A chapter has closed in a decades-long legal saga after Ontario's highest court upheld a first-degree murder conviction for a man who was tried four times in the killing of a Hamilton nursing assistant.
Robert Badgerow was arrested in the late 1990s and charged in the death of Diane Werendowicz, a 23-year-old woman who was sexually assaulted, strangled and dumped in a ravine in Hamilton in 1981.
Badgerow, who was 23 at the time of the crime, was convicted of first-degree murder, but the verdict was overturned on appeal, and his next two trials resulted in hung juries. He was then granted a stay of proceedings.
The stay was revoked after Ontario's court of appeal found evidence that an anonymous 911 call had been improperly excluded. Badgerow was found guilty in a fourth trial that included the evidence about the call.
He appealed the verdict, arguing the judge made several errors in his instructions to the jury, including in his directions on how to handle the evidence about the call.
In a decision released Wednesday, the appeal court says the judge's instructions were appropriate and would not have misled the jury on the evidence.
"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," the court said.
"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."
Werendowicz had gone to a bar with friend the night of June 19, 1981, and left shortly before midnight to walk home, according to court documents.
Her body was found the following evening, her head and shoulders covered by a tire, the documents said. When the tire was lifted, police discovered she had been strangled, and the strap of her purse was around her neck.
Forensic tests found semen on her genitals and jeans, and the fly of her jeans was undone when she was found, they said.
Two days later, an anonymous call was made to 911, reporting that she had been raped before she was killed and that she had been strangled with her purse.
Badgerow was identified as a suspect 17 years later after police obtained a sample of his DNA, which matched the profile of the semen found on Werendowicz.
Badgerow has consistently said that he had consensual sex with Werendowicz, who he did not previously know, in the back of his truck outside the bar the night she died and that someone else attacked her on her way home.
In the appeal, his lawyers alleged the trial judge gave unfair instructions regarding the 911 call, which was possibly placed by the killer and traced to a pay phone near Badgerow's workplace. They argued the judge failed to adequately review the evidence on the tracing process and the possibility of human error.
They also alleged the judge erred in his instructions on the risks of voice identification from the 911 call, particularly in encouraging jurors to use "common sense" to evaluate the evidence, and in failing to highlight the details that should be reviewed with caution.
The defence also alleges the judge erred in his instructions on how to use a video of Badgerow from his first wedding in 1982.
The appeal court acknowledged the trial judge did not give a detailed review of the tracing evidence but said he was not obliged to do so. "The trial judge's 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," it said.
The judge also reminded the jury that there were "a lot of human links in the tracing chain" that were not brought before the court and that the absence of such testimony made the evidence less reliable, the appeal court said.
"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," it said.
On the issue of voice identification, the appeal court said the judge's suggestion to use common sense was a direct reference to his earlier instructions in which he told jurors they surely understood, from their own experience, that people can easily be wrong about voice identification.
"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," the court said.
The instruction on the wedding video was also appropriate, the court ruled. Badgerow was "sufficiently identified" as the speaker in the video to allow comparison with the voice on the 911 call, though there were unknown factors that made the comparison "potentially of little value," it said.
"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."