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Robert Baltovich

Robert Baltovich

An unacceptable waste of taxpayers' money

Among the unassailable truths facing the current Ontario government are the fact that it is continuing to amass budgetary deficits and that despite efforts to boost spending in other areas, it is unable to provide legal aid to many of those who really need it.

In such circumstances, it strikes us as inconceivable that the provincial Crown should have announced this month that it is proceeding with a plan to retry Robert Baltovich for murder in the death of his girlfriend, Elizabeth Bain.

True, the Ontario Court of Appeal used its normal phraseology when it quashed Mr. Baltovich's conviction on grounds he didn't get a fair trial, "ordering" a new trial.

However, we strongly suspect the three judges were as stunned as Mr. Baltovich's supporters at the news that the Crown plans to do just that.

Ordinarily, in a case where the homicide occurred so long ago - sometime in June 1990 - the Crown would simply return to Superior Court and advise the presiding judge that because of the passage of so many years and the death or unavailability for other reasons of important witnesses, a new trial was no longer appropriate.

Steven Reesor

But the Baltovich case was no ordinary one; far from it. One of the homicide officers, Steve Reesor, used the conviction as a stepping-stone to his current job as one of Toronto's deputy police chiefs. The successful prosecution was accomplished by a Crown attorney, John McMahon, who is now a judge.

Normally, the appropriate test that must be passed before the Crown proceeds to trial is whether there is "a reasonable prospect of conviction." In other words, is it reasonably likely that a properly instructed jury at the conclusion of a fair trial will be left with no reasonable doubt that the accused did indeed commit the crime?

We think the appropriate answer to that question is "Not a chance in the world!"

In this case, the Crown proposes to call witnesses whose memories will have faded to the point where it's inevitable that they will have to be shown their testimony at the first trial perhaps 14 or 15 years previously.

Then there's the problem of the mountain of fresh evidence that delayed Mr. Baltovich's appeal for more than a decade, evidence which strongly suggests that the real killer of Ms. Bain was serial rapist/killer Paul Bernardo.

Some trial judges have taken the position historically that jurors should not be confronted with any such evidence; that the Crown isn't required to call witnesses who would weaken their case and the defence ought not to be allowed to point fingers at other potential offenders.

One thing that has become clear is that the police showed no interest whatsoever in any role played by an unidentified male who had been seen in Ms. Bain's company on several occasions in the month before her disappearance. All the jury at the first trial heard was that he had blondish hair and perhaps a swarthy complexion. But even the defence lawyers didn't point out what perhaps to them was too obvious - that this male party, whoever he was, had never come forward to assist in the search for Ms. Bain.

Simply put, why would any such person not have come forward unless he had something to hide?

In a second trial, at which the public purse will once more be paying the costs of both sides plus those of the justice system itself, Mr. Baltovich's lawyers are certainly not likely to make the potentially fatal mistake of not having their client testify in his own defence - in our view, the main reason any jury will return a guilty verdict. (Although jurors are told there is no requirement in our law that an accuse testify, in murder cases they inevitably conclude that if the man in the prisoner's box really isn't guilty he will proclaim his innocence in the witness box.)

In objecting to the Crown's surprise decision, lawyer James Lockyer again declared his personal belief in his client's innocence.

Apart from the fact the original conviction was secured without a scintilla of physical evidence pointing to Mr. Baltovich's guilt, there is strong evidence that police actively suppressed evidence that points to his innocence, including one witness's observation of Ms. Bain being a terrified passenger in her own car as it was driven east on Highway 401 at a time when Mr. Baltovich was working out in a gymnasium and the Crown theory had her already dead.

Fresh evidence placed before the appeal court but not considered by the judges shows Mr. Bernardo was acquainted with Bain and was seen at her university campus the day she disappeared.

As well, Ms. Bain's disappearance on June 19, 1990, was shortly after Mr. Bernardo's last admitted rape and prior to the first murder he's known to have committed; that Mr. Bernardo had sexual encounters with former girlfriends in the park where Ms. Bain went missing, and that after her disappearance, Ms. Bain's car was spotted at a chicken restaurant on Highway 7, near Port Perry, a restaurant Mr. Bernardo is said to have frequented.

When Ms. Bain's abandoned car was found in Scarborough, the radio was tuned to Mr. Bernardo's favorite station, and a pack of his favorite brand of cigarettes was it the glove compartment.

Clearly, the fresh evidence would fall far short of proving Mr. Bernardo's guilt. It would at best portray him as having an opportunity as an admitted serial rapist and convicted killer. (Mr. Baltovich, now 39, has never been even accused of any criminal act apart from the Bain homicide.)

In our view, something is horribly wrong with Ontario's criminal justice system when so much time and effort is to be spent on trying to prove the impossible, with the only apparent benefit being to boost the image of some police or judicial officials and to provide "closure" to Ms. Bain's family.

