R. v. Burgar Date:, 2013 BCPC 387

Citation: R. v. Burgar Date: 20130802 2013 BCPC 0387 File No: 224204-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH PAUL BURGAR EXCERPTS FROM PROCEEDINGS RULING ON ABUSE OF PROCESS OF THE HONOURABLE JUDGE M. GIARDINI BAN ON PUBLICATION 486.4(1) CCC Counsel for the Crown: K. Gagnon

Counsel for the Defendant: A. Glouberman Place of Hearing: Vancouver, B.C. Date of Hearing: July 16-19, 22, 29-30, August 2, 2013 Date of Judgment: August 2, 2013 A Corrigendum was released by the Court on June 19, 2014. The corrections have been made to the text and the Corrigendum isappended to this document. [1] THE COURT: The submissions I heard this afternoon from Mr. Burgar and the Crown relate to two separate issues. The firstand the shortest of the two issues is -- what flows from my finding that there was a breach of Mr.

Burgar's s. 9 Charter rights when, inDecember of 2012, he was not taken before a justice within the prescribed period under s. 503 of the Criminal Code. [1] As I noted, s. 503 of the Criminal Code provides where a justice is available, a person who has been charged and has beendetained and/or arrested is entitled to go before a justice within a 24-hour time period. In Mr. Burgar's case, he was not taken before ajustice within that 24-hour period.

Instead, if my arithmetic is correct, seven hours elapsed and he was taken before a justiceapproximately 31 hours after he had been detained and then subsequently arrested. [2] On this point, it is important to note that his detention and arrest arose when Mr. Burgar was being released from a correctionalinstitution after completing his sentence on another matter. In the reasons I gave earlier this week, I noted that the police should havemade appropriate arrangements to either arrest him before his release or immediately upon his release from custody on the other matterand take him before a justice.

The issue before me today is what, if anything, flows from my finding that he was not taken before ajustice within the prescribed period. [3] The Crown has pointed to the fact that there is no evidence to exclude because no evidence flowed or arose as a result of theseparticular circumstances and that Charter breach. Mr. Burgar left it up to the court to decide what would be appropriate, but he did notethat in similar cases the matter has been dealt with on sentencing in relation to the time to be served.

On the issue of the s. 9 breach, I amsatisfied, having considered the application of the Grant factors, that other than making a declaration of a breach, there is no basis forexclusion of evidence or for a stay of proceedings. [4] Mr. Burgar was right when he commented that there was case law on this point. The case I had found is R. v. Rashid, (ON SC), [2009] O.J. No. 957. This is a decision of the Ontario Court of Justice.

In that case the trial judge exercised hisor her discretion and granted enhanced credit for the time in pre-trial custody in lieu of a stay of proceedings. [5] In my view, that is also appropriate in this case. I am going to stop there and will decide what to do after I have given mydecision on the second matter argued before me today which is the abuse of process issue. [6] Mr. Burgar made a very detailed abuse of process argument. I will do my best to summarize it given that it is 4:05 p.m. onFriday just before the August long weekend.

I hope I can complete this by 4:30 p.m., but if I cannot, I am sure we can stay a few extraminutes. [7] In any event, Mr. Burgar's argument is as follows. He maintains that when the 1999 incident was reported by the complainant,Ms. F., an inadequate investigation was conducted by Constable Li, the first officer who responded to the dispatch. She did notinvestigate the scene of the crime or the scene of the incident other than to go to Central Park to see if she could find someone based onthe description she had been given of the accused by the dispatcher.

She did not attend to the washroom, she did not take any pictures,she did not make any observations. Mr. Burgar argues that a proper investigation would have assisted in, as he puts it, proving hisinnocence. [8] Mr. Burgar also maintains that a proper investigation was not carried out in terms of the persons who were interviewed andfrom whom statements were taken. That argument was essentially made by inference. Mr. Burgar says there were people who sawportions of what happened, like Mr. Slinger, who were not interviewed and were not called as witnesses in court.

