As a young man, Robert Baltovich was convicted of murdering his girlfriend Elizabeth Bain. Seventeen years later, no body has been found, new evidence suggests another killer, key evidence obtained by hypnotism is now inadmissible, and Baltovitch is getting a new trial.
A high–profile murder trial scheduled to begin this fall will determine whether Robert Baltovich, con-victed in 1992 of the second-degree murder of Elizabeth Bain, will join Guy Paul Morin, David Milgaard, and Donald Marshall among Canada’s wrongly convicted.
In June, 1990, Robert Baltovich was a 24-year-old psychology graduate of the University of Toronto. On the night of June 19, his girlfriend, Elizabeth Bain, disappeared. Her body has never been found.
Suspicion quickly fell on Baltovich. At his trial in 1992, the Crown portrayed him as a jealous boyfriend who killed Bain in a rage when she tried to end their relationship. The prosecution relied on a witness who, after having had her memory “refreshed” by hypnosis, placed Baltovich with Bain on the night of the murder.
Baltovich’s lawyers argued that no direct evidence linked him to the crime, leaving someone else responsible for Bain’s murder. Several witnesses testified that she had been seen with an unidentified blonde man in the months before her disappearance. The then at-large “Scarborough Rapist” (later discovered to be Paul Bernardo) was also suggested as a possible suspect.
Almost immediately after Baltovich was convicted of second-degree murder, his new lawyer, Brian Greenspan, began working on an appeal. Later joined by James Lockyer, a director of the Association in the Defence of the Wrongly Convicted, Baltovich’s defence team argued (in part) that the judge’s instructions to the jury were flawed and prejudicial, that the Crown had provided incomplete disclosure, that the testimony of witnesses based on “hypnotically-enhanced memory” was unreliable, and finally that new evidence pointed to Bernardo as the real killer.
On December 2, 2004 — 12 years after Baltovich was convicted, and four years after he was released on bail — the Ontario Court of Appeal rejected Baltovich’s request for an outright acquittal, but ordered a new trial. The Court held that trial judge Justice John O’Driscoll’s charge to the jury “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 [Baltovich].”
Surprising many observers, Ontario’s Ministry of the Attorney General announced it would proceed with a new trial rather than stay the charges. To retry a case, the Crown must have a reasonable prospect of conviction, which may prove difficult in this case. The testimony based on hypnotically-enhanced memory can no longer be introduced (see sidebar), and after 17 years the memories of other witnesses have likely faded.
In contrast, the defence (still represented by James Lockyer, but no longer by Brian Greenspan) is armed with new evidence not given to them at the original trial, as well as circumstantial evidence pointing to Bernardo (who denies any involvement in Bain’s murder). Lockyer’s office declined to comment in advance of the trial, but following Baltovich’s successful appeal in 2004, Lockyer said, “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.”
On the Case
The following counsel are on the record for the trial:
Defence
James Lockyer
Heather McArthur
Joanne McLean
Crown
Philip Kotanen
Andrew Pilla