One thing that's absolutely certain is that if Paul Bernardo was the killer, there is no reasonable likelihood that he will ever admit his guilt, even though it's equally unlikely he will ever be released from jail.

Baltovich gets new murder trial

A "one-sided" trial judge undermined the fairness of Robert Baltovich's 1992 murder trial, forcing a full replay of the controversial whodunit, the Ontario Court of Appeal ruled yesterday.

The 3-0 ruling refused Mr. Baltovich's request for an outright acquittal, but disparaged Superior Court Judge John O'Driscoll for undercutting and ridiculing the defence in his jury instructions.

"Suffice it to say that taken cumulatively, they indicate the trial judge's contempt for the defence position," the court said. "In our opinion, that view would not have been lost on the jury.

"Our system of justice is already overburdened," the judges added. "We do not need to add to this problem with new trials that could have been avoided."

Mr. Baltovich's 22-year-old girlfriend, Elizabeth Bain, disappeared on June 19, 1990.

The University of Toronto student's body has never been found, and is believed to be buried in the mud of Lake Scugog.

Mr. Baltovich, now 39, was convicted of her murder in March, 2002, and was jailed for life without parole for 17 years.

He was released on bail after nine years in prison, pending his appeal.

Early yesterday morning he had to again surrender himself at Toronto's Don Jail, in keeping with court requirements, but was later released on $200,000 bail after the appeal court's ruling.

As he emerged from the jail, Mr. Baltovich said the ruling was "a small step, but it's a step in the right direction."

His defence team, dispirited at the prospect of retrying the sprawling, circumstantial case, told reporters after the ruling that Mr. Baltovich faces a difficult ordeal.

James Lockyer

We would be worried that things can go terribly wrong," lawyer James Lockyer said.

"Rob has dealt with this for 14 years of his life. He has gone from youthfulness to being a middle-aged man.

"It just doesn't seem right that he has got to endure this until a new trial is completed."

Meanwhile, a spokesman for the Ministry of the Attorney-General, Brendan Crawley, said senior lawyers are reviewing the ruling to decide whether to appeal.

In their ruling, the appellate judges -- Mr. Justice Michael Moldaver, Mr. Justice Robert Sharpe and Madam Justice Eileen Gillese -- said Judge O'Driscoll's references to defence evidence were sketchy, laden with contempt or, in one instance, "entirely one-sided."

They made no findings of misconduct against the Crown. In addition, they stressed that Mr. Baltovich can still obtain a fair trial. If a jury were given proper instructions, they said, it "could reasonably convict" him.

"Indeed, a new trial will provide the opportunity for both sides to deal with the fresh evidence, with the result that the jury will have the benefit of more complete evidence upon which to make the necessary and critical factual determinations," the court said.

The Crown's theory was that Mr. Baltovich was a possessive lover who murdered his girlfriend upon realizing she was about to leave him.

The defence contended that Mr. Baltovich had no idea Ms. Bain might be planning to dump him, that he had a valid alibi, and that he did everything he could to search for her and help police investigators.

The appeal court paid little attention to a raft of fresh evidence yesterday, saying it fell short of sinking the prosecution's case.

Still, the retrial will feature new evidence that sheds doubt on the Crown's theory and on evidence obtained from witnesses under hypnosis.

Defence counsel Brian Greenspan said it will also likely include evidence that points toward serial killer Paul Bernardo as being a viable suspect in the Bain murder.

Yesterday, the appeal judges faulted Judge O'Driscoll for not adequately warning jurors about the shortcomings of three Crown eyewitnesses. All three had their recollections sharpen dramatically under hypnosis.

The court also said that Judge O'Driscoll confused the jury about the evidence they required before they could conclude that Mr. Baltovich fabricated his alibi.

"Leaving the jury to rummage about the evidence in that fashion was particularly perilous in this case," the court said.

It also said the trial judge failed to help the jury assess the testimony of an eyewitness, Marianne Perz, whose account of seeing Mr. Baltovich and Ms. Bain together shortly before her disappearance was enhanced by hypnosis.

The court also faulted the trial judge for making the same mistake with David Dibben, a witness who claimed to have seen Mr. Baltovich driving a car similar to Ms. Bain's vehicle near Lake Scugog three nights after she disappeared.

The appeal judges also waved aside defence allegations of police misconduct and the contention that strategic errors by Mr. Baltovich's trial lawyers, Mike Engel and Bill Gatward, betrayed their incompetence.

Appeals Court Chastises Judge

Ontario Superior Court Judge John O'Driscoll got a stern scolding yesterday as the Ontario Court of Appeal ordered a new trial for Robert Baltovich on the basis of his errors.

The appeal court held up the 73-year-old judge as an example of the havoc a judge can wreak on the trial process by failing to remain impartial. Mistakes are bound to occur in a long trial involving complex issues that must be explained to jurors, the court said. "But not all mistakes are alike," it said. "Some can easily be avoided.

