result, he was not required to surrender into custody on Sunday night.

In arguing to have his client's conviction quashed, James Lockyer, who heads Baltovich's legal team, told a three-judge panel that he is not simply asking the court to order a new trial for the 39-year-old holder of a recent graduate degree in library studies - but to go further and acquit him outright, arguing the verdict is unreasonable when weighed against the evidence. That includes new evidence that was never disclosed at the time of Baltovich's trial, Lockyer said.

The "single most powerful" piece of evidence pointing to Baltovich's innocence, Lockyer said yesterday, is a report that lay buried in police files until the defence asked for access to the investigating officers' notes in 1999.

"It is, in fact, virtual proof of his innocence," he argued.

The report confirms Baltovich's long-standing claim that, after noticing Bain's car uncharacteristically abandoned with its windows down at Colonel Danforth Park, he headed to the humanities building about 9 p.m. on June 19, 1990, to wait for her to come out of her child psychology class.

He also said, however, that he thought she might have gone to the park earlier to meet someone, so he decided to remain inconspicuous and wait from a second-floor balcony until her class was over. While Bain herself never emerged from the classroom, Baltovich said one person he did see leaving was a "Mediterranean" looking man who resembled her description of a former boyfriend.

At his trial, the crown argued Baltovich had completely fabricated the story and had no reason to wait for Bain because he had killed her by 7 p.m. Moreover, the prosecution noted, there were no witnesses to support his story, making it all the more likely it was simply a false alibi.

But the police report now shows that, within a week of speaking with Baltovich, investigators assigned an officer to check out his story. Police found the man described by Baltovich and the report also shows that what he was wearing that night accords perfectly with Baltovich's recollection, the court was told yesterday.

The report is an important sign of Baltovich's innocence because, if he was there simply to create some explanation of his whereabouts around the time of the murder, he would have made sure someone saw him instead of remaining hidden on the second floor, Lockyer said.

But Mr. Justice Michael Moldaver, who heads the three-judge panel, suggested another explanation. "What if he killed her in a jealous rage and then went back to see who this guy was who she was seeing? Now, don't get me wrong. I'm not saying it happened, but aren't we all kind of speculating here, as to what's going on? Can we really say that, because he went back (to the class) he's innocent?" Moldaver asked.

Moldaver suggested the evidence, while helpful to Baltovich's case, is "not as perfect" as Lockyer might like and suggested there are "hurdles" to cross before it could be considered the basis for an outright acquittal.

The hearing continues.

Baltovich's lawyers finger Bernardo

TORONTO -- Evidence suggests notorious sex killer Paul Bernardo knew Elizabeth Bain and was the "likely perpetrator" of her 1990 murder, say court documents released Tuesday by lawyers for Robert Baltovich, the man convicted of the crime in 1992.

The documents, presented in support of Baltovich's bid for an acquittal before the Ontario Court of Appeal, paint a strong circumstantial case against Bernardo, the confessed Scarborough rapist who was convicted in 1995 of the murder of two Ontario schoolgirls.

"The totality of the chilling circumstantial evidence . . . presents a far more compelling case against Paul Bernardo, the Scarborough rapist, than the speculative case mounted against (Baltovich)," the legal submission states.

"This evidence was not available at the time of the trial, nor could its relevance have possibly been known at the time."

Submitted by one of Baltovich's lawyers, Brian Greenspan, the documents string together a series of details and events that suggest Bernardo is "not only a plausible suspect, but the likely perpetrator of Elizabeth Bain's murder."

Among the key points, a long-time ex-girlfriend of Bernardo's told police that he had once met Bain, but officers discounted her story on the grounds she was angry with him.

Another witness described a man who looked like the blonde killer outside the victim's classroom on the day she was killed.

The woman, who had once had a date with Bernardo, told investigators she noticed the man looking at her as she spoke to her fiancee on the phone and "just got a horrible feeling about him."

After Bain's disappearance, she called a tip line but was told police weren't looking for the Scarborough rapist in connection with the case.

Although that encounter haunted her for years, it was only in 2000, when Baltovich was finally freed on bail, that she finally decided to call a lawyer and disclose her suspicions.

