



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Badgerow, 2017 ONCA 670

DATE: 20170824

DOCKET: M47908 (C63732)

Trotter J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Badgerow

Applicant/Appellant

Ingrid Grant, for the Applicant/Appellant

Jamie Klukach, for the Respondent

Heard: August 16, 2017

Trotter J.A.:

A.

introduction

[1]

Robert Badgerow seeks bail pending appeal of his conviction for first
    degree murder in the killing of Diane Werendowicz on June 20, 1981.

[2]

The offence was horrific. Ms. Werendowicz was found lying face down in a
    creek with a tire over her head and shoulders. Her purse strap, which had been
    used to strangle her, was still wrapped around her neck. Badgerows semen was
    found in her vagina and anus.

[3]

No charges were laid for many years. In 1997, the Hamilton Police set up
    a task force to investigate a number of sexual assaults between 1980 and 1997. Badgerow
    was a suspect because he had been arrested, but then released, in relation to a
    brutal assault on a young woman in the same area, just seven weeks after the
    Werendowicz murder. The police surreptitiously obtained a sample of Badgerows
    DNA. It matched the semen found in Ms. Werendowicz. Badgerow was arrested on
    December 1, 1998.

B.

history of the proceedings

[4]

The proceedings in this case are lengthy and complicated. Badgerow has
    been tried four times for this offence.

[5]

Prior to his first trial, Badgerow applied for bail. His application was
    denied by Yates J. of the Ontario Court (General Division).

[6]

On April 13, 2001, Badgerow was found guilty of first degree murder. On
    September 5, 2008, this court allowed his appeal and ordered a new trial, based
    on a breach of his s. 10(b)
Charter
rights: see
R. v. Badgerow
(2008), 237 C.C.C. (3d) 107 (Ont. C.A.), leave to appeal refused [2009] 1
    S.C.R. xii (note). Badgerow was eventually released pending his new trial.

[7]

Before the second trial commenced, Badgerow was arrested on a suspected
    breach of his bail. He was charged under s. 145(3) of the
Criminal Code
with fail to comply with his recognizance. The allegation was that, on
    Christmas Eve of 2009, he breached a term of his release by failing to report
    to the police. He was 40 minutes late that night. As a result of this breach,
    his bail was revoked under s. 524 of the
Code
.

[8]

On January 20, 2010, a judge of the Ontario Court of Justice acquitted
    Badgerow of the charge under s. 145. Badgerow applied for bail under s.
    523(2)(a) of the
Code
before the judge who was assigned to conduct his
    second trial. For reasons that are not relevant to this proceeding, his
    application was dismissed. However, on March 31, 2010, after Badgerows second
    trial was underway, Feldman J.A. released him on a review pursuant to s. 680:
    see
R. v. Badgerow
, 2010 ONCA 236, 260 O.A.C. 273.

[9]

On June 14, 2010, Badgerows second trial resulted in a hung jury. He
    remained on bail pending his new trial.

[10]

On December 9, 2011, Badgerows third trial resulted in a hung jury. He
    remained on bail pending his new trial.

[11]

On September 6, 2012, prior to his fourth trial, proceedings were stayed
    as an abuse of process: see
R. v. Badgerow
(2012), ONSC 4829, [2012]
    O.J. No. 4262 (Ont. S.C.J.). The Crown appealed and, on April 8, 2014, this
    court set aside the stay of proceedings: see
R. v. Badgerow
, 2014 ONCA
    272, 119 O.R. (3d) 399, leave to appeal refused [2014] 3 S.C.R. v (note). During
    the 18 months between the stay of proceedings and this courts judgment, Badgerow
    was not on any form of bail at all. After the stay was set aside, the Crown
    consented to Badgerows release pending his fourth trial.

[12]

On December 1, 2016, at the conclusion of his fourth trial, and over 35
    years after Ms. Werendowicz was murdered, Badgerow was found guilty of first
    degree murder.

C.

the evidence against badgerow

[13]

I intend to say little about the case against Badgerow. As I have
    already mentioned, he has had four trials. Badgerows first conviction was set
    aside because his statement to the police upon arrest ought not to have been
    admitted. The 2
nd
and 3
rd
trials resulted in hung juries.
    In those trials, the case against him was built upon DNA evidence and voice recognition
    evidence in relation to a 911 call received by the police days after the murder,
    in which the caller revealed knowledge of details of the killing that the
    police had not released to the public.

[14]

This courts decision to lift the stay of proceedings resulted in a
    significant shift in the Crowns case. The court ruled that the Crown could
    adduce 911-trace evidence to demonstrate that the 911 call came from a pay
    telephone in a steel factory where Badgerow worked at the time. The phone that
    was identified was roughly 100 feet from where Badgerow worked in the factory,
    at a time when he may have been on his lunch break.

