



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Badgerow, 2019 ONCA 374

DATE: 20190508

DOCKET: C63732

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Badgerow

Appellant

Ingrid Grant and Jeff Marshman, for the appellant

Jamie Klukach and Davin Garg, for the respondent

Heard: March 28, 2019

On appeal from the conviction entered by Justice Patrick J.
    Flynn of the Superior Court of Justice, sitting with a jury, on December 1,
    2016.

Doherty J.A.:


I



overview

[1]

Diane Werendowiczs body was found on June 20, 1981. She had been
    strangled and sexually assaulted. The appellant was charged with her murder about
    17 years later when advances in DNA testing allowed the police to establish
    that semen found in the victims vagina and on her jeans came from the
    appellant.

[2]

The appellant was convicted at his first trial. This court ordered a new
    trial:
R. v. Badgerow
, 2008 ONCA 605, 237 C.C.C. (3d) 107 (
Badgerow
    #1
). A second and third trial ended in hung juries. At the commencement
    of the fourth trial, the trial judge entered a stay of proceedings, holding
    that a fourth trial would constitute an abuse of process. The Crown appealed.
    In 2014, this court held that certain evidence proffered by the Crown had been
    improperly excluded. The court concluded that the Crown had not had a full
    opportunity to present its case, set aside the stay, and ordered a fourth trial:
R. v. Badgerow
, 2014 ONCA 272, 119 O.R. (3d) 399 (
Badgerow #2
).
    The appellant was convicted of first degree murder at that trial. He appeals.

[3]

I would dismiss the appeal.


II



the evidence

[4]

Most of the evidence led at the fourth trial had been led at the earlier
    trials and is summarized in the reasons of Strathy J.A. (as he then was) in
Badgerow
    #2
. A brief summary of the evidence will suffice for present purposes.

[5]

On June 20, 1981, Ms. Werendowicz went to a bar with some friends. She
    left alone shortly before midnight intending to walk the short distance home.
    Her body was found in a nearby ravine lying in a creek, partly covered with a
    tire. Ms. Werendowicz had been sexually assaulted and strangled. She died
    from a combination of strangulation and drowning. Her jeans were undone and her
    underwear was found nearby. Forensic investigators found semen in Ms.
    Werendowiczs perianal area and vagina and on her jeans.

[6]

The police obtained a sample of the appellants DNA in 1998. His DNA
    matched the DNA taken from the semen found in the victim. At trial, the defence
    admitted that the appellant was the source of the semen.

[7]

Two days after the homicide in June 1981, someone anonymously made a 911
    call to the Hamilton Police Department. The caller claimed to have information
    about the murder. Among other things, he indicated that the victim had been
    raped, strangled with the strap of her purse and left face down in a crick.
    All of these details were accurate. The Crown asserted that the callers
    knowledge of the facts showed that he was involved in the homicide.

[8]

The Crown led evidence purporting to trace the 911 call. That evidence
    placed the call as having been made from a phone booth just outside of Gate 6
    at Dofasco. The appellant worked in the hot mill about 100 feet from the phone
    booth. The call was made at a time when the appellant was at work, and on his lunch
    break.

[9]

The tracing evidence had been excluded at the earlier trials. This court
    held that it should have been admitted and directed a new trial on that ground.
    The jury at the fourth trial was the first jury to hear this evidence.

[10]

As
    Strathy J.A. observed in
Badgerow #2
, at para. 175, the evidence
    concerning the tracing of the 911 call and the DNA evidence had to be considered
    in combination. He described the effect of that evidence at para. 175:

The 911 call resulted in the dispatch of police to a location
    within 100 feet of the workplace of a man whose DNA was later discovered in and
    on the victim. That man subsequently admitted to intercourse with the victim on
    the night she was killed. Independent triangulation of the DNA evidence and the
    911-trace evidence located someone with unique and intimate knowledge of the
    victim on the night she died. This was powerful corroboration of the
    reliability of the evidence [the tracing evidence], because the possibility of
    coincidence is highly unlikely.

[11]

In
    addition to the tracing evidence and the DNA evidence, the Crown led evidence
    from several witnesses who identified the appellants voice on a recording of
    the 911 call.

