COURT FILE NO.: CR-00-09
DATE: 2012-09-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
Robert Badgerow
Respondent
Cheryl Gzik and James Vincelli, Counsel for the Crown
Leo Adler and Boris Bytensky, Counsel for Robert Badgerow
HEARD: July 23, 24, 25 and 26, 2012
The Honourable Mr. Justice G. E. Taylor
Introduction
[1] Robert Badgerow is charged with first degree murder in relation to the 1981 slaying of Diane Werendowicz. He has been tried three times for that offence. He brings this application for a stay of proceedings to prevent being tried for a fourth time.
History of the Proceedings
[2] The body of Diane Werendowicz was found on June 20, 1981. Robert Badgerow was not arrested for the murder of Diane Werendowicz until December 1998. Robert Badgerow was arrested after his DNA was matched to DNA from semen found inside Diane Werendowicz and on jeans that she was wearing at the time of her death.
[3] The first trial began in January 2001 before Lofchik J. The trial took place in Hamilton, Ontario. The jury heard evidence of a statement made by Robert Badgerow immediately following his arrest. Robert Badgerow testified at the trial. In April 2001, after deliberating for eight days, the jury returned a verdict of guilty of first degree murder. Lofchik J. imposed the mandatory sentence of life imprisonment without parole eligibility for 25 years.
[4] Robert Badgerow appealed his conviction and in September of 2008, he was granted a new trial. The Court of Appeal held that the statement given by Robert Badgerow should have been excluded because of a breach of section 10 (b) of the Charter.
[5] I have been the trial judge at the second and third trials.
[6] Jury selection at the second trial began in Hamilton on February 22, 2010. There were 51 Crown witnesses and 19 defence witnesses including Robert Badgerow. The testimony of eight witnesses was presented to the jury by way of transcripts of their testimony at first trial being read pursuant to section 715(1) of the Criminal Code. On June 14, 2010, after deliberating for seven days, the jury was discharged as a result of being unable to reach a unanimous verdict.
[7] Because of publicity about the case, the third trial was moved to Kitchener, Ontario. Jury selection began on September 12, 2011. There were 47 Crown witnesses and 21 defence witnesses including Robert Badgerow. The testimony of 10 witnesses was presented to the jury by way of transcripts of their testimony at first trial being read pursuant to section 715(1) of the Criminal Code. On December 9, 2011, after deliberating for five days, the jury was discharged as a result of being unable to reach a unanimous verdict.
[8] The evidence at the second and third trials was very similar. The majority of the witnesses testified at both trials. The pathologist who performed the autopsy of Diane Werendowicz had died prior to the first trial. At the second and third trials, forensic pathologists called by both Crown and defence testified as to their interpretation of the report of the autopsy. The thoroughness of the autopsy was a contentious issue. The juries at the second and third trials heard no evidence about Robert Badgerow’s post-arrest statement.
[9] The Crown intends to try Robert Badgerow for a fourth time for the murder of Diane Werendowicz. The date for the commencement of the fourth trial has not been scheduled but I am confident a fourth trial will not take place until well into 2013. I am not scheduled to be the trial judge.
[10] Robert Badgerow was arrested on December 1, 1998. He was refused bail. He again applied for bail after the conviction was set aside and a new trial had been ordered.
[11] On July 24, 2009, Robert Badgerow was granted bail on strict terms. He was released from custody on July 29, 2009. The recognizance of bail was in the total amount of $450,500 with sureties consisting of his parents and siblings. The recognizance required him to live with one of his parents and to be in the presence of a surety at all times. He was required to work at the residence of Clinton Badgerow (his brother) and Shirley Badgerow (his mother). Both of his parents’ residences were required to be fitted with an alarm system which would be triggered if Robert Badgerow exited without permission. He was required to report to the Hamilton Police Service every Thursday between the hours of 9 AM and 9 PM. The bail terms also prohibited him from operating a motor vehicle and possessing a cellular telephone.
