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My Case Study

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After 18 years of false imprisonment Robert Baltovich is released and cleared of all charges in 2008

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Photo of Robert Baltovich while in police custody

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Picture of Robert Baltovich and girlfriend Elizabeth Bain

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A ted talk discussing police tactics that could lead to potential wrongful confessions and convictions.

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Wrongful convictions: Rob Warden at TEDxMidwest

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Rob Warden examines the phenomena of false confessions and how they can be attributed to half of all murder cases. His plan to eradicate them from the legal system has the potential to revolutionize the justice system as we know it.

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This is basically a timeline of the events of the whole situation and case surrounding Elizabeth Bain.

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The imfamous "scarborough rapist" is interviewed by police about his involvement in the murder of Elizabeth Bain as many people believe he is responsible

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Paul Bernardo, Did you kill Elizabeth Bain?"

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Everything you need to know about Robert Baltovich regarding his case and personal life.

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Robert Baltovich (born July 17, 1965) is a Canadian man who was wrongly convicted in 1992 of the murder of his girlfriend, Elizabeth Bain, in Scarborough, Ontario, Canada. He spent eight years in prison and nearly another decade trying to clear his name, before being found not guilty in a retrial on April 22, 2008.

On June 8, 1990, Baltovich graduated with a degree in psychology and history from the University of Toronto at Scarborough. There he met fellow student Elizabeth Bain and a relationship developed. Bain disappeared on June 19, 1990, after telling her mother she was going to "check the tennis schedule" on campus. On June 22, her car was found with a large bloodstain in the back seat, later identified to be Bain's blood. Her body was never found. Detectives Brian Raybould and Steve Reesor took over the case.

On November 19, 1990, Baltovich was arrested and charged with first-degree murder. Justice John O'Driscoll presided over his case, with crown prosecutors John McMahon and Paul Amenta. His trial lawyers were William Gatward and Michael Engel. His case continued in the courts for several years, during which he consistently maintained his innocence. His lawyers suggested that the so-called "Scarborough rapist" (the term used for the then unidentified serial killer Paul Bernardo) might be responsible for the murder.

On March 31, 1992, Baltovich was convicted of second-degree murder.

Appeal, retrial and acquittal

On December 2, 2004, the Court of Appeal for Ontario set aside the conviction, delivering what news reports called "a scathing attack" on the conduct of the original trial judge. This fell short of the acquittal that Baltovich's counsel had argued for. On July 15, 2005, Ontario's Ministry of the Attorney-General announced that Baltovich would face a new trial on charges of second-degree murder, at an unspecified date, and remain free on bail in the meantime. During that time, Baltovich worked as a librarian for the Government of Ontario.

In 1999, Baltovich got in contact with the Association in Defense of the Wrongly Convicted (now Innocence Canada). James Lockyer and Joanne McLean took over his case and filed for an appeal. On March 31, 2000, Baltovich was released on bail, pending the outcome of his appeal. In September 2004 his appeal was finally processed; once more his case gained national attention when his lawyers alleged that he had been wrongfully convicted and that Bernardo was guilty of Bain's murder. They pointed to circumstantial evidence suggesting links to Bernardo, evidence not available during Baltovich's original trial because Bernardo's identity as the "Scarborough rapist" was then unknown. Asked about the matter, Bernardo denied involvement in Bain's disappearance. Baltovich's defense also pointed to issues with hypnotizing eyewitnesses to 'help with their memory'. The case R v. Trochym (2007) deemed that any evidence obtained through hypnosis is inadmissible in court.

On March 31, 2008, jury selection began in the second-degree murder trial. The trial, slated to begin in Toronto on April 14, 2008, was delayed, with the Crown (prosecution) giving no reason. When the trial resumed, the Crown declined to call any of the more than 50 witnesses they had planned, citing "recent developments, including the cumulative effect of the pre-trial evidentiary rulings rendered to date in this case, other evidentiary issues, and changes to case law". With no Crown case, the judge directed the jury to make a finding of not guilty on April 22, 2008.

