False medical records 'pulled the rug out' from under assault suspect's defence

A CT scan showing he'd broken an eye socket and his nose was crucial to Kenneth Paul Burgar's defence against a charge of aggravated assault.

B.C. Court of Appeal orders new aggravated assault trial over CT scans that were used by mistake

Kenneth Burgar based his defence around a CT scan that said he'd broken an eye socket and his nose. (sfam_photo/Shutterstock)

A CT scan showing he'd broken an eye socket and his nose was crucial to Kenneth Paul Burgar's defence against a charge of aggravated assault.

Those injuries, the Metro Vancouver man argued, were proof that he'd been sucker punched, and was acting in self-defence when he retaliated.

There was only one problem — the CT scan wasn't Burgar's. It belonged to someone else, and had been added to Burgar's file by mistake when he requested his medical records.

The error was only discovered after Burgar had closed his case and a B.C. Supreme Court jury was preparing to consider the evidence, according to court documents.

Nonetheless, deliberations went ahead as planned, and the jury declared Burgar guilty.

That decision to proceed was a mistake, the B.C. Court of Appeal has ruled. On Tuesday, the high court threw out Burgar's conviction and ordered a new trial.

"A confluence of unfortunate events effectively pulled the rug out from under Mr. Burgar's defence and trial strategy, including his decision to testify. Evidence he had counted on vanished at the last minute, causing the very foundation of his theory of the case to fall away," Justice David Frankel wrote in the unanimous decision.

"Once the mistaken medical records were discovered a mistrial was necessary to prevent a miscarriage of justice."

Accused 'honestly' believed CT scan was his

There are few details in the decision about what happened during the altercation between Burgar and Brian Quock on Christmas Eve of 2014.

What's clear is that while Burgar was preparing his case, he asked for his medical records from Surrey Pretrial Services Centre, where he was held after his arrest.

When those records arrived, they included a report about a CT scan conducted on a 26-year-old man — not Burgar, now about 70 years old.

The accused man, who has a long criminal record that includes multiple convictions for masturbating in public, represented himself at trial.

According to the appeal court justices, Burgar presented his case "honestly believing" that the CT scan belonged to him.

Excerpts from the trial transcript show he directly questioned Quock about the incident.

"When did you hit me in the face to fracture my orbital bone? Was that the first time you came into the kitchen and sucker punched me or the second time you came in the kitchen," Burgar asked.

Jurors discovered mistake

That Burgar suffered serious facial injuries in the struggle was accepted as fact by Crown prosecutors, according to the decision.

It would take members of the jury to point out that someone else's name was on the CT scan report, and they let B.C. Supreme Court Justice Austin Cullen know there had been a mistake.

Burgar's real records did not show any head fractures, according to the decision, although an examination of his chest did reveal six broken ribs.

The appeal court justices said the lower court judge should have declared a mistrial. (Peter Scobie/CBC)

After the error was uncovered, prosecutors suggested that the judge simply replace the incorrect scan with the correct one, and allow the jury to make its decision.

At the time, Burgar agreed, telling Cullen "we don't want to put evidence in front of the jury that's not true."

He told the court, "the doctor at Surrey Pretrial told me that I had those injuries…. So when I seen the CT scan, I just assumed it was mine."

Though the trial transcript shows that Cullen briefly raised the issue of the potential for a mistrial, he forged ahead in the end, instructing the jury not to make any "adverse inferences" about Burgar because of the mistake.

The judge told the jurors they must accept the admitted facts — the things both Burgar and the Crown agreed were true.

"And ironically, the admitted facts turned out not to be accurate, but they now are…. You have that in front of you to use as you see fit," Cullen said.

'I would be seen as being dishonest'

Some time after the jury returned with a guilty verdict, Burgar filed an appeal.

In his submissions, he said he wondered how the presence of the mistaken CT scan might have affected the jurors' opinion of him.

"The only possible conclusion would be that I would be seen as being dishonest," Burgar wrote.

During the appeal process, Crown lawyers described the mistake as unfortunate, but argued that it didn't affect the fairness of the trial.

The appeal court justices disagreed, writing that Burgar's trust in the faulty medical records was central to his defence.

A date for Burgar's new trial has yet to be set.

About the Author

Bethany Lindsay

Journalist

Bethany Lindsay has more than a decade of experience in B.C. journalism, with a focus on the courts, health and social justice issues. She has also reported on human rights and crimes against humanity in Cambodia. Questions or news tips? Get in touch at bethany.lindsay@cbc.ca or on Twitter through @bethanylindsay.