[15]

In allowing the Crowns appeal from the stay of proceedings, Strathy
    J.A. (now C.J.O.) said the following at para. 84:

The significance of the 911-trace evidence is
    obvious. The content of the 911 call, the respondent's physical proximity to
    the payphone from which the call was made, and the presence of his semen in the
    victim, could permit the jury to infer that he made the call and that he was
    the killer.

The Chief Justice further noted that (at para. 196), the
    Crown did not have a full opportunity to put its case before the jury at any of
    the previous trials.

[16]

Badgerow testified at his trial and claimed that he had consensual sex
    with Ms. Werendowicz, a stranger, who he met in the parking lot of a bar near
    the ravine in which she was found. He said they smoked marijuana in his truck
    and then had sex. Badgerow said the woman left and he never saw her again. He
    denied killing her and denied making the 911 call.

D.

Badgerow and his release plan

[17]

Badgerow is 59 years old. He is divorced from his first wife and
    separated from his second wife. He has three adult sons. He has a single
    conviction in 1994 for personation.

[18]

Throughout the proceedings, Badgerow has been supported by his family. His
    mother, father, brother and sister have been his sureties in significant
    amounts. His last bail he was in the amount of $360,500. He was subject to strict
    conditions that ensured his close supervision.

[19]

Badgerow proposes that he be released on a recognizance with the same
    sureties and be subject to the same conditions. In reviewing the affidavits of
    the proposed sureties, I note that two of them (Badgerows father and brother)
    have greater assets than they were required to pledge the last time that they
    acted as sureties. I will return to this issue below.

E.

analysis

(1)

Introduction

[20]

The criteria for bail pending appeal of a
    conviction are set out in s. 679(3) of the
Criminal Code
. An applicant must establish that: (a) the appeal is not frivolous;
    (b) the appellant will surrender into custody in accordance with the terms of
    any bail order that is made; and (c) detention is not necessary in the public
    interest.

[21]

The law of bail pending appeal was clarified and refined in
R.
    v. Oland
, 2017 SCC 17,
347 C.C.C. (3d) 257, especially in
    relation to the public interest criterion, which is really at the heart of this
    application.

(2)

Not Frivolous

[22]

Badgerow has raised a number of grounds of
    appeal. Ms. Grant, on behalf of Badgerow, elaborated on some of them during the
    oral argument of this application. She takes issue with the manner in which the
    trial judge instructed the jury on the 911-trace evidence. She also argues that
    the trial judge erred in his instructions on the voluminous and conflicting voice
    identification evidence.

[23]

In
Oland
,
    Moldaver J. said, at para. 20, that the not frivolous test is widely
    recognized as being a very low bar. Ms. Klukach for the Crown acknowledges
    that Badgerow has met this standard. However, as I will come to shortly, for
    the purposes of the public interest criterion, she argues that the grounds of
    appeal are weak.

[24]

I agree that, on its face, the appeal is not
    frivolous.

(3)

Flight Risk

[25]

Badgerow has established that he is not a flight risk. He was on bail for many years while his case worked its way through the system. By all accounts, he has been compliant with all terms of his bail. I attribute no significance whatsoever to the incident (described in para. 7, above) that led to the charge under s. 145(3) and the revocation of his bail. Badgerow was acquitted and his release order was reinstated. Badgerow proposes that he be released on the same strict release plan.

[26]

I am satisfied that Badgerow will surrender into custody in accordance
    with the terms of his release.

(4)

The Public Interest

[27]

There are two components to consider under s. 679(3)(c)  public safety
    and confidence in the administration of justice.

(a)

Public Safety

[28]

The issue to be addressed under this heading is whether Badgerow will
    commit offences if released on bail pending his appeal.

[29]

Badgerow has a criminal record, but it is unrelated and it is dated. As
    I have noted in relation to the issue of flight, he has been completely
    compliant with the conditions of his pre-trial bail orders.

[30]

Ms. Klukach for the Crown places significance on the nature of the
    offence for which Badgerow has now been convicted, and for which he no longer
    enjoys the presumption of innocence. She observes that Badgerow has not been
    assessed by a psychologist or a psychiatrist, thereby depriving anyone from
    having insight into his horrific behaviour at the time, and any future danger
    he may pose.

[31]

Courts have sometimes used the nature of disturbingly violent offending
    as an indicator of future dangerous: see, for example,
R. v. Rondeau
(1996), 108 C.C.C. (3d) 474 (Que. C.A.) and
R. v. Gulyas
, 2013 ONCA
    68, 114 O.R. (3d) 216. These are both pre-trial decisions. The submission gains
    greater force post-conviction. However, it is a factor that must be balanced
    against all other circumstances relevant to the risk of future offending.

