ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C11001282
DATE: 2012-02-02

BETWEEN:

HER MAJESTY THE QUEEN Crown – and – JAMES ALLAN BURTCH Defendant

P. Thompson & K. Eberhard, for the Crown
J. Hauraney & J. Hiland, for the Defendant

HEARD: January 19, 25, 26/ 2012

justice b.a. glass

APPLICATION FOR JUDICIAL INTERIM RELEASE WHEN DEFENDANT IS CHARGED WITH FIRST DEGREE MURDER PURSUANT TO SECTION 522 OF THE CRIMINAL CODE OF CANADA

There is an order banning publication, broadcast or transmission of the evidence taken, the information given, the representations made and reasons given until the defendant is discharged at a preliminary inquiry or if committed for trial until the trial is ended.

[ 1 ] The defendant is charged with first degree murder with respect to the stabbing death of Rodney Hadwyn on June 17, 2011 in the City of Peterborough, Ontario.

[ 2 ] Because this is a first degree murder allegation, the defendant may be released if he shows cause that his detention in custody is not justified.

[ 3 ] Mr. Burtch has tendered an application for release on a judicial interim release order supported by affidavits from four proposed sureties together with viva voce evidence from these persons. The sureties are his parents, Christine and Gregory Burtch, his sister Brianne Burtch and David O’Dette, who is a friend.

[ 4 ] The defendant submits the following terms be included in his release order:

[i] he be permitted to live at his parents’ residence with his parents and his sister;

[ii] he be permitted to work for Mr. O’Dette cutting firewood and doing labour jobs;

[iii] he notifies the Peterborough Lakefield Community Police Service of any address change 24 hours prior to a change;

[iv] he obeys any curfew imposed unless he is to be out with one surety;

[v] he carries a copy of his recognizance with him always;

[vi] he signs into the Peterborough Lakefield Community Police Service each Saturday;

[vii] he always remains in the Province of Ontario;

[viii] he remains 100 metres away from and abstains from contacting directly or indirectly witnesses as well as the residence, education, employment or place of worship of the witnesses. These persons are Mary Baker, Ryan Baker, Jessica Ballantyne, Warren Brierly, Cory Bulger, Tracey Clarke, Ken Davidson, Kevin Donnelly, Patrick Howran, Ken Hughey, Judy Litner, Kate Luther, Christina Pinch, Nate Rowe, Patrick Scully, Theresa Shambrook, Amanda Smith, and Cheryl Tippett;

[ix] he undertakes not to possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance until these charges have been fully processed;

[x] he does not possess or apply for an authorization, licence or registration certificate of the weapons referenced here;

[xi] he lives in a residence that does not have any firearm;

[xii] he does not possess any knife with the exception of culinary knives;

[xiii] he abstains from purchasing, possessing, consuming any drug or narcotic set out in the Controlled Drugs and Substances Act;

[xiv] he does not occupy the driver’s seat of a motor vehicle nor possess keys for such vehicles;

[xv] he answers the door to his residence upon the attendance of a uniformed police officer who is monitoring compliance of release terms in a judicial interim release order;

[xvi] he keeps the peace and be of good behaviour and attend court as required.

[ 5 ] The Crown opposes the release of Mr. Burtch because he is a flight risk as shown from a history of taking flight while out of custody awaiting court processing of outstanding criminal charges. Further, the Crown expresses a concern that the defendant has a history of carrying knives, fighting, being violent, associating with friends who are involved in criminal activity, and he is a drug addict. In his statement to the police, Mr. Burtch admitted to having smoked crack (cocaine) the day of the death of Mr. Hadwyn. He has admitted to selling drugs. He has supported himself with the sale of drugs. Finally, the Crown notes that it has a strong case for first degree murder with a defendant with a history of running away. The detention is needed so that confidence in the administration of justice is kept. With a serious charge at stake, a strong Crown case, the circumstances leading to the murder of Mr. Hadwyn coupled with the potential for a long prison sentence, the Crown submits that the tertiary ground for detention is very evident.

[ 6 ] The defendant is twenty-eight years old. He has a criminal record for theft, mischief, threatening death or bodily harm, breach of probation, failing to comply with release terms, failing to appear in court, and obstruct police. The obstruct justice conviction flowed from providing a false name to the police when he was at large on an outstanding warrant for his arrest. The criminal convictions arose in 2003 and 2007. There was a gap when Mr. Burtch was illegally out of custody subject to outstanding warrants for his arrest between 2003 and 2007.

[ 7 ] The defendant commenced his criminal legal problems when he stole from his parents. They had assisted him with organizing an apartment in Peterborough. He pawned a television set that his parents had loaned to him. The apartment his parents organized for him was damaged significantly leading to a mischief conviction. He was released on bail with his parents being his sureties when he breached a curfew restriction. His father had gone to Peterborough looking for Mr. Burtch, found him and requested that he return home, but the defendant refused to do so. Then, he ran away and was subsequently arrested in Wawa, Ontario with a stolen vehicle. He was sentenced to 30 days in jail in Sault Ste Marie for this offence. He did not turn himself in to the Peterborough Police after completing the sentence in Sault Ste Marie.

