Robert Baltovich cleared after 18 years

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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