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Robert Baltovich and Elizabeth Bain - Photograph

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Robert Baltovich and Elizabeth Bain - Photograph

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Robert Baltovich and Elizabeth Bain pictured together from an undated Bain family photo album. Bain, 22, disappeared in 1990. Her body was never found.

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Elizabeth Bain & Robert Baltovich - Photograph.jpg

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In this case study, I have analyzed Robert Baltovich and the injustices he faced at the hands of our Criminal Justice System for over a decade.

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Case Study Assignment - Robert Baltovich.docx

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This 16 minute video provided an analysis into the facts of Robert Baltovich, the issues with his case which led to his appeal, and his innocence project.

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This is the Court decision relating to Baltovich's appeal on December 2, 2004. The appeal was ultimately granted, allowing Baltovich the opportunity for a new trial.

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Elizabeth Bain: Robert Baltovich says police hid key evidence - Toronto Star

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Elizabeth Bain: Robert Baltovich says police hid key evidence - Toronto Star

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This news article provided an insight for the grounds Baltovich's lawyers cited in his appeal.

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Robert Baltovich, who was convicted, imprisoned, released and acquitted for the murder of his girlfriend Elizabeth Bain more than 20 years ago, claims to have proof that police and prosecutors withheld key evidence that would have helped exonerate him sooner.

In documents filed at Ontario Superior Court in November last year, Baltovich's lawyers outline how a key record of a police interview with forensics experts "was never disclosed to Baltovich or his trial counsel or his appellate counsel."

Baltovich's lawyers also contend that a copy of the police investigator's notebook provided to them was altered to erase evidence of the meeting.

The new evidence was submitted as part of Baltovich's $13 million lawsuit against the Attorney General, the two homicide detectives assigned to his case, the Toronto Police Services Board and his original defence lawyers.

Baltovich, who spent almost nine years behind bars and nearly nine more on probation preparing his appeal, was found not guilty at his second trial in 2008 because the Crown decided to present no evidence.

After his acquittal, the province refused to compensate Baltovich for the wrongful conviction.

Twenty-two-year-old Bain disappeared on her way to an evening class at the University of Toronto's Scarborough campus in June 1990. Her body was never found and the investigation and prosecution of her boyfriend, Baltovich, occupied the front pages for years.

Police contended that Baltovich killed Bain and hid her body for several days in Colonel Danforth Park before putting it into her car and driving up to the Lake Scugog area, where he disposed of it.

When Bain's car was discovered three days after she went missing, it contained a significant amount of blood. Homicide investigators were called in and quickly turned their attention to Baltovich.

Last spring, one of Baltovich's lawyers discovered a one-page handwritten note in the 13,000 pages of evidence gathered by police.

The note was written by Det.-Sgt. Brian Raybould and recorded a discussion he had with two forensics experts two days after Baltovich was arrested.

The forensics experts told Raybould that there was too much blood in the car for a body that had been left outside for days, the note allegedly states. If a body had been put into the car two to three days after death, it would have left a strong odour and blood stains would have been darker in colour, not bright red as the police found them.

"As a result of the advice he received (from the forensics experts), Raybould knew or ought to have known that the Police Theory was flawed and untenable," the claim states.

Defence lawyers weren't given access to the document and the Crown continued to deny its existence, even after repeated requests, the claim states.

In a responding motion, the Attorney General claims the defence could have found that note at any time. During the original 1992 trial, the Crown had an "open box" policy of allowing the defence to access all evidence, the government response says.

Crown council John Corelli wrote a letter in 2004 that says Baltovich "(for the past 12 years) has had an open invitation to look at the police investigative file. It was not until last week that the defence chose to look at the investigative file."

"A diligent review in 2004 of the police investigative file ... would have found the same 'Raybould note,'" the government claim states.

Baltovich's claim also says handwritten notes from Raybould's notebooks were missing several pages. In September last year, lawyers for the police produced the missing pages that detailed the meeting with the forensics experts.

In the original copy of the notebook provided to Baltovich's lawyers in 1999, Raybould wrote a date on the first page after the omitted pages "to make it appear that it was in sequence," the claim states. The new copy has no date on that page.

