1981 murder case could make history
Accused Hamilton killer waits to hear if he will face record fourth jury
HAMILTON— The prime suspect in a homicide that has terrified and intrigued Hamilton for decades is waiting to learn if he will be Canada’s only accused first-degree murderer to stand trial four times.
Legal experts say a new precedent could be set if Robert Badgerow goes before a fourth jury, impacting other multi-trial murder cases across Canada.
The former steel worker has been accused of raping and killing nursing assistant Diane Werendowicz on June 19, 1981, three days before her 24th birthday. At his first trial in 2001, a jury found him guilty of first-degree murder.
But the defence appealed and a statement Badgerow made to police was ruled inadmissible at his next trial. The second jury could not come to a unanimous decision and it ended in a mistrial in 2010. A third trial in 2011also ended in a hung jury.
Last September, a judge stayed the charge against Badgerow and, within days, the provincial Crown law office filed for an appeal. His case is now wending its way through the Court of Appeal for Ontario.
Meanwhile, after spending almost 11 years behind bars, Badgerow is a free man living in the village of Binbrook, just outside Hamilton.
His defence team say they are unaware of any first-degree murder case in the country going to four trials. When successfully arguing for the stay of proceedings, they said to continue prosecuting their client would be an abuse of process because the case is too old, key witnesses have died or disappeared and no evidence has changed. Badgerow has declined to comment.
Werendowicz had been at a sports bar with friends that night in 1981, but left alone around midnight to make the 15-minute walk home. She never arrived. A day later, children playing in a ravine behind her apartment building discovered her partially clothed body in a creek. An autopsy deter- mined her cause of death to be strangulation and drowning. The investigation stalled for 17 years until advances in forensic technology allowed police to obtain DNA from semen samples taken from inside her body. Investigators reviewed other attacks on women from the same period in the neighbourhood and found Badgerow had been identified as a suspect in a particularly vicious assault. In 1998, detectives followed Badgerow into a Tim Hortons, where he ate lunch. After he left, officers collected his soup spoon and sent it to be tested for DNA. The cold-case murder of Werendowicz suddenly seemed solved when test results showed it was Badgerow’s DNA inside her body. He was arrested and charged with first-degree murder. But the case was far from over. From the outset, his defence team conceded their client had had sex with Werendowicz the night she died. They argue the two had anonymous sex in Badgerow’s car in the bar parking lot but that someone else killed Werendowicz after she left him to walk home. Badgerow, 54, is in an elite category of first-degree murder cases that have been tried three times. The court must weigh legal and ethical principles in making its decision, says Alan Young, associate professor at Osgoode Hall Law School and director of the Innocence Project, which seeks to investigate and overturn cases of wrongful conviction. “It’s a delicate balancing of the seriousness of the offence versus the amount of hardship placed on the accused. At some point, the court will say enough is enough, but when is that threshold reached?” Other factors to be considered: the pursuit of justice, the likelihood of conviction, public safety, the pub- lic’s trust in the court, fairness to the accused, the detrimental effects of time and the abuse of process. In Canada, there has been at least one second-degree murder case that has gone to four trials. Scott Conway was convicted of killing his ex-girlfriend’s new lover in Nepean and sentenced to 10 years in 1990. More recently, one of the teens who beat and killed Reena Virk in Victoria nearly had four trials for second-degree murder. Kelly Ellard was convicted of second-degree murder in 2000 but had two retrials. In 2008, the B.C. Court of Appeal ordered a fourth trial, but that decision was overturned by the Supreme Court of Canada. Ellard remains in custody.
One of the most famous threetrial first-degree murder cases is that of Thomas Sophonow, charged with the murder of Barbara Stoppel in 1981.
Stoppel, 16, was strangled while working at a Winnipeg doughnut shop. Sophonow’s first trial ended in a mistrial. In his second and third trials he was convicted. The court of appeal then acquitted him. In 1986, the Supreme Court dismissed the Crown’s application for a fourth trial. Finally in 2000, Winnipeg police said another suspect had been identified and Sophonow was no longer a suspect.