Author: Sarah Harland-Logan

Introduction

Robert Baltovich’s life was turned upside down on June 19, 1990, when his girlfriend, Elizabeth Bain, went missing. She had told her parents that she was going out to check the tennis schedules at school, the University of Toronto Scarborough Campus. Elizabeth never came back. Her car was eventually recovered, and forensic tests revealed that blood on the back seat was hers. Elizabeth’s body has never been found. [1]

As the days and weeks went by, it became clear that Elizabeth would never return. Robert was devastated. He loved Elizabeth deeply, and thought that the two would get married someday. Elizabeth’s mother would later testify that the two had been very much in love. In fact, the day before she disappeared, Elizabeth had presented Robert with flowers, a watch and a poem to celebrate his recent graduation. But, as Robert wrote many years later, “In the days that followed, the confusion and terror of having to confront Liz’s disappearance and the possibility that she might have been the victim of foul play culminated in an interview with the Toronto Police’s Homicide squad, during which time I was told that I had murdered the woman that I loved.” [2]

The police and prosecution never had any real evidence to connect Robert with Elizabeth’s disappearance; their case was entirely circumstantial. As will be discussed below, it was based on the unreliable eyewitness testimony of several witnesses. However, Robert was arrested on November 19th, 1990, and charged with Elizabeth’s murder. [3]

Robert’s Trial

At trial, the prosecution argued that Elizabeth had attempted to break up with Robert, who had then killed her “in a jealous rage,” due to his “belief that if he could not have her, nobody would.” At the core of the Crown’s case was the testimony of two witnesses, Marianne Perz and David Dibben. Marianne said that she had seen Robert and Elizabeth sitting together at a picnic table on campus at 5:40 p.m. on the day of her disappearance. If her evidence was correct, Robert was almost certainly her killer. Robert maintained that he had been at home with his family at that time; several of his family members confirmed that this was true. David testified that he had seen Robert driving Elizabeth’s car on June 22. Again, if David had really seen Robert in Elizabeth’s car – where her blood was later found – three days after her disappearance, then he had almost certainly killed her. [4]

The jury believed Marianne’s and David’s evidence even though there were serious questions about the reliability of each person’s testimony. Initially Marianne had only a fuzzy recollection of the man she saw with Elizabeth on the night of her disappearance. However, she later read an article in the Toronto Sun that suggested Robert was a suspect in her disappearance and included a photo of him. She also spoke to members of Elizabeth’s family who thought that Robert might have harmed her. Marianne then underwent hypnosis, during which she suddenly recovered much more detailed memories that implicated Robert. After this session, she picked out Robert’s picture from a photo line-up. In fact, Marianne was one of four Crown witnesses who were hypnotized in an attempt to sharpen their memories. [5]

David’s eyewitness testimony that he had seen Robert in Elizabeth’s car was also problematic. He agreed that he “wasn’t really paying attention” at the time of the alleged sighting, and that he did not have a good view of the driver. Moreover, his original description of the driver was not very detailed, and also was not a good match for Robert’s appearance at the time. His description evolved as the police proceedings went forward. [6]

Despite these questionable features of the Crown’s case, the jury found Robert guilty of the second-degree murder of Elizabeth. Robert was convicted on March 31, 1992. He was sentenced to life in prison with no eligibility for parole for the next 17 years. [7]

Robert spent the next eight years in jail for a crime that he did not commit. [8]

Paul Bernardo: The Real Culprit?

We will likely never know what happened to Elizabeth on the day that she disappeared, beyond that fact that Robert did not kill her. However, it seems probable that her real killer was notorious serial rapist and murderer Paul Bernardo. During the four years leading up to Elizabeth’s disappearance, an unknown person in the Scarborough area had committed a series of horrifically violent and depraved sexual assaults. The last known sexual assault that the “Scarborough Rapist” committed took place only three weeks before Elizabeth vanished. [9]

On November 3, 1995, Bernardo was declared to be a Dangerous Offender. One of the many reasons for this finding was that by this time, Bernardo had been identified as the Scarborough Rapist. All of his attacks during this period were near the University of Toronto Scarborough campus and Elizabeth’s home. Moreover, Bernardo’s extreme violence during these attacks suggested that he might soon escalate and kill future victims. This prediction was, of course, completely correct: Bernardo would soon go on to kill his wife’s sister, Tammy Homolka, and high school students Leslie Mahaffey and Kristen French. Given Bernardo’s history as the Scarborough Rapist and his escalating pattern of horrifically violent crimes against women, one plausible explanation for Elizabeth’s disappearance is that she, too, was one of Bernardo’s victims. [10]