[32]

When considered in the light of the time that has elapsed since Ms.
    Werendowicz was murdered, Badgerows current age, and his clean track record
    while on bail, this argument cannot win the day.

[33]

In all of the circumstances, I am satisfied that Badgerow has
    demonstrated on a balance of probabilities that he will not commit further
    offences if released on bail pending his appeal.

(b)

Public Confidence in the Administration of Justice

[34]

The question of whether public confidence in the
    administration of justice would be undermined by the release of an appellant
    was at the heart of the Supreme Courts decision in
Oland
. The Court confirmed (at para. 26) that the balancing between
    enforceability and reviewability considerations developed in
R. v.
    Farinacci
, [1993] O.J. No. 2627, 86 C.C.C. (3d) 32 (C.A.)
    is good law.

[35]

As Moldaver J. said at para. 38, enforceability
    considerations are, to a certain extent, informed by the similar basis for
    pre-trial detention in s. 515(10)(c) of the
Code
 the so called
    tertiary ground. The following enumerated factors are applicable to the
    enforceability inquiry: the gravity of the offence (s. 515(10)(c)(ii)); the
    circumstances surrounding its commission (s. 515(10)(c)(iii)); and the
    potential for a lengthy term of imprisonment (s. 515(10)(c)(iv)).

[36]

In this case, all three of these factors tend to
    weigh against release. However, as Moldaver J. said at para. 39: By the same
    token, the absence of flight or public safety risks will attenuate against the
    enforceability interest.

[37]

The reviewability side of the ledger under s.
    679(3)(c) corresponds with s. 515(10)(c)(i)  the apparent strength of the
    prosecutions case. In the appellate sphere, the focus is on the strength of
    the grounds of appeal, beyond surmounting the not frivolous standard.

[38]

As I have already noted, Badgerow has advanced
    numerous grounds of appeal. Ms. Grant developed two of those grounds in oral
    argument; Ms. Klukach countered with her submissions as to why none of the
    grounds should succeed. At this early stage, on the basis of the limited record
    that is available, I cannot say that, when all of the grounds of appeal are
    considered together, the appeal is without merit. Nor can I conclude that it is
    sure to succeed.

[39]

As Moldaver J. said at para. 49 of
Oland
: In the final analysis, there is no precise formula that can be
    applied to resolve the balance between enforceability and reviewability. A
    qualitative and contextual assessment is required.

[40]

The broader context of this case is important. It has a
    long and complex history.
Badgerow was first charged with this murder
    almost 19 years ago. He has had four trials. While it is true that he has never
    been acquitted of this horrible crime, two of his trials resulted in mistrials
    because of hung juries. Moreover, over the years, both sides have been
    successful in this court.

[41]

It is tempting to rely exclusively on the result of Badgerows most
    recent trial and jump to the conclusion that he must be detained while he
    pursues his appeal. But this would unfairly overlook the fact that Badgerow has
    been on bail for many years without any problems. Indeed, there was a period of
    18 months (between the stay of proceedings and the Crowns successful appeal to
    this court) when he was at large, subject to no conditions at all, again
    without incident.

[42]

An assessment of whether Badgerows release would undermine confidence
    in the administration of justice must take account of these very unique
    features of the case. In
Oland
, at para. 47, Moldaver J. discusses how
    public confidence must be evaluated:

Appellate judges are undoubtedly required to
    draw on their legal expertise and experience in evaluating the factors that
    inform public confidence, including the strength of the grounds of appeal, the
    seriousness of the offence, public safety and flight risks. However, when
    conducting the final balancing of these factors, appellate judges should keep
    in mind that public confidence is to be measured through the eyes of a
    reasonable member of the public. This person is someone who is thoughtful,
    dispassionate, informed of the circumstances of the case and respectful of
    societys fundamental values:
R. v. St-Cloud
, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 74-80. In
    that sense, public confidence in the administration of justice must be
    distinguished from uninformed public opinion about the case, which has no role
    to play in the decision to grant bail or not.

[43]

I have concluded that reasonable and well-informed members of the public
    would not lose confidence in the administration of justice if Badgerow, who has
    an excellent and lengthy track record while on bail, were allowed to pursue his
    appeal while subject to strict supervision in the community.

F.

Dispositon and release order

[44]

The application is allowed.

[45]

Badgerow is released on the terms provisionally agreed to by counsel.
    Upon reflection, I agree with Ms. Klukach that, in view of the competing public
    interest considerations I have discussed above, it is appropriate to increase
    the total amount of Badgerows recognizance to $750,000.


G.T. Trotter J.A.