[ 8 ] Mr. Burtch went to Quebec for several months while outstanding warrants for his arrest remained in existence. This occurred in 2004.

[ 9 ] The defendant was subsequently released and again went missing and was unlawfully at large.

[ 10 ] Basically, although he was unlawfully out of custody, he did not surrender to the police. He attended home for special dates such as Mother’s Day, Father’s Day, Christmas, Easter. The years 2003-2007 cover much of the time Mr. Burtch was on the run.

[ 11 ] His parents had been no-deposit sureties when he breached his curfew and took off. They had attended court to request that they be relieved of their bail obligations. At this hearing, the parents acknowledged that the son told them to call him in, i.e. contact authorities to surrender the bail terms, so that they would not have to pay for his breach and his absconding.

[ 12 ] There is evidence that over the years leading up to the current charge Mr. Burtch has developed a use of drugs and associates with many persons who do so as well.

[ 13 ] There is evidence that Mr. Burtch has a tendency to lose his temper and become violent. The defendant was looking for his girlfriend, Amanda Smith, prior to the alleged stabbing of Mr. Hadwyn. He is reported to be a jealous person and was annoyed that Ms. Smith had an intimate event with Mr. Hadwyn. Mr. Burtch was reported to have approached the deceased with the express purpose of stabbing Mr. Hadwyn. His history of anger management problems is alleged to be evident with the death of Mr. Hadwyn.

THE FACTUAL BACKGROUND TO THE DEATH OF RODNEY HADWYN

[ 14 ] The defendant and deceased knew each other. The deceased is alleged to have had some sexual involvement with Amanda Smith. When Mr Burtch called Ms. Smith, a male person answered her cell phone, and this led to Mr. Burtch becoming very angry.

[ 15 ] The evidence is expected to indicate that Mr. Burtch was a person who used illicit drugs. His acquaintances were people who used illicit drugs as well.

[ 16 ] There are eyewitnesses to the stabbing of Mr. Hadwyn, who was seen to strike Mr. Burtch on the side of his head prior to Mr. Burtch stabbing Mr. Hadwyn.

[ 17 ] There was one stab wound to the chest of Mr Hadwyn who staggered and fell to the ground.

[ 18 ] Mr. Burtch denied the stabbing in his first statement and then in a second statement acknowledged that he had stabbed Mr. Hadwyn after a person jumped him.

FOUR PROPOSED SURETIES

[ 19 ] All of the proposed sureties are prepared to pursue the terms of release that are in a judicial interim release order. They all say that they would report James for any breach of the terms of the order. They understand that in addition to making sure that James attends court as required, any curfew imposed and additional terms, they may request additional terms. In a nutshell, the sureties assure the court that they will be vigilant in having James Burtch follow the terms of any release order as if they were firm parents who would brook no slack conduct by James. Family members often promise very extensive measures when assisting in getting the family member in trouble out of jail. They have the best of intentions to do so. However, the responsibilities of sureties can be onerous and imposing should the best laid plans of everyone go astray.

[ 20 ] Gregory and Christine Burtch are the defendant’s parents. They own their residence in Ennismore and have equity in their home to the extent of $100,000. Both are employed with modest incomes. They have served as sureties for their son in the past and are prepared to do so again.

[ 21 ] Christine and Gregory Burtch were the sureties when James Burtch ran away and was unlawfully at large for an extensive period of time. They requested the cancellation of the bail order in order that they would not have to pay money for their son when he breached his curfew and then absconded. Mrs. Burtch acknowledged in this hearing that they were told that they could not just ‘call-in’ their son and avoid the financial responsibility of being sureties automatically. Although they requested the cancellation of the bail order from the 2003 time period and did not have to pay money for their son’s breach, they realize that they could have been held financially responsible for his breach.

[ 22 ] The parents testified at this hearing that they believe their son will follow the terms of a court order releasing him from custody. They have faith in their son not to abscond. They are prepared to risk all of the equity in their home. Mr. and Mrs. Burtch expressed an understanding that if their son were to breach the terms of a judicial interim release order, they could not avoid being on the financial hook for perhaps all of the equity they have in their home. They would not be able simply to make a phone call and get out of having to pay perhaps all of the equity of their home.

[ 23 ] The parents believe that their son has matured since 2003 so that he would not be a hot-tempered young man who would act immaturely. They do not think he is a drug addict. Many comments that their son made to a probation officer several years ago during the preparation of a pre-sentence report were expressions by James of using drugs and committing offences, but the parents think James was enlarging on his unlawful conduct for the purpose of showing himself to be a tough person. Mrs. Burtch did not dispute that her son claimed many unlawful activities, including assaulting his school principal, but she did not think that James committed the claimed activities.

[ 24 ] Brianne Burtch is James’ sister. She is at home most of the time. She works one weekend a month at a farm as a stable hand. Her intention is to return to school in February of this year through night courses for courses in recreation and leisure. Brianne mentioned another possible course of study. She would be at home during the day until her parents would return from work after 3 o'clock in the afternoon.