In January 2010, the Attorney-General concluded that the payment of financial compensation was not appropriate.

On April 21, 2010, a civil suit alleging malicious prosecution, negligent investigation and negligent representation was filed on behalf of Baltovich. The defendants named include John McMahon, now a judge with the Superior Court of Ontario, and Paul Amenta, a practicing Crown Attorney in Toronto. Det. Sgt. Brian Raybould and Det. Sgt. Steve Reesor, the two lead detectives in the case, are also named as defendants.

In May 2014, Baltovich's lawyers applied to amend his statement of claim. Media reported that during examinations for discovery related to Baltovich's civil suit, previously undisclosed forensic evidence had surfaced indicating that Det. Sgt. Brian Raybould had met with two forensic experts three days after Baltovich's arrest in November 1990 during which time he was told that the police theory of the crime - that Baltovich had killed Elizabeth Bain on June 19, 1990, hidden her body nearby in Colonel Danforth Park and that he had returned three days later to retrieve her body and drive it out of Scarborough in her car - was not supported by the forensic evidence found in Bain's car and that, according to Baltovich's lawyers, the theory presented at Baltovich's first trial was "flawed and untenable." It is also alleged that Det. Sgt. Brian Raybould doctored his notes in an effort to conceal the existence of the meeting by removing pages referencing the meeting and replacing them with another page from his notes from a later date.

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A news article from when Robert Baltovich was cleared of his charges and released in 2008.

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Confidence in Canada's justice system remained strong last week among criminal defence lawyers, even as Robert Baltovich's case became the latest in a series to take the scenic route to freedom and cause public doubts in the way justice is meted out.

"The fact is that a man today has been cleared," William Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, tells Law Times. "In many countries who aren't prepared to look at mistakes and correct them, that wouldn't happen. In terms of the system creaking along to the right result, I give it high marks."

Baltovich, convicted in 1992 for the murder of his girlfriend Elizabeth Bain, was acquitted last week after the Crown brought no evidence in the case. The move ended a nearly 18-year ordeal with the justice system for Baltovich, whose conviction was quashed by the Court of Appeal in 2004. A new trial was ordered in 2005.

"I had been expecting them to appreciate that their case had no substance and no merit years ago," says James Lockyer, lead defence counsel for Baltovich. "The trouble was that I wasn't getting that from the other side. We finally get to the courtroom door, and it's then that we finally get the right decision."

Criminal lawyer Steven Skurka says he has enormous respect for the Crown lawyer in the case, Philip Kotanen, but adds, "You do have to wonder why it took this long for the prosecution to make the decision that it made."

He says the delay may have been caused by the appointment of Justice David Watt, who was replaced on the case by Justice David McCombs, to the Court of Appeal; the defence's own investigation; disclosure issues; or the preparation of materials or transcripts.

"Still, with all the variables you have to consider, 18 years is inherently a lengthy period of time," says Skurka, who suggested the Crown's case against Baltovich essentially evaporated when schoolgirl killer Paul Bernardo appeared as an alleged alternate suspect in Bain's murder.

"It's a defence lawyer's dream to have Paul Bernardo as a viable alternate suspect in a case, and in my view, the moment Paul Bernardo's name was permitted to be uttered before the jury, the case was lost to the prosecution."

However, he says this case can't be considered a black eye for the system.

"I reject any notion that the system is inherently flawed and this case exposes it," says Skurka. "It's one case, it has its problems, but at the end of the day, the right decision emerged and that's one of the virtues of our system - we try not to let go until we ultimately get it right because liberty's at stake."

But Alan Young, director of Osgoode Hall's Innocence Project, says the Baltovich case exposes how Ontario's justice system freezes in big cases.

"It always mystifies me how in cases of such a high profile, where the whole world is watching so to speak, these are the cases that grind to a halt," says Young. "That's something that's very bizarre, and I have no explanation for it.

"It almost seems that our system has an inability to properly process high-profile cases when the whole world is watching. We get very nervous, very irresolute, and the bottom line is, even this case shows irresolution, because in my mind, the Crown should have realized the case was not worthy of resolution up to a year ago."

