Day 6

Robert Badgerow was tried three times for the same murder charge. Now, he's on trial again.

This week, Robert Badgerow became the first person in Canada to stand trial for the same first degree murder charge four times. He's charged with murdering nursing assistant Diane Werendowicz in 1981. Hamilton Spectator Crime Columnist Susan Clairmont is discusses twists in the 35 year old case.
A photo of Diane Werendowicz taken by her boyfriend, Colin Vandenbrink. (Hamilton Police Service)

He's the first person in Canada to be tried for the same first degree murder charge four times.

Robert Badgerow is charged with the murder of Diane Werendowicz, a nursing assistant who was killed in 1981. This week, Badgerow's fourth trial began in Kitchener, Ont.

Susan Clairmont is a columnist with The Hamilton Spectator and as she tells Day 6 host Brent Bambury, it's a story that's well known in the Hamilton area.

"He still lives in the Hamilton area," says Clairmont. "I doubt that there's anywhere that Badgerow can go without his name and face being recognized."

Badgerow's fourth trial is taking place in Kitchener due to concerns that he would no longer be able to receive a fair trial in Hamilton because the case is so familiar in the community.

They found Diane's body face down in a creek, and we know now that she had been strangled and drowned.- Susan Clairmont

Werendowicz, 23, had been out at a bar with friends celebrating her upcoming birthday. Because she had to work the next day, she left early — around midnight — and walked alone to her nearby apartment. But she never made it.

This photo was taken of the creek near where Diane Werendowicz's body was found by a group of children in the summer of 1981. (Court exhibit)

"The next day some children playing in a ravine behind her apartment building made the discovery," explains Clairmont. "They found Diane's body face down in a creek, and we know now that she had been strangled and drowned."

Cold case

For years, Werendowicz's murder remained a mystery. Hamilton police had interviewed several men, but had never laid any charges. But in 1998, the police conducted DNA tests that were newly possible due to advancements in science, and it was then that police charged Robert Badgerow with Werendowicz's death.

Badgerow's DNA was found on Werendowicz's body, and also on the crotch of her jeans. Badgerow has maintained that he and Werendowicz had consensual sex in the backseat of his car before she left to walk home.

Badgerow was tried and convicted in Werendowicz's murder in 2001, and spent 11 years in prison before that conviction was overturned on appeal. His second and third trials resulted in hung juries.

Fighting for the fourth trial

After the third trial was declared a mistrial, the judge in that case stayed the first degree murder charge against Badgerow, making him a free man.

Cheryl Gzik was the crown prosecutor for Badgerow's second and third trials. She was also a student, articling for the crown's office during Badgerow's first trial.

Diane was a 23-year-old woman with her whole life ahead of her, who did nothing other than walk home alone at night.- Susan Clairmont

"Like most articling students, Cheryl's job was to spend hours and hours photocopying documents in preparation for the trial. And while she was photocopying them, she read through everything there was to learn about the case against Badgerow," says Clairmont.

That case prompted Gzik to become a crown lawyer herself. After the murder charge was stayed following the third trial, Gzik fought all the way to the Supreme Court of Canada for Badgerow to be tried a fourth time.

The deciding factor in granting a new trial was one new piece of evidence relating to an anonymous 911 call made two days after Werendowicz's body was found.

Previous juries have heard a recording of the 911 call, which contained information known only to the police. Thus it is assumed that the person who made the call was either the killer or had spoken with the killer.

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)

"They've also heard from witnesses, people who know Robert Badgerow, who were asked: is that Robert Badgerow's voice, or not. And it was split about 50-50," says Clairmont.

The new evidence involves the location from which that 911 call was made. A trace by Bell at the time allegedly traced the call to a phone booth just steps from where Badgerow was working at the Dofasco plant in Hamilton.

The impact of the passage of time on witness testimony

35 years have passed since Werendowicz was murdered, which Clairmont says is a huge hurdle for everyone involved in the trial.

"Many of the key witnesses have in fact died and aren't here to testify in person."

Testimony from previous trials will be read into the record from witnesses who have passed away or who aren't healthy enough to attend court.

"We're also seeing witnesses who are just having a hard time remembering. It's been 35 years," explains Clairmont.

Clairmont also notes that police officers who were at the start of their careers when the murder happened are now retired, and they are having to rely more and more on their notes rather than memory.

Werendowicz's parents have long since died, and her brother lives outside the province and is not in court.

"For the most part there is nobody in the courtroom who actually knew Diane."

Clairmont has been covering crime stories for more than 20 years, but this case has intrigued her. She cites the develop of DNA technology and how it has affected this case and the interesting legal twists.

"But I think most of all, for me, it's the idea that Diane was a 23-year-old woman with her whole life ahead of her, who did nothing other than walk home alone at night."