Murderer and rapist Robert Badgerow’s hope for early parole may not be faint
There was no faint hope for Diane Werendowicz as she tried to make the short walk home from a night out with friends.
There was no faint hope when she was grabbed off the street, dragged into a Stoney Creek ravine and raped. Or as she drew her last breaths with her purse straps wrapped around her neck. Or as her half-naked body was weighted down in a creek.
There is, however, a faint hope for the man who raped and killed Diane.
Robert Badgerow will get yet another chance at freedom - how many is this now? - when he goes before a jury in January for a rare faint hope" hearing.
The jurors will not determine the former steelworker's guilt in regard to the 43-year-old crime. Another jury did that in 2016, putting him away for first-degree murder with the automatic sentence of life in prison with no chance of parole for 25 years.
What the latest jury will decide is: Does Badgerow deserve to apply to the Parole Board of Canada (PBC) for his freedom sooner?
Time, it seems, has always been on Badgerow's side.
Diane, 23, was a nursing assistant at McMaster hospital. Her 1981 homicide went cold for 17 years while Badgerow married, raised a family and worked at Dofasco.
Time was on his side again as he became the first person in Canada to be tried four times for the same first-degree murder. Due to appeals, hung juries and new trials, Badgerow's seemingly unending case made history.
With each passing trial, witnesses' memories faded. Some witnesses died.
Meanwhile, Badgerow spent years living in Binbrook, either on bail or with his charge stayed. While out, he was a model citizen, perhaps increasing the likelihood of his faint hope hearing ending favourably for him.
Time has not healed wounds for Diane's remaining family. The agony of her death is fresh and soon they will be forced to revisit it yet again.
Jurors at the three-week hearing in Hamilton will consider the facts of the crime, Badgerow's character, his conduct while incarcerated and in the community, any rehabilitation he has had in prison, and the effect of the crime on those who loved Diane, according to defence lawyer Ingrid Grant, who represented Badgerow at his fourth trial and will handle his faint hope hearing. Their decision to grant or deny an earlier parole eligibility must be unanimous.
The jury may decide Badgerow is eligible immediately after the hearing, or at any time before the automatic 25-year eligibility date, or they can refuse to grant him any early application, says Grant.
Would it be just? Would it be fair? Would it be beneficial?" Grant says these are the questions the jury will have to consider in deciding.
The faint hope clause was introduced to the Criminal Code of Canada in 1976 after the death penalty was abolished and replaced with life sentences for first- and second-degree murder. The clause was intended as an incentive for convicted murderers to better themselves and become eligible for parole after 15 years.
One of the first offenders to have a faint hope hearing was Hamilton triple-killer Jon Rallo. He was unsuccessful.
In 2011, the clause was repealed and no longer available to anyone convicted of a murder committed after 2011. However, the clause still applies retroactively to killers convicted of a single murder that occurred before that.
Offenders convicted of multiple murders that occurred after January 1997 are ineligible. That amendment was made when serial killer and rapist Clifford Olson applied, unsuccessfully, for a faint hope hearing.
One of the last faint hope hearings held in Hamilton was in 2011 for Rory Foreman, who shot to death his former girlfriend, Joan Heimbecker, in her dorm room at McMaster University. The jury denied Foreman an early chance at parole.
Badgerow, 65, passed his 15-year mark of custody in September, says Grant.
He was arrested in 1998 after advances in DNA science helped detectives connect him to Diane's murder. His 15 years was calculated by adding the number of days he was behind bars over the next 26 years.
His uneventful years living in the community will bolster Grant's argument for his early parole eligibility.
Unlike most who get convicted of murder and they go to the penitentiary and they stay there for the next 15 years and then they apply for the faint hope clause, he has the unique situation where he's been able to prove himself to be safe in the community because he was out for so long," says Grant. There were no problems."
Assistant Crown attorney Cheryl Gzik has been assigned to the faint hope hearing. Incredibly, Gzik has spent her entire legal career on this case, articling for the Crown who prosecuted the first trial, then acting as Crown for each of the other trials.
Badgerow's legal saga is one of the most complex and notorious cases in Hamilton history.
In June 1981, Diane tried to walk home from a bar but was strangled and drowned.
Two days after her body was discovered, a man made an anonymous 911 call revealing intimate details of her murder scene.
The police failed to complete all the steps when they traced the phone call and so it wasn't until the fourth trial that a jury was allowed to know the call was almost certainly placed from a pay phone at Dofasco, steps away from where Badgerow was working at the time.
Badgerow has always claimed he had consensual, anonymous sex with Diane in his car in the bar parking lot. He said someone else killed her as she walked home.
That prompted his former brother-in-law - a Hamilton homicide detective who helped solve the case - to say that if that were true, Badgerow was the unluckiest guy in the world."
The last time Badgerow made the news was a year ago when the PBC allowed him to leave prison to attend his mother's funeral, shackled and under guard. He was granted compassionate leave, in part, due to his good behaviour.
Asked if Badgerow will maintain his innocence at his faint hope hearing, Grant declined to comment.
Susan Clairmont is a justice columnist at The Spectator. sclairmont@thespec.com