Settlement In Works For Male Who Pleaded Guilty

Adrian Humphreys, National Post

Published: Saturday, July 21, 2007

The Ontario government is negotiating a wrongful conviction settlement with a man sent to prison for a rape that was perpetrated by notorious sex killer Paul Bernardo.

The apparent wrongful conviction came to the government's attention after Bernardo, serving a life sentence for the slayings of two Ontario schoolgirls, told government lawyers and police almost two years ago about several sexual assaults he had not been charged with.

Bernardo provided investigators with enough specific details about some attacks for police to identify the victims. When they tracked one rape in Toronto -- expecting to find an unsolved case -- they instead learned that another man had already been arrested, charged and convicted for it after pleading guilty in court, according to several sources familiar with the case.

He was released from prison after serving his sentence.

The account of the rape provided by Bernardo, which occurred in the late 1980s and was prosecuted soon after, was believable because of his intimate knowledge of the attack.

The government is now seeking to rectify the situation. "The matter is under review," said Howard Leibovich, a senior Crown prosecutor familiar with the case.

Robert Nuttall, the Crown attorney in Scarborough who prosecuted the case, said members of the Toronto Police Service's Sexual Assault Squad recently interviewed him about the matter but he has little memory of the original case.

"I gave them the best and most accurate recollection I could."

"There was a case to be prosecuted, I prosecuted it and if the fellow decided to plead guilty, really, that's coming from him. What his motivation was, God only knows," said Mr. Nuttall, who is now a Toronto defence lawyer.

"Nobody likes to see an innocent man convicted."

Tony Bryant, Bernardo's lawyer, confirmed his client worked with police on the case.

"He was able to describe the event. He was able to give specifics and they were able to track it down. The Crown has identified the person and were taking some steps to fix it as best they can," Mr. Bryant said.

"He was found guilty and sentenced for a crime that he did not commit," he said.

It is a mystery why the man, who has not been identified, pleaded guilty to the crime if he was innocent. The plea came in the midst of his trial on the advice of his lawyer after hearing some of the evidence against him, sources said.

It is not known what evidence led to his arrest.

In October, 2005, Bernardo confessed to several attacks he said he had committed two decades earlier. Toronto police assigned detectives in its Sexual Assault Squad to work with officers from the original "Scarborough Rapist" file in the 1980s to investigate Bernardo's claims.

Four months later, Toronto police said no new charges would be laid against Bernardo.

At the time, Deputy Chief Tony Warr said the cases included a number of assaults the force was aware of, but for which the victims did not wish to proceed with an investigation. In others, not enough information was provided by Bernardo to launch an investigation; still others may have gone unreported to police, he said at the time.

What was not addressed was the possibility of someone else having been convicted for any of the assaults that Bernardo claimed to have committed. Deputy Chief Warr could not be reached yesterday.

Accepting Bernardo's information comes with some baggage.

Bernardo was interviewed just last month by police and Crown attorneys working on the appeal of Robert Baltovich, 41, who was convicted in 1992 of murdering his girlfriend, Elizabeth Bain. Baltovich spent eight years in prison before he was released on bail and granted a new trial.

Baltovich's lawyers have long pointed to Bernardo as the likely killer of the 22-year-old Toronto woman. Bernardo, however, adamantly denied killing Ms. Bain, who disappeared in 1990 from her Scarborough neighbourhood. Bernardo said he did not know her and had never met her.

That might put both champions of the wrongfully accused and Crown prosecutors in an awkward position: believing Bernardo in one instance but dismissing him in the next.

James Lockyer, Baltovich's lawyer, declined to comment on the matter as his client's case is still before the courts.

A source familiar with the case believes that the freedom enjoyed by Bernardo's former wife, Karla Homolka, who was released from prison in 2005, has rekindled a belief that he, too, will one day get out of prison. To that end he is working to show his remorse and rehabilitation.

Mr. Bryant, however, said his client simply "did what he thought was the right thing."

He said the government has acted quickly in seeking to remedy the situation.

Sources say government officials are working on a settlement with the man despite no civil suit being launched. Such settlement could include a court application to have the conviction vacated. There might also be a financial component.

"They haven't exactly sat back on the case. You can't fault them on that side," Mr. Bryant said. He has had no involvement in the case beyond helping to arrange Bernardo's jailhouse confessions.

Bernardo is serving a life sentence for the rape and murder of Kristen French, 15, and Leslie Mahaffy, 14, and has been declared a dangerous offender after a string of sexual assaults he committed during the late 1980s.