[12] On December 24, 2009, Robert Badgerow failed to sign in with the Hamilton Police Service between the hours of 9 AM and 9 PM as required by the terms of his bail. He signed in at 9:40 PM. On December 29, 2009, Robert Badgerow was arrested for breaching the terms of his recognizance. On January 4, 2010 his bail was revoked. On April 1, 2010 Robert Badgerow was again granted bail by the Court of Appeal. The terms of release imposed by the Court of Appeal were the same as the original bail terms with the addition of reporting to the Hamilton Police Service every Friday, Saturday and Sunday between the hours of 9 AM and 9 PM. (At the time of the Court of Appeal bail order, the second trial was underway and Robert Badgerow was attending court daily from Monday to Thursday)
[13] Robert Badgerow's trial for breach of recognizance for failing to report as required on December 24, 2009 was heard before Takach J. of the Ontario Court of Justice on January 20, 2010. After hearing viva voce evidence, including the testimony of Robert Badgerow, Takach J. acquitted Robert Badgerow on the charge of breach of recognizance. There have been no other allegations that Robert Badgerow has violated any of the terms of his release.
[14] Robert Badgerow was in custody from December 1, 1998 to July 29, 2009. This is a period of 10 years and eight months. In addition, he was in custody for another period of approximately 3 months as result of failing to report to the Hamilton Police Service before 9 PM on December 24, 2009.
[15] Robert Badgerow was 40 years of age when he was arrested. He was employed at Dofasco where he had worked since the late 1970s. He was married with three sons. His marriage ended subsequent to the first trial. Since being granted bail he has worked at his family's sharpening business.
[16] In 1984, Robert Badgerow was convicted of personation. He has no other criminal record.
[17] When Robert Badgerow was arrested on December 1, 1998, he was also charged with attempted murder of Debbie Robertson in August 1981. The trial on that charge came before Gordon J. in 2008. Gordon J. stayed that proceeding based primarily on lost evidence.
Summary of the Evidence at the Second and Third Trials
[18] The body of Diane Werendowicz was found face down in a creek in a ravine off Lake Avenue in the City of Hamilton on June 20, 1981. There was a tire on top of her upper torso and head. She had been strangled with the strap of her purse. Her shoes and panties were found on the bank of the creek in close proximity to where the body was found.
[19] Diane Werendowicz lived in an apartment building on Jerome Crescent. The apartment building backed onto the ravine between Lake Avenue and Jerome Crescent. Diane Werendowicz had worked a 12 hour shift from 8 AM until 8 PM as a nursing assistant at McMaster University Medical Center on June 19, 1981. She and a friend from work, Lori Allen-Feasson, agreed to go out after work to Malarkey's bar located in the Fiesta Mall, a short distance from Jerome Crescent. Lori Allen-Feasson met some friends from high school at the bar. Diane Werendowicz was not acquainted with anyone at Malarkey's although she had been there on prior occasions. Diane Werendowicz left the bar shortly before midnight apparently intending to return to her apartment.
[20] The body was initially found by children who were playing in the ravine. They notified their parents. A number of people who lived in the neighbourhood went to the location of the body before the police arrived.
[21] The police removed the body from the creek in the early evening. To do so it was necessary to remove the tire from on top of the body. When the body was removed from the creek it was apparent that there was a purse strap wrapped tightly around her neck.
[22] The body of Diane Werendowicz was transported to Hamilton General Hospital where the autopsy was performed by Dr. Herbert Foster on Sunday, June 21, 1981. Dr. Foster's conclusion was that the cause of death was strangulation and drowning. The autopsy report specifically states "no evidence of trauma to external genitalia". There is no mention in the autopsy report of any injury to the back of Diane Werendowicz’s body. No photographs were taken of the back of the body. It is not clear from the autopsy report the extent of the examination of the interior of the vagina.
[23] At both trials, both Crown and defence called forensic pathologists to testify about their interpretation and conclusions based on a review of the autopsy report. Both called different pathologists at the third trial. As previously indicated, one of the issues was the thoroughness of the autopsy performed by Dr. Foster in light of the absence of trauma to the external genitalia and the failure to mention back injuries or photograph the back of the body. All pathologists agreed that it was not necessary for there to be injury to the female genitalia in a case of rape.
[24] The defence was permitted to lead evidence of a third-party suspect. That person was Brian Miller who lived in the same apartment building as Diane Werendowicz and had a serious record for numerous sexual assaults that occurred in the mid-1980s. Brian Miller was called as a defence witness. He denied raping or murdering Diane Werendowicz.
[25] Robert Badgerow testified that he met Diane Werendowicz, with whom he was unacquainted at the time, in the parking lot at the rear of Fiesta Mall. They had a brief conversation after which they retired to his vehicle which was in the parking lot and consumed some marijuana. They engaged in unprotected sexual intercourse in the rear seat of the vehicle. At the conclusion of the act of intercourse, Diane Werendowicz left the vehicle. Robert Badgerow did not see her again. He denied killing her.
