Fourth Badgerow murder trial set for September 2016


December 19, 2014

Hamilton Spectator
By Susan Clairmont



Hamilton Spectator file photo
Robert Badgerow walks outside a Kitchener courthouse in November 2011.

Robert Badgerow's precedent-setting fourth trial for the first-degree murder of a nursing assistant is to start in September 2016.

The former steelworker is the first person in Canada ordered to stand trial for a fourth time for first-degree murder. He spent nearly 11 years behind bars but is currently on bail and living in Binbrook.

By the time the trial opens, it will be 35 years since Diane Werendowicz was strangled and drowned in a ravine on her short walk home from a bar in Stoney Creek. It was the eve of her 24th birthday.

The latest jury to decide Badgerow's guilt or innocence will consider evidence no other jury has been allowed to hear, thanks to an Ontario Court of Appeal ruling on an anonymous 911 call from a phone booth two days after the murder.

Badgerow's new lawyer, Russell Silverstein of Toronto, appeared in Hamilton assignment court Friday. Pretrial motions were set to begin Jan. 11, 2016 with a lengthy trial beginning Sept. 6, 2016.

Silverstein is known locally for representing Hamilton serial poisoner Sukhwindher Dhillon, who was found guilty.

While assistant Crown attorney Cheryl Gzik told the court she is ready to go to trial on the Badgerow charge immediately, Silverstein said he needs time to prepare his case. That is not a surprise. Gzik has been with the prosecution from the beginning. As a law student, she worked on Badgerow's first trial in January 2001 and was the Crown for the next two trials. She knows the case better than anybody.

A few months ago, Badgerow and his longtime defence team of Leo Adler and Boris Bytensky parted ways. It is unclear who initiated the split, but it was a shocking move given that the Toronto lawyers had done a stellar job for their client.

Years after the murder, new DNA technology proved Badgerow's semen was inside Diane. His defence was that he had anonymous, consensual sex with her in the back seat of his car outside the bar that night. But that someone else killed her when she walked home.

The coincidence led Badgerow's former brother-in-law — once a Hamilton homicide detective — to say: "If that was the case, he was the unluckiest guy in the world."

After eight days of deliberation — a record that still stands — the jury at the first trial came back with a verdict of guilty.

That was appealed. A second and third trial each ended in a hung jury.

In September 2012, Justice Gerald Taylor stayed the charge against Badgerow, saying he had been through enough and there was no new evidence.

But the appeal court decided the Crown had not had a full and complete opportunity to prove its case due to the exclusion of the phone booth evidence.

A man who phoned police after the murder was able to provide details about the murder scene that had never been made public. The call was traced to a phone booth just outside Dofasco, within metres of where Badgerow was working at the time of the call.

But because police who raced to the phone booth did not pick up the receiver and confirm the trace, it was discounted as evidence.

Now jurors will be able to evaluate that evidence for themselves.

Seven weeks after Diane's murder, Debbie Robertson was stabbed in the head while walking near the ravine.

She identified Badgerow as her attacker from her hospital bed, recognizing him because they had gone to high school together.

However, police believed Badgerow's alibi that he was watching the news with his fiancée when Debbie was attacked.

Both cases went unsolved for 17 years.

In 1998, police re-examined the cases. Using new science and the earlier identification of Badgerow, they determined his DNA was inside Diane.

Badgerow was arrested and charged with Diane's murder and the attempted murder of Debbie.

The attempted murder trial, which began two decades after Debbie was attacked, was stayed partway through because key witnesses had died and others could not remember details of the case.

Susan Clairmont’s commentary appears regularly in The Spectator.

905-526-3539 | @susanclairmont



Commentary by the Ottawa Mens Centre

Another case that has gender issues driving it which beg the question as to would a female be tried on the same charge and would the justice system put a woman thru 4 trials now over 30 years after the alleged murder?

The evidence, sought to be admitted while significant is not definite proof that the defendant's claim of consensual sex was false.

The public however can assume that most of the time, most Ontario Judges will form a conclusion that it could not have been with consent.

The he said is overwhelmed by a politically correct she said that does not exist because the victim is dead and cannot testify.


Ottawa Mens Centre