Robert Badgerow to stand trial for same murder charge for 4th time Monday

An Ontario man charged with first-degree murder in the 1981 killing of a nursing assistant goes to trial beginning Monday, making Canadian legal history because it is his fourth trial in the same case.

Former steelworker's precedent-setting 4th trial begins with jury selection Sept. 19

Robert Badgerow arrives at the Kitchener, Ont. courthouse where his precedent-setting fourth trial on the same murder charge began this week. (Joe Pavia/CBC)

A Hamilton, Ont., man charged with first-degree murder in the 1981 killing of a nursing assistant goes to trial beginning Monday, making Canadian legal history because it is his fourth trial in the same case.

Diane Werendowicz was dragged into a ravine, sexually assaulted, strangled and dumped in a creek in the Hamilton area in 1981.

The case in many historic prosecutions is the witnesses are unavailable or their memories have faded- Daniel Brown, criminal lawyer

Thirty-five years later, former steelworker Robert Badgerow's fourth trial will begin with jury selection in Ontario Superior Court in Kitchener, Ont., on Sept. 19.

He is the first person in Canada to be tried on the same murder charge four times — something Toronto criminal lawyer Daniel Brown says is quite exceptional.

"The general idea is the Crown attorney would at the most get three opportunities to conduct a trial and attempt to convict somebody of a criminal offence," Brown told CBC News.

"Typically that's where the court would draw the line. Once you get past the third time, it becomes kind of abusive."

First arrest came in the late '90s

Badgerow, who lives in Binbrook, Ont., part of Hamilton, was first arrested in 1998. His first trial was overturned on appeal 10 years later.

Ontario's Appeal Court ordered a new trial, but the second trial ended in a mistrial in 2010, with the jury unable to reach a verdict.

His third trial also ended in a mistrial because of a hung jury in 2011.

A Superior Court judge ordered a stay, which would have effectively ended the case against Badgerow — but in a ruling released in 2014, the Appeal Court overturned it and ordered Badgerow to stand trial for a fourth time.

The Appeal Court says "highly probative and admissible evidence" was excluded at the previous trials, so the Crown hasn't had a full opportunity to put its case before a jury.

Essentially, Brown says, the court of appeal decided the trial would only go ahead because the Crown is going to present more evidence than it had presented on the three other occasions.

"The fact that we have evidence … that hasn't been presented before is what got the Crown attorney through the gate so to speak, and allowed them to have one more kick at the can," he said.

The challenge of a fair trial

But is it fair to have a trial so many years after the fact, and with much media coverage in that time? It's difficult, Brown says.

"The fact that it's a historic case means that people's memories have faded. Whether or not this is the person's first trial or fourth trial, that's just the reality of the case," Brown said. "The case in many historic prosecutions is the witnesses are unavailable or their memories have faded. That poses challenges not just for the defence, but for the prosecution as well."

"It's very difficult when there is so much media attention on a case, and so much discussion about what the evidence is or isn't, to get a fair trial. I think that is a challenge."

Badgerow's trial is expected to take three to four months.

Cheryl Gzik is the Crown attorney on the case, while Russell Silverstein is representing Badgerow.

adam.carter@cbc.ca

About the Author

Adam Carter

Reporter, CBC Hamilton

Adam Carter is a Newfoundlander who now calls Hamilton home. He enjoys a good story and playing loud music in dank bars. You can follow him on Twitter @AdamCarterCBC or drop him an email at adam.carter@cbc.ca.