Court of Appeal for Ontario

Date: 2017-08-24

Docket: M47908 (C63732)

Trotter J.A. (In Chambers)

Between

Her Majesty the Queen Respondent

and

Robert Badgerow Applicant/Appellant

Counsel:

• Ingrid Grant, for the Applicant/Appellant
• Jamie Klukach, for the Respondent

Heard: August 16, 2017

Trotter J.A.:

A. Introduction

[1] Robert Badgerow seeks bail pending appeal of his conviction for first degree murder in the killing of Diane Werendowicz on June 20, 1981.

[2] The offence was horrific. Ms. Werendowicz was found lying face down in a creek with a tire over her head and shoulders. Her purse strap, which had been used to strangle her, was still wrapped around her neck. Badgerow's semen was found in her vagina and anus.

[3] No charges were laid for many years. In 1997, the Hamilton Police set up a task force to investigate a number of sexual assaults between 1980 and 1997. Badgerow was a suspect because he had been arrested, but then released, in relation to a brutal assault on a young woman in the same area, just seven weeks after the Werendowicz murder. The police surreptitiously obtained a sample of Badgerow's DNA. It matched the semen found in Ms. Werendowicz. Badgerow was arrested on December 1, 1998.

B. History of the Proceedings

[4] The proceedings in this case are lengthy and complicated. Badgerow has been tried four times for this offence.

[5] Prior to his first trial, Badgerow applied for bail. His application was denied by Yates J. of the Ontario Court (General Division).

[6] On April 13, 2001, Badgerow was found guilty of first degree murder. On September 5, 2008, this court allowed his appeal and ordered a new trial, based on a breach of his s. 10(b) Charter rights: see R. v. Badgerow (2008), 2008 ONCA 605, 237 C.C.C. (3d) 107 (Ont. C.A.), leave to appeal refused [2009] 1 S.C.R. xii (note). Badgerow was eventually released pending his new trial.

[7] Before the second trial commenced, Badgerow was arrested on a suspected breach of his bail. He was charged under s. 145(3) of the Criminal Code with fail to comply with his recognizance. The allegation was that, on Christmas Eve of 2009, he breached a term of his release by failing to report to the police. He was 40 minutes late that night. As a result of this breach, his bail was revoked under s. 524 of the Code.

[8] On January 20, 2010, a judge of the Ontario Court of Justice acquitted Badgerow of the charge under s. 145. Badgerow applied for bail under s. 523(2)(a) of the Code before the judge who was assigned to conduct his second trial. For reasons that are not relevant to this proceeding, his application was dismissed. However, on March 31, 2010, after Badgerow's second trial was underway, Feldman J.A. released him on a review pursuant to s. 680: see R. v. Badgerow, 2010 ONCA 236, 260 O.A.C. 273.

[9] On June 14, 2010, Badgerow's second trial resulted in a hung jury. He remained on bail pending his new trial.

[10] On December 9, 2011, Badgerow's third trial resulted in a hung jury. He remained on bail pending his new trial.

[11] On September 6, 2012, prior to his fourth trial, proceedings were stayed as an abuse of process: see R. v. Badgerow (2012), 2012 ONSC 4829, [2012] O.J. No. 4262 (Ont. S.C.J.). The Crown appealed and, on April 8, 2014, this court set aside the stay of proceedings: see R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, leave to appeal refused [2014] 3 S.C.R. v (note). During the 18 months between the stay of proceedings and this court's judgment, Badgerow was not on any form of bail at all. After the stay was set aside, the Crown consented to Badgerow's release pending his fourth trial.

[12] On December 1, 2016, at the conclusion of his fourth trial, and over 35 years after Ms. Werendowicz was murdered, Badgerow was found guilty of first degree murder.

C. The Evidence Against Badgerow

[13] I intend to say little about the case against Badgerow. As I have already mentioned, he has had four trials. Badgerow's first conviction was set aside because his statement to the police upon arrest ought not to have been admitted. The 2nd and 3rd trials resulted in hung juries. In those trials, the case against him was built upon DNA evidence and voice recognition evidence in relation to a 911 call received by the police days after the murder, in which the caller revealed knowledge of details of the killing that the police had not released to the public.

