APPEAL by the accused from the conviction entered by P.J.
Flynn J. of the Superior Court of Justice, sitting with a jury, on
December 1, 2016.
Ingrid Grant and Jeff Marshman, for appellant.
Jamie Klukach and Davin Garg, for respondent.
The judgment of the court was delivered by
DOHERTY J.A.: —
[ 1] Diane Werendowicz’s body was found on June 20, 1981. She
had been strangled and sexually assaulted. The appellant was
charged with her murder about 17 years later when advances in
DNA testing allowed the police to establish that semen found
in the victim’s vagina and on her jeans came from the appellant.
[ 2] The appellant was convicted at his first trial. This court
ordered a new trial: R. v. Badgerow,  O.J. No. 3416, 2008
ONCA 605, 237 C.C.C. (3d) 107 (“Badgerow #1”). A second and
third trial ended in “hung” juries. At the commencement of the
fourth trial, the trial judge entered a stay of proceedings, holding
that a fourth trial would constitute an abuse of process. The
Crown appealed. In 2014, this court held that certain evidence
proffered by the Crown had been improperly excluded. The court
concluded that the Crown had not had a full opportunity to
present its case, set aside the stay and ordered a fourth trial:
R. v. Badgerow (2014), 119 O.R. (3d) 399,  O.J. No. 1670,
2014 ONCA 272 (“Badgerow #2”). The appellant was convicted
of first degree murder at that trial. He appeals.
[ 3] I would dismiss the appeal.
[ 4] Most of the evidence led at the fourth trial had been led at
the earlier trials and is summarized in the reasons of Strathy J.A.
(as he then was) in Badgerow #2. A brief summary of the
evidence will suffice for present purposes.
[ 5] On June 20, 1981, Ms. Werendowicz went to a bar with
some friends. She left alone shortly before midnight intending to
walk the short distance home. Her body was found in a nearby
ravine lying in a creek, partly covered with a tire.
Ms. Werendowicz had been sexually assaulted and strangled. She