In fact, AIDWYC lawyer James Lockyer, who represented Robert during the arduous appeal process described below, believes that “the evidence shows … [Bernardo] probably did it.” Robert, on the other hand, understandably prefers not to think about this alarming possibility, since “it’s just too terrifying to think he could be the guy.” [11]

Robert’s Acquittal

Although Robert had no idea what might have happened to Elizabeth, he knew that he had not harmed her. He therefore appealed his conviction, and at first remained hopeful that his prison stay would be brief. But, in his words, “the weeks turned into months and then years and by the winter of 1999 I had begun to think my appeal might never be heard. Depressed and tired of waiting for an appeal that seemed to be taking forever I made a call to James Lockyer and asked him to take carriage of my appeal. It was a call that would change my life forever.” [12]

AIDWYC took Robert’s case; its first priority was to get him out of prison. On March 31, 2000, Robert was granted bail pending the hearing of his appeal. Eight years after his wrongful conviction, Robert was finally out of jail. [13]

When AIDWYC began looking into Robert’s case, it found innumerable problems with the court proceedings. First, the judge had instructed the jury members in a way that placed too much emphasis on the Crown’s case while ignoring and belittling parts of Robert’s case, rather than taking a balanced view (which is the judge’s job). Among the many problems with the judge’s comments to the jury was the fact that he left out some important cautionary statements about the reliability – or lack thereof – of the prosecution’s eyewitness testimony, which could have led the jury to rely too heavily on this evidence. AIDWYC also argued that eyewitness evidence derived from hypnosis should not have been included, since hypnosis is a controversial technique that can affect memory in unpredictable ways (discussed further below). With AIDWYC’s assistance, Robert brought these problems to the attention of the Ontario Court of Appeal, urging the Court to set aside his wrongful conviction. [14]

The Court of Appeal agreed that Robert’s trial had been unfair. The Court was highly critical of the trial judge’s charge to the jury, writing that it was “unfair and unbalanced,” “contained significant errors of law,” and “unduly promoted the case for the Crown and effectively ignored and denigrated the case for the defence.” The judges found that these instructions to the jury therefore “compromised … [Robert’s] right to a fair trial.” The Court also commented that the judge’s tone, especially his “improper use of rhetorical questions,” left “little doubt as to where … [he] stood.” In order words, he thought Robert was guilty. The judge ought instead to have used a neural tone that would allow the jury members to decide for themselves. [15]

Moreover, the Court agreed with AIDWYC that the trial judge had not given the jury “adequate instructions with respect to the eyewitness identification evidence” of the two key Crown witnesses, Marianne Perz and David Dibben. The Court noted that both witnesses’ descriptions of the man they believed to be Robert had changed significantly over time; that their original descriptions did not closely match Robert’s appearance; that David had not had been able to get a good look at the person driving Elizabeth’s car; and that Marianne had viewed a newspaper article (with Robert’s photo) and spoken to members of Elizabeth’s family who thought that Robert might have killed her. Robert’s trial judge failed to point out any of these concerns to the jury members, and he did not make any cautionary statements at all about the eyewitness testimony of a third Crown witness, Suzanne Nadon. The Court of Appeal concluded that these errors “could have affected the verdict,” especially in the context of the trial judge’s biased statements suggesting that he believed that Robert was guilty. [16]

On December 2, 2004, the Ontario Court of Appeal set aside Robert’s conviction and ordered a new trial – this time to be free of obvious bias and legal errors. [17]

A Miscarriage of Justice

One aspect of Robert’s trial that did not upset the Court of Appeal judges, however, was the fact that key Crown witnesses had retrieved their memories implicating Robert while they were undergoing hypnosis. But before Robert’s new trial could begin, the Supreme Court of Canada released their reasons in a case called R v Trochym [2007] 1 SCR 239, in which it held that from that point on, eyewitness evidence derived from hypnosis would generally not be admissible in court. In fact, the Supreme Court took such a dim view of hypnosis that it would not even allow eyewitnesses to testify when they had been undergone hypnosis but did not seem to have any new or different memories as a result. [18]

Given this new Supreme Court decision, it was clear that Marianne Perez – one of the Crown’s two key witnesses – would not be able to testify at Robert’s retrial. Nor could Suzanne Nadon, another eyewitness whose original evidence had been very weak (she had glimpsed a woman she thought might be Elizabeth, through some trees, at night), but whose memories had sharpened after undergoing hypnosis. Moreover, as seen above, David Dibben’s testimony had a number of problems as well. In addition, AIDWYC had successfully argued that Robert should be able to present evidence of Paul Bernardo’s crimes and explain how Elizabeth’s murder seemed to Bernardo’s pattern. The Crown’s case was rapidly falling apart. [19]

