Appeal court ruling may right terrible wrong
Warning: Graphic details and language follow.
“The defence lawyer can tear my ass wide open. If everyone decides I’m just a lying prostitute, then fine. But at least I will have had my day in court.”
She has waited 32 years for that day, that trial.
An Ontario Court of Appeal ruling last week — overturning a trial judge from a year ago — has given it to her.
The woman, N.M., cannot be identified because of a publication ban. Nor can a second woman who was only 17 years old when she was repeatedly raped, tied to a tree, savagely whipped with a belt and threatened with a knife. That teenager only escaped her tormentor by jumping out of a moving car, breaking her ankle rolling across the gravel.
The second rape occurred while Raymond Burke was out on bail on charges of a vicious sexual assault, just months earlier, against N.M.
When a Canada-wide warrant was issued in October 1986 for Burke’s arrest, he fled across the border.
Less than three months later, Burke — using the name Darryl Jones — was arrested in Colorado, charged with assault, kidnapping, aggravated robbery and violence against an American woman he’d never met before. His true identity was established when Colorado investigators contacted Toronto police.
In January 1988, he was sentenced to 52 years in prison.
As the extradition agreement between Canada and the U.S. stood at that time, police here were unable to bring Burke back to face trial until he’d finished serving his American jail time. The extradition protocols were amended in 2003, permitting a felon’s deportation before a sentence is completed, upon request.
Which Canadian authorities didn’t make. But Toronto detectives were waiting at the airport to arrest Burke when he was suddenly sprung in September 2015.
Twenty-seven years behind bars — and that was the crux of the issue when Justice Julie Thorburn stayed the decadesold Canadian charges, ruling that Burke’s charter rights to a trial within a reasonable time had been violated. Too many years had passed with no effort to extradite Burke, Thorburn concluded. So he waltzed free.
Until last week when the appeal reversal brought the case to life again and Burke was rearrested. He has a bail hearing on July 5.
If the 65-year-old makes bail again, Canadian courts should hang their heads in shame.
“He’s a runner,” N.M. told the Star in an interview from her home in the U.S. “He ran before, he’ll run again.”
She has every intention of testifying against Burke at his trial — expected in early 2019 — just as she testified in the preliminary hearing that bound Burke over to trial, which had been scheduled for July 2017. But that was before Thorburn tossed the charges.
Let’s stop here to briefly review what Burke is alleged to have done to N.M., who was working in the sex trade industry way back then. “I was 22 years old. I was stupid. I made mistakes. That shouldn’t matter.”
She was standing at her usual Carlton St. corner when a man pulled up in his car. As she leaned into the open passenger door, the man drew a knife, ordering her to get in. Panicked, she complied. He drove them to his apartment, ordering N.M. to remove her clothes. He threatened to stab her in the eye. He choked her into unconsciousness. When she came to, she was in the bathtub and the man was running the knife down her neck and chest.
He said he was going to drain her blood, then throw her body into a garbage bag and nobody would even miss her. Clad only in a towel, she was then forced at knifepoint back into the man’s car.
He drove them to a remote area, raping her at the side of a field, she told the preliminary hearing. Then he sodomized her. And said, well, he’d have to kill her now because he wasn’t going to jail for abduction and sexual assault, even as N.M. promised never to tell.
After pleading to be let go, the man allowed N.M. to get out of the vehicle. As she walked away, she heard a gunshot. She dropped to her knees and vomited.
The man caught up to her again, gun in hand, and made her get back in the vehicle. Raped her again. Then he drove N.M. back to the motel where she’d been living. He shoved $100 into her purse and gave her his phone number after setting up a lunch “date” for the following day.
She went immediately to the hospital and called police. Burke was arrested almost immediately. Cops had his number, after all.
Bailed out, allegedly raping and torturing a teenager, then gone.
All these years later, Thorburn was alert to the horror of the alleged crimes, expressing “considerable reticence” in determining Burke’s rights had been violated — ascribing a 12-and-a-half year chunk of the “net” delay to the Crown, the period after the extradition amendment came into effect, and the rest to the “conduct of the defence,” namely Burke himself, for lamming to void prosecution and then committing a crime. As well, much evidence had been purged or gone missing.
Critical to Thorburn’s decision was abiding by a 2016 Supreme Court of Canada ruling, known as Jordan, which rewrote the framework for what constitutes an unreasonable, therefore unconstitutional delay, setting a ceiling of 30 months barring exceptional circumstances.
But surely these were exceptional circumstances.
The appeal judges dismantled Thorburn’s judgment. The plethora of errors in law included miscalculating the breadth of time (which the Crown had argued was actually 19 months if the clock started ticking when Burke landed in Toronto) while ignoring that “virtually all of the delay occurred prior to the release of the … Jordan decision, and that in any event, Thorburn should have characterized the entire period of Burke’s incarceration as a defence delay. Quoting Jordan, they wrote: “Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution for offences while the evidence in the case against them grows stale over time, or there is ultimately a stay for delay. Where accused persons benefit from their own delay-causing conduct, such a result ‘operates to the detriment of the public and the system of justice as a whole.’”
(The Crown never did explain why they failed to extradite Burke but noted, in their appeal argument, they’d been assured by Colorado officials that Burke would spend the rest of his life in prison.)
There’s not enough space here to set down all the errors addressed in the appeal court’s decision.
The details, while legally vital, don’t matter much to N.M. What she sees is a terrible wrong being righted.
“At the preliminary hearing, I refused to look at him. He doesn’t get to take any more of my power. After 30 years he came back into my life and then he just walked out of it again. How was that justice?’’
Thorburn’s ruling gutted her. “I was like, hold on a second. He escaped. He changed his ID ... I was sick, I was disgusted, I was appalled.”
Before the preliminary, she’d also had to tell her now-grown children about this dreadful thing that had happened to her, in what was very much another life.
“I’m not that 22-year-old girl anymore.
“Nobody deserves what happened to me and that poor teenage girl. I survived it and I believe there’s a reason for that. Our voices need to be heard and they can’t be heard if we don’t speak out.
“They’ve given me my voice back.”