[12]

The
    appellant testified. He indicated that he had met Ms. Werendowicz in the
    parking lot of the bar after she left the bar. They had no prior connection
    with each other. After smoking some marihuana, they had consensual sexual
    intercourse in the back of the appellants truck. Ms. Werendowicz then went on
    her way, presumably headed for home. The defence argued that Ms. Werendowicz
    must have been attacked, sexually assaulted and murdered by an unknown
    assailant a very short time after she had consensual sexual intercourse with
    the appellant, a complete stranger.

[13]

The
    defence also led evidence pointing to a person named Brian Miller as the
    potential perpetrator of the homicide. Mr. Miller, a sexual predator, lived in
    Ms. Werendowiczs apartment building. There was other evidence potentially
    connecting him to the homicide. I need not detail that evidence. The trial
    judge gave the jury a third party suspect instruction. There is no objection
    to that part of the charge.

[14]

The
    defence also challenged the voice identification evidence. Nine witnesses
    testified that the voice on the 911 call was not the appellant. Two witnesses
    identified the caller as Brian Miller.


III



the grounds of appeal

[15]

Most
    of the grounds of appeal arise out of the trial judges instructions to the
    jury. In oral argument, counsel focused on the instructions relating to the evidence
    tracing the 911 call. In these reasons, I will also focus on the grounds of
    appeal arising out of those instructions. I will refer briefly to the other
    grounds of appeal.

[16]

Before
    addressing the specific arguments raised in respect of the instructions on the
    tracing evidence, I will briefly reiterate the approach that appeal courts take
    in assessing the adequacy of jury instructions.

[17]

Appellate
    review of the adequacy of a jury instruction requires a functional assessment.
    The court asks whether the charge, read as a whole in the context of the
    specific case, properly equipped the jury to decide the case based on the
    application of the applicable legal principles to the evidence: see
R. v.
    Calnen
, 2019 SCC 6, at paras. 5-9.

[18]

The
    context of the case includes the evidence, the positions of the parties, the
    closing arguments, the submissions of counsel in advance of the charge, and any
    objections taken to the charge. In this case, counsel made detailed submissions
    in response to a draft charge prepared by the trial judge. The trial judge made
    modifications to the charge in response to those comments. The trial judges
    modifications included the insertion of certain instructions that tracked very
    closely a draft prepared by defence counsel. Those instructions spoke directly
    to the manner in which the jury should address the reliability of the tracing
    evidence.

[19]

A
    proper functional assessment of the adequacy of a jury instruction,
    particularly one pertaining to how the jury should approach and assess certain
    evidence, must give significant weight to the position advanced by counsel at
    trial. To the extent that the instruction tracks that position, it is likely to
    properly serve its functional purpose: see
R. v. Polimac
, 2010 ONCA
    346, 254 C.C.C. (3d) 359, at para. 97.

[20]

Jury
    instructions are not inadequate or unfair because they do not include
    everything that could properly have been said about certain evidence or certain
    arguments advanced in respect of that evidence. It would be a rare charge that
    could not, upon critical review in the unhurried calm of the appeal court, be
    improved or clarified. The jury instruction must be legally correct and fair,
    not perfect: see
Calnen
, at para. 9;
R. v. Huard
, 2013 ONCA
    650, 302 C.C.C. (3d) 469, at para. 52;
R. v. Newton
, 2017 ONCA 496,

349 C.C.C. (3d) 508, at para. 13.

[21]

Nor
    is the trial judge required to marshal the evidence and arguments for either
    side as counsel might do. Instead, the trial judge must ensure that the jury
    appreciates the respective positions of the parties having regard to the
    evidence and the applicable legal principles. In doing so, the trial judge need
    not repeat, much less try to improve upon the way counsel argued the case to
    the jury in their closing submissions.

A.

the
    instructions on the tracing evidence

(i)

The evidence

[22]

The
    evidence relied on by the Crown at trial to trace the 911 call to the phone
    booth 100 feet from where the appellant worked was described to some extent in
Badgerow
    #2
, at paras. 28-51. The evidence fell into two broad categories. There
    was evidence from persons who were actually involved in the effort to trace
    this 911 call (e.g. Constable Davis). There was also evidence from persons who
    had no involvement in the tracing of this particular call, but who were
    familiar with the tracing system in place at the relevant time (e.g. Mr.
    Johnston). These witnesses described how the system was designed to allow the
    police, with the assistance of Bell employees, to quickly trace a 911 call to a
    specific location. The ability to do so accurately was, in some situations, a
    matter of life and death.