"I don't know what it is, but when it comes to high-profile cases, nobody wants to make firm, quick decisions."

Brendan Crawley, a spokesman for the Ministry of the Attorney General, says the Crown moved as quickly as it could on the case.

"The appeal was a complicated matter and involved extensive fresh evidence," says Crawley. "In these types of cases, the appeal can't be heard until the defence has filed all of its fresh evidence, the Crown and police have had an opportunity to investigate and review it, and the parties complete all of the necessary cross-examinations.

"In this case, once the fresh evidence was filed, the Crown worked very hard to ensure the matter proceeded as quickly as possible."

Crawley noted that the Crown announced plans to proceed with a new trial six months after the Court of Appeal ordered a new trial.

Preliminary motions in the new trial took place in 2005 and 2006, and pretrial motions got underway in 2007.

"The Crown has continued to work very hard to ensure the matter proceeded as quickly as possible," says Crawley, who wouldn't comment on whether the ministry would call for an inquiry into the case.

Conflicting remarks were initially made to the media between Attorney General Chris Bentley, who first rejected the need for an inquiry, and Premier Dalton McGuinty, who suggested he was open to the idea. Bentley then said he'd consider the possibility.

Heather McArthur, who was brought in on the Baltovich case in 2005 to work with Association in Defence of the Wrongly Convicted (AIDWYC) lawyers James Lockyer and Joanne McLean, says too often cases are approached with an assumption of guilt.

"Once you have a rush to judgment and a focus on a particular individual, where every action and every movement is being evaluated through the prism of guilt, it becomes a very dangerous situation," says McArthur. "Because no matter what action is taken and no matter what happens, it's evaluated through a prism of guilt. And if evidence comes forward that shows a certain assumption is wrong, instead of stepping back and evaluating it, then things just shift."

McArthur says Baltovich's vindication has kept her faith in the justice system alive.

"There has finally been a recognition that he's an innocent man. I have to be pleased with that," says McArthur, who was brought in to deal mainly on issues in Baltovich's defence involving Bernardo's alleged role in Bain's murder.

Trudell says the country is moving forward on efforts to fill holes in the system as they come along. The Ontario Ministry of the Attorney General earlier this year announced a review of complex criminal case procedure, led by former chief justice Patrick LeSage, and the federal government has set up a steering committee on efficiencies and access to justice.

"To me, having been in this business for 35 years, the system is sweet," says Trudell. "It takes too long sometimes, but if you keep clawing at it and you keep realizing that it's made by people, and people are not infallible . . . I expect to see in years ahead for the next generation less wrongful convictions."

McArthur says the case highlights the importance of the 1991 landmark Supreme Court of Canada decision in R. v. Stinchcombe on the disclosure of evidence.

"When Rob was first convicted, it was in a very new Stinchcombe era, and there were things discovered during the appeal process that had not been known to the defence when the trial went ahead the first time," she says.

Trudell says the Baltovich case shows lawyers the value of continuing to ask questions, but notes it can be difficult for young lawyers.

"Sometimes we're overwhelmed and too impressed by what appears to be Mount Everest, but people are climbing Mount Everest. You need years of experience to question and test the system. "Sometimes when you're younger and you kind of accept things and rely on authority, and assume that people are smarter than you and they have the answers.

"I think these kinds of cases make us realize that we can all do better, and we have to keep questioning and believe in our clients and realize the system is not infallible, but it can work at the end."

McArthur says the case also reiterates to defence lawyers the importance of working diligently. She says she and her team were prepared for trial with "strong, scientific, forensic evidence that would have had a powerful effect in terms of showing that the Crown attorney's case had a lot of difficulties with it."

Trudell says more must be done to consider evidence at the front end of investigations.

"We ask police officers to act as lawyers, in terms of gathering evidence, what's relevant, what should be disclosed. We need Crown input in the front end before it comes into the system. I don't know whether the Baltovich case is one of those . . . but we can do a better job of making sure that product is as it should be."