The claim states that Raybould concealed the meeting with the forensics experts before during and after Baltovich's original trial.

Baltovich's claim also points to several other pieces of evidence that weren't disclosed to his defence team including an entry in Bain's dairy that refutes Crown claims that she had broken up with Baltovich in the days before she was murdered.

Attorney General spokesperson Brendan Crawley and Baltovich's lawyer David Robins declined to comment because of the ongoing litigation.

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Elizabeth Bain murder: Robert Baltovich says police hid key evidence | The Star

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Robert Baltovich, who was convicted, imprisoned, released and acquitted for the murder of his girlfriend Elizabeth Bain more than 20 years ago, claims to have proof that police and prosecutors withheld key evidence that would have helped exonerate him sooner.

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Innocence Compensation: the Private, Public and Prerogative Remedies from Myles Fredrick McLellan

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Innocence Compensation: the Private, Public and Prerogative Remedies from Myles Fredrick McLellan

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This article provides an overview of the various avenues the wrongly convicted in Canada have to pursue compensation in order to recover the losses caused by what are widely acknowledged as systemic errors in the criminal justice system.

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Police Interview with Paul Bernardo: "Did you have anything to do with Elizabeth Bain's disappearance?"

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Police Interview with Paul Bernardo: "Did you have anything to do with Elizabeth Bain's disappearance?"

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This video is from an interview of Paul Bernardo by Toronto police detectives Brad Hoover and Darlene Coulis on June 7, 2007 at Kingston Penitentiary. The detectives are interviewing Bernardo to ask him if he had anything to do with the June 1990 disappearance of Elizabeth Bain, which he is now a suspect.

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Paul Bernardo, Did you kill Elizabeth Bain?"

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Hypnosis in the Criminal Case: Facts and Fallacies from Phyllis E. Amabile, JD, MD and Thomas H. Jobe, MD

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Hypnosis in the Criminal Case: Facts and Fallacies from Phyllis E. Amabile, JD, MD and Thomas H. Jobe, MD

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This article provided conclusive evidence regarding hypnosis therapy and it's use for criminal proceedings.

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Robert James Baltovich v. Attorney General for Ontario, Brian Raybould, Steven Reesor, The Toronto Police Services Board, William E. Gatward and Michael G. Enge - October 12, 2017

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Robert James Baltovich v. Attorney General for Ontario, Brian Raybould, Steven Reesor, The Toronto Police Services Board, William E. Gatward and Michael G. Enge - October 12, 2017

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This is the Court decision relating to a recent Summary Judgement motion brought by the Attorney General in the civil suit brought by Baltovich for compensation due to the malicious prosecution, etc., he experienced. Baltovich's civil suit is still ongoing.

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"The Attorney General submits that the motion may be brought before a master because it is based on admissions by the defendants Gatward and Engel with respect to non-disclosure of information in the police file and there are no issues of law.

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Entitlement to Compensation - The Legal Framework

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Entitlement to Compensation - The Legal Framework

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This government web source provided a brief understanding of compensation practices and procedures for wrongfully convicted individuals in Canada and their entitlements from the State.

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(a) A Civil Cause of Action

In Canada, there is no legal entitlement to compensation for a wrongful conviction. Unless a wrongfully convicted person can establish a civil cause of action, such as a claim in tort for malicious prosecution, negligent investigation, prosecutorial misconduct, or false imprisonment, or perhaps a claim for breach of rights protected under the Charter, he has no remedy for the wrongful conviction. In this case, the Court of Appeal refused to attribute blame to anyone responsible for the investigation or prosecution of Mr. Truscott. There is, accordingly, no finding of the Court that would offer support to any civil cause of action.

Nevertheless, it has been suggested by Mr. Truscott's counsel that he might have a claim for negligent investigation, a cause of action recently recognized by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board I do not propose to engage in an examination of the merits of such a claim nor, indeed, can I. It does bear repeating, however, that the Court of Appeal refused to assign any blame to the investigative authorities for Mr. Truscott's wrongful conviction. The Court also noted that the information relied upon to suggest that the police had improperly focussed their investigation on Mr. Truscott was "in the nature of first and second-hand hearsay" and was "too speculative and inconclusive" to be given any weight.

