R. v. Burgess Date:, 2010 BCPC 372

Citation: R. v. Burgess Date: 20101231 2010 BCPC 0372 File No: 58560-2-C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL DUSTIN BURGESS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: R.J. Beeny Counsel for the Accused: V.M. Williams Place of Hearing: Chilliwack , B.C. Date of Hearing: December 31, 2010 Date of Judgment: December 31, 2010 [ 1 ] Mr. Burgess is in front of me on two separate Informations. These relate to two occurrences, on November 26, 2010 and December 9, 2010.

I correct that: there is also an allegation that stems from December 17, 2010, to do with a breach. In any event, Mr. Burgess is somebody who is serving a term of probation imposed by my brother Judge Skilnick that was in December 2009. The probation term I am told is 18 months, and has a number of conditions. I will refer to some of those specifically in a moment. [ 2 ] He is in custody now because police investigated two robberies. There was a robbery, first in time, in Agassiz at the Prospera Credit Union, on November 26 this year. Second, a robbery in Chilliwack on December 9 of this year.

Police investigated and it appears that once they had the evidence in the Chilliwack robbery, later concluded that he was also the person responsible for the Agassiz robbery in November. [ 3 ] The Crown is seeking detention on the secondary ground. That is to say that there is a substantial likelihood that if released Mr. Burgess will continue to offend or commit further offences. The Crown has outlined much of what took place and I will just go into that briefly. Chilliwack Royal Canadian Mounted Police [RCMP] responded to a robbery report on December 9, at the Prospera Credit Union.

A teller there was robbed by a person who attended the credit union. The attendance of the police was in response to a call made about 10:50 a.m., I am given to understand, $800.00 was taken. A note was passed demanding $5,000.00, suggesting that the person had a gun. The person was described as a white male wearing a baseball cap. He was texting on a cell phone while he approached the teller. He took the note and the bait money with him. There was bait money. No weapon was actually produced.

[ 4 ] There were some still images viewed, in particular by a Constable Mufford, of the RCMP in Chilliwack. He, according to Ms. Beeny, recognized the person in the video from the bank as similar to Michael Burgess. A photo line-up was prepared. The teller identified Mr. Burgess from amongst the photographs, although it is important to note she covered half of his face, when looking at the pictures. [ 5 ] The police attended his residence. He was residing with his foster mother. I think that is the proper term. The police in their report got her name wrong, somewhat mysteriously.

I do not know if that is Constable Mufford's handiwork as well, but there is some confusion about that. They also, according to Ms. Williams, got some of the details of the conversation wrong. She is present in court today and has heard the allegations read out. Ms. Beeny told me, based, of course, on what she was given to work with here by the police, that when the police attended they spoke with the foster mother and the foster mother had simply said that he was not present. It turns out, according to the information given to Ms.

Williams, that she had said something more along the lines of providing an alibi to Mr. Burgess. In other words, he had been there up until recently and, if my understanding of the facts as they were laid out to me is accurate, he would have been present in her suite at the time that this robbery took place in Chilliwack. She was awake, contrary to the police report, as she had to be up to feed or attend to a dog, or give some medical attention to a dog. [ 6 ] The upshot of this is that the Crown's case is not quite as strong on a prima facie basis as Ms.

Beeny has been led to believe by simple reference to the materials she had been provided. Ms. Williams points out that the quote is inaccurate. There is a further quote that suggests that the foster mother was admitting in some way that Mr. Burgess was responsible for a robbery, that he was not there the second time they attended because he must have robbed the bank, something to that effect. In fact, it turns out from Ms. Williams' instructions that he had texted her, was concerned about the police attending and had taken some steps to try to surrender himself to police through Ms.

Williams' office, but was arrested before that could come to fruition. [ 7 ] The other strength of the Crown's case, or I should say the other strengths, first, the Agassiz robbery there was also video and a line-up. There was no positive identification made. There are some similarities between the two perpetrators, but there are significant differences, as well. Ms. Williams points out that Mr. Burgess, her client, has some significant scars on his face. The teller in Chilliwack mentioned nothing of that. So there is reason to cast some doubt on the identification of the teller.

Now, that is an issue for trial and I am not making any comment on how that issue will ultimately play out. For bail purposes I am simply assessing the Crown's case on a prima facie basis. There may be problems that are overcome in the course of this investigation. There may be further and better evidence that more directly implicates Mr. Burgess but, on the evidence presented before me, we have some identification evidence that raises a considerable amount of questions. We have an interview with his foster mother that there are two quite widely divergent versions of, one implicating Mr.

Burgess and one not only not implicating him, but providing him with alibi evidence. [ 8 ] The Crown might have been able to overcome these issues with the admissions that it is said that Mr. Burgess made. The trouble with those admissions made to Constable Mufford is that they are not recorded. We have a

summary of what Mr. Burgess is supposed to have said to the officers. There was another officer in attendance guiding Constable Mufford in the interview process, and there was equipment available to record Mr. Burgess. He is alleged to have said some very, very heavily inculpatory statements, but he vehemently denies making these, and there is no independent record before the court that would bolster the Crown's allegations. [ 9 ] I am left at the end of the day with some allegations on behalf of the Crown that on close scrutiny do not bear up to analysis in terms of the strength that initially Ms.