[26] At approximately 1 PM on June 22, 1981 a 911 call was made to the Hamilton police. The male caller declined to identify himself. The caller provided details about the murder of Diane Werendowicz from which it could be concluded that the caller was the murderer. The defence position was that all of the information provided by the caller could have been obtained from the coverage of the murder investigation in the local media.
[27] After Robert Badgerow was arrested a number of friends and coworkers listened to the recording of the 911 call and identified the voice of the caller as that of Robert Badgerow. A number of these people were called as Crown witnesses. The defence also called several witnesses who testified that after listening to the 911 recording, they came to the conclusion that the caller was not Robert Badgerow. Two witnesses testified that they believed they voice on the 911 tape was that of Brian Miller. Brian Miller denied being the person who placed the 911 call as did Robert Badgerow.
[28] The above is not intended to be an exhaustive summary of the evidence presented at the second and third trials. It is intended as an outline to provide some indication as to the evidentiary issues with which the juries were required to deal.
Proposed Evidence of Professor David J. D. Earn
[29] The Crown's position throughout has been that the person who placed the anonymous 911 call was Robert Badgerow.
[30] Furthermore, it has always been the Crown's position that the call originated from a public telephone booth located beside the guard shack at Gate 6 of the Dofasco Hotmill Number 1. According to employment records, at the time when the 911 call was made, Robert Badgerow was working at Hotmill Number 1 in close proximity to the telephone booth at Gate 6. At each of Robert Badgerow's three trials, the Crown has sought to lead evidence about the tracing of the source of the 911 call to the telephone booth at Gate 6. At each of the three trials that evidence has been ruled inadmissible.
[31] After the date for the hearing of the present application was scheduled, the Crown served a report from David Earn, a professor of mathematics at McMaster University. As required by section 657.3(3) of the Criminal Code a copy of Professor Earn’s curriculum vitae was served along with the report. Professor Earn’s conclusion is that the probability that the telephone booth located at Gate 6 was not the place of origin of the 911 call is less than 1 in 150 million. I understand that the Crown will seek to have Professor Earn’s testimony ruled admissible at the fourth trial. The Crown's position is that the evidence at the fourth trial will be significantly different and the Crown's case will be stronger than at the previous three trials because the jury will hear evidence, not previously presented, that the 911 call originated from the telephone booth at Gate 6 of the Dofasco Hotmill Number 1.
[32] The Crown submits that Professor Earn’s evidence is admissible because the provisions of section 657.3(3) of the Criminal Code have been satisfied. I expect the admissibility of the opinion of Professor Earn will be vigorously contested by counsel for Robert Badgerow. The Crown says that I should not be concerned by the absence of a ruling regarding admissibility for the purpose of the present application. According to the Crown, I should treat the proposed evidence of Professor Earn as potentially admissible at the fourth trial.
[33] In the opening paragraph of his report, Professor Earn states: "It is assumed that a Bell Canada employee reported to police that the 911 call was made from the pay phone at Gate 6 Dofasco in Hamilton". To my knowledge, there is no such evidence. In fact, the Crown sought rulings in advance of the second and third trials to conclude that an unidentified Bell employee reported to Hamilton police that the 911 call had been traced to the telephone booth at Dofasco Gate 6 and further that such statement, although hearsay, was admissible pursuant to the principled exception as being both necessary and reliable. On two occasions I ruled that I was not prepared to first make up the words that were spoken by the Bell Canada employee and then rule that such words were admissible.
[34] I am therefore of the opinion that it is unlikely that the opinion evidence of Professor Earn will be found to be admissible.
Discussion and Analysis
[35] Glorian Keyowski was charged with two counts of causing death by criminal negligence in the operation of a motor vehicle. The charges arose out of a motor vehicle accident that occurred on September 14, 1984. Keyowski was committed for trial following a preliminary inquiry which was held on March 5, 1985. His trial before a court composed of a judge and a jury commenced on October 1, 1985 and on October 5, 1985 the jury advised that it was unable to reach a unanimous verdict. The second trial began on January 27, 1986 and on February 5, 1986 the jury advised that it was unable to reach a unanimous verdict. Keyowski sought a stay to prevent him being tried for a third time on the same charges. The trial judge granted a stay of the charges but the stay was overturned by the Saskatchewan Court of Appeal.
[36] The decision of the Supreme Court of Canada is reported as R. v. Keyowski, [1988] S.C.R. 657. The judgment of the court was delivered by Wilson J. who stated at paragraph 4:
A third trial may, indeed, stretch the limits of the community’s sense of fair play but does not of itself exceed them.