[14] This court's decision to lift the stay of proceedings resulted in a significant shift in the Crown's case. The court ruled that the Crown could adduce 911-trace evidence to demonstrate that the 911 call came from a pay telephone in a steel factory where Badgerow worked at the time. The phone that was identified was roughly 100 feet from where Badgerow worked in the factory, at a time when he may have been on his lunch break.

[15] In allowing the Crown's appeal from the stay of proceedings, Strathy J.A. (now C.J.O.) said the following at para. 84:

The significance of the 911-trace evidence is obvious. The content of the 911 call, the respondent's physical proximity to the payphone from which the call was made, and the presence of his semen in the victim, could permit the jury to infer that he made the call and that he was the killer.

The Chief Justice further noted that (at para. 196), "the Crown did not have a full opportunity to put its case before the jury at any of the previous trials."

[16] Badgerow testified at his trial and claimed that he had consensual sex with Ms. Werendowicz, a stranger, who he met in the parking lot of a bar near the ravine in which she was found. He said they smoked marijuana in his truck and then had sex. Badgerow said the woman left and he never saw her again. He denied killing her and denied making the 911 call.

D. Badgerow and His Release Plan

[17] Badgerow is 59 years old. He is divorced from his first wife and separated from his second wife. He has three adult sons. He has a single conviction in 1994 for personation.

[18] Throughout the proceedings, Badgerow has been supported by his family. His mother, father, brother and sister have been his sureties in significant amounts. His last bail he was in the amount of $360,500. He was subject to strict conditions that ensured his close supervision.

[19] Badgerow proposes that he be released on a recognizance with the same sureties and be subject to the same conditions. In reviewing the affidavits of the proposed sureties, I note that two of them (Badgerow's father and brother) have greater assets than they were required to pledge the last time that they acted as sureties. I will return to this issue below.

E. Analysis

(1) Introduction

[20] The criteria for bail pending appeal of a conviction are set out in s. 679(3) of the Criminal Code. An applicant must establish that: (a) the appeal is not frivolous; (b) the appellant will surrender into custody in accordance with the terms of any bail order that is made; and (c) detention is not necessary "in the public interest."

[21] The law of bail pending appeal was clarified and refined in R. v. Oland, 2017 SCC 17, 347 C.C.C. (3d) 257, especially in relation to the public interest criterion, which is really at the heart of this application.

(2) Not Frivolous

[22] Badgerow has raised a number of grounds of appeal. Ms. Grant, on behalf of Badgerow, elaborated on some of them during the oral argument of this application. She takes issue with the manner in which the trial judge instructed the jury on the 911-trace evidence. She also argues that the trial judge erred in his instructions on the voluminous and conflicting voice identification evidence.

[23] In Oland, Moldaver J. said, at para. 20, that the "not frivolous" test "is widely recognized as being a very low bar." Ms. Klukach for the Crown acknowledges that Badgerow has met this standard. However, as I will come to shortly, for the purposes of the "public interest" criterion, she argues that the grounds of appeal are weak.

[24] I agree that, on its face, the appeal is "not frivolous."

(3) Flight Risk

[25] Badgerow has established that he is not a flight risk. He was on bail for many years while his case worked its way through the system. By all accounts, he has been compliant with all terms of his bail. I attribute no significance whatsoever to the incident (described in para. 7, above) that led to the charge under s. 145(3) and the revocation of his bail. Badgerow was acquitted and his release order was reinstated. Badgerow proposes that he be released on the same strict release plan.

[26] I am satisfied that Badgerow will surrender into custody in accordance with the terms of his release.

(4) The Public Interest

[27] There are two components to consider under s. 679(3)(c) – public safety and confidence in the administration of justice.

(a) Public Safety

[28] The issue to be addressed under this heading is whether Badgerow will commit offences if released on bail pending his appeal.

[29] Badgerow has a criminal record, but it is unrelated and it is dated. As I have noted in relation to the issue of flight, he has been completely compliant with the conditions of his pre-trial bail orders.

[30] Ms. Klukach for the Crown places significance on the nature of the offence for which Badgerow has now been convicted, and for which he no longer enjoys the presumption of innocence. She observes that Badgerow has not been assessed by a psychologist or a psychiatrist, thereby depriving anyone from having insight into his horrific behaviour at the time, and any future danger he may pose.