He says, "We don't do a good job of running the business of criminal justice," and that prosecutors must ensure cases aren't being brought into the courts at the same time as ongoing investigations that could exonerate the accused.

"That's in everybody's interest," says Trudell.

McArthur says the defence has not pondered seeking compensation for Baltovich.

"He has been proclaiming his innocence for 18 years, and he's finally heard that 'Not guilty.' Now he just wants to breathe a while. It's going to take a while to sink in, but when it does, I think he just wants to lead a normal life just like anybody else."

She adds that, "Rob is probably tired of lawyers and tired of judges and tired of courts and probably just wants to get on with his life."

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Robert Baltovich cleared after 18 years | Law Times

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Confidence in Canada's justice system remained strong last week among criminal defence lawyers, even as Robert Baltovich's case became the latest in a series to take the scenic route to freedom and cause public doubts in the way justice is meted out.

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An article about some of the more high profile cases of wrongully convictions in Canada.

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They languished behind bars for years, wrongfully jailed for crimes they did not commit.

But the high-profile ordeals of Donald Marshall Jr., David Milgaard and others have put a spotlight on what has been called the fallibility of Canadian justice.

High-profile cases

These cases are not unique and certainly not isolated to Canada, although estimates of the actual number of wrongful convictions vary widely.

Each miscarriage of justice, however, deals a blow to a society's confidence in the legal system, experts say.

"Wrongful convictions undermine the two prongs of the criminal justice system's legitimacy," states a 1992 report prepared by the Library of Parliament. "If someone is wrongfully convicted, that person is punished for an offence he or she did not commit and the actual perpetrator of the crime goes free."

To make it worse, advocates say many who were ultimately exonerated watched their applications stall for years in the federal review board process.

In 2000, federal Justice Minister Anne McLellan announced plans to try to prevent such cases from happening again. The changes, since enacted in the Criminal Code of Canada, enable the justice minister to use his or her discretion to respond to persons who believe they have been wrongfully convicted.

Groups such as the Association in Defence of the Wrongfully Convicted have also advocated on behalf of those they say have been jailed unfairly.
Here are some of the major cases in recent Canadian history:
James Driskell

Perry Harder of Winnipeg had been shot several times in the chest in September 1990. Driskell - his friend - was convicted and sentenced to life in prison a year later.

The RCMP said three hair samples found in Driskell's van were Harder's, and that evidence convicted him. Later test results from the U.K. found none of the hairs belonged to Harder.

Driskell was granted bail in November 2003. The federal justice minister at the time, Liberal Irwin Cotler, quashed the conviction and ordered a new trial in 2005. Despite that, the Manitoba government opted to stay the trial and end the case without exonerating Driskell. It also called for a public inquiry into the case.

The inquiry's final report, released in February 2007, said the jury in Driskell's trial was "seriously misled" on issues including the reliability of a key Crown witness. The report also said the failure of the Crown to disclose information to the defence was "careless indifference."

Anthony Hanemaayer

In 1987, Hanemaayer was charged with assault in connection with a knifepoint attack on a 15-year-old girl. The Toronto resident pleaded guilty part way through his trial and was sentenced to two years less a day in jail.

Hanemaayer said in a later interview with CBC News that he accepted a plea bargain on the advice of his then-lawyer, who warned he could receive a long prison sentence.

In 2006, convicted murderer and rapist Paul Bernardo confessed to the crime during a jailhouse interview. The Association in Defence of the Wrongly Convicted learned of the confession and took up the case. Hanemaayer, now 40 and living in London, Ont., took his case to the Ontario Court of Appeal and was acquitted on June 25, 2008.

Donald Marshall Jr.

In 1971, Marshall was wrongfully convicted of murdering his friend, Sandy Seale, in a Sydney, N.S., park. Marshall was just 17 years old when he received a life sentence.

He was released in 1982 after RCMP reviewed his case. He was cleared by the Nova Scotia Court of Appeal the following year. Though the Appeal Court declared him not guilty, Marshall was told he had contributed to his own conviction and that any miscarriage of justice was more apparent than real.