On April 22, 2008, the Prosecution chose to call no evidence at Robert’s retrial. In other words, the Crown was agreeing that there was no real case against Robert after all. In fact, Ontario Attorney General Chris Bentley commented that Robert “needed and deserved” his acquittal, stating, “I hope he will be able to get on with the rest of his life with this matter behind him.” Robert was finally acquitted, having spent 18 years fighting to clear his name. [20]

Causes of Robert’s Wrongful Conviction: Biased Jury Charge

Robert’s trial judge chose to promote the Crown’s case against him instead of dispassionately explaining to the jury what they were supposed to do. As the Court of Appeal explained when overturning Robert’s conviction, “The charge to the jury is a central feature in any jury trial,” and “its strength lies in its objectivity.” Amidst the adversarial arguments of the lawyers for both sides, “the jury is entitled to look to the charge to guide it safely through its deliberations and assist it in arriving at a true verdict according to law.” Without a “fair and balanced charge,” the accused person is denied of his right – protected under the Charter of Rights and Freedoms – to receive a fair trial. Robert’s trial judge failed to afford him that right, and the result was a miscarriage of justice that sent an innocent man to prison for eight years. [21]

Causes of Robert’s Wrongful Conviction: Use of Hypnosis

In addition, the Crown’s case against Robert was based on unreliable eyewitness testimony. The Supreme Court has now made it clear that hypnosis is a dangerous technique for enhancing memory that has no place in a criminal prosecution. [22] In the following excerpts from its decision in R v Trochym, the Supreme Court outlines the problems with eyewitness evidence derived from hypnosis:

There is a general consensus that most individuals are more suggestible under hypnosis, that any increase in accurate memories during hypnosis is accompanied by an increase in inaccurate memories, that hypnosis may compromise the subject’s ability to distinguish memory from imagination, and that subjects frequently report being more certain of the content of post-hypnosis memories, regardless of their accuracy. In sum, while it is not generally accepted that hypnosis always produces unreliable memories, neither is it clear when hypnosis results in pseudo-memories or how a witness, scientist or trier of fact might distinguish between fabricated and accurate memories. [23]

In other words, hypnosis increases the extent to which our memories can change due to outside influences, so that we end up remembering things that never happened. Hypnosis therefore greatly exacerbates the general dangers of eyewitness testimony, which are rooted in this same fallibility of human memory. [24]

Causes of Robert’s Wrongful Conviction: Other Problems with Eyewitness Testimony

As the Court of Appeal judges pointed out, “the fallibility of eyewitness identification has been a central concern in a number of inquiries into wrongful convictions” (see, for example, the cases of AIDWYC clients Thomas Sophonow, Anthony Hanemaayer and Romeo Phillion). [25] Witnesses make incorrect identifications at an alarmingly high rate. In fact, of the Innocence Project’s first 225 exonerations of people who were wrongly convicted in the US, “77% of the convictions had been based on mistaken eyewitness identification.” [26]

In addition to the unavoidable frailties of eyewitness testimony and the inappropriate use of hypnosis to “strengthen” memories, the police investigating Elizabeth’s disappearance used a faulty photo line-up technique when interviewing key Crown witness Marianne Perz. Marianne was shown a photo array – i.e., several photos presented at once – rather than a sequential line-up, where the images are presented one at a time. This technique is dangerous, since the eyewitness may “choose the picture from the array that is the best fit,” even if none of the photos match the real perpetrator. In fact, Marianne stated outright at Robert’s trial that she had picked out his photo “by a process of elimination.” [27]

Furthermore, the officer who conducted this line-up not only knew that one of the photos was Robert’s, he told Marianne as much, informing her that “Rob’s photo is in the group” before she made her selection. Line-ups ought to be conducted by members of the force who do not have this information – and thus, of course, do not share it – so that they cannot deliberately or accidentally “convey information to the witness to cause her to select the suspect” that the police have in mind. [28]

Wounds that AIDWYC Cannot Heal

After losing the woman he loved and hoped to marry one day, Robert – an innocent man – spent eight years in prison for her murder. In addition, Robert’s attempts to put his life back together after his release were repeatedly frustrated by the slow and grueling process he had to undergo in order to finally clear his name. In his own words, Robert lived through an “eighteen-year nightmare.” [29]

