New trial for man who was given the wrong medical records

Accused built case on records sent from Surrey Pretrial that weren’t his, though he thought they were

A man who had been found guilty of aggravated assault has had his conviction set aside and will get a new trial because he’d built his defence on medical records Surrey Pretrial Services Centre provided to him that had actually belonged to another person.

The Court of Appeal for British Columbia in Vancouver heard the appeal of Kenneth Paul Burgar, who had represented himself at a trial in B.C. Supreme Court in New Westminster. The appeal court heard he’d based his defence, in part, on the honestly mistaken belief that medical records provided to him were his.

“A confluence of unfortunate events unfortunately pulled the rug out from under Mr. Burgar’s defence and trial strategy, including his decision to testify,” said B.C. Appeal Court David Justice Frankel in his reasons for judgment. “Evidence he had counted on vanished at the last minute, causing the very foundation of his theory of the case to fall away.”

Burgar was convicted by a jury of aggravated assault, following a trial with Associate Chief Justice Austin Cullen presiding. Burgar claimed he acted in self defence after being sucker-punched during an altercation on Christmas Eve, 2014, and produced medical records he believed were his own to support his case.

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The appeal court heard Burgar honestly believed he’d sustained serious injuries at another man’s hand, and with Crown counsel’s help obtained medical records to support his argument. But after Burgar wrapped up, the jury noticed some of those medical records he used related to another person, not him.

Frankel noted that “As a result, the trial judge replaced the wrong records with Mr. Burgar’s records and instructed the jury not to draw any adverse inference against Mr. Burgar because of the mistake. I would allow this appeal on the basis that the confusion with respect to the medical records resulted in an unfair trial.”

Medical records from Surrey Pretrial indicated Burgar sustained a fractured orbital bone and broken ribs during the altercation, which happened in a kitchen. Burgar argued that a CT scan he had at the centre would reveal “significant injuries” inflicted on him. The other man denied sucker-punching Burgar.

Crown counsel helped Burgar obtain two CT scans but only one was his; the other belonged to someone else. Cullen noted Surrey Pretrial “sent over his file, and it appears that the first two pages in the report he received relate to some other person’s life.”

The first two pages concerned a CT scan that had been done on another individual. Burgar told the court he assumed the reports were his.

“So I’m assuming the doctor at Surrey Pretrial relied on those reports when she told me I had those injuries,” Burgar told the court. “So when I seen the CT scan, I just assumed it was mine.” He remarked it “was an honest mistake on all our parts.”

The trial judge told the jury “it appears that Mr. Burgar’s belief about the nature of his injuries was inspired by the report relating to somebody else that was in his file.”

At appeal Burgar submitted that the medical records mistake adversely affected the fairness of his trial because he built his defence in the honest belief that independent medical records supported his argument that the other man had been the aggressor.

“The trial judge was alive to the problem,” Frankel noted, “having questioned whether a mistrial should be ordered. However, his decision to simply tell the jury not to draw an adverse influence was not sufficient to address the damage done to Mr. Burgar’s case. Had Mr. Burgar not been misinformed, it is highly likely he would have conducted the trial differently. Once the mistaken medical records were discovered a mistrial was necessary to prevent a miscarriage of justice.

“In my view,” Frankel concluded, “the trial unfolded in a manner that was unfair to Mr. Burgar and, for that reason, the verdict cannot stand.”

Justices Barbara Fisher and Mary Newbury concurred.



tom.zytaruk@surreynowleader.com

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