Marshall, a Mi'kmaq, was exonerated by a royal commission in 1990 that determined systemic racism had contributed to his wrongful imprisonment. The seven-volume report pointed the finger at police, judges, Marshall's original defence lawyers, Crown lawyers and bureaucrats.

Roy Ebsary, an eccentric who bragged about being skilled with knives, was eventually convicted of manslaughter in Seale's death and spent a year in jail.

Marshall died in a Sydney hospital in August 2009 after a lengthy illness. He was 55.

Simon Marshall

Simon Marshall was imprisoned from 1997 to 2003 after he wrongly confessed to a string of sexual assaults in Ste-Foy, a Quebec City suburb. A DNA test later cleared Marshall, a mentally handicapped man. The Quebec Court of Appeal ruled he was a victim of miscarried justice and ordered his criminal record expunged.

It was later found that DNA evidence first collected in the investigation that led to Marshall's conviction was never tested. An inquiry also revealed multiple breaches in police conduct during the investigation.

In December 2006, the Quebec government awarded the 24-year-old $2.3 million, the highest wrongful conviction compensation to date in the province. The money went to Marshall's parents, who are in charge of his care.

David Milgaard

Milgaard was charged with the 1969 murder of Saskatoon nursing aide Gail Miller and in January 1970 was sentenced to life in prison. Appeals to the Saskatchewan Court of Appeal and Supreme Court of Canada in the two years after his conviction were unsuccessful.

Milgaard's mother, Joyce, believed from the day he was arrested that her son was innocent. She kept his case alive, talking to whoever would listen - and many who didn't - while he spent more than two decades in prison.

In 1991, Justice Minister Kim Campbell directed the Supreme Court of Canada to review the conviction. The Supreme Court of Canada set it aside in 1992, and Milgaard was subsequently cleared by DNA evidence five years later.

The Saskatchewan government awarded Milgaard $10 million for his wrongful conviction in 1999. That same year, Larry Fisher was found guilty of the rape and stabbing death of Gail Miller.

A provincial judicial inquiry, which released a comprehensive 815-page report in September 2008, concluded that "the criminal justice system failed David Milgaard." The inquiry also found that Milgaard might have been released from jail years sooner if police had followed up on a lead they received in 1980.

Guy Paul Morin

Christine Jessop, a nine-year-old girl, disappeared from her Queensville, Ont., home in October 1984. Her body was found in a farmer's field two months later. Guy Paul Morin, the Jessops' next-door neighbour in the community about 60 km north of Toronto, was later charged with her murder.

Morin was acquitted in 1986, but a new trial was ordered by the Ontario Court of Appeal. At this second trial, Morin was convicted and sentenced to life in prison.

He appealed and in 1995 was exonerated by DNA testing.

A public inquiry into the case was called, and its report was tabled in 1998. It concluded that mistakes by the police, prosecutors and forensic scientists combined to send an innocent man to jail.

William Mullins-Johnson

William Mullins-Johnson was convicted in the 1994 slaying of his four-year-old niece. He spent more than 12 years in prison for first-degree murder, partly on the now-questionable testimony of a discredited pathologist.

However, Crown prosecutors called for the Sault Ste. Marie man's acquittal, which was granted by the Ontario Court of Appeal on Oct. 15, 2007.

The Crown apologized in the Toronto courtroom for all the hardship caused.

"I wish to extend our sincere, profound and deepest apology to Mr. Mullins-Johnson and to his family for the miscarriage of justice that occurred," lawyer Michal Fairburn said.

Romeo Phillion

Ottawa firefighter Leopold Roy was stabbed to death in August 1967 and Romeo Phillion was convicted of his murder five years later. Though Phillion confessed while in custody on a robbery charge, he immediately recanted and has maintained his innocence ever since.

In May 2003 - 30 years into Phillion's sentence - a group of law students from York University sought to secure Phillion's exoneration. One basis for their application was a police report, not shown to the defence at the original trial, that placed Phillion 200 kilometres away at the time of the crime.

Phillion was granted bail two months later while the federal justice minister investigated.

