A man is to be tried for the fourth time for first-degree murder, after the Ontario Court of Appeal ruled that "fair play" protects society too, not just people accused of committing a crime.
The case is believed to be a Canadian first, in first-degree murder cases. A lower-court judge had stopped the trial, calling it an abuse of process that stretched the "community's sense of fair play and decency beyond the breaking point."
But Justice George Strathy objected that society also has a right to get at the truth. "The 'community's sense of fair play' works both ways," he wrote in a 3-0 ruling.
Robert Badgerow of Hamilton has spent 11 years in prison and three years under house arrest since he was first accused in the sexual assault and killing of a nursing assistant who had been walking home from a bar at midnight in June, 1981. The woman was dragged into a ravine, raped and strangled. New DNA technology in the 1990s led to Mr. Badgerow's semen being identified as having been found on the victim. Mr. Badgerow maintains the two had consensual sex earlier in the evening.
Mr. Badgerow was convicted by a jury at his first trial, but the Ontario Court of Appeal threw out that conviction, saying that an initial statement he gave to police denying contact with the victim on the night she was killed should not have been used at his trial, because police had violated his rights.
At his second trial, a mistrial was declared, because the jury couldn't reach a unanimous verdict.
At his third trial, the jury again was split, and a mistrial was declared.
When a prosecutor attempted to try him for a fourth time, Justice Gerald Taylor of the Ontario Superior Court ordered a stay – a halt to proceedings. He said Mr. Badgerow had already spent years in prison at a time when he was presumed innocent. He said there was no reason to believe the prosecution would have a stronger case the fourth time.
But the appeal court said that Justice Taylor had made a mistake in the second and third trials by keeping the jury from hearing evidence that a 911 call full of details never released by the police was made from a factory where Mr. Badgerow worked.
Its ruling picks up where a Supreme Court of Canada ruling left off just six weeks ago in a separate case. Stopping a trial over abuse of process should happen only in very rare, shocking cases, the Supreme Court said, in a ruling cited by Justice Strathy.
Frank Addario, a lawyer representing Mr. Badgerow, said no other fourth murder trial has survived an application to stop proceedings. "This is the first time an appeal court has approved a 4th murder trial in face of an argument that it would be an abuse of process," he said in an e-mail.