Moreover, given the years that have passed since the events in question, I expect that, realistically speaking, it would not be possible to successfully maintain any such claim. Despite the unprecedented degree of scrutiny that this case has received - both in and out of the courts - there do not appear to be any plausible accusations of blameworthy conduct on the part of the investigating or prosecuting authorities. Accordingly, if Mr. Truscott is to receive compensation, it can only be obtained as an ex gratia payment by the state.

(b) Ex Gratia Payment by the State

In recent years, there has been growing recognition in Canada and elsewhere that persons who have been wrongfully convicted and imprisoned should receive compensation from the state. Despite this growing recognition, there is no legal entitlement in Canada to compensation either by way of a statutory scheme or otherwise. Absent any recovery through a civil action, a wrongfully convicted person can obtain compensation only through an ex gratia payment by the state - a payment that, by definition, is made voluntarily, as a favour out of kindness or grace, and without recognition of any legal obligation.

Notwithstanding that there is no legal obligation to make any payment to the wrongfully convicted, as a matter of policy, the desirability of granting compensation to persons who have been so convicted has been officially recognized. In August 1976, Canada ratified the International Covenant on Civil and Political Rights. Article 14(6) of the Covenant provides that persons who have been convicted as a result of a miscarriage of justice should generally be compensated by the state. It states as follows:

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively mat there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

No legislation has been enacted to give effect to the Covenant. However, the principles expressed in it appear to have informed a joint set of guidelines relating to compensation for the wrongfully convicted, formulated by the federal and provincial ministers of justice in 1988. The Federal/ Provincial Guidelines on Compensation for Wrongfully Convicted and Imprisoned Persons (the "Guidelines") contain a number of criteria which must be met before a person can be considered eligible for compensation. Among other things, the Guidelines expressly limit the payment of compensation to the person who was wrongfully convicted and require a determination that the wrongfully convicted person was factually innocent of the crime charged. The Guidelines state as follows:

1. The wrongful conviction must have resulted in imprisonment, all or part of which has been served.

2. Compensation should only be available to the actual person who was wrongfully convicted and imprisoned.

3. Compensation should only be available to an individual who has been . wrongfully convicted and imprisoned as a result of a Criminal Code or other federal penal offence.

4. As a condition precedent to compensation, there must be a free pardon granted under section 748(2) of the Criminal Code or a verdict of acquittal entered by an Appellate Court pursuant to a referral made by the Minister of Justice pursuant to section 696.3.

5. Eligibility for compensation would only arise when sections 696.3 and 748 were exercised in circumstances where all available appeal remedies have been exhausted and where a new or newly discovered fact has emerged, tending to show that there has been a miscarriage of justice.

As compensation should only be granted to those persons who did not commit the crime for which they were convicted (as opposed to persons who are found not guilty), a further criteria would require:

If a pardon is granted under section 748, a statement on the face of the pardon based on an investigation that the individual did not commit the offence; or

If a reference is made by the Minister of Justice under section 696.3, a statement by the Appellate Court, in response to a question asked by the Minister of Justice pursuant to section 696.3(2), to the effect that the person did not commit the offence.

It should be noted that sections 696.3 and 748 may not be available in all cases in which an individual has been convicted of an offence which he did not commit, for example, where an individual had been granted an extension of time to appeal and a verdict of acquittal had been entered by an Appellate Court. In such a case, a Provincial Attorney General could make a determination that the individual be eligible for compensation, based on an investigation which has determined that the individual did not commit the offence.

It is important to bear in mind that the Guidelines are not binding legislation and have not been treated as such. Many if not most of the awards of compensation that have been made in the last 20 years departed in some manner from the criteria proposed by the Guidelines.

For example, in the matter of compensation for Donald Marshall Jr., the Honourable Gregory Evans recommended that compensation be paid to Mr. Marshall's parents, despite the fact that the Guidelines limit entitlement to compensation to the actual person who was wrongfully convicted.

