Lack of evidence and improper disclosure plagued murder investigation, author Derek Finkle writes

Many observers were left scratching their heads when Crown attorney Philip Kotanen announced, to the complete surprise of the jury he'd recently helped select, that there was "no reasonable prospect of a conviction" in the case against Robert Baltovich.
Mr. Kotanen cited the "cumulative effect" of unspecified "new evidence" and some pretrial decisions rendered by Mr. Justice David McCombs, but the truth is the tenuous circumstantial case against Mr. Baltovich had begun to seriously unravel not long after his controversial conviction in 1992.

The first official sign the Crown's case was in trouble wouldn't come for another eight years, in March, 2000, when the Ontario Court of Appeal took the highly unusual step of releasing Mr. Baltovich, then a man who'd spent nearly a decade behind bars for the murder of his girlfriend, Elizabeth Bain, on bail pending the hearing of his appeal.

The Crown was dealt another blow nearly five years later when the Court of Appeal overturned Mr. Baltovich's conviction and ordered a new trial. The appeal court's decision was resoundingly critical of the judge who'd presided over Mr. Baltovich's first trial, Mr. Justice John O'Driscoll, for the way he'd dramatically steered the case in the Crown's favour. But the appeal also revealed there were plenty of other troubling aspects to this case.

There were no eyewitnesses to the actual crime. No forensic evidence connected Mr. Baltovich to Ms. Bain's disappearance. Mr. Baltovich's supposed motive for killing his girlfriend - jealousy - was murky at best. Finally, his window of opportunity to commit the crime was so minuscule that the Crown was forced to hatch a theory of the crime that stretched the limits of believability.

The bottom line is that no one has ever clearly understood precisely when Ms. Bain disappeared, how she disappeared, from where she disappeared, or why she disappeared.

The Toronto police force's homicide squad was called in when Ms. Bain's car was found in Scarborough three days after her mother last saw her on June 19, 1990.

Within a few minutes of being told that a small amount of blood had been found in the rear foot well of the car, Detective Sergeant Steve Reesor, one of the lead homicide investigators assigned to the case, ordered Mr. Baltovich be put under immediate surveillance. The reason? A detective at the scene where the car was found said Mr. Baltovich had been acting strange, though he couldn't say how.

From that moment on, the police never considered another suspect, even the Scarborough rapist, whose previous attack, a vicious assault that occurred just three weeks prior to Ms. Bain's disappearance, had culminated in the now-famous composite sketch of the alleged rapist. Instead, police investigators spent five months pursuing Mr. Baltovich - at the exclusion of all else. They wiretapped his home and car and even convinced a friend to wear a body pack while engaging him in a series of lengthy conversations about the case.

Over the course of the 12 years it took for Mr. Baltovich's appeal to be heard, a steady stream of witness statements provided to police during their original investigation began to emerge, statements that were in some cases devastating to the Crown's original theory. For reasons that have never been adequately explained, these statements were never disclosed to Mr. Baltovich's counsel prior to his first trial.
Mr. Baltovich's lawyers also made a series of compelling arguments at the appeal that the investigators' unstinting belief in his guilt had contaminated a number of witnesses. This included members of Ms. Bain's family, who, according to documents and evidence filed by Mr. Baltovich's defence team, inexplicably changed their recollections in a few key areas in such a way they better suited the police theory of the crime.

Even as these gaps in the Crown's case were widening, those most responsible for Mr. Baltovich's conviction began to dig in their heels. While working on my 1998 book about the case, No Claim to Mercy, I interviewed Steve Reesor's partner on the Baltovich investigation, Brian Raybould, who told me, "If we had capital punishment, I'd take [Baltovich] out against a wall and shoot him and not feel bad about it."

Mr. Raybould is now the head of Toronto's homicide squad. Det. Sgt. Reesor went on to become the youngest deputy chief in the history of the Toronto police force. The Crown attorney who successfully prosecuted Mr. Baltovich at his first trial, John McMahon, is now a judge of the Ontario Superior Court.

When asked yesterday why it has taken so long for the Ontario Ministry of the Attorney-General to concede defeat, Mr. Baltovich's lead attorney, James Lockyer, alluded to the stubbornness of the Crown. Mr. Lockyer also called for a public inquiry into the case. "This kind of prosecution has got to stop," he said. "We need to get at the root of how it is that the attorney-general's office continues to prosecute these cases remorselessly year after year. They should have seen through a case like this a long time ago."