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Paul Bernardo, 1995.Frank Gunn/The Canadian Press

Toronto police stand by their decision to rule out serial killer Paul Bernardo in the death of Elizabeth Bain, even though three weeks before she disappeared in 1990 he committed a knifepoint rape that caused investigators to fear his next victim would be killed.

Mr. Bernardo was discounted because he had not killed anyone at that time, police say in a statement of defence filed in an ongoing malicious prosecution lawsuit by Robert Baltovich, who was convicted and subsequently acquitted of the second-degree murder of Ms. Bain, his girlfriend. Mr. Bernardo was later identified as the Scarborough Rapist, responsible for several sexual assaults in the eastern Toronto suburb from 1987 to 1990.

"Paul Bernardo was considered but not actively pursued as a suspect in the disappearance of Elizabeth Bain because at that time the Scarborough Rapist had only committed violent sexual assaults," says the statement of defence.

The explanation, never previously made public, is laid out in the defence to the $13-million lawsuit filed by Mr. Baltovich against the Toronto Police Services Board and the Ontario Ministry of the Attorney-General. Mr. Baltovich was convicted by a jury in 1992 of killing his girlfriend, Ms. Bain, who disappeared in June, 1990, and whose body has never been found. He spent the next eight years in prison until he was granted bail pending appeal, and in 2008, he was acquitted at a retrial. His lawsuit, filed two years later, accuses police and prosecutors of an "unwavering focus" on Mr. Baltovich and of "refusing to consider the possibility" that the Scarborough Rapist may have killed Ms. Bain.

None of the allegations has been proved in court.

Mr. Bernardo was convicted of 12 sexual assaults in the Scarborough area. In a prison interview with Toronto police in 2007, he admitted to eight other attacks, including one in 1986 near Colonel Danforth Park, where Ms. Bain was last seen.

A vicious knifepoint rape occurred three weeks before Ms. Bain disappeared. The victim was able to provide a description of her attacker that resulted in a composite sketch that resembled Mr. Bernardo. It is his last known assault in Scarborough before moving to St. Catharines in late 1990 to live with Karla Homolka. He was subsequently convicted in the murders of school girls Leslie Mahaffy and Kristen French.

If Mr. Bernardo killed Ms. Bain, it "would have given him cause to change his field of operation," says the statement of claim filed by Mr. Baltovich.

The late Justice Archie Campbell, who headed a 1996 inquiry into the police investigation of the sexual assaults and murders committed by Mr. Bernardo, highlighted the savagery of the May, 1990, rape. "The extreme violence of the attack suggested to experienced investigators that the rapist was escalating in violence and might kill his next victim," Justice Campbell wrote.

Mr. Baltovich was acquitted in 2008 when the Crown made a last-second reversal at his retrial and decided to call no evidence. Had the retrial gone ahead, the defence was seeking to present geographic profiling evidence implicating Mr. Bernardo.

In its statement of defence to the lawsuit, the Crown says it permitted Mr. Baltovich's lawyers to seek to implicate Mr. Bernardo at the retrial out of "good faith" and "fairness" and not because there was merit to the suggestion.

Mr. Bernardo gave a rambling answer when asked directly in the 2007 interview if he killed Ms. Bain.

"Well, that is a loaded question. I mean, are we going to go back and go through the time sequence of what happened in my life?" said Mr. Bernardo, who then continued to criticize investigators for the plea bargain deal with Ms. Homolka, before denying he killed Ms. Bain. "The answer to that is no. But the 800-pound gorilla in the room is that is a life-25 sentence."

Tony Bryant, who is Mr. Bernardo's lawyer, said Tuesday he could not comment about the death of Ms. Bain, but he has not received any requests to question his client "for discovery purposes" in the lawsuit filed by Mr. Baltovich.

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