[23]

The
    witnesses involved in the tracing of the 911 call testified that when the 911
    call was received by the police, they immediately locked the line, thereby
    keeping the line open even if the caller hung up. There was evidence that when
    this 911 call was received, the police locked the line and requested a trace by
    Bell. About 10 minutes later, a Bell Canada telephone tester called the police
    communications centre. Three minutes later, the police called the Dofasco
    security office with a request to secure the phone booth outside of Gate 6 at
    Dofasco. A few minutes later, the police arrived at the phone booth. There was
    no one on the phone.

[24]

Many
    of the police personnel and Bell Canada employees involved in the tracing of
    the 911 call were either unknown or unavailable to testify at trial. There were
    no records made of some of the relevant events and other records were no longer
    available. For example, Mr. Johnston testified that certain tests could be done
    to verify the correctness of the trace as it was being made. There was no
    evidence whether or not those tests were done in this case.

[25]

Mr.
    Johnston, the Bell Canada employee who explained how the tracing system worked,
    described a two-part system. First, the Bell employees determined the phone
    number for the line that had made the 911 call and was being held open by the
    police. Second, Bell traced their records to connect that telephone number to a
    specific location.

[26]

In
    his examination-in-chief, Mr. Johnston described the 911 tracing system as 99.9%
    accurate. In cross-examination, he acknowledged that his estimate referred to
    the mechanical portion of the tracing process and not to the overall accuracy
    of that process. Overall accuracy had to take into account the possibility of
    human error at various stages of the process, especially the second stage.

[27]

In
Badgerow #2
, this court characterized the tracing evidence as an
    implied assertion from an unidentified person at Bell Canada that the call had
    been traced to the payphone at Gate 6 outside of Dofasco:
Badgerow #2
,
    at para. 94. After a careful analysis, the court held that the implied
    assertion was admissible under the principled approach to hearsay evidence:
Badgerow
    #2
, at paras. 96-185. The trial judge admitted the evidence on that basis.

(ii)

The
    appellants arguments

[28]

The
    appellant submits that this courts recognition of the tracing evidence as
    hearsay underscores the need for a full and careful instruction to the jury on
    how it should assess that evidence. He contends that it was essential that the
    trial judge clearly instruct the jury on the content of the tracing evidence,
    the risks associated with relying on that evidence, the position of the
    defence, and at least some of the specific evidence which tended to undermine
    the reliability of the tracing evidence. I would organize the submissions into
    three categories.

[29]

First,
    the appellant argues that the trial judge failed to adequately review the tracing
    evidence. The appellant maintains that the evidence was technical and
    complicated. By failing to adequately review the evidence, the trial judge left
    the misleading impression that the evidence was much more straightforward than it
    was. In addition, to the extent that the trial judge did review some of the
    tracing evidence, he made material factual errors.

[30]

Second,
    the trial judge failed to properly put the position of the defence with respect
    to the reliability of the tracing evidence to the jury and failed to adequately
    relate the evidence to that position. The appellant contends that the defence
    focused very much on the human and not the mechanical component of the tracing
    process. The defence maintained that the unavailability at trial of almost
    everyone involved in the tracing process, along with almost all of the records,
    made it impossible for the jury to properly probe the reliability of the
    tracing process. The appellant argues that instead of putting the defence
    properly, the trial judge repeatedly treated Mr. Johnstons reference to the
    process as ninety-nine-point-nine percent accurate as referable to the tracing
    process as a whole. In doing so, the appellant submits the trial judge
    effectively ignored the thrust of the defence attack on the reliability of the tracing
    evidence.

[31]

Third,
    the appellant argues that while the trial judge made generic comments about
    reliability concerns associated with hearsay evidence, he did not relate those
    concerns to specific parts of the evidence adduced in this case. The appellant
    submits that the trial judge never came to grips with the reliability concerns
    arising from the hearsay nature of this evidence that were specific to this
    case.

