Robert Baltovich

Elizabeth Bain left her home on the afternoon of June 19, 1990, telling her mother she was driving to the Scarborough College tennis courts to check the schedule. She never came home.¹ After three days of searching, Bain’s brother found her blood-stained Toyota on the side of a road. Robert Baltovich, Bain’s boyfriend, immediately became the prime suspect and he was charged with first degree murder.²

After nearly a year in pre-trial custody, Baltovich was granted bail in November 1991 until his trial began the following February.³ The Crown’s case against him consisted of circumstantial evidence, including “opportunity, motive, and after-the-fact conduct indicative of guilt.”⁴ Three witnesses were especially significant at trial in their identifications of either Baltovich or Bain at crucial times:

Marianne Perz testified that she had seen Bain with a man who resembled Baltovich at a picnic table on campus at 5:40 pm on June 19, when Baltovich insisted he was at home with his family.⁵ However, her recollection of the man she saw with Bain changed over time, most notably after she had seen a photo of Baltovich in the Toronto Sun identifying him as the prime suspect, and after she had undergone hypnosis to "sharpen her memory of the events."’⁶

David Dibben testified that he saw Baltovich driving Bain’s car on the day it was discovered abandoned, stained with her blood.⁷ Dibben’s description of the man he saw driving also changed between his initial statement to the police, his testimony at the preliminary hearing, and his testimony at trial, increasingly tailoring the description to fit Baltovich.⁸

Lastly, Suzanne Nadon testified that she saw a couple arguing outside of her home on June 18, whom she believed to be Bain and Baltovich, though she admitted having only caught a glimpse of the couple. Nadon, like Perz, became more confident in her identification after undergoing hypnosis.⁹

The eyewitness testimonies, along with pages from Bain’s diary that illustrated her fluctuating feelings towards Baltovich, and a narrative that painted Baltovich as a possessive, jealous lover, convinced the jury of his guilt.¹⁰ Baltovich was convicted of second degree murder and sentenced to life imprisonment with a parole ineligibility period of 17 years.¹¹

Baltovich appealed his conviction, but his application for bail pending his appeal was denied largely on the basis that Justice Goodman believed that Baltovich’s appeal would be heard within 6 months, which he did not consider an “undue delay”. However, 8 years later, his case still had not been heard by an appeal court. In 2000 the Court of Appeal granted him bail, recognizing that there had been an undue delay, and acknowledged Baltovich’s exemplary record in prison and the fact that he was likely to surrender into custody.¹² On March 21, 2000 Baltovich was released from prison, although he still carried the stigma of a convicted murderer.¹³

In September 2004, the Ontario Court of Appeal heard Baltovich’s case and acknowledged that he was not granted a fair trial, a right protected by The Charter of Rights and Freedoms. The Court of Appeal stated that at trial, Justice O’Driscoll “unduly promoted the case for the Crown and effectively ignored and denigrated the case for the defence.”¹⁴ The trial judge also launched into rhetorical questions which clearly indicated to the jury his view that Baltovich was guilty, even though judges are meant to be neutral.¹⁵ Further, Stinchcombe requirements had been established after Baltovich’s trial, meaning he now had the right to the full disclosure of the Crown’s evidence, which he did not receive in 1992.¹⁶ The Court quashed Baltovich’s conviction and ordered a new trial.¹⁷

On April 22, 2008, 18 years after he was convicted, Robert Baltovich was finally acquitted. The prosecution chose to call no evidence at his retrial, recognizing that they no longer had a reasonable case against him.¹⁸ The year before, the Supreme Court of Canada delivered its judgment in R v Trochym (2007), which held that eyewitness evidence derived from hypnosis was no longer admissible in court. Even eyewitnesses who underwent hypnosis but did not have new memories as a result would not be allowed to testify.¹⁹ This meant that the Crown could no longer rely on the testimonies of Marianne Perz and Suzanne Nadon. Additionally, newly disclosed materials further supported Baltovich’s innocence: forensic testing done on the bloodstains found in Bain’s car showed that the stains were too old to support the police’s theory of when Baltovich would have killed her.²⁰ Further, Baltovich’s lawyers pointed to Paul Bernardo, previously known as the “Scarborough Rapist”, as the likely killer. Bernardo’s violent attacks on young women continued in 1990 near the Scarborough campus and Bain’s home.²¹ Although Bain’s body has never been found, and no other suspect has been charged or convicted for her death, police consider the case closed.²²

Robert Baltovich lived through an “eighteen-year nightmare” fighting to clear his name.²³ Despite the eight years that he had spent incarcerated and the lasting impact the conviction has had on his life, the Ontario government denied him any compensation, and offered no apology.²⁴ Baltovich sued the Attorney General, Toronto Police Services and his trial lawyers.²⁵ Baltovich hopes that police will reopen the case as the murder of the woman he loved remains unsolved.²⁶