A bizarre alliance between serial killer Paul Bernardo and the Ontario Crown achieved mixed success yesterday in attempting to have a prominent defence lawyer thrown off a coming murder appeal.
An Ontario Court of Appeal judge said that defence counsel James Lockyer cannot participate in a portion of the Robert Baltovich appeal in which Paul Bernardo will be portrayed as the real killer of University of Toronto student Elizabeth Bain.
Mr. Baltovich was convicted of the Bain murder in 1992. His appeal contends that Bernardo, the Scarborough Rapist, actually killed Ms. Bain and then remained silent as Mr. Baltovich took the rap.
However, Paul Bernardo -- supported by the Crown -- strongly objected to James Lockyer involving himself in the Baltovich appeal in light of his having represented Bernardo in 1996-97.
"Mr. Lockyer cannot defend Bernardo in one matter and then attack him on another," Crown counsel Howard Leibovich argued in a brief to Mr. Justice Marc Rosenberg. "There is no doubt that Mr. Lockyer and Bernardo had a solicitor-and-client relationship.
"It undermines the integrity of our justice system to permit a lawyer to, in effect, defend a current client by pointing a finger at a prior client."
In a 1999 letter to Mr. Lockyer, Bernardo expressed much the same sentiment. He noted that while representing him in 1996-97, Mr. Lockyer could potentially have examined confidental material in his file.
"It has come to my attention that you are representing Mr. Robert Baltovich through the Association in Defence of the Wrongly Convicted, and have as such an aim in pointing the finger for his convicted crimes toward myself," Bernardo said in his letter.
Mr. Lockyer, who has devoted thousands of hours to preparing the Baltovich appeal, said he never received the letter and only recently became aware of Bernardo's complaint.
He said he was consulted at one point on a legal issue involving videotapes Bernardo had taken depicting the torture and rape of murder victims Kristen French and Leslie Mahaffy but the matter had no relevance to the Baltovich case.
Mr. Lockyer, a leader in the movement to free the wrongfully convicted, also said that his work for Bernardo was mainly restricted to assessing the merits of his appeal in support of an application for legal aid funding.
Mr. Lockyer spoke to Bernardo twice by telephone, and once dispatched a colleague to Kingston Penitentiary to interview him. He said that he did not examine any sensitive material from the Bernardo defence file.
The dispute forced Judge Rosenberg to balance Bernardo's right to solicitor-and-client privilege against Mr. Baltovich's intense desire to have Mr. Lockyer and co-defence-counsel Joanne McLean handle his appeal.
"The mischief that the conflict-of-interest and duty-of-loyalty rules seek to prevent is the spectre of counsel for a client acting against the interests of another client, whether present or former," the judge said.
"For members of the public to have confidence in the legal profession and the administration of justice generally, they must know that their confidences will be respected and not used against them in the future for the benefit of another client."
Judge Rosenberg said he took Mr. Lockyer at his word about not having known of Bernardo's objections until recently. The judge also said he was loath to hamper the long-delayed Baltovich appeal, and that a compromise allowing an independent lawyer to pursue the Bernardo aspect would solve the dilemma.
"Mr. Baltovich is entitled, if at all possible, to have this appeal dealt with as expeditiously as possible by counsel in whom he has confidence," Judge Rosenberg said. "The current client's interests in counsel of choice weigh very heavily in this case."
Under a compromise solution agreed to by both sides, defence counsel Brian Greenspan will handle the portion of the Baltovich appeal dealing with Bernardo's alleged culpability.
"The solution that allows for Mr. Lockyer and Ms. McLean to retain carriage of the bulk of this appeal is very much in the public interest," Judge Rosenberg said. "Since Mr. Lockyer and Ms. McLean will now have nothing to do with the Scarborough Rapist ground of appeal and the Bernardo fresh evidence, Mr. Lockyer will not be acting against his former client."
Judge Rosenberg said that upon Mr. Lockyer and Ms. McLean turning over the Bernardo portion of the file to Mr. Greenspan, "there will be no communication between them concerning those matters. Mr. Greenspan is not affiliated in any way with Mr. Lockyer and Ms. McLean. Crown counsel agrees that this is an appropriate solution."