[37] Wilson J. also held that prosecutorial misconduct need not be demonstrated in order to give rise to an abuse of process based on the number of trials that an accused is required to face. In declining to grant the stay, Wilson J. took into consideration that the charges were serious, the proceedings had not occupied an undue amount of time and the accused had not spent any time in custody.
[38] Brian Jack was charged with first-degree murder of his wife who disappeared in December 1988. Her body was never found. Jack’s first trial began in September, 1990 and ended in November 1990 when the jury returned a verdict of guilty of second-degree murder. Jack successfully appealed his conviction ([1992] M.J. No. 1). The second trial began in September 1992 and ended with a verdict of not guilty at the end of October 1992. The Crown appealed the acquittal and the Manitoba Court of Appeal at 1993 15019 (MB CA), [1993] M.J. No. 414, allowed the appeal and directed a new trial on a charge of manslaughter. The Court of Appeal reasoned that the trial judge's error was restricted to the instruction on the intent required for manslaughter and therefore Jack had been properly acquitted of second-degree murder. A further appeal to the Supreme Court of Canada was dismissed (1994 87 (SCC), [1994] 2 S.C.R. 310). At paragraph 3, Sopinka J. who delivered the judgment of the Court stated:
We agree with the Court of Appeal that ordering a new trial in the circumstances of this case is not one of those "clearest of cases" which would amount to an abuse of process.
[39] Jack was convicted of manslaughter at his third trial which began in January 1995 and ended on March 1, 1995. He appealed the conviction. The majority of the Manitoba Court of Appeal dismissed the appeal. Helper J.A. dissented and would have allowed the appeal. The Court of Appeal then permitted further submissions to be made on the issue of whether it would be an abuse of process for there to be a fourth trial. That decision is reported at [1996] M.J. No. 558. Scott C.J.M., speaking for the unanimous Court stated at paragraph 11:
In my opinion it would be a very rare case indeed where putting an accused in jeopardy with respect to a serious charge for the fourth time would not constitute a breach of sec. 7 of the Charter, and an abuse of process sufficient to warrant a judicial stay of proceedings under sec. 24(1) of the Charter.
[40] Jack appealed the decision of the Manitoba Court of Appeal to the Supreme Court of Canada. At 1997 356 (SCC), [1997] 2 S.C.R. 334 the appeal was allowed and a new trial was ordered. At paragraph 2 of the brief judgment, Lamer C.J. stated:
The appellant has asked for a stay of proceedings given the numerous trials and appeals the accused has been subjected to. Since the Court of Appeal of Manitoba gave reasons, with which we are in full agreement, that they would have entered a stay had the majority allowed the appeal, a stay is therefore entered.
[41] In R. v. Hunter, 2001 5637 (ON CA), [2001] O.J. No. 2388, the Ontario Court of Appeal allowed an appeal from convictions for use of a firearm while committing an indictable offence, aggravated assault and possession of a prohibited weapon. The convictions were entered following the appellant's fourth trial. In entering a stay of proceedings, Goudge J.A. adopted the statement of the Manitoba Court of Appeal in Jack when he stated at paragraph 29:
If a new trial were ordered it would constitute the appellant's fifth trial based on these allegations. In R. v. Jack, (1997), 1997 356 (SCC), 117 C.C.C. (3d) 43 (S.C.C.) the Supreme Court of Canada approved the statement by the Manitoba Court of Appeal that it would be a very rare case indeed, where putting an accused in jeopardy with respect to a serious charge for a fourth time would not constitute a breach of s. 7 of the Charter and an abuse of process sufficient to warrant a judicial stay of proceedings under s. 24(1) of the Charter. In my view, there is nothing that would put this into that very limited class of cases.
[42] In R. v. A.L., 2004 32136 (ON CA), [2004] O.J. No. 1165 the Ontario Court of Appeal entered a stay of proceedings to preclude the appellant from being tried for a fourth time. At paragraph 17 the Court stated:
The appellant asks that if the appeal is allowed, this court enter a stay of proceedings. In our view, that is the proper disposition. If this prosecution were to proceed, this would be a fourth trial for this appellant, a trial that would take place some thirteen years after the events. The appellant has been on bail for almost ten years. These events have now been related in a preliminary inquiry and three different trials. The community would have great difficulty in placing any faith in a verdict that would come out of a fourth trial reached in such circumstances.