Despite this ordeal, the Ontario Attorney General announced in January 2010 that Robert would not be compensated for his wrongful conviction. This decision is baffling given that, as AIDWYC Senior Counsel James Lockyer put it, Robert’s life was “completely wrecked by what happened to [him] … the amount of time … [he] spent in jail.” The Ontario government appears to be “completely indifferent to the wrongly convicted and what they go through.” [30]

Robert is now suing the Attorney General, the Toronto Police Services, and the defence lawyers who represented him at his first trial, in an attempt to receive some compensation for the years, opportunities, and peace of mind he lost. This lawsuit is still in progress. [31]


[1] R v Baltovich [2004] OJ No 4880 at para 6, 191, CCC (3d) 289 [Baltovich 2004]; CBC News: “‘I Get to Live the Rest My Life Free’: Baltovich Acquitted.” April 22, 2008, http://www.cbc.ca/news/canada/i-get-to-live-the-rest-my-life-free-baltovich-acquitted-1.698182 [“Free”]; Robert Baltovich, “University to Prison to Freedom & Exoneration” (Spring 2009) Vol 10 AIDWYC Journal, pp 4-5 [“University to Prison”].

[2] Baltovich 2004, supra note 1 at paras 18, 20-21, 133; “University to Prison,” supra note 1 at 4.

[3] Baltovich 2004, supra note 1 at para 8; “University to Prison,” supra note 1 at 4.

[4] Baltovich 2004, supra note 1 at paras 7, 9, 10, 12, 13, 15, 17; “Free,” supra note 1.

[5] Baltovich 2004, supra note 1 at paras 36-55.

[6] Ibid at para 87.

[7] “Free,” supra note 1; “From University to Prison,” supra note 1; The Canadian Press: “Baltovich Sues Ontario for 8 Years in Jail.” April 23, 2010 at cbc.ca: http://www.cbc.ca/news/canada/baltovich-sues-ontario-for-8-years-in-jail-1.960065 [“Baltovich Sues”].

[8] R v Baltovich [2000] OJ No 987 at paras 1 and 44, 144 CCC (3d) 233 (Rosenberg JA) [Baltovich 2000]

[9] Baltovich 2004, supra note 1 at paras 10-17; “From University to Prison,” supra note 1 at 4.

[10] Baltovich 2004, supra note 1 at paras 16-20.

[11] “Free,” supra note 1.

[12] “From University to Prison,” supra note 1 at 4.

[13] Ibid; Baltovich 2000, supra note 8.

[14] Baltovich 2004, supra note 1 at paras 58, 84-99, 126-128, 137.

[15] Ibid at paras 113, 124, 147-149.

[16] Ibid at paras 84 – 91.

[17] Ibid at paras 1, 4, 190.

[18] Baltovich 2004, supra note 1 at 46, 58; R v Trochym, [2007] 1 SCR 239 at paras 13, 61, 51, 2007 SCC 6 (Deschamps J) [Trochym].

[19] R v Baltovich, [2007] OJ No 5488 (Watt J) at paras 114, 142; R v Baltovich [2008] OJ No 1609 at para 56 CR (6th) 369 (McCombs J); R v Baltovich [2008] OJ No 1609 at para 38, 56 CR (6th) 369 (McCombs J) [Baltovich 2008].

[20] “Free,” supra note 1; “University to Prison,” supra note 1 at 5.

[21] Baltovich 2004, supra note 1 at paras 115, 118.

[22] Trochym, supra note 17 at paras 13, 61.

[23] Ibid at para 40.

[24] Ibid at para 46.

[25] Ibid.

[26] Lauren O’Neill Shermer, Karen C Rose & Ashley Hoffman, “Perceptions and Credibility: Understanding the Nuances of Eyewitness Testimony” (2011) 27 Journal of Contemporary Criminal Justice 183 at 183, 185.

[27] Baltovich 2004, supra note 1 at para 49; R v Hanemaayer, 2008 ONCA 580 at para 23, 234 CCC (3d) 3 [Hanemaayer].

[28] Baltovich 2004, supra note 1 at para 46; Hanemaayer, supra note 26 Ibid at para 25.

[29] “University to Prison,” supra note 1 at 5; “Free,” supra note 1.

[30] Tracey Tyler and Robert Benzie, The Star: “Anger as Baltovich Gets Nothing.” January 14, 2010, http://www.thestar.com/news/ontario/2010/01/14/anger_as_baltovich_gets_nothing.html [“Anger”].

[31] AIDWYC, “Anthony Hanemaayer and Robert Baltovich Denied Compensation” (Summer 2010) Vol 11 AIDWYC Journal (available at http://aidwyc.org/pdfs/AIDWYC_Journal-Summer-2010-V11.pdf), p 15.