When the System Fails
On Friday, Nov 13, 2015, the Queen’s Criminal Law Club (QCLC) and the Association in Defence of the Wrongly Convicted (AIDWYC) hosted a well-attended panel on the experience and exoneration of Robert Baltovich.
The panel consisted of Baltovich, appeal lawyer Joanne McLean (one of the founding partners of AIDWYC), and private investigator Brian King. Baltovich spent 8 years in a federal penitentiary before his release in 2000 and his acquittal upon re-trial in 2008
With a packed room of students waiting eagerly to hear Baltovich’s story, the speakers talked about the inconsistencies and oversights in the judicial system at the time of the investigation and conviction. They focused on the system of disclosure of evidence, police and Crown “tunnel vision”, and the importance of justice over “the big win”.
Baltovich, a psychology/history major from the University of Toronto and current librarian, looks and seems like any other middle-aged man. But his history—filled with media speculation—painted a picture of a cold-blooded killer.
At the beginning of the panel, the question in the room was: is Baltovich really innocent? Or are we standing in the room with a real murderer? By the panel’s end, attendees were instead questioning the integrity of a justice system that exists to protect our Charter rights to life, liberty and security.
On June 19, 1990, Baltovich’s then-girlfriend, Elizabeth Bain, went missing. She told her mother she was going to the tennis court to check the schedule. She would never be seen again. The backseat of her car was eventually found stained with her blood, but her body was never found. No additional physical evidence that could have shed light on the events of her disappearance or death was discovered. Nevertheless, an investigation in the following weeks saw Baltovich arrested on November 19, 1990 and charged with first-degree murder of the woman he loved. The evidence at his subsequent trial was entirely circumstantial.
Baltovich, speaking first, stated the police and the Crown “formed the belief very early on that [he] was guilty”. He said this created the foundation for years of tunnel vision and unwavering accusations of his guilt—a theme all three guest-speakers touched upon as they spoke about the trial process.
Much of the evidence was withheld or actively hidden from the defence during the trial. One example includes a concerted effort to conceal an interview between police and two forensic experts concerning the nature of the blood in the car, which would refute the Crown argument that Baltovich hid Bain’s body for three days until driving it in her car towards the Lake Scugog area to dispose of it.
Another involves one of the Crown’s principal witnesses. The witness alleged seeing a man driving Bain’s car three days later; however, his initial description was of a man with blonde hair and a receding hairline. Months after persistent media attention that included photos of Baltovich, this witness picked him out of a photo line, reneging on his initial description to police.
Yet another very critical argument by the defence on appeal was that an entry in the victim’s diary was not disclosed to the defence, which would have refuted the Crown’s claims that she had given Rob a Dear John letter to break up with him and that he had then killed her in a twisted revenge plot of spurned love. These were just a few snapshots in the speakers’ arsenals to illustrate how Crown and police tunnel vision clouded their proper administration of justice.
Joanne McLean reminded us that at the time, post-Stinchcombe, there is a common law duty to disclose evidence in the Crown’s case—but there is too much discretion in that power. It is clear to Baltovich and his lawyers that the Crown used this discretion and the lack of a systemized provincial policy to comply with the Stinchcombe ruling for their own warped objective to win.
‘To win’ is a curious and nebulous term in the criminal justice system. Brian King, the private investigator on the panel, said “it’s about justice, not about winning…and there’s a huge difference.” It is not the Crown’s role to win—but to seek truth and justice by making a strong case upon which a competent defense can fight on a level playing field where pieces of evidence are not merely pawns in a strategic chess game.
In the world of criminal justice, the “stakes are really high and sometimes police have a tendency to cut corners…and they certainly did in [Baltovich’s] case.” We are reminded that the justice system is not immune to mistakes, and this is the reason why the Association in Defence of the Wrongly Convicted exists.
Currently, Baltovich is pursuing a civil suit of malicious prosecution against the Attorney General. He is seeking $13 million in restitution for the wrongful conviction.
On top of thanking our guest speakers, a special thank you goes out to our resident Queen’s Law students, Rashmi Kumar (President of the QCLC) and David Levy (summer and future articling student with AIDWYC), as well as Amanda Carling from AIDWYC for organizing this successful event. Thank you also to the Faculty’s Visiting Committee and supporting staff Matthew Sheppard and Michael Brean.
Rachel Verboom is in 2L. She is a staff writer with Juris Diction, and Vice-president of the Queen’s Criminal Law Club.
With files from Rashmi Kumar, a 2L student and President of the Queen’s Criminal Law Club.