R v Baltovich 2004 73 OR (3d) 481

[This version of the judgment has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

2 December 2004 - Ontario Court of Appeal

Elizabeth Bain was last seen on June 19, 1990. Robert Baltovich her boyfriend, was charged with second-degree murder in connection with her death. Following a jury trial B was convicted on March 31, 1992 of second-degree murder and sentenced to life imprisonment with no parole for 17 years. B appealed his conviction and in March 2000 he was released on bail pending appeal.

The CA unanimously allowed B’s appeal on the basis that the trial judge’s charge to the jury was unfair and unbalanced and contained significant legal errors that were prejudicial to B. The Court also concluded that this is not a case in which the proviso could be applied to uphold the conviction. The Court set aside B’s conviction for second-degree murder and ordered a new trial.

At trial, the Crown maintained that B killed Bain on June 19, 1990 between the hours of 5:40pm and 7:00pm. He did so in a state of jealous rage because of Bain’s decision to terminate their relationship. Later, he took various measures designed to mislead the police and shield himself from detection, including retrieving Bain’s body from the park where he killed her, and moving it to Lake Scugog. 2 witnesses were of particular importance to the Crown’s case at trial: Marianne Perz and David Dibben.Perz said that she saw B seated beside Bain between 5:40 and 5:45pm on the day she disappeared. Dibben said that he saw B driving Bain’s car near Lake Scugog early in the morning on Friday, July 22.

Although not conceded at trial, B acknowledged on appeal that Bain is dead and that she was murdered. At trial, and on appeal, B has consistently denied any involvement in Bain’s disappearance or her death. Although he did not testify at trial, his position was conveyed to the jury through a series of pre-arrest statements made to the police and others and introduced into evidence at trial by the Crown. On the issue of motive, B claimed that prior to her disappearance, he had no reason to believe or even suspect that Bain wanted to end their relationship. On the issue of opportunity, B claimed he was at home with his family at the time that Perz claimed she saw him seated beside Bain at the picnic table. On the subject of after-the-fact conduct, B submitted that far from trying to mislead the authorities, he had done everything he could to assist them. To the extent that Dibben claimed he had seen him near Lake Scugog, Dibben was mistaken in his identification.

Miscellaneous grounds of appeal

The Court rejected B’s submission that Crown counsel’s closing jury address was improper. The Court also rejected B’s submission that defence counsel at trial (who were not defence counsel on appeal) were incompetent for failing to concede that Bain was dead and that she had been murdered. Finally, with the exception of 2 pieces of evidence, the Court rejected B’s submission that much of the evidence left for the jury’s consideration was not after-the-fact conduct capable of establishing guilt.

Eyewitness Identification Evidence

At trial, the Crown led evidence of several witnesses who identified B or Bain at crucial times. The 2 most important Crown identification witnesses were Perz and Dibben. Another witness, Suzanne Nadon, said that in the early morning hours of Monday, June 18, she saw and heard Bain having an argument with an unidentified male. If accepted, Nadon’s evidence contradicted B’s statements to the police that he and Bain made love on Sunday evening and that their relationship was strong. 

B submitted that the trial judge erred in admitting the evidence of Perz and that he erred in failing to give the jury an adequate warning with respect to certain frailties in the eyewitness identifications of Perz, Dibben and Nadon. The Court rejected the first submission and accepted the second.

Admissibility of Perz’s evidence:

Perz underwent hypnosis about a month after seeing Bain on June 19 seated at a picnic table next to a man. While under hypnosis, Perz elaborated significantly on her original descriptions of Bain’s clothing and the man seated beside her. Following hypnosis, Perz identified B from a photo line-up as looking like the man she had seen seated next to Bain. B argued that Perz’s evidence was inadmissible because it was hypnotically induced. The Court declined to adopt a blanket exclusionary rule with respect to post-hypnosis evidence, following the court’s earlier decision in R v Trochym. The Court also rejected B’s submission that Perz’s evidence should have been excluded because its prejudicial effect outweighed its probative value. The Court noted that the trial judge’s decision on this issue is entitled to deference and found no basis for appellate interference with the trial judge’s conclusion that the probative value of Perz’s evidence outweighed its prejudicial effect. The Court noted, however, that it will be for the trial judge at the new trial to assess the admissibility of post-hypnosis evidence afresh having regard to the evidence called and the applicable legal principles.

