Legal issue derails Badgerow trial for the 2nd straight day

For the second straight day, the start of Robert Badgerow's precedent-setting fourth trial on the same murder charge was put off because of legal issues.

Those issues were talked about without the jury in the room, which means they are covered under a publication ban and cannot be discussed.

The trial, which is considered historic because it is the first time in Canada someone is being tried on the same murder charge four times, was supposed to start on Monday. The jury has not yet heard opening statements, let alone any evidence.

In Superior Court in Kitchener, Ont. on Monday, Justice Patrick Flynn excused the jury because of a "legal issue" that had to be dealt with before opening statements. On Tuesday, the jury wasn't even brought in to the courtroom.

"I can't say more. We're not going to allow the Crown to open this morning so we can deal with this legal issue," he said on Monday. "This is something we couldn't have anticipated."

Badgerow is charged with first-degree murder in the killing of nursing assistant Diane Werendowicz. The former Hamilton steelworker sat in the courtroom behind his lawyers Tuesday, with his mother sitting a few rows back.

Aside from a few police officers and members of the media, the courtroom was largely empty.

Werendowicz was dragged into a ravine, sexually assaulted, strangled and dumped in a creek in the Hamilton area in 1981. Badgerow was first arrested in 1998. His first trial was overturned on appeal 10 years later.

Ontario's Appeal Court ordered a new trial, but the second trial ended in a mistrial in 2010, with the jury unable to reach a verdict. His third trial also ended in a mistrial because of a hung jury in 2011.

A Superior Court judge ordered a stay, which would have effectively ended the case against Badgerow — but in a ruling released in 2014, the Appeal Court overturned it and ordered Badgerow to stand trial for a fourth time.

adam.carter@cbc.ca