(iii)

Analysis

(a)

The
    adequacy of the review of the evidence

[32]

The
    appellant is correct that the trial judge did not review the tracing evidence
    in detail. Nor was he obliged to do so. Some of Mr. Johnstons evidence
    describing the tracing system was detailed and technical. However, that detail
    was not essential to an understanding of how the system worked or, more
    significantly, the position of the defence with respect to the reliability of
    the tracing process.

[33]

The
    defence focused on the possibility of human error, not on the technicalities of
    the mechanical tracing process. The defence argued that because significant
    parts of the process depended upon whether individuals properly followed
    procedures and accurately recorded and reported data, the accuracy of the
    system could not be properly assessed, absent both evidence from those individuals
    and the relevant records. The jury did not need a detailed explanation of the
    tracing process to properly understand the thrust of the human error
    arguments advanced on behalf of the appellant.

[34]

The
    trial judge could have gone into the details of the evidence. Some trial judges
    would have done so. In those cases, this court might be hearing an argument
    about the confusion created by an unnecessarily detailed summary of evidence
    that had little to do with the defence challenge to the reliability of the
    evidence. The trial judges decision to give a general but even-handed summary
    of the tracing evidence did not amount to an error in law. Nor did it render
    the instructions unfair.

[35]

The
    specific factual inaccuracies alleged by the appellant are more in the nature
    of incomplete descriptions of the evidence. In my view, none are significant
    and none would have misled the jury on the substance of the tracing evidence or
    the defence position in respect of that evidence.

(b)

The
    review of the defence position

[36]

I
    must also reject the argument that the trial judge failed to adequately put the
    defence position with respect to the tracing evidence forward and instead
    wrongly suggested to the jury that the evidence established that the process was
    almost always accurate. While the appellant is correct that the trial judge made
    two references to Mr. Johnstons evidence that the tracing process was 99.9%
    accurate, the jury could not, in the context of this case, have understood the
    trial judge to be referring to both the mechanical and human components of the
    tracing process. It was made clear in cross-examination that Mr. Johnston could
    not speak to the accuracy of the human component of the process. In closing
    submissions, counsel made the same point in referencing Mr. Johnstons
    evidence:

The tracing procedure falls into two basic categories:
    mechanical steps and human steps. The mechanical steps are indeed highly
    reliable, and thats what Mr. Johnston meant when he talked about the
    tracing being ninety-nine-point-nine percent accurate. I asked him. I said, Youre
    talking about what the machines do. He said, Thats right. Youre not
    talking about what the humans do. He said, No.

[37]

The
    trial judge also distinguished between the technical and mechanical components
    of the tracing process and the human elements in that process in his
    instructions to the jury. For example, after referring to Mr. Johnstons
    evidence, the trial judge said:

You must remember that Mr. Johnston was giving his opinion on
    the technical aspects of the operation of the 9-1-1 system in place in Hamilton
    in June 1981, including the tracing of the origin of this call.

[38]

The
    trial judge went on to remind the jury that there were a lot of human links in
    the tracing chain that werent before us, and that the absence of evidence
    from those human links rendered the evidence less reliable than it would
    have been had those persons been available.

[39]

The
    appellant next argues that the trial judges reference to the many people
    involved in the tracing of the 911 call who were not available as witnesses did
    not properly alert the jury to the risk of human error in the tracing process.
    I cannot accept this argument. I have no doubt the jury would understand that the
    witnesses absence was significant because it prevented defence counsel from exploring
    the possibility of human error with the people actually involved in the
    tracing.

[40]

The
    appellant also refers to specific parts of the evidence which he contends the
    trial judge had to refer to in his instructions and relate to the position of
    the defence. Counsel referred to these parts of the evidence in his closing
    argument. He did not ask the trial judge to specifically refer to the evidence in
    his instructions and did not suggest that any of this evidence was crucial to
    an understanding of the defence position.

[41]

The
    instructions equipped the jury with the ability to relate the evidence to the
    issues. They had heard counsels submissions about the significance of certain
    parts of the evidence. It was for the jury to determine whether those arguments
    should be accepted. This was not a case in which the trial judge selectively
    referred to evidence relating to the various issues in a way that could be said
    to have pointed the jury in a particular direction and rendered the trial
    unfair. By and large, the trial judge left it to the lawyers to argue their
    respective cases and marshal the evidence.