"Failing to provide the jury with a fair and balanced charge is one of them. There is no justification for jury charges that are not evenhanded. We cannot stress enough the importance of a fair and balanced charge." The court said that Judge O'Driscoll's references to defence evidence were sketchy, laden with contempt or, in one instance, "entirely one-sided."

One instance involved the question of whether Ms. Bain might have actually committed suicide, the court said. In light of the scant attention both Crown and defence had paid to the issue, it said, "We do not understand why the trial judge felt the need to devote 25 pages of his charge to the issue of suicide.

"His treatment of the matter was, to say the least, unfortunate," the court said. "If not by design, it certainly had the effect of devaluing the appellant's primary defence by conveying the impression that in staying with the defence of suicide, the defence was grasping at straws.

"In our view, it was wrong and unfair for the trial judge to give the issue of suicide the extensive treatment he did, only to demean it in the end." In contrast, the court said, he dwelt at great length on key elements of the Crown case.

It said that he also unfairly employed rhetorical questions to show his personal distaste for aspects of the defence -- such as whether Mr. Baltovich was seen driving Ms. Bain's car three nights after her disappearance. These sorts of pointed questions make judges look like advocates for the Crown, the court said. It said they only serve to unfairly diminish the accused in the eyes of the jury. At another point in his jury charge, the court said, Judge O'Driscoll went into minute detail about possible discord between Ms. Bain and Mr. Baltovich. Yet, it said he glossed over defence evidence that refuted it.

"The trial judge's failure to include such evidence resulted in a review that was unfair, unbalanced and prejudicial to the appellant," the court said. "Read as a whole, it unduly promoted the case for the Crown and effectively ignored and denigrated the case for the defence. Additionally, the charge contained significant errors of law that were prejudicial to the appellant."

The appeal court showed sympathy for trial lawyers yesterday, noting that jury charges are a central feature of any trial -- and gain their power from their objectivity.

Judge O'Driscoll, appointed to the bench in 1971, did not respond to a request for an interview yesterday.

Ontario court orders new trial for Baltovich 12 years after murder conviction

TORONTO (CP) - Robert Baltovich, convicted on circumstantial evidence 12 years ago in the murder of his girlfriend, will get another chance to clear his name after Ontario's Appeal Court ruled Thursday he'd get a new trial - where his defence said they planned to point to notorious sex killer Paul Bernardo as a stronger suspect.

Once released from prison, Baltovich called the ruling "a small step, but it's a step in the right direction."

His elderly father, James Baltovich, and brother Terry Chadwick, greeted him as he emerged from the facility.

Earlier in the day, a tribunal set aside Baltovich's conviction in the murder of 22-year-old Elizabeth Bain, saying the "charge to the jury was unfair and unbalanced."

"It also contained significant errors of law that were prejudicial to the appellant," the tribunal said.

One of Baltovich's lawyers, James Lockyer, said he was disappointed the Appeal Court didn't declare Baltovich an innocent man, but looked forward to the opportunity to clear his name in a new trial.

"We're confident that in the near future we're going to be able to do this again with Robert Baltovich beside us actually having been found an innocent man," Lockyer said.

At the eight-day appeal hearing, Lockyer had argued that Bernardo made more sense as a suspect in Bain's murder.

At the time of her disappearance in June 1990, Bernardo was known only as the Scarborough Rapist and was terrorizing the east-end Toronto neighbourhood where Bain resided.

"We think Paul Bernardo is more than a viable suspect in the death of Elizabeth Bain," Lockyer told reporters.

Baltovich, who was immediately granted $200,000 bail pending the retrial, appealed his March 1992 conviction for second-degree murder. He was convicted despite the fact the 22-year-old's body was never found.

Crown lawyer Howard Leibovich blew it

Howard Leibovich

The Crown portrayed Robert Baltovich as a jealous and obsessed boyfriend who murdered Bain when she tried to break off their relationship.

Crown lawyer Howard Leibovich (left) ridiculed evidence used to link Bernardo to the Bain murder as speculative or unreliable. He said Bernardo had never previously abducted a victim in daylight nor used the victim's car in his crimes.

Bain was last seen on June 19, 1990, when she told her mother she was going to a University of Toronto campus. Her blood-stained car was found several days later.

Baltovich was convicted of the slaying two years later and was jailed for life without parole for 17 years. He was released on bail after nine years in prison, pending his appeal, but had to return to a Toronto jail Thursday morning until the decision was released. He was still there mid-day waiting for paperwork to be completed.

The defence had pressed for an acquittal, arguing that a fair retrial would be impossible.

But Justices Michael Moldaver, Robert Sharpe and Eilleen Gillese ruled a new trial would give both sides an opportunity to deal with fresh evidence.

"In that sense, the remedy of a new trial appears reasonably capable of removing any prejudice suffered."

The justices heard the eight-day appeal at the end of September.