R. v. Burman, 2013 BCSC 2395

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Burman, 2013 BCSC 2395 Date: 20131213 Docket: 156291-2 Registry: Victoria Regina v. Edward Charles Burman Before: The Honourable Mr. Justice Wong Oral Reasons for Judgment Counsel for the Crown: C. Rogers, Q.C. Counsel for the Accused: M.F. Allen Place and Date of Trial: Victoria, B.C. December 9 - 12, 2013 Place and Date of Judgment: Victoria, B.C.

December 13, 2013 [ 1 ] THE COURT: The accused Edward Charles Burman is charged on a four count indictment of committing two separate instances of assault causing bodily harm and robbery of two street prostitutes. [ 2 ] Regarding Counts 1 and 2, on December 6, 2009 at approximately 1:00 a.m. Shauna Shorty was working as a sex trade worker in Victoria. She made an arrangement for sexual services with a male, got into his blue Toyota Echo car and was taken to the rock bay area. She performed oral sex on the male for a lengthy period of time but he was unable to ejaculate. He paid her $65 for her services.

When she told him she was unable to continue, he got out of the car, threw away the condom she had provided and which he had used. He then told her to get out of the car, and when she did so, he followed and started to choke her. [ 3 ] He demanded the money back that he had paid her, dumped her purse onto the ground in an attempt to find it, and when she told him it was in her boot, ripped her boot off, took the money, along with some additional money, and left the scene. [ 4 ] Ms. Shorty returned to the downtown area and encountered Constable Gill, with whom she had a good relationship.

She told Constable Gill of the assault and took him and Constable Sark back to the location of the events. Items that had been in Ms. Shorty's purse were located, along with a condom that she identified as the one used in the sexual encounter. [ 5 ] Ms. Shorty was not able to identify the accused. [ 6 ] With respect to Counts 3 and 4, on February 19, 2011, Jamie Gray was working as a sex trade worker in Victoria. She made an arrangement for sexual services with a man, got into his car, and took him to an area behind a hotel at 3020 Douglas Street. According to Ms.

Gray, before she could perform any sexual services, the male got out of the car, came around to her side of the car, dragged her out of the car, and began to assault her. In the course of the assault, she was screaming. He put his hand over her mouth and she bit him. In the process, a bandage came off his finger. He demanded the money back that he had paid her for the sexual service. She provided it to him and he took it and money belonging to Ms. Gray. [ 7 ] He then left the scene, but she was able to see and remember his licence plate number, B.C. licence 836 BKA, a blue Toyota Echo.

The police recovered the bandage in the area where Ms. Gray said the assault had occurred. [ 8 ] As a result of the licence plate number obtained by Ms. Gray, the police determined the car was registered to the accused's spouse. Mr. Burman was identified as a suspect. DNA was obtained from him and compared to the condom from the first assault and the bandage from the second assault. DNA analysis of that condom revealed Ms. Shorty's DNA on the outside of the condom and the accused's DNA on the inside. DNA analysis of the bandage revealed Ms.

Gray's DNA on the outside of the bandage and the accused's DNA on the inside. [ 9 ] The accused testified. He admitted he was in the habit of frequently picking up street prostitutes in his wife's car at night and paying them for performing oral sex in the car at various secluded areas. He denied he was involved in the December 6, 2009, incident with Ms. Shorty. He said he was at the home of his friend, Scott Utterson, on the evening of December the 5th, watching an Ultimate Fight Championship bout on television between 7:00 p.m. to 9:30 p.m., drank beer with Mr.

Utterson the rest of the evening, and remained at the Utterson home until the late morning of December 6th.

[ 10 ] Mr. Utterson confirmed that the accused was with him the evening of December the 5th to watch television and to do some drinking, but was unable to be more specific about the length of Mr. Burman's stay, as Mr. Burman visited him weekly for years to watch television. Sometimes he stayed overnight, sometimes not. Understandably, after four years and the frequency of Mr. Burman's visits, Mr. Utterson cannot confirm objectively whether Mr.

Burman did in fact stay overnight on December the 5th until the late morning of December the 6th, though he thinks that did happen. [ 11 ] The accused's defence on Counts 1 and 2 is denial of the incident by way of alibi. [ 12 ] On the February 19, 2011, incident with Jamie Gray, the accused admits he was with her for a sexual purpose. When he discovered that while she was performing oral sex, her hand was also in his pants pocket furtively removing additional funds, he became angry. An argument ensued, resulting in a physical altercation with some injury to Ms. Gray.

He demanded return of his monies; she complied. He grabbed the money, ripped off her nylon tights, and drove away. Apparently he took away more than his own monies, as a freshly laid $100 bill was also found on the parking lot near where the accused and Ms. Gray had been. [ 13 ] I was not impressed with the accused's evidence. His answers were generally inconsistent and sloppy on cross-examination. Despite his and Ms. Shorty's DNA were found on the only used condom at the site of the event, showing conclusively sexual contact between the parties, the accused denied he had sexual contact with Ms.

Shorty on December 6, 2009, at that specific location or that he threw the used condom over the fence where the police found it. [ 14 ] Accordingly, his denial of sexual involvement with Ms. Shorty and his alibi defence is incapable of belief and I reject it. [ 15 ] Crown counsel invited the court to apply similar fact evidence of the two incidents to bolster the credibility of the complainants, and to establish the actus reus of the accused in the incident involving Ms. Shorty. She submitted the following similarities exist between allegations by Ms. Shorty and that by Ms. Gray: 1.