[42]

I
    think it is significant, as argued by Crown counsel on appeal, that the trial
    judge chose not to connect the reliability of the tracing evidence to the
    uncontradicted evidence that the appellants DNA was found in the victim. As
    observed in
Badgerow #2
, the DNA evidence potentially provided
    powerful circumstantial evidence of the tracing evidences reliability. It will
    be recalled that the tracing evidence placed the call as originating from a
    phone booth located 100 feet from the workplace of the person whose DNA was
    found in the victim:
Badgerow #2
, at para. 175. Had the trial judge
    chosen to go down the road of providing a detailed recitation of the evidence
    tending to confirm or contradict the tracing evidence, the trial judge would have
    no doubt referred to the DNA evidence. That reference could only have hurt the
    defence.

(c)

The
    hearsay dangers

[43]

This
    submission comes down to a claim that the trial judge did not properly alert
    the jury to the hearsay dangers associated with the specific evidence led in
    this case. The appellant maintains that his failure to do so left the jury
    unable to properly consider the reliability of the tracing evidence.

[44]

To
    properly assess this submission, one must appreciate how the jury instructions
    came to be worded as they were. The trial judge provided counsel with a draft
    jury charge. Counsel for the appellant took strong exception, expressed over
    some 17 pages of transcript, to the proposed instructions on the tracing
    evidence. He objected to certain specific comments, but also argued that the
    overall thrust of the instructions missed the position of the defence and
    failed to address the concerns relating to the reliability of the tracing
    evidence. After hearing counsels objections, the trial judge asked defence
    counsel to draft a caution in respect of the hearsay evidence for possible
    inclusion in the final instructions.

[45]

Defence
    counsel provided the trial judge with a draft caution. Most of that draft found
    its way into the jury instructions. Some of it was repeated verbatim, including
    the instruction that the absence of an opportunity to cross-examine the
    individuals involved in the tracing rendered the evidence less reliable. This
    was the key feature of the defence attack on the reliability of the evidence.

[46]

The
    defence did not object to the revised version of the instructions that the
    trial judge gave to the jury in respect of the tracing evidence. Nor did
    counsel suggest that there was any substantive difference between his draft
    caution and the caution ultimately delivered by the trial judge.

[47]

In
    my view, the trial judge, by repeating parts of counsels proposed draft and
    paraphrasing other parts, brought home to the jury the direct connection
    between the inability to cross-examine persons involved in the tracing, or to examine
    records relevant to the tracing, and the reliability of the claim that the call
    could be traced to the phone booth outside of Gate 6 at Dofasco. The trial
    judge said:

But, at the same time, because most of the individuals involved
    in the trace did not testify, and because none of the records created by Bell
    employees or police were available, you must realize your own disadvantage in
    assessing the reliability of the steps taken and the results obtained.

None of this evidence has been tested by cross-examination and
    the absence of any opportunity to cross-examine the individuals involved in
    tracing this 9-1-1 call renders the trace evidence less reliable than would be
    the case, had cross-examination occurred.

[48]

Counsel
    on appeal describes the above-quoted instructions as a generic legal warning.
    She submits that the jury should have been pointed to the specific issues in
    respect of which cross-examination would have been important. For example, had
    the witnesses been available, they could have been cross-examined about whether
    they followed the various procedures available for testing the accuracy of a
    purported trace.

[49]

I
    have no doubt that the jury, having heard the evidence and the arguments and
    the cautions in respect of the reliability of the tracing evidence, would fully
    appreciate the specific areas in which the defence claimed that
    cross-examination could have exposed the unreliability of the tracing evidence.
    The trial judges obligation to alert the jury to the reliability concerns
    associated with the tracing evidence did not go so far as to require him to
    provide specific examples of the areas of cross-examination that may have proved
    fruitful for the defence. He could have given that kind of instruction, but his
    failure to do so does not, in my view, render the instructions wrong in law or
    otherwise inadequate or unfair.

B.

The other
    grounds of appeal

(i)

The admissibility of the statement Gate 6, Terry speaking

[50]

As
    part of the tracing evidence, the Crown led evidence that after the police had received
    certain information from the Bell personnel concerning the results of their
    tracing, Edward Lum, a police cadet, called Dofasco and asked the operator to
    connect him with security at Gate 6. A few seconds later, a woman came on the
    line and said, Gate 6, Terry speaking. She confirmed that there was a
    payphone right behind Gate 6. Cadet Lum asked her to secure the phone until the
    police arrived.

