"If it wasn't Robert Baltovich, then who else could it have been?"
Baltovich's defence team says that legitimate question was never properly addressed because the police focus back in 1990 was on Baltovich "to the exclusion of all other potential perpetrators."
The possibility that the Scarborough rapist might have been responsible for Baltovich's girlfriend Elizabeth Bain's death and disappearance two years earlier was raised during his first trial in 1992, but the evidence was sketchy, Heather McArthur said in pre-trial arguments last December.
The jury knew only that no arrest had been made in a series of increasingly violent rapes in Scarborough. The public did not yet know the name Paul Bernardo.
When Bernardo was arrested in February of 1993 for the murders of Leslie Mahaffy and Kristen French, Baltovich's trial lawyer, Michael Engel, suggested the police reopen their investigation of the Bain case.
Bernardo fit the description given at the first trial by two witnesses of a man they saw with Bain shortly before she vanished on June 19, 1990. Bernardo grew up in Scarborough and was living with his parents when Bain disappeared.
Baltovich's family hired a private investigator to gather fresh evidence for his appeal. By the time of the appeal in 2004 the defence vigorously argued that Bain was Bernardo's first murder victim.
The Crown has always rejected Bernardo as a "viable alternative suspect" and that didn't change with Baltovich's acquittal. Bernardo has denied killing Bain.
Still, in pre-trial arguments, McArthur argued there was a powerful body of evidence pointing to the notorious sex killer, including:
Between March 1986 and May 26, 1990, he committed 21 sexual assaults in the Scarborough area 14 of which the Crown admits with a pattern of escalating violence.
He attended U of T's Scarborough campus, from which Bain disappeared, and took his girlfriends to adjoining Colonel Danforth Park.
Receipts found in Bernardo's house in St. Catharines show he frequented various stores in, or near, the Scarborough area around the time of Bain's disappearance.
An ex-Bernardo girlfriend knew Bain and introduced her to Bernardo in the mid-'80s. The ex-girlfriend also had a crush on Bain's brother, which once caused Bernardo to fly into a jealous rage.
Bain was seen at a restaurant with a blond man several weeks before her disappearance. The restaurant was one Bernardo was known to frequent. Around the same time she was seen arguing with a blond man in a red Jeep in a plaza with another Bernardo watering hole.
At 5:30 p.m. on the day Bain went missing, a female U of T student saw a blond man on the Scarborough campus staring, frightening her as she made a phone booth call. She wrote a description of him and said he resembled a composite drawing of the Scarborough rapist.
A package of du Maurier Light cigarettes Bernardo's brand was in the glove box of Bain's car.
Bain's car was found backed into its parking spot, consistent with how Bernardo parked.
The radio was tuned to CFNY 102.1, Bernardo's favourite station. A New Order recording, another favourite, was in the cassette deck.
Together, the findings raise a "reasonable possibility" and include the "probability" Bernardo committed the crime," lawyer James Lockyer, who led the defence team, told Superior Court yesterday.
Private investigator Brian King said with Baltovich's acquittal police have an "obligation to continue to bring the true killer to justice."
In his reply to the defence motions, Crown prosecutor Philip Kotanen argued that the Bernardo theory is highly speculative. "Anything is possible but that is not the evidence you have ... there is nothing to say that this is Bernardo."
At the time, Bernardo was a rapist, not "the Scarborough murderer," Kotanen argued.
There is no evidence of rape in Bain's murder. Referring to Bain's death, he said: "a public park near a campus on the longest day of the year in broad daylight ... none of it fits his pattern."
Bernardo left his victims in obvious trauma. But there were no screams heard or blood found in the valley where Bain was believed killed, the prosecutor said.
After May 26, 1990, no more Scarborough rapes have come to light, Kotanen said. We know that Bernardo pulled up stakes in Scarborough and started committing crimes elsewhere, he added.
Regarding whether Bernardo backed in to parking spots, the evidence is that he sometimes did and sometimes didn't, Kotanen said.
There is no evidence how long the cigarettes had been in the car and, besides, Bain sometimes smoked and "it is a brand associated with her," the prosecutor said.
"Bernardo is so hated and feared that when this evidence goes in it has the potential to be devastating to the Crown's case," Kotanen argued. "It will be a new trial of Paul Bernardo and Karla Homolka."