As a further example, in the Thomas Sophonow Inquiry, the Honourable Peter Cory recommended that Mr. Sophonow receive $1.75 million for non-pecuniary damages, despite the fact that the Guidelines mandate a cap on such damages in the amount of $100,000. In refusing to apply the mandated cap, Justice Cory noted that the Guidelines are not an act of the Legislature but simply a guideline. I agree.

Just as the Guidelines do not create any legal right to compensation, by the same token, they cannot create any legal bar to compensation. Payment of compensation remains within the absolute discretion of the Crown. In certain cases, the interests of justice may require that the Crown exercise its discretion in accordance with the Guidelines, but equally, in other cases, they may require a result that departs from the Guidelines. As matters stand, it is for the Crown to decide in the exercise of its discretion whether or not to make an ex gratia payment.

Nevertheless, I have considered the Guidelines carefully in determining whether an ex gratia payment ought to be recommended here. With one exception, Mr. Truscott meets all of the Guidelines' requirements:

he was convicted and imprisoned;

his conviction and imprisonment have been found to be a miscarriage of justice; and

he was acquitted by the Court of Appeal following a Reference directed by the Minister of Justice pursuant to section 696.3 of the Criminal Code.

However, in Mr. Truscott's case, there has not been any declaration or determination that he did not commit the crime. He cannot meet the Guidelines requirement that there be a finding of factual innocence.

(c) Proof of Factual Innocence

Other jurisdictions, like Canada, require a determination of factual innocence before paying compensation to a wrongfully convicted person. The rationale for this requirement has been articulated in the following terms:

[M]inisters, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly innocent victim of mistake or misidentification, or may be a serious criminal who is very fortunate to have escaped his just desserts. While the public might approve sympathetic treatment of the former, they would be understandably critical if significant sums of public money were paid to the latter.

Put another way, it would not be in the interests of justice to provide a person who had committed the offence, but whose guilt could not be proved, with the means of profiting from the commission of his crime.

Consonant with this rationale, it appears that in all of the cases to date where compensation has been paid the innocence of the wrongfully convicted person has been established by some means - whether by DNA evidence, or by subsequent conviction of the true perpetrator, or by determination following a police investigation or judicial inquiry that there was no evidence that the wrongfully convicted person committed the crime, or where there was no evidence that a crime had even been committed.

However, a rule limiting the state's payment of compensation to those persons who can prove their factual innocence has been criticized as unduly harsh, because it would deny compensation to an innocent person who, for whatever reason, was unable to conclusively prove his innocence. In his oft-quoted article on compensation for the wrongfully convicted, Professor H. Archibald Kaiser argues that to require proof of innocence is inconsistent with the fact that the Canadian criminal legal system has only two possible verdicts - guilty and not guilty:

It is argued that persons who have been wrongfully convicted and imprisoned are ipso facto victims of a miscarriage of justice and should be entitled to be compensated. To maintain otherwise introduces the third verdict of "not proved" or "still culpable" under the guise of a compensatory scheme . . .

A similar argument is made by Professor Peter MacKinnon, who states that to introduce any notion of "factual innocence", as opposed to the legal verdict of "not guilty", runs contrary to the presumption of innocence:

[0]ne who is acquitted or discharged is innocent in the eyes of the law and the sights of the rest of us should not be set any lower ...

Indeed, Professor MacKinnon states that any state-sponsored compensation scheme should avoid even trying to determine factual innocence, because such an exercise would undermine the presumption of legal innocence that accompanies an acquittal. He writes:

We may not be able to prevent suspicion that lingers, but there ought not to be official pronouncements of probable guilt, whether implicit in assessments of "innocence in fact" for the purpose of cost awards, or anywhere else.

In a recent decision, the Ontario Court of Appeal expressed a similar view, holding that it would be contrary to public policy for the Court to issue "pronouncements" of innocence. In R. v. Mullins-Johnson, although the Court found that there was "no evidence of a crime" and "no case against the [accused]", it refused to declare Mr. Mullins-Johnson to be innocent. It gave two reasons for its refusal:

1. it did not have the jurisdiction to issue such a declaration; and

2. there were "important policy reasons for not, in effect, recognizing a third verdict, other than 'guilty' or 'not guilty', of' 'factually innocent'."