The other person Mr.Burgar pointed to was the complainant's boyfriend who was at her place after the incident and helped her package the materials. Mr.Burgar was of the view that if the complainant's boyfriend had been called to testify, he would have been able to confirm whether he hadseen the stain on her tank top, whether it was dried or not, and so on and so forth. However, no statement was taken from him and hewas not called as a witness. [9] Another aspect of the investigation addressed by Mr.

Burgar is that once the opportunity had passed to investigate the scene ofthe crime on the day of the incident or shortly thereafter, there were still other methods by which a proper investigation could have beenundertaken. The most notable other method suggested was: by checking with the appropriate municipal departments/officials that wereresponsible for the maintenance of the park. He maintains that maintenance personnel usually keep records.

They would have been ableto say what they had seen or done, whether they had repaired the washroom stall door, whether they had cleaned the washroom, whatthey found and so on. [10] Another aspect of investigation raised by Mr. Burgar is that the police could have looked at their own statistics about whatcomplaints, if any, there had been about incidents at Central Park before, during, and after the incident. [11] Mr. Burgar maintains he knows that he did not commit the offence and that the credibility of the complainant was notsufficiently tested either by the initial investigators or in these court proceedings.

Mr. Burgar raised a number of points that addressed

what he felt were discrepancies in the initial investigation, but which could also be viewed as discrepancies in the way the trial was conducted and the witnesses that were called. This is not precisely how Mr. Burgar put it, but I am trying to summarize and capture the arguments he made. [ 12 ] Mr. Burgar understands, and he understood even before I made the comments I did during the course of his argument, that any dissatisfaction he may have with my rulings so far in this case will have to wait another day.

However, he made those comments because, in his view of the matter, what happened in court was inextricably linked to what he considers was the failure to conduct a proper investigation. I am not going to set out other points he made in argument other than to say that I have considered them. [ 13 ] On the abuse of process issue, Mr. Burgar has made it clear he is not seeking a stay of proceedings. What he wants is an "interim stay." He is not asking for a complete stay or to have the case thrown out.

However, he is asking for an interim stay and an order from this court that the Crown and the police take certain steps to conduct a proper investigation of this matter. [ 14 ] As I see it, the issue Mr. Burgar has raised, although he has not explicitly articulated it in this way, is that there has been a breach of his s. 7 Charter rights to life, liberty, and security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice.

He argues, although not explicitly stated in this way, that his right to a fair trial was compromised by the way things unfolded in 1999 and in terms of the witnesses that were called to give evidence at this trial. [ 15 ] Since Mr. Burgar has indicated that he believes the prosecution of this matter did not proceed as it should have, in terms of who was called, what evidence was called, and so on, I would be remiss if I did not consider the issue of prosecutorial conduct as it might pertain to an abuse of process. [ 16 ] The Crown placed before me the case of R. v. Nixon , 2011 SCC 34 .

That case sets out a comprehensive statement of the law on s. 7 Charter rights in the context of abuse of process and prosecutorial discretion. In that case, beginning at about paragraph 33, the court affirmed its decision in R. v. O'Connor , an earlier case dealing with the issue of abuse of process, and noted that the doctrine of abuse of process with respect to a prosecutorial discretion could encompass two categories of abuse. [ 17 ] One category is prosecutorial conduct affecting the fairness of the trial. Under this category, it is key for Mr.

Burgar to establish the requisite degree of prejudice to his interests. [ 18 ] The second category is that prosecutorial conduct that contravenes fundamental notions of justice and that undermines the integrity of the judicial process or integrity of the justice system is also a basis for a finding of a breach of s. 7. Under this category, prejudice to the accused's interests may be relevant, but is not determinative because the prejudice is better characterized as

an act tending to undermine society's expectations of fairness in the administration of justice. I am taking this almost word-for-word from Nixon and from O'Connor . [ 19 ] The abuse of process alleged by Mr. Burgar in relation to the prosecution of this case at its simplest is that the Crown should have called certain witnesses. The position of Mr. Burgar as it relates to the police is that they should have carried out a more fulsome investigation. [ 20 ] During the afternoon break, I read a case that is not directly on point, but that is nevertheless very helpful in addressing the issues raised by Mr. Burgar.

