Accused rapist has time on his side
Warning: Contains graphic content
This is how one woman described the terrifying ordeal she endured, recounting it at a preliminary hearing last December.
A prostitute, she was working her usual Carlton St. corner when a man pulled up in his car. When she leaned into the open passenger door he pulled a knife, ordering her to get in. Panicked, she complied. He drove them to his apartment, instructing her to remove her clothing. She tried convincing him not to hurt her. He threatened to stab her in the eye.
The man choked her into unconsciousness. When she came to, she was in the bathtub, the man running a knife down her neck and chest. He told her he was going to drain all her blood and then throw her body into a garbage bag. Clad only in a towel, she was then forced at knifepoint back into the car.
He drove them to a remote area, raping her at the side of a field, she told the court. Then he sodomized her. At that point, he said he would have to kill her because he wasn’t going to jail for the abduction and sexual assault.
Instead, after she pleaded with him, he told her to get out of the car. As she began walking away, she heard a gunshot. She dropped to her knees and vomited. The man then caught up to her again, gun in hand, ordering her back into the vehicle. He raped her again, the prostitute pretending to enjoy it in the hope he’d let her go. She promised not to go to police.
He drove back to the motel where the woman had been living, shoved $100 into her purse and gave her his phone number after setting up a lunch “date” for the following day.
Immediately, the 22-year-old went to hospital and called police. An investigation was begun. The man was arrested and released on bail, though he afterwards failed to report.
Two months later, another young woman, same man.
This female was a 17-year-old high school student living on welfare, also working as a prostitute. She did not know the previous alleged victim. She too testified at the preliminary hearing five months ago.
The teenager had two sexual encounters with this man. The first time, they did their business in a parking lot, he paid up, no problem. On the second occasion, he picked her up again, driving his Mercedes. This time he headed straight for the highway, telling the girl he wanted to dominate her and didn’t intend to pay for the sex. When she hotly objected, he pulled off to a side road, drew a knife and threatened to kill her, she told the court.
After the teenager removed her clothes, he repeatedly whipped her across the back, legs and stomach with his belt. Then he raped her.
Again, he said she’d have to die. He drove them to a parking lot, transferring the girl into the back of an 18-wheeler truck, tying her up with the scarf she’d been wearing. After driving for a while, he stopped, got in the back with her and fell asleep. The girl was too afraid to attempt escape because she would have to climb over him to get out.
Upon awakening, he drove to a field. Using her scarf, he tied her to a tree, then whipped her savagely before forcing her to perform oral sex on him, she recalled.
Eventually, the man drove them back toward the city. Believing he intended to murder her, the girl jumped out of the moving car, rolling onto the gravel, breaking her ankle. He motored on and she flagged down a truck. That driver took her to a restaurant and police were called. An investigation was begun. Imagine all those horrors. A Canada-wide warrant was issued for the arrest of Raymond Lawrence Burke. By that point, he’d already fled to the U.S. where he bought a new identity.
Last week, Burke waltzed out of court in Toronto, a free man.
Justice Julie Thorburn ruled that too much time had passed — 31 years — since the allegations, a great deal of evidence had since gone missing or been purged, and Canadian police never attempted to extradite Burke. The judge granted a stay of prosecution brought by Burke’s lawyer, agreeing that his Charter rights to a trial within a reasonable time had been violated.
The charges — including kidnapping, choking, sexual assault with a weapon (knife), sexual assault causing bodily harm, forcible confinement and uttering threats — disappeared. The trial which had been scheduled for July disappeared. And Burke, now 64, can enjoy life outside prison walls for the first time in more than three decades. How could this happen? Because Burke had spent 27 of those years in a Colorado prison, convicted of kidnapping, aggravated robbery and assault against a woman five months after crossing the border. He was sentenced to 52 years but paroled in September 2015, held on immigration paperwork and deported to Toronto on Oct. 26, of that year. No extradition request was required, Colorado officials said.
Burke was arrested by Toronto police immediately upon arrival at Pearson and had been in custody awaiting trial ever since. Until last Wednesday.
The preliminary hearing publication ban is no longer in effect because the charges no longer exist. What a shemozzle. In her application to stay the proceedings, Burke’s lawyer Alison Craig — two previous lawyers had themselves removed — wrote that, despite a Toronto officer telling Colorado officials back in 1987 that extradition would be sought when the American proceeding was concluded, “there is no evidence the extradition process was ever initiated.”
The view on this end, as Crown attorney Christine Jenkins stated in the respondent’s factum, was that Burke “would live the rest of his natural life imprisoned in the United States.”
The charges related to the first complainant were withdrawn by the Crown in 2005, for reasons not made clear in the documents. Those charges were reinstated last July, after police tracked the woman down.
“Most of the evidence in relation to the case has since been lost,” Craig, Burke’s lawyer, wrote in her application.
All the original documents from that case were destroyed when the charges were dropped. In the second case, medical records “no longer exist” and the clothing the woman was wearing, seized by police, couldn’t be located.
“No witness statements remain from 1986 and the witnesses’ memories are now extremely faded,” Craig argued.
The Crown countered that there were no witnesses to the crimes, other than the alleged victims, and they were both prepared to testify at trial.
Crucial to the judicial conundrum, however, are all the years that had passed, and a 2016 Supreme Court of Canada ruling which rewrote the framework for what constitutes an unreasonable, and therefore unconstitutional, trial delay. For cases prosecuted in superior court, the presumptive ceiling — barring exceptional circumstances the Crown must establish — was set at 30 months.
Burke’s lawyer calculated the “net” delay, taking into consideration periods “attributed to the conduct of the defence” at 29 years and 11 months. The Crown argued Burke had avoided prosecution by fleeing and his subsequent incarceration amounted to a self-inflicted delay. By the Crown’s calculation, the clock started ticking at his airport arrest and set the delay at 19 months.
All those factors — no extradition attempted, masses of lost and destroyed evidence, Burke’s constitutional right to trial within a reasonable time frame — combined to convince Thorburn on the merits of tossing out the charges.
It’s a knotty legal thing, you see — or maybe you don’t — the circumstances apparently insufficiently exceptional.
The Crown is reviewing whether to seek an appeal.
Otherwise, Burke will never have to face his accusers at trial and they will never get a shot at justice. Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.