And further at paragraph 19:
To continue these proceedings would, in our view, stretch the limits of the community's sense of fair play beyond the breaking point. This is one of those clearest of cases that justify a stay of proceedings.
[43] In R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, the Supreme Court of Canada addressed the appropriate remedy when allowing an appeal of an accused who had served eight years of a 12 year sentence for manslaughter. The appeal was allowed because of a serious breach by the Crown and police of their disclosure obligations. At paragraph 129 after referring to Keyowski and R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659 the Court stated:
In cases involving multiple trials, the courts have held that the fact that an accused has already served a significant portion of his or her sentence is a relevant factor in determining whether an order for a new trial would be an abuse.
[44] The judgment also refers to Jack and Hunter as examples of cases where stays were granted after the accuseds had served substantial jail sentences.
[45] In R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768, the Supreme Court of Canada ordered a fourth trial for an accused charged with first-degree murder. Neither the majority judgment of Bastarache J. nor the judgment of the Lamer C.J. and Binnie J., agreeing in the result, referred to Keyowski or Jack or any other case where the propriety of multiple re-trials was in issue. At paragraph 8, Bastarache J. stated:
The current appeal deals solely with the question of the violation of the accused's language rights.
[46] I was referred to no case which has relied on Beaulac to stand for the proposition that a fourth trial is permissible when the charge is one of first-degree murder. My own research has located many cases wherein Beaulac is cited on the issue of language rights but I was unable to find a single case relying on Beaulac on the issue of the permissible number of retrials.
[47] In R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, the Supreme Court of Canada dealt with an appeal from a conviction for second degree murder following a third trial. The conviction had been set aside at the Court of Appeal. The Supreme Court restored the conviction, with Fish J. dissenting, who would have the dismissed the appeal and referred the case back for a fourth trial. I do not read the Supreme Court's decision as approving the propriety of a fourth trial on charge of second-degree murder. That was not the issue before the Court. There was no need for the majority to address the propriety of a fourth trial in restoring the conviction that had been set aside by the Court of Appeal. The dissent of Fish J. is with respect to the conclusion reached on the relevant evidentiary point by the majority. He does not make reference to the cases where the issue of multiple trials have been addressed.
[48] In R. v. Vanezis, 2006 37954 (ON CA), [2006] O.J. No. 4515, the Ontario Court of Appeal allowed an appeal from a conviction for second degree murder after a third trial. At the first trial, the jury was unable to reach a unanimous verdict. Vanezis was convicted of second-degree murder in the second trial. That conviction was overturned because of fresh evidence which was described as "fresh evidence that seemed significant at the time, but now appears to be all but worthless". At paragraphs 62 to 64, Moldaver J.A. (as he then was) stated:
The appellant seeks an acquittal as his remedy of choice. Alternatively, he requests that a new trial be ordered.
In support of his bid for an acquittal, he does not suggest that ordering a new trial would amount to an abuse of process. Rather, he points out that this was his third trial, that he has served more than ten years in custody and that the case against him is "shaky" at best.
With respect, I do not believe that a case has been made out for acquittal. In my view, the proper result is to order a new trial and leave it to the Crown to decide whether to proceed.
[49] Not surprisingly, in view of the fact that it was not suggested that ordering a fourth trial would amount to an abuse of process, no reference was made to cases such as Keyowski, Jack, Hunter or A. L.. In my view the decision in Vanezis cannot be interpreted as authority for the proposition that fourth trials are permissible when the charge is one of murder with sexual overtones.
[50] As result of these decisions I conclude that it is possible for there to be an abuse of process and hence a violation of section 7 of the Charter arising solely out of the number of trials that an accused is required to face. Prosecutorial misconduct is not a prerequisite. A third trial stretches but it does not exceed the limits of the community's sense of fair play. It is only a very rare case where putting an accused in jeopardy with respect to a serious charge for the fourth time would not constitute a breach of section 7 of the Charter sufficient to warrant a stay of proceedings. An appropriate consideration in determining whether a stay of proceedings is appropriate is the length of time an accused has spent in custody.
[51] It is proposed that Robert Badgerow be tried for a fourth time on the charge that he committed first-degree murder in the death of Diane Werendowicz. Therefore, I must decide if this is one of the very rare cases where it is justified to require him to proceed with a fourth trial.
[52] The case of R. v. McKenzie, [2004] O.J. No. 3430 bears a number of marked similarities to the present case. McKenzie was charged with second-degree murder. He was convicted following his first trial. He successfully appealed the conviction and a new trial was directed as result of the Ontario Court of Appeal concluding that a statement ought to have been excluded because of a breach of McKenzie's rights pursuant to section 10(b) of the Charter. Two subsequent trials resulted in juries being unable to reach a unanimous verdict.