That case is R. v. Darwish , 2010 ONCA 124 , leave to appeal denied, 2010 CSCR 124. In that case, the trial judge entered a stay of proceedings against the accused, Darwish. The accused had been charged with one count of fraud and several counts of forgery.

The allegation was that the accused had defrauded his employer of $1.8 million in the course of his employment as the company's chief financial officer. [ 21 ] The accused left his employment, and I am reading from the headnote, on bad terms in 2003 and, in February 2005, the employer went to the police with allegations that eventually led to the charges before the court. The Crown relied on a forensic audit prepared for the employer by its accountant. The accused maintained that all amounts he received were either compensation or deferred compensation owed for his work.

He contended that the employer misused the criminal process in an effort to recover a civil debt. He argued that a full and independent audit of his nine years of service to the employer was necessary to show his entitlement to the funds ... because the first audit was biased due to the auditor's position with the employer. [ 22 ] At pre-trial: The criminal proceedings were stayed pre-trial on the basis that the accused had been denied his constitutional right to make full answer and defence.

The trial judge based her decision on the Crown's failure to produce a second independent audit that conformed to the accused's reasonable requests despite an undertaking to do so. [ 23 ] So it was alleged the Crown had undertaken to do such an audit. The judge found further that were she to order the full forensic audit to which the accused was entitled, the resulting additional delay would exceed the constitutionally acceptable limits. The Crown appealed. [ 24 ] The Crown's appeal was allowed.

Doherty J.A., writing for the court, concluded that: The Crown was not under any duty, constitutional or otherwise, to obtain the forensic audit demanded by the accused. Its failure to do so did not result in any constitutional violation of the accused's right to make full answer and defence.

[25] The court found that: The judge erred in characterizing the right to make full answer and defence and the Crown's disclosure obligations as encompassing theright to have the prosecution investigate any defences that were not fanciful or speculative. [26] On the merits the court found that if the trial had proceeded there would have been no violation in terms of the issue of delay. There are specific parts of that decision, as I told you I was reading from the head note, that are helpful.

I am now reading fromparagraph 28: The trial judge held that the constitutional right to make full answer and defence includes the right to have the prosecution investigateany defences that are "not fanciful or speculative". On this approach, the accused is constitutionally entitled to have the police pursue aline of investigation if the defence can show that there is a realistic possibility that pursuing that investigation will yield information thatcould assist the accused.

This formulation of the right to make full answer and defence goes far beyond any description of that rightpreviously recognized in the case law. It is unworkable in practice. Further, it is inconsistent with the philosophy underlying the criminaljustice system. [27] At paragraph 29, the court continued: An accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her ... Authority for that proposition was cited as R. v. Barnes, 2009 ONCA 432, at paragraph 1.

Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civilremedy. Those inadequacies do not, however, in-and-of-themselves constitute a denial of the right to make full answer and defence. [28] Continuing at paragraph 30: An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. AsHill J. put it in R. v. West, [2001] O.J. No. 3406 ... at para. 75, the defence cannot, through a disguised-disclosure demand ...

I pause to note that I know this is not a disclosure demand, but the analysis is nevertheless applicable: ... "conscript the police to undertake investigatory work for the accused". See also: R. v. Schmidt (2001), 2001 BCCA 3 , 151C.C.C. (3d) 74 (B.C.C.A.), at para. 19. That is not to say that the police and the Crown should not give serious consideration toinvestigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry theultimate responsibility for determining the course of the investigation.

Criminal investigations involve the use of public resources and theexercise of intrusive powers in the public interest. Responsibility for the proper use of those resources and powers rests with those in theservice of the prosecution, and not with the defence. [29] MS. GAGNON: Your Honour? [30] THE COURT: Yes. [31] MS. GAGNON: I am sorry to interrupt. I rise because the time is 4:25 -- [32] THE COURT: Yes. [33] MS. GAGNON: -- and we are going to lose the judicial case managers for the purposes of scheduling our next appearance infive minutes.

