CITATION: R. v. Badgerow, 2010 ONCA 236

DATE: 2010-03-31

DOCKET: M38586

COURT OF APPEAL FOR ONTARIO

Feldman J.A. (In Chambers)

BETWEEN:

Her Majesty The Queen

Respondent

And

Robert Glenn Badgerow

Applicant

Frank Addario, for the applicant

Susan Ficek and Alexandra Campbell, for the respondent

Heard: March 12, 2010

Feldman J.A.:

I. FACTS

Background Facts and Procedural History on the Underlying Murder Charge

[1] Robert Badgerow, the applicant, is charged with the first degree murder of Diane Werendowicz. On June 20, 1981, the morning after friends had last seen her, Ms. Werendowicz was found lying face down in a creek with a tire over her head and her purse strap wrapped around her neck. Police found what forensic testing revealed was semen on her jeans and in her vagina. With the murder still unsolved in 1998, the Centre for Forensic Sciences was able to employ scientific advances to extract a DNA profile from the semen. It matched a DNA sample from Mr. Badgerow. Police arrested Mr. Badgerow on December 1, 1998.

[2] At trial before Lofchik J. of the Superior Court of Justice sitting with a jury, the Crown alleged that Mr. Badgerow sexually assaulted and strangled Ms Werendowicz to death. As part of the evidence on which its prosecution relied, the Crown submitted a statement that Mr. Badgerow had given to police after arrest – but before he was aware of the DNA evidence – in which he denied knowing or recognizing Ms Werendowicz. The jury convicted Mr. Badgerow on April 13, 2001.

[3] Mr. Badgerow appealed his conviction to this court in 2008. Though four grounds of appeal were submitted, Simmons J.A. needed only to consider one that she found dispositive: she found that the police breached Mr. Badgerow’s s. 10(b) Charter rights in obtaining the statement and concluded that the statement should have been excluded under s. 24(2). In reasons released on September 5, 2008, she set aside the conviction and ordered a new trial.

[4] The retrial commenced on February 22, 2010, and the parties expect it to continue until June 2010.

Prior Unsuccessful Bail Applications

[5] Mr. Badgerow first applied for bail several months after his arrest, in March 1999. Yates J. of the Ontario Court (General Division) denied his application. He noted evidence before the court that described Mr. Badgerow’s personality as “aggressive, pugnacious, troublemaker, weird, bizarre, crude, vindictive [and] prone to violent behaviour both at work and elsewhere.” He also noted that Mr. Badgerow, as a shift worker, “experiences sleep problems, which would cause him to go out walking or bike riding late at night and into the early morning, and during this period he was known to have prowled into people’s yards and peeped into their windows.” In light of this evidence, Yates J. decided that Mr. Badgerow had failed to show cause why his detention in custody would not have been justified under s. 515(10); indeed, he was not persuaded on any of the three grounds therein.

[6] After failing in a subsequent bail review at trial, Mr. Badgerow remained in custody through his trial, through the interim between his conviction at trial and his appeal, and through his appeal. This totalled over ten years in custody.

Successful Bail Application and Conditions of Release

[7] After this court set aside Mr. Badgerow’s conviction, he applied for bail pending the new trial. This application came before Crane J. of the Superior Court of Justice. As well as the evidence as to Mr. Badgerow’s personality that was before Yates J., Crane J. also heard viva voce evidence from a correctional guard who described Mr. Badgerow as a “model inmate” and from Mr. Badgerow’s five proposed sureties: his father, his mother, his brother, his sister, and his brother-in-law.

[8] On July 24, 2009, Crane J. granted bail to Mr. Badgerow pending his retrial. Strict conditions, he reasoned, could address the concerns underlying each of the three grounds for justifying ongoing detention in s. 515(10). In reviewing the grounds, Crane J. further noted:

(1) that Mr. Badgerow “has had the opportunity to be matured by ten years of