Bernardo theory doesn't carry the freight



Oct. 1, 2004. 06:12 AM

Those were eyeball-riveting headlines last week, when appeal lawyers for convicted murderer Robert Baltovich unleashed their Paul Bernardo-as-real-killer evidentiary construct in the 1990 death of Elizabeth Bain.

The prosecution's rebuttal on Wednesday received comparatively short shrift, as Baltovich's appeal hearing wound up.

I suspect Baltovich will get his re-trial, but not on these grounds. And it would be wrong to leave an impression that the Bernardo canard ever had strong merit. So I will revisit some of the more pertinent points raised by the defence and countered by the crown in their 65-page brief relating to the Bernardo "evidence.''

There is precisely one (1) witness who has ever claimed that Bernardo even knew Miss Bain, because she had introduced them in the mid-'80s. This woman, A.B., dated Bernardo from 1984 to 1987, during which time he sexually, physically and emotionally abused her.

A.B. was interviewed by police in 1993. She said she knew Bain, had gone to school and mass with her, and thought Bernardo might have had something to do with the murder. She did not tell police that she had introduced the two. A year later, in a second police interview, A.B. again made no mention of it. One might reasonably wonder why.

The first mention of this alleged introduction occurred when A.B. was interviewed by Brian King, a private investigator then working for Baltovich's defence team. (King would subsequently turn over tons of documents to a crusading writer who produced an absurdly partisan book about the case.) Yet even during that interview, A.B. didn't at first mention anything about the Bain-Bernardo meeting. That kernel is introduced only after King shuts off the tape recorder, then turns it back on, at which point A.B. suddenly recalls a church play in 1985 where the encounter is said to have taken place.

Imagine how far a police investigator in the witness stand would get with that kind of suspect taped evidence. About from here ... to here.

Cross-examined later, A.B. was far less certain that such an introduction ever happened. When it's suggested it never occurred, she responds: "Can I answer I'm not sure now?''

A.B. had further recalled, in her affidavit, that after introducing Bernardo to Bain, the former had said: "Yeah, we have seen each other around campus.'' That being the University of Toronto Scarborough campus.

Bain was not attending university in 1985.

Was it possible, A.B. was then asked, that she had jumbled together a bunch of different memories to come up with the scenario as she now recalled it?

"Yeah, it's possible that it's all jumbled — time and moments are jumbled up together, very possible ... I'm very, like — I'll say everything in my head's like a tornado whirling around.''

Obviously, it's not necessary for Bernardo to have known Bain in order to kill her. He didn't know the women he attacked so viciously in his Scarborough Rapist period (as opposed to the later St. Catharines drug-'em-and rape-'em period), either. Nor did he know two of the three women he ultimately killed. But this tenuous familiarity between Bernardo and Bain is a big part of the scenario underpinning one aspect of the argument promoted by Baltovich's appeal lawyers.

But let's look at what's behind door No. 2 instead.

A.B. had once been a classmate of Bain's brother Mark, even had a crush on him. After she became involved with Bernardo, A.B. kept an envelope on which Mark had written his name and number, this "as a reminder of happier times,'' according to the appellant factum. When Bernardo saw the envelope, he forced A.B. to tear it up and promise never to see or talk to Mark Bain again.

I'm not quite sure where the defence was going with this point, unless the objective was to suggest that Bernardo could have killed Elizabeth Bain as some weird payback because he was jealous of her brother. But in her affidavit, A.B. says she used only first names when she allegedly introduced Bernardo to Elizabeth. There's no evidence that Bernardo, even if he'd met her, ever knew that Elizabeth was Mark's sister.

Turning our attention to the ghostly traces of Bernardo in Bain's life, or her death, we come now to the "evidence'' extrapolated from the victim's car: A radio tuned to CFNY and a pack of DuMaurier Lights.

Bernardo, according to a close (and disreputable) cohort, was a fan of CFNY and smoked DuMaurier Lights. So here is evidence that might put Bernardo in Bain's car, in the state it was found after she vanished.

As anyone who closely followed the Bernardo trial might recall, Bernardo was well into his rap music era by 1990, when Bain went missing. Indeed, he fancied himself a nascent rap star, and it was this type of music that played in the background — as a sort of vile orchestral score — of the notorious videotapes Bernardo and then-wife Karla Homolka made to capture their sex attacks on two girls Bernardo was later convicted of killing.

It doesn't mean Bernardo couldn't have tuned the radio dial to CFNY. So could have Bain ... or Baltovich. As for the cigarettes, they were a brand Bain smoked too, though not the light version in her case. But many of us who happen to smoke DuMaurier often find ourselves in possession of the light brand instead, for insignificant reasons. Routinely, we tear off the filter to render them more nicotine-potent. Cigarettes found in Bain's car had the filter removed.

We move now from the picayune to more ostensibly probative — specifically, a woman who'd gone on a blind date with Bernardo in 1987. This woman, according to the fresh evidence application, would three years later — on the night Bain disappeared — catch a glimpse of a man at the Scarborough campus, this while she was on the phone to her fiancι. For reasons she couldn't explain, she had a "horrible feeling about him.''

She never got a good look and believed he was trying to keep his face averted from her. It never crossed her mind, at the time, that this was the Bernardo she had dated exactly once. She noted only that he had fair skin and a blonde hairstyle — short at the back and long on top with a straight swoop to the side, a style then widely popular. Yet, though she never knew Bain nor had any knowledge about her disappearance, she went around telling people that she thought the man she'd seen on campus was responsible for Bain's disappearance. It was, as she would repeatedly state, "a feeling.''

It was not till this woman saw a composite sketch of the Scarborough Rapist on TV, a week later, that she struck on the belief that the man she'd seen on campus was the rapist in the picture. But she as yet didn't attach that sketch to Bernardo. That came later, when she saw home videos of Bernardo on television. She began to harbour suspicions that Bernardo was connected with Bain's murder but didn't come forward until after reading news reports in 2000 of Baltovich's bail application.

Under cross-examination, this witness repeated that she hadn't clearly seen the face of the man she'd spotted on campus and that he'd been standing "pretty distant.'' Nor had she any clue where he'd gone after he left. She could assert only that he was white, with blond hair cut in a certain fashion. "I never said I saw Paul Bernardo on campus,'' she flatly states.

One of the crown's strongest rebuttals lies in the date when a composite sketch of Bernardo was circulated. The last known victim of his Toronto sexual attacks — on May 26, 1990 — provided a description. The resulting sketch of the Scarborough Rapist was released two days later — three weeks before Bain disappeared — and there is no evidence Bernardo ever struck again on those stomping grounds. It was seven months later, on Christmas Eve in St. Catharines, that he and Homolka drugged and sexually assaulted Homolka's sister, causing the teenager's death.


Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.


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