[53] In McKenzie, the body of the deceased was discovered on September 1, 1997. McKenzie was arrested in March 1998. He remained in custody until October 11, 2002 when he was released following the new trial being directed by the Court of Appeal. He returned to custody at the commencement of the second trial on May 26, 2003 where he remained until July 16 of that same year. His fourth trial was scheduled to commence on October 25, 2004. In total approximately 6 1/2 years had elapsed since he was charged and of that time he had spent approximately 4 years and eight months in custody.
[54] Abbey J. granted a stay of proceedings. There is no report of an appeal being taken from that decision. I have not been able to find any subsequent decisions where the approach taken by Abbey J. and the result that he reached have been called into question.
[55] Abbey J. adopted a number of questions which were suggested in the dissenting judgment of Bayda C.J.S. of the Saskatchewan Court of Appeal in R. v. Keyowski, 1986 157 (SK CA), [1986] S.J. No. 137 in deciding if compelling McKenzie to stand trial for fourth time would violate the fundamental principles of justice underlying the community’s sense of fair play and decency. He listed those questions at paragraph 9 of the judgment. I propose to address the same nine questions in the present case.
How many previous opportunities has the Crown had to present its case to a jury on the charge in issue?
[56] Robert Badgerow has been tried three times on the present charge. It is now more than 30 years since the body of Diane Werendowicz was found. The Crown has had three opportunities to prove beyond a reasonable doubt that Robert Badgerow committed first-degree murder of Diane Werendowicz.
[57] The Crown proved its case at first trial but the Court of Appeal found that it had done so on the basis of evidence that should have been excluded. At the second and third trials, the Crown again had full opportunities to convince juries that Robert Badgerow was guilty, but it failed to do so. At the second trial the testimony of eight witnesses was presented by having their testimony from the first trial read to the jury because they were either dead or unavailable. At the third trial, the number of witnesses whose testimony was presented pursuant to section 715 of the Criminal Code had increased to 10. It is a reasonable inference that the testimony of even more witnesses will have to be read to the jury at a fourth trial.
[58] In my view, taking into consideration the potential admissibility of the evidence of Professor Earn, it is likely that the evidence at a fourth trial will be substantially the same as the evidence at the second and third trials. The evidence at a fourth trial will only differ significantly from that of the first trial in that jury will not hear about Robert Badgerow's post arrest statement.
How serious is the charge in terms of loss of life, injury, loss of property? Is the mental element of the charge one of intent or recklessness?
[59] The charge is the most serious in the Criminal Code. Murder is a full mens rea offence.
How strong is the Crown's case? Are the chances reasonably good that a fresh jury will reach a verdict? Has the Crown overcharged?
[60] From the results of the three trials, it can be said that the Crown's case is not as strong without the post arrest statement. In my view, the only thing that can be said with certainty from the fact that two juries have been unable to achieve a unanimous verdict, is that on each jury there was at least one person who felt strongly that the Crown had proven the case beyond a reasonable doubt and at least one person who felt strongly that Robert Badgerow should be acquitted. It is possible that a differently constituted jury would be able to reach a verdict but it is equally possible that a third deadlocked jury will be the outcome of a fourth trial.
[61] It cannot be said that the Crown has overcharged. Although at the second and third trials, the juries were left with manslaughter as a possible verdict, the case was essentially put to the jury at each trial as one in which the verdict would either be guilty of first-degree murder or not guilty.
Would the failure to proceed with the trial before a fresh jury create a danger to the public by reason of the accused's character and background? How strong is the possibility of a repetition of the offence by the accused?
[62] In August, 1981, approximately 2 months after the murder of Diane Werendowicz, Debbie Robertson was attacked in the same general area where Diane Werendowicz’s body was found. Robert Badgerow was charged with attempted murder of Debbie Robertson. That charge was stayed. Therefore, Robert Badgerow is presumed innocent of that offence.
[63] In 1984 Robert Badgerow was convicted of personation. He was not convicted of any other offences up until the date of his arrest on the present charge of murder.
[64] No evidence was presented about Robert Badgerow committing offences while incarcerated. Since being released on bail in July, 2009, Robert Badgerow failed to report to the police and sign in, as required, on one occasion. He was acquitted on the charge of breach of recognizance in relation to that failure. In all other respects, I conclude that Robert Badgerow has complied with the remainder of the very restrictive terms of his recognizance of bail.