Similarities of details between the two incidents, namely unlikely coincidence that two sex trade workers, 14 months apart, would fabricate and report to police an allegation of an apparently regular agreement for oral sex with the same male, who showed an interest in nylons, driving the same colour and type of car, that started pleasantly, but after the male got out of the car, suddenly became angry, assaulting the women for no apparent reason, taking the money he had paid them plus their own money, handling their purses, and then leaving them injured in a dark and isolated location. 2.

There is a strong similarity in the circumstances of the two acts and both incidents involved sex trade workers who were strangers to the accused. 3. The male's fascination with the nylon stockings of both complainants is a distinctive feature. 4. Strength of the evidence that the similarities actually occurred, the exhibits located by the police at each scene, the matching DNA evidence involving the accused, and the descriptions of the accused and his car given by the complainants are corroborative of the events as described by the complainants. 5.

There is no evidence of collusion or even opportunity for collusion between the two complainants in the facts of this case. 6. Overall, the Crown contended that the probative value of the evidence of each complainant is significant to the evidence of the other complainant, given the improbability that two independent witnesses would be able to fabricate such similar stories. [ 16 ] I agree with Crown counsel's submission on the application of similar fact evidence in this case.

I am satisfied and find that the accused did in fact assault and cause bodily harm to both complainants on the respective dates alleged. [ 17 ] Exasperated by not being able to ejaculate when Ms. Shorty performed oral sex on him, and her refusal to continue after her perception of a reasonable time, the accused became angry and demanded return of his money. Ms. Shorty refused. An argument ensued, and the accused started to manhandle and to beat her. He tossed out the contents of her purse looking for money. Ms. Shorty confessed that her monies were in her sock.

The accused pulled off her boots and took her money, which consisted of $65 which the accused had given Ms. Shorty for the oral sex and $30 of her original money. The accused directed her not to look up at him from her prone position, and then left in his car. [ 18 ] Ms. Shorty was choked, suffered bruises to her face, lower back, and right side. Shortly after, she was found by the police in a visibly upset and distraught condition. She told the police what happened to her. [ 19 ] Ms. Gray reported a similar incident.

After she had negotiated a price for performing oral sex with the accused, she got into his car and directed him to drive and park in a hotel and pub parking lot, between some large semi-trailer trucks for privacy. She said before she could perform oral sex, the accused suddenly exited from the car, came over to the passenger's side, opened the door, and pulled her out. He called her a slut and a whore. They struggled and he managed to get her on the ground. He sat on her and proceeded to hit her head and face. She screamed.

He put his hand over her mouth and she bit his finger, causing a bandage on the finger to fall off; the bandage subsequently analyzed to contain his DNA. [ 20 ] Ms. Gray told him to stop. He replied, "I want your tights." She said, "Okay, but I want my purse in the car." He then pulled her tights off and caused her boots and one sock to come off. He also tossed her purse at her and said he wanted his money back. She said, "Fine, take your fucking money back." He grabbed the bills from her hand, returned to his vehicle, and left. [ 21 ] Ms. Gray sought help from a desk clerk at the nearby hotel.

The police were summonsed and attended. Ms. Gray was distraught with bruises, abrasion, swollen face, and a cut on the top of her head. [ 22 ] Ms. Gray claimed before meeting the accused she had $370 on her person in order to purchase some intended drugs, aside from the monies given to her by the accused. She said all her monies were missing after the accused left. She told the police she had $150

earlier, but at trial she said $370. She told the police the licence number of the blue Toyota Echo. As a result, the police later arrestedthe accused. [23] The accused testified that before meeting Ms. Gray, he had $70 in his pants pocket. He gave her $40 for the agreed-upon oralsex. He said after parking his car in the parking lot, his pants were down around his ankles. Ms. Gray was performing oral sex on him,and he realized she was also putting one of her hands in his pants pocket and had pulled up her hand. He suspected she had removed hisother money.

He pulled up his pants, got out of the car, searched his pockets, and realized the money was gone. He went back toMs. Gray, demanded that she get out of the car. When she refused, he pulled her out and the struggle ensued. Blows were exchanged;however, he overpowered her. He said Ms. Gray held up bills from her pocket, he took it from her. Shaken up and angry, he grabbed hertights and yanked it off. He said he was being vindictive and threw it away after he got into his car. [24] He later looked at the bills in his pocket and said it was $70.

The police found a freshly laid $100 bill on the pavement nearwhere the car was parked. It is conceivable that it was dropped by either the accused or Ms. Gray. [25] The accused is a big man, six feet tall, 270 pounds. He would have no trouble overpowering either Ms. Shorty or Ms. Gray. [26] I found it puzzling that Ms. Gray reported that no oral sex had been performed when the accused's mood suddenly changed andhe began to attack her. Her report to the police of her own initial money taken was $150, now expands to $370 at trial. [27] Under the circumstances, I think it more likely that Ms.

Gray did steal $30 from the accused while performing oral sex on him. That explains why his mood changed and his demand for return of his monies. Whether he realized the monies he took from Ms. Gray'shand was more than his original $70 is unclear. It may well be that he was reckless or indifferent. I do have a doubt whether he actuallyintended to steal on this occasion. [28] However, there was no excuse for his manhandling and beating of Ms. Gray. The charge of assault causing bodily harm ismade out on Ms. Gray. As the intent to steal is not certain, the charge of robbery upon Ms. Gray will be dismissed.

The violence on thatcount is the same delict as the assault causing bodily harm: see R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729. [29] Would the accused please stand. On Count 1, I find you guilty as charged; on Count 2, I find you guilty as charged; on Count 3,I find you guilty as charged; and on Count 4, I find you not guilty. “Wong J.”