In January 2008, the Ontario Court of Appeal reopened Phillion's case. Phillion's former defence lawyer, Arthur Cogan, said that Phillion's original confession to the crime was a desperate bid to protect his gay lover from other charges.

The Court of Appeal struck down Phillion's conviction in March 2009 and ordered a new trial, although it stopped short of a full acquittal.

Thomas Sophonow

Winnipeg police announced in June 2000 that evidence had cleared Thomas Sophonow in the killing of doughnut-shop clerk Barbara Stoppel.

Authorities said they had a new suspect in the 1981 murder for which Sophonow was tried three times and spent nearly four years behind bars. The Manitoba Court of Appeal acquitted him in 1985.

The Manitoba government released a report in 2001 by retired Supreme Court judge Peter Cory with 43 recommendations.

Cory said Sophonow should receive $2.6 million in government compensation (50 per cent from the City of Winnipeg, 40 per cent from the Manitoba government and 10 per cent from the federal government) for his wrongful murder conviction.

Steven Truscott

In 1959, Truscott was sentenced to be hanged at age 14 for a schoolmate's murder, becoming Canada's youngest death-row inmate.

After the original conviction, he spent four months in the shadow of the gallows until his death sentence was commuted to life imprisonment. Paroled in 1969, Truscott disappeared into an anonymous existence in a southern Ontario city.

On Aug. 28, 2007 - 48 years later - the Ontario Court of Appeal unanimously overturned Truscott's conviction and acquitted him, declaring the case "a miscarriage of justice" that "must be quashed."

The judges went on to say, however, that "the court is not satisfied that the appellant has been able to demonstrate his factual innocence."

In July 2008, the Ontario government announced it would pay Truscott $6.5 million in compensation for his ordeal.

Kyle Unger

In June 1990, Brigitte Grenier died near Roseisle, Man., where she was attending an outdoor rock concert. The 16-year-old was beaten, strangled and sexually mutilated.

Kyle Unger and another man, Timothy Houlahan, were convicted of first-degree murder in connection with her death in 1992. Houlahan was released on bail after the Manitoba Court of Appeal overturned his conviction in 1994, and he committed suicide later that year.

Unger's initial appeal, meanwhile, was rejected and his application for a Supreme Court of Canada appeal was denied. But in 2004, new DNA testing suggested a strand of hair found at the scene of the crime and originally used to convict Unger did not come from him. He was granted bail in November 2005.

Then in March 2009, federal Justice Minister Rob Nicholson announced that a new trial had been ordered. Unger's lawyer said at the time that police and prosecutors kept evidence from the defence during the original trial and used a jailhouse informant who was not credible.

The Manitoba Crown ultimately decided that it did not have enough evidence for a retrial. In October 2009, a Manitoba court acquitted Unger and he walked away a free man.

"Finally," a smiling Unger told reporters outside the courthouse. "It's still surreal, almost."

Erin Walsh

It took a jury just one hour to find Walsh guilty of the 1975 second-degree murder of Melvin (Chi Chi) Peters in Saint John, N.B. The prosecution saw it as an open-and-shut case, and Walsh received a life sentence with no parole before 10 years.

Walsh's appeals to the New Brunswick Court of Appeal were dismissed in July and November 1982. In December 2006, however, his lawyers sought a review of the murder conviction from the federal government after new evidence came to light.

The evidence, obtained by Walsh as part of a 2005 access-to-information request, included reports of jailhouse conversations that suggested someone else shot Peters.

In February 2008, Justice Minister Rob Nicholson ordered a review of the murder conviction, suggesting a miscarriage of justice likely occurred.

A month later, the New Brunswick Court of Appeal acquitted Walsh of the crime and overturned his conviction. Walsh, a native of Ontario who had maintained his innocence for more than 32 years, was dying of colon cancer and wanted his name cleared.

Walsh died at his home in Kingston, Ont., on Oct. 14, 2010. He was 62.

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Canada's wrongful convictions | CBC News

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The wrongful convictions of Donald Marshall Jr., David Milgaard and Guy Paul Morin have spotlighted what many call the failure of the Canadian justice system.