If proof of innocence is a condition precedent to the payment of compensation, then the question arises whether innocence must be proven beyond a reasonable doubt in each and every case, or whether there may be cases where a less onerous standard of proof, namely, proof on a balance of probabilities, is appropriate.

In my opinion, there may well be cases where the circumstances are such that requiring an individual to prove his innocence beyond a reasonable doubt is manifestly unfair. That exacting standard has to date been applied only to the Crown in the context of a criminal prosecution. As Professor Kent Roach states (albeit in the slightly different context of a discussion related to the granting of free pardons):

In principle, it is difficult to justify requiring an individual to bear the burden of proof beyond a reasonable doubt. Such a high standard of proof in all other contexts is only imposed on the state with its superior resources and coercive powers. Although it is possible to posit cases in which an individual could satisfy such an extraordinary burden, such cases will generally be limited to DNA exonerations.

Moreover, even the lesser standard of a balance of probabilities still imposes a substantial burden on an individual. Professor Roach states:

(The balance of probabilities standard could often be a difficult standard for a convicted person to satisfy especially in cases where it remains clear that a crime has been committed; where there is no DNA evidence; and where the perpetrator remains at large. In most wrongful conviction cases, there will be reasonable and probable grounds to charge the person and circumstantial evidence that is suggestive of the person's guilt. Such evidence will make it more difficult for the person to establish innocence on a balance of probabilities.

The question of the appropriate standard of proof, and the broader question of whether a determination of factual innocence should or should not be a mandatory prerequisite to the payment of compensation are important policy issues. They are a matter for study and debate in the context of the development of a legislative scheme designed to provide a systematic basis upon which compensation for the wrongfully convicted can be determined. Such study and debate and the resolution of any issues arising therefrom are, of course, beyond the scope of my mandate.

My mandate extends only to providing advice on whether ex gratia compensation should be paid in the circumstances of the present case, "based upon and accepting the findings" of the Court of Appeal. It is to that question that I now turn.

As discussed in the section which follows, the highly unusual circumstances of this case, combined with the frailty of such evidence as remains against Mr. Truscott, as outlined above, have led me to conclude that compensation should be paid to Mr. Truscott.

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Entitlement to Compensation - The Legal Framework

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In Canada, there is no legal entitlement to compensation for a wrongful conviction. Unless a wrongfully convicted person can establish a civil cause of action, such as a claim in tort for malicious prosecution, negligent investigation, prosecutorial misconduct, or false imprisonment, or perhaps a claim for breach of rights protected under the Charter, he has no remedy for the wrongful conviction.

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YouTube Video Summarizing the Wrongfully Convicted Case of Robert Baltovich

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YouTube Video Summarizing the Wrongfully Convicted Case of Robert Baltovich

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Video created by Beck Walks on 12/1/2016 summarizing the case of Robert Baltovich

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3 Unsolved Murders Possibly Committed by Infamous Serial Killers - Criminally Listed

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3 Unsolved Murders Possibly Committed by Infamous Serial Killers - Criminally Listed

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At 9:30 of this video, they begin to discuss the disappearance of Elizabeth Bain. It also discussed the series of rape, later discovered to be by offender, Paul Bernardo, who is suspected of Bain's disappearance. It also refers to the discrepancies of Baltovich's first trial, which led to his appeal.

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3 Unsolved Murders Possibly Committed by Infamous Serial Killers

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No Claim to Mercy - Novel written by Derek Finkle

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No Claim to Mercy - Novel written by Derek Finkle

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The story of Robert Baltovich and Elizabeth Bain was captured in a bestseller novel.

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Real Justice: Young, Innocent and In Prison - The Story of Robert Baltovich by Jeff Mitchell

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Real Justice: Young, Innocent and In Prison - The Story of Robert Baltovich by Jeff Mitchell

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Novel written about Robert Baltovich and Elizabeth Bain.

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Photographed, here is Robert Baltovich, whose 18-year ordeal ended Tuesday when he was acquitted of murdering his girlfriend, Elizabeth Bain.