Beeny, understandably, concluded the case had. The accused is an individual with a negative track record, so to speak. He did indulge in this sort of behaviour on prior occasions, but I have no indications that he has misbehaved, other than these allegations on his probation. I am not satisfied on the secondary ground that there is a substantial likelihood he will commit further offences. To the extent that those concerns are justified, I am satisfied that he can be released with appropriately crafted conditions.

I propose to craft those now. [ 10 ] First of all, this will be a cash bail, $500. [ 11 ] The terms of release are as follows. He will keep the peace and be of good behaviour. He will report in person within -- what is reasonable, Ms. Williams? Forty-eight hours of his release? [ 12 ] MS. WILLIAMS: Your Honour – [ 13 ] MS. BEENY: Not with the long weekend. [ 14 ] MS. WILLIAMS: -- my only concern with that is given the long weekend and statutory holidays. [ 15 ] THE COURT: All right. [ 16 ] MS. WILLIAMS: So perhaps by – [ 17 ] THE COURT: Why can he not report by telephone? [ 18 ] MS.

WILLIAMS: If the office is open, he could report by telephone. [ 19 ] THE COURT: It is open today. He should be able to report, I think. [ 20 ] MS. BEENY: If he is able to – [ 21 ] MS. WILLIAMS: If he is able -- it is going to be an issue for him to – [ 22 ] THE COURT: Report by telephone no later than 4:00 p.m., December 31, 2010, to the probation office in Chilliwack, B.C. [ 23 ] MS. WILLIAMS: Sorry. And just on that point, I know with North Fraser and I have had clients who have had their bails on

early morning, they are typically not released till six or seven o'clock at night because they have to process everything and then get -- I am going to suggest perhaps – [ 24 ] THE COURT: All right. Well, you will report in person no later than 4:00 p.m., I guess we are looking at Tuesday, then, January 4, 2011, at the probation office in Chilliwack, B.C. Thereafter, report as and when directed by the bail supervisor in the manner directed by the bail supervisor, but no less than once a week in person. [ 25 ] You will reside at -- now, tell me if I have got this address right.

I know it is Corbould Street -- 9482 Corbould Street. Is that correct? [ 26 ] MS. WILLIAMS: Yes, Your Honour. [ 27 ] THE COURT: Is there a unit number there or is that it? [ 28 ] MS. WILLIAMS: It is a residence, house. [ 29 ] THE COURT: In Chilliwack, B.C., and not change that residence without the prior permission of the bail supervisor. You shall obey the rules and regulations of your residence, which will be provided to you in writing.

You shall provide a copy of the written rules and regulations of your residence to your probation officer. [ 30 ] You shall obey a curfew by being inside of your residence between the hours of -- what time does he get off work again? 6:00 p.m. – [ 31 ] MS. WILLIAMS: Six p.m. Yes. [ 32 ] THE COURT: -- he returns home. Between 6:00 p.m. and 5:00 a.m. each day, subject to the following exceptions:

(1) With the written permission of your bail supervisor to be outside your residence during the hours specified in such written permission, in which case you are to carry a copy of such written permission on your person and present it to any peace officer or bail supervisor who requests to see it. Such permission is to be given only for compelling personal, family or employment reasons.

(2) Unless you are in the company of -- now, give me the name again. Sorry. [ 33 ] MS. WILLIAMS: It is Diane (indiscernible) Siewert. [ 34 ] THE COURT: Diane Siewert. [ 35 ] MS. WILLIAMS: And the last name is spelled S-i-e-w-e-r-t. [ 36 ] THE COURT: All right. Madam Clerk, you got that? [ 37 ] THE CLERK: Yes, Your Honour. [ 38 ] THE COURT: You shall present yourself at the door of your residence to any peace officer or bail supervisor for the purpose of determining your compliance with the curfew condition of this order.

You shall personally respond immediately to the telephone when a peace officer or bail supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition of this order. [ 39 ] You shall not possess or consume any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, except as prescribed by a li cenced physician. [ 40 ] You shall not possess any weapons. That term is defined in s. 2 of the Criminal Code , R.S.C. 1985, C-46 .

You shall not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Now – [ 41 ] MS. BEENY: Your Honour, could we also include imitation -- imitation firearms. [ 42 ] THE COURT: Including imitation weapons. [ 43 ] Now, I presume that the other conditions that Crown might normally seek would be covered by Judge Skilnick's probation order, Ms. Beeny? If there are any other conditions I am open to hearing about them. [ 44 ] MS. BEENY: Perhaps we could just make it to not go to those two credit unions.

He indicates he does not have... [ 45 ] THE COURT: Okay. You shall not attend at or within a 50-metre radius of the Prospera Credit Union or any Prospera Credit Union located in the City of Chilliwack or the District of Kent, I think it is, British Columbia. How is that? [ 46 ] MS. BEENY: Thank you, Your Honour. [ 47 ] THE COURT: Okay. _____________________

R.C. MacKay Provincial Court Judge