[51]

Cadet
    Lums evidence was part and parcel of the tracing evidence that had been ruled
    admissible by the Court of Appeal. The defence, however, argued that the phrase
    Gate 6, Terry speaking should be excluded from evidence as it may be
    misconstrued by the jury as evidence that Terry was located in the guard
    shack immediately beside the payphone. For reasons I need not detail, the
    defence argued that if the jury were to find that Terry was in the guard
    shack, as opposed to some other locale near Gate 6, this finding could hurt the
    defence argument that the 911 call did not come from the payphone beside the
    guard shack.

[52]

I
    agree with the appellant that the phrase Gate 6, Terry speaking could not be
    taken as evidence that Terry was speaking from the guard shack. She may well
    have been speaking from one of many locations in or around Gate 6, some of
    which were inside and some of which were outside.

[53]

The
    potential hearsay use of the phrase Gate 6, Terry speaking as evidence that
    the speaker was in the guard shack was a minor evidentiary point in a lengthy
    trial. The trial judge made no reference one way or the other to the comment as
    evidence of Terrys specific location. I think his failure to specifically
    caution the jury against using that comment as evidence that Terry was in the
    guard shack, could not, in the overall context of the evidence, have prejudiced
    the appellant.

(ii)

The
    voice identification evidence instructions

[54]

Nine
    witnesses identified the speaker on the 911 call as the appellant. Nine different
    witnesses said the speaker was not the appellant. Two of those nine identified
    the speaker as Mr. Miller. Given these diametrically opposed opinions, the dangers
    inherent in relying on voice identification evidence to identify the speaker as
    the appellant must have been self-evident to the jury.

[55]

The
    trial judge provided full instructions in respect of the dangers inherent in
    voice identification evidence. He told the jury to be very cautious about
    relying on voice identification evidence to support the Crowns case. He further
    told the jury that honest people do make mistakes, and that an apparently
    convincing witness can be mistaken. Finally, he reminded the jury that from
    their own experience, they no doubt understood that one could easily be wrong
    about a voice identification. The trial judge directly connected the risk of
    mistaken voice identification to the possibility of a miscarriage of justice, instructing
    the jury, miscarriages of justice can occur on the basis of mistaken voice
    identification. Any jury hearing these instructions would understand that it
    must proceed very cautiously before relying on voice identification evidence to
    support the Crowns case.

[56]

The
    appellant submits that the instructions were inadequate because the judge did
    not tell the jury that the certainty with which a witness expressed an opinion
    about voice identification could not be taken as any indication of the accuracy
    of that belief. In other words, the jury should have been told that there was
    no correlation between a witnesss certainty and the accuracy of that witnesss
    voice identification.

[57]

I
    am fully satisfied that the jury would understand from the instructions that a
    witnesss degree of certainty in his or her voice identification is not necessarily
    indicative of the accuracy of that identification. I see no material difference
    between an instruction that a witnesss confidence does not necessarily equate
    with accuracy and an instruction that confidence should not be taken as a
    reliable indicator of accuracy. Both versions of the instruction make the same point.
    The thrust of that instruction is made all the more clear by the trial judges instructions
    that there were very real possibilities of errors relating to voice
    identification, even when the identification was given by honest and credible
    witnesses.

[58]

The
    appellant next argues that the trial judge committed a reversible error in
    telling the jury to use your common sense and experience in assessing the
    voice identification evidence. The appellant argues that common sense has no
    role to play in voice identification evidence because contrary to ones common
    sense, mistakes about voice identification, even by witnesses who are honest
    and confident about their evidence, are quite common.

[59]

I
    would be reluctant to hold that it is a reversible error to tell a jury to use its
    common sense. In any event, the trial judges reference to common sense and
    experience was a direct reference to his earlier instructions in which he
    referred to the common experience of the jurors and others that honest and
    confident voice identifications often prove to be wrong. By urging the jurors
    to use their common experience and common sense, the trial judge was
    reinforcing his instructions that the evidence of voice identification should
    be approached cautiously.

