Sep. 30, 2004. 07:05 AMTRACEY TYLER
Baltovich, 39, isn't accusing police or prosecutors of misconduct — at least not at this point — but "one cannot do anything but conclude" that Detective Sergeant Brian Raybould in particular, one of the two lead investigators in the case, "was grossly negligent," James Lockyer told the Ontario Court of Appeal.
"He is the one, really, who gathered all this evidence," Lockyer told a three-judge panel. "Interestingly enough, on all these occasions, he was always alone."
Lawyers for the crown have told the court that Baltovich's trial lawyers, Mike Engel and Bill Gatward, failed to exercise due diligence in tracking down the information or take crown attorney John McMahon up on his standing offer to look at the investigative file.
The evidence includes a police report that Baltovich's lawyers say is "virtual proof" of his innocence.
It confirms he went to meet Bain outside her class at the University of Toronto's Scarborough campus at 9 p.m. on June 19, 1990, the day she vanished.
If Baltovich was the killer, it would make no sense for him to go to the class because the prosecution theory was that Bain was dead by 7 p.m., Lockyer told the court.
The evidence also includes pages from Bain's diary, dated Sept. 16, 1988, which Baltovich's lawyers say undermines the crown's theory of motive. The crown obviously read them, because passages were highlighted, yet apparently didn't appreciate the need to disclose them, Lockyer said.
To that extent, the crown was also negligent, he argued.
But Madam Justice Eileen Gillese asked Lockyer what efforts the defence team made to track down the witness who ultimately confirmed Baltovich was outside Bain's classroom. One place to start was by asking for a class list, she suggested.
Lockyer said at the time of Bain's disappearance, the defence had no reason to; Baltovich wasn't arrested until five months later, on Nov. 19. At that point, the defence would presumably have waited until the prosecution disclosed what evidence it planned to use in its case, he said.
"Why?" asked Mr. Justice Michael Moldaver.
"Why? To say the defence will just sit back and say, `We'll just wait until the police have found out, or tell us what they've found out'...
"I don't think so," he said. "Speaking for myself, I don't accept that."
Crown counsel Gillian Roberts told the court yesterday the "classroom evidence" still doesn't account for Baltovich's whereabouts earlier in the evening, and argued he could have still killed Bain between 7 and 7:15 p.m. or between 8 and 9 p.m. A witness last reported seeing him at the campus gym at 8:30, she said.
Roberts also suggested Baltovich could have crawled out a window of his basement bedroom in the early morning hours of June 22, 1990 — when his mother says he was at home sleeping — and driven Bain's body north to Lake Scugog to bury it.
While Baltovich's lawyers have pointed to Scarborough rapist and serial killer Paul Bernardo as the likely killer, what they call a compelling circumstantial case is no more than unreliable and speculative evidence, argued crown counsel Howard Leibovich.
With few exceptions, Bernardo never abducted women in broad daylight, he said. Kristen French was an exception, but Bernardo's then-wife, Karla Homolka, helped him, Leibovich said. He argued the fresh evidence purporting to link Bernardo to the crime shouldn't be considered by the court.
But Brian Greenspan, who also represents Baltovich, said that's not how the Supreme Court of Canada felt when it was presented with evidence that serial rapist Larry Fisher — and not David Milgaard — might have been the person responsible for killing Saskatoon nursing aide Gail Miller in 1969.
The appeal hearing ended with Greenspan handing the panel extracts from what the Supreme Court said after a historic hearing into the Milgaard case more than a decade ago. In the Milgaard case, the Supreme Court concluded that to deprive a jury of the evidence of Fisher's rapes would be a "miscarriage of justice."
The court reserved its decision.