In spite of the fact that Ms. Bain's body has never been found, Mr. Baltovich was convicted after a controversial trial that led many observers to question his guilt.
In an affidavit he wrote for the appeal court recently, Mr. Baltovich said he feels "in a state of limbo" and cannot conceive of being represented by anyone besides Mr. Lockyer and Mr. McLean.
Bernardo and his ex-wife, Karla Homolka, are serving prison terms for the sex-slayings of Kristen and Leslie. After his conviction in the murders, Mr. Bernardo avoided a protracted trial for multiple rapes by agreeing to be designated as a dangerous offender.
TORONTO - A man convicted of murdering his girlfriend claims Paul Bernardo did it, and wants to be released on bail while he waits for his appeal.
Lawyers for Robert Baltovich argued Wednesday there is new evidence to further suggest that he did not kill Elizabeth Bain.
Elizabeth Bain disappeared on a summer night, 10 years ago. There was blood on the floor of her car when it was found.
But her body was never found.
Bain's boyfriend, Robert Baltovich was convicted of her murder. Baltovich has always insisted he was innocent.
Lawyers presented fresh evidence Wednesday to the court.
Details of the new evidence can't be revealed because of a publication ban. But the private investigator in the case, Brian King, describes it this way:
"It's based on an overwhelming amount of a lot of different things. Not just one thing like forensic evidence but say a combination of interviews and information that has come forward since the trial."
During the original trial, Baltovich's lawyers suggested Bain was killed by the Scarborough rapist. Several witnesses testified at the trial that they saw Bain with a blond man in the days before she vanished.
Today, police and the public know that rapist was Paul Bernardo. And since then, media reports, and a book have pointed out links between Bernardo and Bain.
Many people have come forward to support Baltovich's request for bail.
He also received support Wednesday from a well known person who was wrongfully convicted of killing someone, Rubin Carter.
Carter said people in Baltovich's position should be released from jail until the case is resolved.
"Any time someone has been wrongly imprisoned and there is evidence this person is not guilty of the crime then the justice system removes the person immediately from the environment of danger," Carter said.
The judge asked the lawyers to outline possible bail conditions for Baltovich, but he warned them not to read anything into that.
He will hand down his ruling on Friday.
TORONTO (CP) -- As an appeal court outlined its reasons for dismissing Paul Bernardo's appeal on his murder convictions in the sex slayings of two schoolgirls, the man who has blamed him for another murder was nearby seeking bail pending his own appeal.
Robert Baltovich was convicted of killing his girlfriend, Elizabeth Bain, in 1992. Her body was never found and Baltovich maintains his innocence.
Baltovich's lawyers and others, including an author who wrote a book about the Baltovich case entitled No Claim to Mercy, have previously pointed the finger at Bernardo.
Bain's family has long scoffed at Baltovich's claims that Bernardo killed their daughter, calling him a cunning opportunist. But the timing of Bain's disappearance and the lack of evidence linking Baltovich to her on the day she vanished has some taking a second look.
At Baltovich's 1992 trial, some witnesses reported seeing her on the day of her disappearance in a car with a blond man -- Baltovich is dark-haired, and Bernardo is blond.
TORONTO (CP) -- Robert Baltovich emerged from prison Friday on a quest to officially join the growing ranks of Canada's wrongfully convicted.
Shrieks of joy echoed in the courthouse halls as appeal court Justice Marc Rosenberg granted the 34-year-old's request for bail pending the appeal of his 1992 conviction in the murder of his girlfriend.
Hours later, eight years to the day after he was first convicted of killing Elizabeth Bain, Baltovich was greeted warmly by applauding friends and family as he strolled out of custody. Baltovich then made his way down busy University Avenue to the offices of lawyer James Lockyer, who will spend the next year preparing his client's appeal.
There have been at least six high-profile cases of wrongful conviction in recent years, including Guy Paul Morin, David Milgaard and Donald Marshall.