Baltovich launches $13 million lawsuit for wrongful conviction

WINDSOR, Ont. – A Windsor law firm has launched a $13-million civil suit against the province on behalf of Robert Baltovich – a Scarborough man who was wrongly convicted of murdering his girlfriend.

The statement of claim filed earlier this week raises the theory that the person responsible for the 1990 disappearance of 22-year-old Elizabeth Bain was "Scarborough Rapist" Paul Bernardo.

At the time Bain went missing, Bernardo had committed a series of sexual assaults in her area.

The suit alleges investigators "should have realized that the Scarborough Rapist was a realistic suspect in the case."

None of the information in the statement of claim has been proven in court.

Windsor lawyer Harvey Strosberg said that testing the Bernardo theory is not the question being asked by the suit.

"It’s a question of it being another piece of relevant evidence that wasn’t disclosed (by the police and the Crown)," he said.

"It’s a relevant fact. … We say the police should have followed up on that and disclosed that, and they did not."

Baltovich – who has always maintained his innocence – spent almost nine years in prison following Bain’s disappearance. He was given bail pending appeal in 2000, granted a retrial in 2004 and acquitted in 2008.

In January, the attorney general of Ontario announced that no compensation would be given to Baltovich, who is now 44.

Because the justice system cannot retroactively restore liberty, Strosberg said its only option should be to award damages.

"You can’t rewind history. You can’t give (Baltovich) back the years that he spent in prison," he said.

"The only thing that you can give him is money."

The statement of claim points out that after Bain’s disappearance, Bernardo left Scarborough and went on to commit rape and murder in St. Catharines.

Bain’s body has never been found.

"If it was the Scarborough Rapist who murdered Elizabeth, the attack on Elizabeth would have been his last attack in the (Scarborough) area, and her murder, Bernardo’s first murder, would have given him cause to change his field of operation," the suit alleges.

The statement of claim argues that Baltovich’s wrongful conviction was the result of "reckless, bad faith, negligent and intentional acts and omissions" by the defendants.

Among those named in the lawsuit are the attorney general, Toronto police, the two lead detectives in the investigation of Bain’s death, and the two lawyers who represented Baltovich at his first trial.

The suit further alleges that police and the Crown had evidence Baltovich was innocent but chose not to disclose it, and that Baltovich’s first trial lawyers failed to review all the evidence.

The police are also slammed for being too narrow-minded.

"From the outset of their investigation, they rushed to judgment by presuming that Baltovich had murdered (Bain). They immediately convinced members of Elizabeth’s family and other witnesses of their beliefs," it says.

"They scrutinized and interpreted everything Baltovich said or did as if it proved his guilt."

Baltovich’s case has been the subject of intense media coverage and comment, including an award-winning true crime book.

Asked if he has any concerns about what further controversy may arise from the lawsuit, Strosberg replied: "I don’t give a tinker’s damn about whether or not there’s ink spilled about this case.

"What I care about is that my client has an opportunity to be in a civil courtroom, and have an opportunity to fairly seek damages for his wrongful conviction," he said.

Baltovich is not the first wrongfully convicted person to be represented by Sutts, Strosberg LLP.

In 2008, Strosberg won a settlement worth more than $4 million on behalf of James Driskell, who spent 13 years in prison for a Manitoba murder he did not commit.