The documents also indicate that receipts recovered from his home show Bernardo had been in the area where the 22-year-old Bain lived and went to school prior to her disappearance in June 1990.

A pack of Bernardo's preferred brand of cigarettes was also found in the glove compartment of Bain's bloodstained car, which was found a few days after she vanished from the Scarborough campus of the University of Toronto.

Bernardo was also intimately familiar with school and its surroundings.

The murder, for which the then-26-year-old Baltovich was convicted in 1992, occurred three weeks after Bernardo brutally attacked and raped a young woman in Scarborough.

At his trial, the defence raised the possibility that the Scarborough rapist was responsible for Bain's death but the Crown argued that the then-unknown attacker had never killed anyone.

Bernardo would later admit to a string of 13 increasingly vicious sexual assaults before he was convicted in 1995 of killing Ontario teenagers Kristen French and Leslie Mahaffy.

"Even the known facts relating to the Scarborough rapist at the time of trial created a significant and plausible link (to Bernardo)," the document states.

Ironically, in the days before she died, a depressed Bain wrote in her diary that she wanted to "put a bullet through (Baltovich's) head."

While the Crown argued the entry helped show Bain was breaking up with Baltovich and that he killed her in a jealous rage, Lockyer argued other diary notations show that wasn't the case.

"I hate this life. I want to get up and kill somebody," Bain wrote.

The point, lawyer James Lockyer argued, was that Bain - who worked two jobs alongside her studies - was angry at the world, not particularly at Baltovich.

Lockyer also reprised new evidence that indicates everything Baltovich told police in the days after Bain disappeared turned out to be true.

The same couldn't be said for statements given by Bain's sister and father, which new evidence has shown to be wrong, he told the court.

Lockyer also questioned the integrity of the police investigation, including pointing out that Bain's sister had changed her version of events significantly, something the officers never told the Crown.

Convicted killer Robert Baltovich finally in court in bid to clear his name

TORONTO (CP) - Lawyers for Robert Baltovich, convicted 12 years ago in the murder of his girlfriend, began a long-awaited legal bid to clear his name Monday in an appeal that's expected to resurrect the grim spectre of sex killer Paul Bernardo.

Armed with fresh evidence that only emerged long after Baltovich was convicted in 1992 in the killing of Elizabeth Bain, his lawyers urged the Ontario Court of Appeal to either acquit their client or order a new trial.

Baltovich's case is based largely on allegations of police misconduct, dubious and changing witness testimony, and a trial judge his lawyers claim ignored crucial pieces of evidence in his charge to the jury.

But the centrepiece is expected to be fresh evidence that suggests Bain's real killer was Bernardo, who in 1995 was sentenced to life in prison and declared a dangerous offender for the murder of schoolgirls Kristen French and Leslie Mahaffy.

Baltovich, who has insisted from the outset that he's innocent, spent eight years behind bars until he was freed on bail four years ago.

"It's been a long time coming," said Brian King, a private investigator who worked for years on the case for the defence.

"Robert is finally getting his chance to get his side heard."

Bain vanished in June 1990 from the Scarborough campus of the University of Toronto. Her car was found a few days later, traces of blood on the seat. Her body was never found.

A crowd of spectators jammed the courtroom as lawyer James Lockyer called on the three judges to view the case "through the prism of a young man whose girlfriend had seemingly vanished off the face of the earth."

In that light, Lockyer said, it's easy to see Baltovich's behaviour in the days after Bain's disappearance as that of an innocent man.

Police, however, saw things differently, Lockyer noted: within days, investigators had focused their suspicions on Baltovich, who was 24 years old at the time.

Records also show that just hours after taking on the case, one of the lead detectives had already decided Baltovich was the killer and shared his conclusions with Bain's family and friends.

"You can't imagine a quicker jumping to conclusions," Lockyer said. "Suddenly, everything he did, or is to do, is put under a microscope (of guilt)."

Dressed in a green-grey tweed jacket, the gaunt Baltovich helped carry in file boxes - some labelled "Fresh Ev" - as a court official handed out seating tickets to reporters, family and members of the public. Others were forced to stand.