[65] I therefore conclude that the failure to proceed with a fourth trial will not place the community in danger. I feel I must also conclude that there is no reason to conclude that Robert Badgerow is likely to commit a similar offence if he is not required to face a fourth trial
What punishment in terms of incarceration, emotional stress, pangs of conscience, loss of dignity and self-respect, loss of income, legal costs and the like, has the accused undergone to this point?
[66] To date Robert Badgerow has spent almost 11 years in custody. He lost his job at Dofasco as result of his arrest and incarceration. He has been subject to restrictive bail conditions which have precluded him from seeking employment other than in his family's sharpening business.
[67] Robert Badgerow's arrest, first trial, appeal and subsequent two trials have been the subject of substantial media coverage in Hamilton and the surrounding area. Robert Badgerow continues to reside in Binbrook, Ontario which is within the City of Hamilton.
[68] Robert Badgerow's position is that he has suffered physically and emotionally as result of being charged with first-degree murder and having to experience three trials to date. In an affidavit made in support of the present application, Robert Badgerow deposed that prior to his arrest he was fit, athletic and a regular participant in sports. He is now 35 pounds heavier than when he was arrested, is overweight and out of shape. He also deposed that he suffered a serious eye injury working in the family sharpening business, employment which he would not have been engaged in but for the present charge. Introduced as evidence on this application was a letter from a family doctor stating that he had prescribed Robert Badgerow Fiorinal and Tylenol #3 for migraine headaches. Robert Badgerow also introduced printouts from Shoppers Drug Mart listing the prescription medications he has taken and is taking. No comprehensive medical report was filed nor was testimony from any physician introduced. I found the evidence presented on this issue to be less than persuasive. However, it is reasonable to conclude that, anyone charged with murder will undergo a significant amount of stress.
Has the prosecution generally shown fairness and competence in handling the proceedings?
[69] Repeatedly throughout the second and third trials, and during the course of submissions on this application, I was invited to make a finding that the prosecution, which includes the police, acted in a high-handed manner towards Robert Badgerow. In my view, the prosecution of Robert Badgerow has not to date crossed over the line. The conduct of the Crown and the police has been to conduct this case vigorously but fairly. In my view the conduct of the prosecution has been appropriate.
[70] Counsel for Robert Badgerow submitted that I should take into consideration that Robert Badgerow's Charter rights were violated when he was interrogated without being afforded an opportunity to speak to counsel. I do not think that Charter breach is an appropriate consideration at this stage of the proceeding. The remedy for that breach was to exclude the post arrest statement. This is not a situation where Robert Badgerow's Charter rights were consistently disregarded throughout the course of the investigation and prosecution.
What length of time has elapsed since the proceedings were first instituted?
[71] By the time jury selection begins for the fourth trial, more than 31 years will have elapsed since the murder of Diane Werendowicz and more than 14 years will have elapsed since the arrest of Robert Badgerow. Of the latter time period, Robert Badgerow has spent almost 11 of those years in jail with the remainder of the time being subject to house arrest.
[72] There is a dearth of evidence about why there was a period of more than six years between the date of conviction and the date of the argument in the Court of Appeal. This is an unusually lengthy period of time. However, it is not my role to conduct an analysis of the reasons for delay as would be undertaken in an application for a stay of proceedings based on an alleged breach of section 11(b) of the Charter. Robert Badgerow was incarcerated throughout this period of time. I do not think it appropriate to attribute any blame to him, or to the Crown for that matter, for the length of time between the date of conviction and the date on which the appeal was heard.
What is the physical and mental health of the accused and what is his ability to withstand another trial?
[73] I have dealt with the evidence about the impact of this proceeding on Robert Badgerow previously. I have no doubt that facing a fourth trial would be stressful but I am not prepared to find that Robert Badgerow would be unable to withstand the pressure of a fourth trial.
What are the views of the complainant?
[74] During the course of argument on this application, I was advised by Crown counsel that the remaining family of Diane Werendowicz wish Robert Badgerow to be tried for a fourth time. This is an understandable sentiment. But as stated by Abbey J., this is a consideration that ought not to be accorded a position of prominence.
[75] I do not take these questions to be exhaustive. Indeed, when suggesting they be used as a framework for a determination as to whether, as a result of multiple retrials an abuse of process will occur if the accused is tried again for the same offence, Bayda C.J.M. specifically stated that the list of questions that he proposed was not exhaustive.
