Appeal Court Orders a 'Rare' Fourth Murder Trial in Nursing Assistant's Death

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Court orders 'rare' fourth murder trial

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TORONTO - Ontario's top court has ordered an "extremely rare" fourth trial for a man charged with first-degree murder in the 1981 killing of a nursing assistant.

It has been 33 years since Diane Werendowicz was dragged into a ravine, allegedly sexually assaulted, strangled and dumped in a creek in the Hamilton area.

Robert Badgerow was arrested in 1998 and was convicted of first-degree murder several years later, but the verdict was overturned on appeal.

Ontario's Appeal Court ordered a new trial, but the second trial ended in a mistrial, with the jury unable to reach a verdict, and the third trial also ended in a mistrial.

A Superior Court judge ordered a stay, which would have effectively ended the case against Badgerow, but in a ruling released Tuesday the Appeal Court overturned it and ordered Badgerow to stand trial for a fourth time.

The Appeal Court says "highly probative and admissible evidence" was excluded at the previous trials, so the Crown hasn't had a full opportunity to put its case before a jury.

There is a risk of "undermining the integrity of the justice system" by prosecuting Badgerow for a fourth time, but the court must balance that against the societal interest in a final decision on the merits of the case, the judges wrote.

"Notwithstanding the challenges associated with conducting a trial after the passage of almost 35 years, there is a strong public interest in a trial on all the legally admissible evidence and this swings the balance against a stay," the Appeal Court wrote.

Matthew Gourlay, one of Badgerow's lawyers, said he could find almost no cases across Canada in which the courts have allowed a person to be tried four times. …