With Bain's parents watching, Baltovich showed no emotion as Lockyer outlined his reasons for asking the court to quash the conviction or acquit his client outright.

At the heart of the Crown's case against Baltovich were supposed inconsistencies in what he told police. He was, the Crown told the jury, a cunning liar.

But one part of Baltovich's story - that he had visited Bain's classroom barely two hours after he was supposed to have killed her - proved true despite the Crown's insistence it was a lie, Lockyer said.

Police actually confirmed Baltovich's version of events but did not tell the prosecution, he added.

The omission called into question the "integrity of the police investigation," said Lockyer. "It is virtual proof of his innocence."

Police also failed to pass on another key piece of evidence, a statement from Bain's sister.

At first, she told police the couple had had an argument the night before the murder, only to change her story five months later to say the fight occurred four days earlier. Neither the jury nor the defence was told about the change.

The statements, Lockyer asserted, were a fabrication by a grieving sister to incriminate a man everyone believed was the killer.

"No one seemed to have any doubt he was the right man."

At his trial, the Crown depicted Baltovich as a spurned boyfriend who acted out of jealous rage brought on by Bain's efforts to end the relationship.

In March 2000, eight years after his conviction, an Ontario judge took the highly unusual step of granting him bail pending his appeal.

The court has set aside eight days for the hearing.

If exonerated, Baltovich would join a growing list of Canadians incarcerated for years for murders they didn't commit.

Derek Finkle, who wrote a book in 1998 on the case, said the only issue was whether the court would order a new trial or acquit Baltovich outright.

"The real question here is: Is he going to be acquitted at this level?"

Murder-conviction review to hear Bernardo theory

Twelve years after a disbelieving Robert Baltovich was led away in 1992 to serve a life sentence in prison for murder, his bid for exoneration will begin to unfold in the Ontario Court of Appeal.

An extraordinary, eight-day hearing commencing on Monday promises to feature a list of the allegations typical in wrongful-conviction cases: claims of dubious police conduct, compromised eyewitness testimony, doubtful evidence obtained through hypnosis, a prosecution-oriented judge, undisclosed evidence and justice denied.

Unlike some attempts to overturn a conviction, however, this case has no DNA evidence to give the scientific lie to a Toronto jury's 1992 verdict.

Instead, there are thousands of pages of police documents and legal arguments that defence lawyers James Lockyer, Brian Greenspan and Joanne McLean believe will demolish any suggestion that Mr. Baltovich killed his girlfriend, Elizabeth Bain.

One central tussle will involve the question whether serial killer Paul Bernardo - not Mr. Baltovich - murdered the petite University of Toronto student and disposed of her body so efficiently that her remains have never been found.

"I think the press are going to be drawn like moths to a flame by the Bernardo stuff, but people are going to end up being blown away by other elements of the story," said Derek Finkle, author of a book that championed Mr. Baltovich's innocence, No Claim To Mercy. "It doesn't really matter which element of his trial you look at, it has been undermined."

If lawyers persuade the appeal judges that the investigation was unfair and the trial botched, Mr. Baltovich will win a new trial or even an admission of outright defeat from the Crown.

"I have a feeling that once the judges hear some of the fresh evidence, they may close the whole thing down," Mr. Finkle said. "The worst-case scenario will be that he gets a new trial."

Ms. Bain disappeared early on the evening of June 19, 1990. Her car was found three days later with blood on the floor of the back seat. Mr. Baltovich, who had no criminal record and at first co-operated with police, became a suspect after police reasoned that Ms. Bain had been trying to break off their relationship. He was arrested on Nov. 19 of that year.

The case against him was circumstantial. The Crown portrayed him as a brooding lover who had the opportunity - barely - to abduct Ms. Bain and who may have been seen driving toward a secluded lake to dispose of her body.

Mr. Baltovich was released on bail in mid-2000. Since then, he has led a quiet, largely anonymous life, looking after his ailing father, acquiring a degree from the University of Toronto, and working as a librarian.

"It is mind-boggling that the Crown continues to fight this," said Brian King, a private detective who has spent thousands of hours on the case, much of it unpaid. "I never understood how anyone could have convicted him. I felt overwhelmed that an injustice had occurred, and I hope the appeal judges see it."