[76] This case has been the subject of substantial media attention. An unsuccessful application for a change of venue was made prior to the second trial. Prospective jurors were challenged for cause on the issue of pre-trial publicity. In advance of the third trial Robert Badgerow renewed his application for a change of venue. That application was granted and the third trial was held in Kitchener, Ontario, a community approximately 75 kilometres from Hamilton where the offence occurred. There is no reason for me to assume other than that the fourth trial will also be held in Kitchener. In any event, I am confident that a fourth trial would not be held in Hamilton.
[77] Therefore, all witnesses, most of whom have already testified on three occasions will be required to travel some distance to testify at the fourth trial. I am mindful that many witnesses are current or retired officers from the Hamilton Police Service. There were also a number of witnesses from the Center of Forensic Sciences. These could be considered professional witnesses for whom inconvenience in having to travel to a community some distance from their homes to testify is understood to be part of their responsibilities of employment. However, there are also many civilian witnesses for whom testifying at a fourth trial would be considered a significant inconvenience.
[78] In summary, the factor which most favours permitting the Crown a fourth opportunity to prove Robert Badgerow guilty of murdering Diane Werendowicz is the fact that the charge is one of first-degree murder. Indeed, the thrust of the Crown’s submission on this application was that because Robert Badgerow is charged with first-degree murder which the Crown alleges was committed by a stranger to the deceased and involved sexual overtones makes this one of those rare cases where it would not amount to an abuse of process to require the accused to face a fourth trial. The Crown submits that to stay a charge such as the present is without precedent.
[79] Although Keyowski dealt with a charge of criminal negligence causing death and Jack, when it reached the Supreme Court of Canada for the second time, was a charge of manslaughter, neither case purports to restrict its application to charges less serious than murder. In Hunter, a case involving charges of attempted murder and firearm offences, the Ontario Court of Appeal granted a stay of proceedings relying on Jack and in A. L. it granted a stay of a sexual assault charge relying on Keyowski. In doing so, the Court of Appeal did not suggest, in either case, that it was a relevant consideration that the charges that were being stayed were not first-degree murder. In McKenzie, a stay was entered to preclude a fourth trial on a charge of second-degree murder. At paragraph 50, the notion that a charge of second-degree murder put the case into the "rare category" was considered and rejected. Therefore, I am unable to conclude that because the charge is one of first-degree murder, it is for that reason alone, a rare case which will not result in an abuse of process by requiring the accused to stand trial for a fourth time.
[80] The fact that the family of Diane Werendowicz wish for Robert Badgerow to be tried for a fourth time is also a factor in favour of permitting a fourth trial.
[81] The factors dealing with the conduct of the prosecution, the effect on Robert Badgerow's health as a result of the proceedings to date and the ability of Robert Badgerow to withstand the stress of a fourth trial, I consider to be neutral.
[82] In my view, a consideration of the remaining factors leads to a conclusion that requiring Robert Badgerow to be tried for a fourth time on this charge would stretch the community’s sense of fair play and decency beyond the breaking point and hence constitute an abuse of process.
[83] Of overriding importance is the presumption of innocence. As I have instructed each jury in the last two trials, the presumption of innocence remains with Robert Badgerow throughout the course of the trial. The presumption of innocence is only discharged when the jury is satisfied beyond a reasonable doubt that Robert Badgerow is guilty as charged. Therefore, Robert Badgerow is presumed innocent of the charge of murdering Diane Werendowicz. Notwithstanding that presumption of innocence he has served a sentence of almost 11 years and has been subject to the most restrictive bail terms possible for approximately three years. The strength of the Crown's case, at its highest, will not improve at a fourth trial. More likely, as result of the death or unavailability of other witnesses, the Crown's case will not be as strong as at the previous three trials. The community will not be in danger if Robert Badgerow does not face a fourth trial. Finally the cost to the community, including further inconvenience to witnesses, in proceeding with a fourth trial will be significant.
Conclusion
[84] For these reasons, I have reached the conclusion that this is not one of those very rare cases where requiring Robert Badgerow to face a fourth trial on this charge would not constitute a breach of section 7 of the Charter and an abuse of process sufficient to warrant a stay of proceedings pursuant to section 24(1) of the Charter. Accordingly, there will be an order staying the indictment charging Robert Badgerow with the first degree murder of Diane Werendowicz.
G. E. Taylor J.
Released: September 6, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
Robert Badgerow
Respondent
REASONS FOR JUDGMENT
G. E. Taylor J.
Released: September 6, 2012