[60]

Finally,
    the appellant submits that the trial judge erred in reviewing the voice
    identification evidence in detail. He submits that by reviewing the evidence,
    which in some instances included statements by the witnesses about the degree
    of confidence they had in their identification, the trial judge encouraged
    the jury to consider the witnesses own estimations of their certainty as
    evidence of the reliability of their identification.

[61]

I
    would make no connection between the trial judges review of the substance of
    the evidence given by the various voice identification witnesses and the extent
    to which a witnesss degree of certainty was relevant to the reliability of
    that witnesss evidence. The review of the evidence, including the evidence
    supporting the defence, was even-handed. Nothing said by the trial judge about
    the substance of the evidence in any way undermined his instructions that the
    jury must take a very cautious approach to the voice identification evidence
    relied on by the Crown.

[62]

I
    see no error in the voice identification instructions.

(iii)

The instructions on the wedding video

[63]

The
    Crown cross-examined several defence voice identification witnesses about a
    video of the appellant making a speech at his 1982 wedding. The admissibility
    of the evidence was not challenged, although the defence argued that the Crown
    should not be allowed to invite the jury to compare the voice on the video with
    the voice on the 911 call. The defence submitted that the video had not been
    adequately authenticated. At the same time, however, the defence argued that
    the jury could listen to the video for the purpose of supporting the evidence
    of some defence witnesses that the voice on the video was different from the
    voice on the 911 call.

[64]

The
    trial judge told the jury that they should be very cautious about using the
    audio on this video to convict Robert Badgerow. The trial judge pointed out that
    there was no evidence that the video accurately depicted the appellants voice as
    it was in 1982. Having cautioned the jury, but only against using the evidence
    to convict the appellant, the trial judge went on to tell the jury that they
    could compare the voice on the 911 call with the voice in the wedding video.
    The defence had argued to the jury that a comparison of the two supported those
    witnesses who said that it was not the appellant making the 911 call.

[65]

Mr.
    Badgerow was sufficiently identified as the speaker in the 1982 video to permit
    comparison of his voice in the video with the voice on the 911 call. There were
    unknown factors that made the comparison potentially of little value. The trial
    judge adequately cautioned the jury against using the video evidence to
    incriminate the appellant. At the same time, he left the evidence with the jury
    as something it could use, if it saw fit, to assist in determining whether the
    appellant was the 911 caller. The instructions were appropriate.

(iv)

The other alleged errors in the jury instructions

[66]

The
    appellants factum sets out four additional alleged errors in the instructions.
    He submits that, considered in combination, they render the instructions
    inaccurate and unbalanced. Two relate to the trial judges treatment of the
    evidence of two witnesses, a toxicologist and the former boyfriend of Ms. Werendowicz.
    Two focus on comments made by the trial judge, which the appellant alleges
    amounted to unfair and unwarranted expressions of opinion by the trial judge on
    matters that were for the jury to decide.

[67]

I
    would reject these arguments. The boyfriends evidence was of little moment. The
    review of that evidence was deservedly cursory. The review of the
    toxicologists evidence was accurate and balanced.

[68]

One
    of the two comments made by the trial judge concerned the strength of the
    inference that whoever killed Ms. Werendowicz had the required intention for
    murder under s. 229(a) of the
Criminal Code
. I think the trial judges
    observation that the necessary intent seemed an obvious inference from the surrounding
    circumstances was fully warranted. Ms. Werendowicz had been sexually assaulted,
    strangled, and left lying face down in a creek. An effort had been made to hide
    the body. In those circumstances, there is little, if any, air of reality to
    the suggestion that whoever killed Ms. Werendowicz did not have the
mens
    rea
for murder.

[69]

The
    trial judges second comment concerned the possibility that the 911 caller,
    despite his apparent knowledge of detailed circumstances surrounding the
    homicide, may not have been involved in the homicide. The trial judge told the
    jury to ask themselves whether an uninvolved person would know enough to
    say the things that were said by the caller. The rhetorical question posed by
    the trial judge does not suggest an answer. The contents of the 911 call suggested
    the answer. The trial judges instructions simply told the jury to focus on
    what was said in the 911 call when deciding what inference could be drawn about
    the connection of the speaker to the homicide.