Jury charge regarding eye-witness identification evidence:

The trial judge gave a general boiler-plate warning regarding the dangers inherent in eyewitness identification evidence. The Court agreed with B’s submissions that this warning did not adequately warn the jury about the frailties in the eyewitness identification of Perz, Dibben and Nadon. The Court stated that the trial judge should have directed the jury to consider certain potentially tainting factors in relation to Perz’s identification and that he should have linked hypnosis with these factors. The Court also specified various frailties in the identifications by Dibben and Nadon that the trial judge should have brought to the jury’s attention. The Court noted that the trial judge failed to give the jury any warning regarding Nadon’s evidence as he did not include her evidence in his general boiler-plate warning regarding the dangers of eyewitness identification evidence. The Court concluded that the trial judge’s failure to give the jury adequate instructions with respect to the eyewitness identification evidence constituted an error of law that could have affected the verdict.

Instructions To The Jury On Alibi

The Crown at trial took the position that Bain’s killer was the man seen by Perz sitting next to Bain at the picnic table at 5:40pm on June 19. B claimed he was at home with his family at this time and several family members said to this effect. B’s evidence as to his whereabouts at 5:40pm was treated as alibi evidence at trial. B argued that the trial judge improperly instructed the jury on the issue of alibi.

The Court concluded that while the majority of the trial judge’s directions to the jury on alibi were correct, the directions contained 2 significant errors. First, while the trial judge properly directed the jury that fabricated evidence designed to deceive could be used as positive evidence of guilt capable of supporting Perz’s eyewitness identification evidence, he failed to also direct the jury that there must be independent evidence of fabrication apart from the evidence that shows the alibi to be false. He also failed to identify for the jury what evidence would constitute independent evidence of fabrication. Given the significance of Perz’s evidence, it was essential that the jury be properly instructed on these issues.

Second, the trial judge misdirected the jury as to the manner in which alibi evidence was to be assessed. He restricted the jury to the evidence “touching and regarding the question of alibi” in deciding whether they could act on alibi evidence to acquit. This was erroneous. In assessing B’s alibi evidence, the jury was entitled to consider and weigh this evidence in the context of all of the evidence. This misdirection to the jury was serious because it went to the heart of B’s defence and it could not be said that the verdict would necessarily have been the same had the jury been properly instructed.

Fairness of Jury Charge

The Court concluded that the trial judge’s charge to the jury lacked fairness and balance and that it compromised B’s right to a fair trial. Read as whole, the jury charge unduly promoted the Crown’s case and denigrated the defence’s case. The Court cited examples of some of the trial judge’s improper rhetorical questions as well as his directions regarding the issues of suicide, motive, and after-the-fact conduct as representative of the unfairness and lack of balance in the jury charge.

Remedy

The Court allowed B’s appeal and quashed his conviction on the basis of the legal errors and the overall unfairness of the charge. After consideration of the evidence at trial and the enhanced record on appeal, the Court declined to grant B an acquittal. The Court was not persuaded that an acquittal was appropriate given that there is evidence upon which a properly instructed jury could reasonably convict. The Court further concluded that this was not one of those “clearest of cases” in which a stay would be warranted. Consequently, the Court concluded that the proper disposition was to order a new trial.

See also

Dr Charles Smith Homepage
Canadian Issues Homepage
List of Australian, UK and USA miscarriage of justice cases
Article on Australian miscarriage of justice cases
Article on UK miscarriage of justice cases
Article on USA miscarriage of justice cases

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