Court throws out Badgerow appeal in Werendowicz murder trial

The province's highest court has tossed out an appeal from convicted killer Robert Badgerow, the Hamilton man tried four times in the 1981 death of nursing assistant Diane Werendowicz.

Badgerow had been out on bail pending appeal. His lawyer, Ingrid Grant, told CBC News the former steelworker turned himself in at Millhaven maximum security prison Tuesday evening, in advance of the court's decision.

This marks the end of his appeal rights, she said.

"He could seek leave to appeal to the Supreme Court of Canada," she said — but it's unclear if Badgerow will do so.

It's been nearly four decades since Werendowicz was attacked on her way home from a night out with friends. The 23-year-old was dragged into a ravine, sexually assaulted, strangled and dumped in a creek in June of 1981.

Badgerow was arrested 17 years later and eventually convicted of first-degree murder, but the verdict was overturned on appeal. Jurors in his second and third trials were unable to reach a verdict.

He was then granted a stay of proceedings but that was revoked by Ontario's Court of Appeal in 2014 after it found evidence about a 911 call that had been improperly excluded from previous trials.

Badgerow was tried a fourth time in 2016, this time including the 911 call evidence, and was found guilty of first-degree murder.

His lawyers had argued the judge made several mistakes in his instructions to the jury, including his directions on how to weigh the evidence regarding the call. They said the court should grant Badgerow a stay of proceedings.

The court of appeal did not agree, saying the trial judge's instructions properly equipped the jury with the ability to relate the evidence to the issues of the trial.

"They had heard counsel's submissions about the significance of certain parts of the evidence. It was for the jury to determine whether those arguments should be accepted," the decision reads. "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."

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