If symbolism counts for anything, Mr. Baltovich's chances leaped last week. At a pre-appeal hearing, Mr. Justice Michael Moldaver ruled that Mr. Baltovich does not have to go back into custody until his appeal. Convicted murderers are very rarely granted bail pending their appeals. To be allowed to remain free after the appeal commences is extraordinary.

While most of the material underlying the appeal is sealed, the Bernardo connection looms large. Mr. Baltovich had always said that a man who attacked numerous women around the time of Ms. Bain's disappearance, and was known at the time only as the Scarborough Rapist, was likely the killer.

Mr. Bernardo was later shown to be the rapist. He is believed to have met Ms. Bain once, and they had some hangouts in common. Most of his victims were attacked in the area from which she disappeared.

He was arrested after Mr. Baltovich was already in prison, and various aspects of his physical appearance and his crimes were startling.

Mr. King noted that the Crown always maintained that the Scarborough Rapist never abducted his victims in daylight and had never killed one. It turned out that both beliefs were wrong. "I know that a lot of people pooh-poohed the Bernardo syndrome, but I have never seen any information that would discredit the possibility that he did it," Mr. King said

Man's lawyers to implicate Bernardo in killing

Lawyers for a convicted murder will try Monday to pin their man's crime on one of Canada's most notorious killers: Paul Bernardo.

Robert Baltovich was convicted in 1992 of killing his girlfriend Elizabeth Bain. The 22-year-old Scarborough woman's body was never recovered. Baltovich was sentenced to life in prison with no possibility of parole for 17 years.

Bain was killed in 1990 -- the same time a criminal known as the Scarborough Rapist was operating. That person was later revealed to be Bernardo, who was convicted in the deaths of three teenage girls.

"Ah, I'm afraid I can't," Baltovich said to an interview request from Toronto's CFTO News as he carried his recycling bins back into his apartment building.

Baltovich was freed on bail in 2000, pending the appeal. He will try to clear his name at a court hearing starting this Monday.

"I certainly do not think so," said private investigator Brian King when asked if he thought Baltovich killed Bain.

But as to who did, "You know what? There's a lot of speculation. Certainly a lot of the evidence we developed points to the Scarborough Rapist," he said.

CFTO's John Lancaster said that evidence was enough to convince the Ontario Court of Appeal to release Baltovich four years ago pending his appeal.

Back in June 1990, Bain's blood-stained car was found three blocks from her home three days after she was reported missing.

Police didn't charge Baltovich until November of that year. The Crown's theory at trial was that he killed Bain on the University of Toronto's Scarborough campus, left her there, then disposed of her body a few days later in a marsh northeast of Toronto.

There was no forensic evidence linking him to the crime.

"While Bernardo was a convenient scapegoat for Bain's killing, he was unknown to police at the time," Lancaster said.

Bernardo, arrested in 1993, and his ex-wife, Karla Homolka, have both denied any involvement in Bain's murder. But there are some links to Bernardo and Bain.

"Both Bain and Bernardo attended Scarborough's (University of Toronto) campus. All of Bernardo's rapes occurred within blocks of the campus where Bain was last seen alive," Lancaster said.

"Also it's alleged that investigators never disclosed some of Baltovich's statements that may have backed up his alibi."

In a 480-page brief filed to the court last year, Baltovich's lawyers said his conviction rested on "shaky" evidence from eyewitnesses and some serious errors by the trial judge.

They also presented about 5,000 pages of new evidence. There is a publication ban on that evidence.

Baltovich may be the only convicted killer in Canada out on bail pending an appeal. The judge who granted it to him said at the time there was no public interest in keeping him incarcerated considering the likelihood of a successful appeal was so high and it would likely be a long time before the appeal was heard.

Lancaster said the justice system hasn't kept Bain's family informed of what's going on. "Never once were they told Baltovich would be free. They only learned of next week's appeal through a third party," he said.

King, who has worked on the case for years, said, "certainly I would like, in my lifetime, to know the real answer what happened to Elizabeth Bain."

Lancaster said the Crown plans to fight this appeal tooth and nail.