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Appeal in Rengel murder dismissed without Crown having to say a word

Just as Shakespeare described it, mercy dropped as the gentle rain from heaven at the Ontario Court of Appeal, blessing both giver and taker.

Three judges - James MacPherson, Eileen Gillese and Janet Simmons - on Wednesday were hearing the appeal of the sentence given David Bagshaw, the young man who stabbed Stefanie Rengel and left her to die in the snow on the very first day of 2008.

On the face of it, the appeal seemed a pro forma effort in a country where almost everything is appealed and on occasion for the same reason dogs spend inordinate time polishing their private parts - because it can be done.

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If this one succeeded, in other words, then so might a clever argument to have the court declare that the sun rises in the West.

After all, Mr. Bagshaw had pleaded guilty to first-degree murder in Stefanie's death in April of last year. He had admitted stabbing her six times only because his obsessive and neurotic then-girlfriend, Melissa Todorovic (also guilty of first-degree murder, that verdict rendered after a trial by a jury) had threatened to break up with him if he didn't.

All that was left for Mr. Bagshaw was an appeal of his so-called adult sentence (life in prison but with no chance of parole for 10 years, instead of the 25 years given real adults) as opposed to the youth sentence (a maximum of six years in secure custody) his trial lawyer originally had sought.

But at the time he lured Stefanie out of her family home and attacked her, Mr. Bagshaw was but four days away from turning 18 and being out of reach of the Youth Criminal Justice Act. He fell under its jurisdiction only by the skin of his teeth.

But still, the possibility was there and so it was that at 9:30 a.m., lawyer Delmar Doucette rose to tell the judges that this was "one of those hard cases" and began 90 minutes of argument to convince them that they should overturn the adult sentence.

Now, the appeal court is possibly the most cerebral, and certainly the most removed from the oft-grim facts of a case, in any province.

The lawyers regularly appearing here can parse a single sentence uttered by a trial judge into 1,000 slices and split any given hair any number of ways: It's the nature of the job. They, and the judges hearing them out, can go 'round and 'round for hours - by training, they all love to argue and not a few to hear themselves talk - on a single legal point or nuance. Judges so relish this cut-and-thrust that it sometimes seems they indulge the lawyers only for the sport of it.

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But there was none of that this day.

The judges' questions were direct and sharp. "So what's the point?" Judge MacPherson snapped once. "Why is it that you want this person [Mr. Bagshaw]out on the street after six years in youth custody?" Judge Simmons asked Mr. Doucette on another occasion. They were all clearly very familiar with the facts of Stefanie's murder; they were up to speed.

Mr. Doucette finished his argument; the court adjourned for 20 minutes, the usual break.

But when the judges returned, instead of calling on Crown counsel Jamie Klukach, Judge MacPherson addressed Mr. Doucette.

"You worked so hard on this case," he told him. He praised the quality of the lawyer's factum, his argument and his efforts in a fulsome way.

But, Judge MacPherson concluded, "We're just not with you on this case at all. … This is a case which demands only one result. Only an adult sentence properly achieves it."

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With apologies to Ms. Klukach, the judge dismissed the appeal without requiring her to say a word.

This sort of thing - the Crown hitting it out of the park without having to bother to stand at the plate - happens now and then at the appeal court; it isn't uncommon.

But what happened next was unusual, I think.

Judge MacPherson deliberately scanned the small courtroom, his eyes seeking out the clutch of people - Stefanie's parents and stepfather, grandparents, an aunt, her baby brother Ian - in the back row.

"We know there are family members present," Judge MacPherson said. "You sit here to listen to legal arguments and you have to …[but]we know there's a personal side of this.

"We are just very sorry you have to relive this again, very sorry something like this has come your way."

With that, it was done.

A few minutes later, Stefanie's mother, Patricia Hung, was asked how she felt about what the judges had done.

"We're just really grateful," she said, then had soft words of her own for the young man who killed her daughter.

Here, she was referring to the progress Mr. Bagshaw recently has made while in custody at a youth centre, his growing shame and disbelief at what he did to Stefanie and the harm he caused her family.

"I'm just grateful," said Ms. Hung, eyes welling, "to hear that David at least is trying," and by this, it seemed she meant trying to be a better person.

The quality of mercy is not strained, Shakespeare wrote. And the place where it falls like gentle rain is twice blessed.

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