[31] Courts have sometimes used the nature of disturbingly violent offending as an indicator of future dangerous: see, for example, R. v. Rondeau (1996), 108 C.C.C. (3d) 474 (Que. C.A.) and R. v. Gulyas, 2013 ONCA 68, 114 O.R. (3d) 216. These are both pre-trial decisions. The submission gains greater force post-conviction. However, it is a factor that must be balanced against all other circumstances relevant to the risk of future offending.

[32] When considered in the light of the time that has elapsed since Ms. Werendowicz was murdered, Badgerow's current age, and his clean track record while on bail, this argument cannot win the day.

[33] In all of the circumstances, I am satisfied that Badgerow has demonstrated on a balance of probabilities that he will not commit further offences if released on bail pending his appeal.

(b) Public Confidence in the Administration of Justice

[34] The question of whether public confidence in the administration of justice would be undermined by the release of an appellant was at the heart of the Supreme Court's decision in Oland. The Court confirmed (at para. 26) that the balancing between enforceability and reviewability considerations developed in R. v. Farinacci, [1993] O.J. No. 2627, 86 C.C.C. (3d) 32 (C.A.) is "good law."

[35] As Moldaver J. said at para. 38, enforceability considerations are, to a certain extent, informed by the similar basis for pre-trial detention in s. 515(10)(c) of the Code – the so called "tertiary ground." The following enumerated factors are applicable to the enforceability inquiry: the gravity of the offence (s. 515(10)(c)(ii)); the circumstances surrounding its commission (s. 515(10)(c)(iii)); and the potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)).

[36] In this case, all three of these factors tend to weigh against release. However, as Moldaver J. said at para. 39: "By the same token, the absence of flight or public safety risks will attenuate against the enforceability interest."

[37] The reviewability side of the ledger under s. 679(3)(c) corresponds with s. 515(10)(c)(i) – the apparent strength of the prosecution's case. In the appellate sphere, the focus is on the strength of the grounds of appeal, beyond surmounting the "not frivolous" standard.

[38] As I have already noted, Badgerow has advanced numerous grounds of appeal. Ms. Grant developed two of those grounds in oral argument; Ms. Klukach countered with her submissions as to why none of the grounds should succeed. At this early stage, on the basis of the limited record that is available, I cannot say that, when all of the grounds of appeal are considered together, the appeal is without merit. Nor can I conclude that it is sure to succeed.

[39] As Moldaver J. said at para. 49 of Oland: "In the final analysis, there is no precise formula that can be applied to resolve the balance between enforceability and reviewability. A qualitative and contextual assessment is required."

[40] The broader context of this case is important. It has a long and complex history. Badgerow was first charged with this murder almost 19 years ago. He has had four trials. While it is true that he has never been acquitted of this horrible crime, two of his trials resulted in mistrials because of hung juries. Moreover, over the years, both sides have been successful in this court.

[41] It is tempting to rely exclusively on the result of Badgerow's most recent trial and jump to the conclusion that he must be detained while he pursues his appeal. But this would unfairly overlook the fact that Badgerow has been on bail for many years without any problems. Indeed, there was a period of 18 months (between the stay of proceedings and the Crown's successful appeal to this court) when he was at large, subject to no conditions at all, again without incident.

[42] An assessment of whether Badgerow's release would undermine confidence in the administration of justice must take account of these very unique features of the case. In Oland, at para. 47, Moldaver J. discusses how public confidence must be evaluated:

Appellate judges are undoubtedly required to draw on their legal expertise and experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks. However, when conducting the final balancing of these factors, appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80. In that sense, public confidence in the administration of justice must be distinguished from uninformed public opinion about the case, which has no role to play in the decision to grant bail or not.

[43] I have concluded that reasonable and well-informed members of the public would not lose confidence in the administration of justice if Badgerow, who has an excellent and lengthy track record while on bail, were allowed to pursue his appeal while subject to strict supervision in the community.

F. Disposition and Release Order

[44] The application is allowed.

[45] Badgerow is released on the terms provisionally agreed to by counsel. Upon reflection, I agree with Ms. Klukach that, in view of the competing public interest considerations I have discussed above, it is appropriate to increase the total amount of Badgerow's recognizance to $750,000.

G.T. Trotter J.A.