(v)

The
    admissibility of the Bittorf statements

[70]

At
    the two mistrials, the defence had attempted to lead evidence of police
    occurrence reports that purportedly contained statements made by Mr. and Mrs. Bittorf
    to police officers. The police officers spoke to the Bittorfs when canvassing
    residents of the area near the ravine where Ms. Werendowiczs body was found. According
    to the occurrence reports, the Bittorfs had reported hearing screams coming
    from the area where the body was found. The defence maintained that the Bittorfs
    placed the screams at a time that was considerably later than the Crowns
    theory of the time of death, but consistent with the defence position.

[71]

The
    Bittorfs were deceased by the time the second trial began. The defence argued
    that the occurrence reports were admissible for the truth of their contents under
    the principled approach to hearsay. The trial judge at the two earlier proceedings
     the second and third trials  rejected this argument and ruled the evidence
    inadmissible.

[72]

At
    this trial, the defence did not seek to have the occurrence reports admitted
    into evidence. There was nothing said about the admissibility of the occurrence
    reports at this trial.

[73]

On
    appeal, counsel argues that the appellant is entitled to a new trial because
    the evidence of the statements allegedly made by the Bittorfs to the police was
    improperly excluded from evidence at the earlier trials. Counsel contends that
    the failure to seek the admission of the evidence on this trial does not
    prevent the appellant from raising the admissibility of the evidence on this appeal.
    Counsel submits that as neither the law nor the circumstances relevant to the
    admissibility of the evidence had changed materially since the earlier rulings,
    s. 653.1 of the
Criminal Code
effectively precluded the appellant from
    raising the admissibility of the statements at this trial. Counsel argues that
    as s. 653.1 foreclosed raising the admissibility of the statements at this
    trial, the appellant must be entitled to raise the admissibility of the
    evidence on appeal.

[74]

Section
    653.1 reads in part:

653.1 In the case of a mistrial,
    unless the court is satisfied that it would not be in the interests of justice,
    rulings relating to the disclosure or admissibility of evidence or the
Canadian
    Charter of Rights and Freedoms
that were made during the
    trial are binding on the parties in any new trial

[75]

Section
    653.1 does not prevent re-litigation of evidentiary rulings made at a prior
    trial. Instead, it creates a presumption that evidentiary rulings made at a
    prior aborted trial are binding at the retrial, unless the trial judge is
    satisfied that it would not be in the interests of justice to preclude
    re-litigation of the issue. Section 653.1 gives the trial judge a discretion.
    He or she must exercise that discretion, having regard to all of the
    circumstances, including whether there have been any material changes in the
    circumstances relevant to the admissibility of the evidence: see
R. v.
    Victoria
, 2018 ONCA 69, 359 C.C.C. (3d) 179.

[76]

Section
    653.1 did not prevent the appellant from raising the admissibility of the
    Bittorfs statements at this trial, just as he had on two previous occasions.
    The appellant chose not to contest the admissibility of the statements. He
    cannot now assert that the conviction must be set aside by virtue of the
    failure to admit evidence he never sought admitted.

[77]

In
    holding that the appellant could have sought the admissibility of the
    statements allegedly made by the Bittorfs at this trial, I acknowledge that the
    appellant may have had a tough row to hoe. Had he raised the issue, he would
    have been met squarely with the presumption in s. 653.1. Unless counsel could
    point to some material change relevant to the admissibility of the evidence, the
    trial judge may well have exercised his discretion against permitting
    re-litigation of the issue.

[78]

In
    that circumstance, it would have been appropriate for counsel to seek the
    admissibility of the statements, acknowledge the presumption in s. 653.1, and the
    difficulty in overcoming that presumption. Had counsel followed that course,
    the admissibility of the evidence at this trial would have been in issue and
    counsel would have preserved the right to raise the issue on appeal. He could
    have challenged both the exercise of the trial judges discretion under s.
    653.1 and the ultimate admissibility of the evidence.

[79]

Experienced
    counsel at trial, no doubt for good reasons, chose not to make the
    admissibility of the Bittorfs alleged statements an issue in this trial.
    Counsel cannot raise the issue for the first time on appeal. I need not address
    the merits of the admissibility argument.


IV



conclusion

[80]

I
    would dismiss the appeal.

Released: AH MAY 08 2019

Doherty J.A.

I agree Alexandra Hoy A.C.J.O.

I agree B. Zarnett J.A.