So I do not know how much longer Your Honour is -- [34] THE COURT: You will just have to come back on Monday even though I am not here. We will just deal with it. Let me justfinish with my -- [35] MS. GAGNON: Very well. [36] THE COURT: Thank you for noting that. [37] At paragraph 34, the court dealt with the distinction between the right to disclosure of the fruits of an investigation and the rightto demand an additional investigation. Although, as I said, the issue is different from the case before me, by analogy, the comments ofthe court are helpful. The court said that the distinction was made clear in R. v.

Daley, 2008 BCCA 257. In Daley, the complainant in a sexual assault case had been examined following the assault by a nurse. The results of that examinationwere placed in a "sexual assault kit". The police preserved the kit, but did not attempt to have the samples it contained forensically

examined. Disclosure of the kit [was made by the defence --] was made to the defence. The defence argued that, as the samples were potentially exculpatory, the Crown was obliged not only to disclose their existence to the defence, but ... to have the necessary forensic tests performed. 35. The British Columbia Court of Appeal unanimously rejected this submission, stating at para. 15: [The Crown's obligation to disclose what could be inculpatory or exculpatory evidence -- I am sorry] The Crown's obligation was to disclose what could be inculpatory or exculpatory evidence. [It did not do so --] [sic] It did so.

Once the appellant had knowledge of the existence of the kit, it was open to him to have it examined and he could easily have done so. He evidently chose not to [do so]. [ 38 ] I appreciate, as I have said, that the facts are somewhat different. The court noted that the trial judge relied on R. v. Brown (1998), 164 C.R.R. (2d) 1 for: ... jurisprudential support for the existence of a "duty to investigate". [ 39 ] However, the Ontario Court of Appeal stated that Brown was a very different case than what was before it and Brown did not bear the broad reading given to it by the trial judge.

At paragraph 38, the court said: No matter how one characterizes the obligation recognized in Brown , that obligation stops well-short of imposing a duty on the prosecution to conduct any investigation that on a reasonable view could assist [the] accused in advancing a substantive defence. The duty to investigate described in Brown is triggered by material and potentially meritorious allegations of state misconduct from which Charter relief is sought, made in the context of an ongoing criminal proceeding. 39 An

interpretation of the right to make full answer and defence that imposes a duty on the prosecution to investigate possible defences is also irreconcilable with the basic features of the criminal justice system. No doubt, the Crown has obligations to an accused and to the administration of justice that go beyond those normally imposed on opposing counsel in litigation. However, the criminal justice system remains essentially an accusatorial and adversarial one. The prosecution, which includes the Crown and the police, is charged with the responsibility of investigating and prosecuting crime in the public interest.

To do so the prosecution must investigate allegations, lay charges and prove those charges in a criminal proceeding. To properly perform these functions the prosecution must decide on the nature and scope of [the] investigation. The accused is entitled to the product of that investigation, but is not entitled to dictate the nature [and] scope of that investigation. [ 40 ] At paragraph 41, the court notes that: The facts of this case provide an excellent example of the negative consequences flowing from this inordinately broad

interpretation of [the] accused's right to make full answer and defence. [ 41 ] There is more to be read, but I note the time. My conclusion based on R. v. Darwish is that there is no merit to Mr. Burgar's abuse of process argument. If I am wrong in that regard, I note that, 14 years after the offence, any of the investigatory steps suggested by Mr. Burgar as necessary, to prove his innocence would not likely succeed. [ 42 ] Accordingly, having dismissed Mr. Burgar's abuse of process argument, taking into account the reasons I gave earlier this morning, I find, based on those reasons that Mr.

Burgar is guilty of the sexual assault of the complainant, C.P. also known as C.F., on April 16, 1999, contrary to s. 271 of the Criminal Code . The matter of the breach of s. 9 Charter can be addressed at sentencing. [RULING ON ABUSE OF PROCESS ARGUMENT CONCLUDED] CORRIGENDUM - Released June 19, 2014 In the Ruling of Abuse on Abuse of Process dated August 2, 2013, the following change has been made: [2] On the cover sheet, the “Date of Hearing” date of August 2, 2013, should be changed to “July 16-19, 22, 29-30, August 2, 2013”.