Baltovich trial won’t see author testify

By Peter Small
Toronto Star
A judge has quashed a Crown’s subpoena forcing the author of a book about the Robert Baltovich murder case to testify and provide materials for the man’s upcoming trial, calling it nothing more than a fishing expedition.

“Fishing season is closed,” Superior Court Justice David Watt said yesterday as he threw out the subpoena to have Derek Finkle testify.

“I’m very happy,” Finkle said outside court yesterday.

He said he doubted the Crown really wanted to hear his testimony, but that it was really after his research notes.

“If the decision had gone the other way it would have set a horrible precedent for journalists all across Canada,” he said. “I think it would have led to even more precautions about how we store our work product.”

The Crown wanted access to the notes of his interviews with Baltovich and others because “frankly, they don’t have a great case and it was an act of desperation.”

While researching his 1998 book, No Claim to Mercy, Finkle spent 50 hours interviewing Baltovich, who was convicted in 1992 of second-degree murder in the death of his girlfriend Elizabeth Bain. She disappeared from the Scarborough campus of the University of Toronto; her body has never been found.

Baltovich, who maintained his innocence, was released on bail after serving eight years in prison. In 2004, the Court of Appeal ordered a new trial, which is due to start this fall.

The judge said that the police officer seeking the subpoena provided too little information to the issuing clerk.

The Crown made no effort to narrow down the materials it sought, he said, alluding to the “breathtaking sweep of the materials” it wanted.

However, Watt seemed to leave the door open for the Crown to seek a production order for Finkle’s materials.

Prosecutor Andrew Pilla said after the decision that the Crown would consider seeking a production order. “We have to think about it to make sure that it’s legally available,” he said.

Iain MacKinnon, Finkle’s lawyer, said the decision was a stinging rebuke to the Crown for seeking to obtain the author’s materials by way of a subpoena.

The proper way is by way of a production order or search warrant, which affords journalists better constitutional protections, he said.

Originally published June 29, 2007. Reprinted by permission.