[ 25 ] Brianne has $2,000 in the bank and has a $20,000 investment organized by her parents but she does not know details about the $20,000 investment. Her current employment earns her $12 per hour. Basically, she has a financial foundation that is very modest. She could not pay $85,000 to $100,000 if her brother were released and breached bail terms.

[ 26 ] Andrew O’Dette lives in the area of the parents’ residence and has provided work for James in the past. He has some woodcutting work and general labour work to basically keep James busy if he were out of custody. However, Mr. O’Dette works away from his home. His female partner has her business. There is no suggestion that he would monitor James as the parents and the sister of James propose to do; however, he would be with James while James is at his place doing any work for him. Mr. O’Dette does not have a plan that he proposes should James be released from custody. Further, Mr. O’Dette is not aware of the extent of any drug problem that James experiences.

[ 27 ] Mr. O’Dette has $100,000 equity in his property. He understands that if James Burtch were to breach bail terms, he and the other sureties would be liable for the money referred to in the bail order.

ANALYSIS OF THE APPLICATION

[ 28 ] With a first degree murder charge, an accused person has the task of demonstrating why he should not be kept in custody.

[ 29 ] Here, the Crown allegations indicate that the defendant was an angry and jealous man who went looking for Rodney Hadwyn because the deceased had a sexual encounter with Amanda Smith. He is alleged to have stated that he was going to stab Mr. Hadwyn. The Crown facts are that Mr. Burtch did find Mr. Hadwyn and did stab him once fatally. There are eyewitnesses to the stabbing.

[ 30 ] Mr. Burtch has a history of running away when out of custody. And he was not a fugitive for a short period of time. He was such a person for most of three years.

[ 31 ] His parents were sureties at the time Mr. Burtch failed to follow bail terms and absconded from the jurisdiction of the court.

[ 32 ] Today, the parents are the primary proposed sureties. They do not think that James is a drug addict. They think he has been a person who exaggerates some of his reputed past activities. Although he has a history of becoming angry and hitting the walls, he calms down. Mr. and Mrs. Burtch think that their son has matured.

[ 33 ] I think that the parents are expressing a considerable amount of wishful thinking when they downplay James’ drug involvement, his jealousy, and his anger management problems. The parents do not appear to know as much about their son as they express. I do not doubt that Mr. and Mrs. Burtch are very sincere in their proposals for their son’s release. However, they express hope for him to do what he is required to do. They might claim that they will not tolerate his conduct of the past, but that is what their position appears to have been back in 2003. They have so much faith in James that they are willing to risk their home by pledging up to the full amount of the equity in the residence. Christine and Gregory Burtch state that they know that they cannot simply make a call to cancel bail and avoid being called upon to pay up the amount of money pledged as sureties.

[ 34 ] In the past, the parents did not have control of their son’s activities. His history is one of being a person who has not been controlled for his own good.

[ 35 ] James Burtch faces the most serious of charges. I do not have faith that he will attend court as required. I think he is a flight risk. After the stabbing incident, which he acknowledges occurred, he tried to escape. He attempted to obtain help from others to do so.

[ 36 ] His history is that of a person who goes away from his problems until they catch up to him. The most natural way to perform such conduct with this charge of first degree murder is to abscond. His method of operation in the past was to tell his parents to ‘call him in’ meaning cancel his bail so that they did not lose any money. I am concerned that he would approach a judicial interim release order today in the same manner.

[ 37 ] There are eyewitnesses as well. Mr. Burtch knows who they are. He is alleged to have gone looking for Mr. Hadwyn for the express purpose of stabbing him because of some relationship the deceased had with Mr. Burtch’s girlfriend, Amanda Smith. Eyewitnesses saw the stabbing occur. If Mr. Burtch is a hot-tempered man who lets his emotions run his life, I have a concern for the safety of eyewitnesses. I have a further concern that Mr. Burtch might attempt to influence those persons to change their evidence and in effect to obstruct the administration of justice.

[ 38 ] The evidence presented indicates that Mr. Burtch has a drug problem. He appears to have had a drug problem for many years. Substance abuse does not stop in a heartbeat. Rather, intense efforts through drug treatment and counselling take a considerable amount of time. I have a concern that Mr. Burtch would be back to the use of illicit drugs upon release. He is reputed to have been a drug dealer as well. Those are activities that are more criminal actions.

[ 39 ] The secondary grounds for detention are made out.

[ 40 ] The tertiary ground for detention considers whether detention is necessary maintain confidence in the administration of justice. Here, the allegations are of a serious planned and deliberate murder in the presence of eyewitnesses. The alleged offence is one of violence with a knife. The potential penalty, if found guilty, is the most significant sentence that a court might impose in Canada. The Crown appears to have a strong case against Mr. Burtch. I feel that Mr. Burtch should be detained in order to maintain confidence in the administration of justice.

CONCLUSION

[ 41 ] James Burtch has not shown cause that he should be released on a judicial interim release order. The sureties do not assure me that they can control him.

[ 42 ] The primary, secondary and tertiary grounds are such that Mr. Burtch should be detained.

[ 43 ] There will be an order detaining James Burtch in custody.

Justice B.A. Glass

Released: February 2, 2012