It is one of the greatest unsolved murders in Canada: Who killed Elizabeth Bain?
The 22-year-old Toronto woman disappeared in 1990, and her body was never found.
For a quarter-century, Toronto police and the Ontario government have said the killer is Ms. Bain's boyfriend Robert Baltovich – who was convicted of second-degree murder in 1992 and spent eight years in prison, and another eight on bail before he was acquitted in 2008, when the Crown called no evidence at his re-trial. Mr. Baltovich and his supporters say he is the victim of a wrongful conviction, and that serial killer Paul Bernardo is a likely suspect.
Now, lawyers acting for Mr. Baltovich in his $13-million malicious-prosecution lawsuit have uncovered evidence that challenges the timeline long held by police and prosecutors that was central to his conviction.
The police and prosecution believe Mr. Baltovich killed Ms. Bain on June 19, 1990, in Colonel Danforth Park, a wooded area near the University of Toronto's Scarborough campus. They alleged he hid the body, and in the early morning hours of June 22, drove Ms. Bain's car about 45 minutes to Lake Scugog, disposed of the body and returned to Toronto.
The theory was the only way to fit the timeline for Mr. Baltovich committing the crime and hiding the body.
But a Toronto police document has surfaced that casts doubt on Mr. Baltovich's conviction and raises questions about why it was not previously turned over to his lawyers. Notes from a 1990 interview of two experts at the Centre of Forensic Sciences conducted by Detective Sergeant Brian Raybould indicate that the forensic evidence was not consistent with Ms. Bain being killed, her body hidden and then transported in her car more than two days later.
At the meeting with the forensic experts, Mr. Raybould's notes say he was told Ms. Bain's car contained more blood than there should be from a body that had decomposed for two or three days. The blood smears would have been darker, and there was no odour, which was inconsistent with a decomposing body placed inside.
The notes taken by Mr. Raybould were on an untitled, loose piece of foolscap – not part of a police memo book. They were not officially given to Mr. Baltovich's legal team at the time of his trial or during the 2004 appeal that eventually resulted in his freedom.
The newly discovered information, which was among documents exchanged last year in the lawsuit that Mr. Baltovich filed in 2010 against the Ministry of the Attorney General and Toronto Police Services Board, will be at the centre of a Superior Court hearing this spring. Mr. Baltovich will ask the court for permission to amend his statement of claim to include new allegations that Mr. Raybould, since retired, failed to disclose what the experts said because "he knew or ought to have known the police theory was flawed and untenable," court documents say.
None of the allegations have been proven in court.
Lawyers for Mr. Baltovich are also alleging in the court documents that Mr. Raybould altered his notes. A section of a memo book turned over last year in the civil suit has a brief reference to the forensics meeting. The same section was blacked out in the copies of memo books disclosed before the 2004 appeal, according to a sworn affidavit by lawyer James Lockyer, who acted for Mr. Baltovich in the criminal appeal.
Cheryl Woodin, the lawyer for Mr. Raybould, former detective Steven Reesor (who was also on the case), and the police board, said a "detailed defence" will be filed on the new allegations if the court allows the lawsuit to be amended. "The police defendants have always denied all of the allegations made against them," Ms. Woodin said. The province maintains in its court filings that there is a strong case against Mr. Baltovich, but that it was undercut by judicial rulings that excluded such evidence as information obtained from witnesses through hypnosis.
Mr. Baltovich's lawsuit accuses the Crown and police of a "rush to judgment," of failing to disclose information that would show Mr. Baltovich's innocence and of ignoring evidence that pointed to the man known as the Scarborough rapist (later revealed to be Mr. Bernardo).
More than 13,000 documents related to the case have been turned over by the Crown and police in the civil lawsuit. It was in going through the documents, that Joanne McLean, one of Mr. Baltovich's lawyers in his appeal and who is assisting with the lawsuit, found the note written on foolscap. It referred to a Nov. 22, 1990, meeting between Mr. Raybould and two experts at the Centre of Forensic Sciences. The note was described in the index of Crown documents as undated, having an unknown author and referred to as "notes [handwritten] untitled."
In its response to the request to amend the lawsuit, the province states that there was nothing improper in the way the foolscap note of the CFS meeting was labelled because the ministry did not know who wrote it. It also suggests that Mr. Baltovich's criminal appeal lawyers would have found this note in 2004 if they had done a "diligent review" of the police file.
Mr. Raybould, who went on to head the Toronto police homicide squad before his retirement in 2009, was asked about the meeting last year, as part of examinations for discovery in the civil litigation. He said the note was in his handwriting, but he said he was "struggling with his memory," according to a court transcript. "If you're asking me if I specifically disclosed this information from [CFS] on that date, I have no recollection of doing that," said Mr. Raybould.
Mr. Reesor said he had no knowledge of the meeting with the forensic experts when questioned last year by Mr. Baltovich's lawyers. He explained that it was not uncommon for homicide detectives to write information on foolscap. "This would be considered like field notes," Mr. Reesor said, adding that they would be placed in the police investigative file but not indexed.
The CFS conclusions were not inconsistent with the police theory, Mr. Reesor said. He alleged that Mr. Baltovich used Ms. Bain's car initially to transport the body to a hiding spot in the park. Then, "wrapping it well," he placed it back in the car a couple of days later.
Central to the lawsuit is whether the Crown complied with its obligations to disclose all relevant evidence to Mr. Baltovich by the start of his 1992 trial. At the time, the province had not developed a policy to comply with a Supreme Court ruling that required that the defence be provided with copies of officers' notes.
Lead prosecutor John McMahon, now a Superior Court judge, said in a sworn affidavit in 2004 that he already practised "open box disclosure," under which the defence could ask to view the police file.
In the 2004 affidavit, Mr. McMahon added that he relied only on the "Crown brief" of relevant information provided by detectives to prosecute cases and did not look at the police investigative file.
The current allegations of non-disclosure in the lawsuit also include the actions of one of the Crown attorneys involved in the criminal appeal. John Corelli, in correspondence with Mr. Lockyer in 2004, stated that he had spoken to Mr. Raybould at that time and he had no recollection of any previous consultation with pathologists.
However, a note which was also discovered last year after documents were produced in the civil suit and which the Crown is admitting was written by Mr. Corelli in 2004, indicated that he was told by Mr. Raybould that the officer met with experts about the decomposition evidence but did not know when this took place. The note written was listed as being authored by Mr. Raybould, which the province says was an inadvertent error. Mr. Corelli, when contacted by The Globe and Mail, said he could not comment because the matter is before the courts.
David Robins and Harvey Strosberg, the civil lawyers for Mr. Baltovich, declined to comment on the new developments in the civil lawsuit, as did Sara Blake, lead counsel for the province.