COURT FILE NO.: CR-16-70000768

DATE: 20220606

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Raymond Burke

Defendant

Christine Jenkins and Sandra Duffey, for the Crown

Raymond Burke, in Person

Cynthia Fromstein, Amicus curiae

HEARD: March 23-25, April 8, 2022

REASONS FOR SENTENCE

NISHIKAWA j.

Overview

Procedural Background

[1] On November 5, 2021, following a judge-alone trial, Mr. Burke was convicted of the following offences under the Criminal Code, R.S.C. 1985, c. C-46,[^1] in relation to the complainant, Nicole Murdock:[^2]

• Count 1: Sexual assault with a weapon (knife), contrary to s. 246.2(a);

• Count 2: Assault with a weapon (knife), contrary to s. 245.1(1)(a);

• Count 3: Overcoming resistance to commission of an offence, contrary to s. 230(a);

• Count 4: Kidnapping with intent to confine, contrary to s. 247(1)(a);

• Count 5: Uttering a threat, contrary to s. 243.4(1)(a); and

• Count 6: Assault with a weapon (gun), contrary to s. 245.1(1)(a).

[2] Mr. Burke was also convicted of the following offences in relation to Angela English:

• Count 7: Sexual assault with a weapon (knife);

• Count 8: Kidnapping with intent to confine;

• Count 10: Assault with a weapon (knife);

• Count 11: Uttering a threat; and

• Count 12: Sexual assault causing bodily harm, s. 246.2(c).[^3]

R. v. Burke, 2021 ONSC 7342.

[3] The two incidents took place in September and October 1986. On September 18, 1986, Mr. Burke was arrested and charged after the incident involving Ms. Murdock. While on bail, in October 1986, Mr. Burke committed the offences against Ms. English. Shortly after that incident, Mr. Burke fled the jurisdiction for the United States. On October 28, 1986, a warrant in the first instance was issued for the alleged kidnapping and sexual assault of Ms. English.

[4] In January 1988, the Toronto Police Service (TPS) received information that Mr. Burke was arrested in Colorado. Mr. Burke was convicted of kidnapping, armed robbery and third degree assault and sentenced to 52 years in prison in Colorado. In 2015, Mr. Burke was released from custody and deported back to Canada. Upon his arrival, he was arrested by the TPS. In 2017, the charges against Mr. Burke were stayed under s. 11(b) of the Charter. This was reversed by the Court of Appeal in 2018. Mr. Burke was returned to custody.

[5] After rendering judgment, I granted Mr. Burke’s counsel’s request to be removed from the record. Mr. Burke has been self-represented since then. At multiple appearances, I confirmed Mr. Burke’s continued intention to represent himself. At an earlier stage of the proceeding, Cynthia Fromstein had been appointed amicus curiae and was present for the entirety of the trial. Ms. Fromstein continued in the role of amicus throughout the sentencing process and has provided Mr. Burke, and the court, with significant assistance.

[6] In addition, the Crown had indicated an intention to call evidence on the sentencing. On March 23, 2022, I conducted a “Gardiner” hearing under s. 742(3) of the Criminal Code. The Crown called the officer-in-charge, Inspector Katherine Stephenson, and Detective James Thompson as witnesses. Their evidence will be addressed in my consideration of aggravating factors.

The Missing Statement

[7] After judgment, Mr. Burke advised the court that he believed that the original statement given by Nicole Murdock was introduced in evidence in the Colorado proceeding. Mr. Burke expressed the belief that it contained exculpatory information that would be relevant to his sentencing. The sentencing hearing was scheduled to allow Mr. Burke sufficient time to obtain and review the documents. With amicus’ assistance, a request for records was made to the District Court, Mesa County, Colorado. A number of documents from the Colorado court file were sent to this court and provided to Mr. Burke. At Mr. Burke’s further request, a box of documents from the court file was sent to Ms. Fromstein. The sentencing hearing was adjourned to allow Mr. Burke to review the documents.

[8] Based on the transcript of the sentencing hearing before Judge Charles Buss of the District Court, Mesa County, Colorado on January 11 and 12, 1988, the following documents were entered into evidence at that hearing: (i) copies of the charges faced by Mr. Burke in Canada; (ii) the statement of Angela English; and (iii) the 1986 synopsis of charges relating to Nicole Murdock, which was referred to in my Reasons (the “1986 Synopsis”). During the course of the Colorado sentencing hearing, a “statement” or “affidavit” of Ms. Murdock was referred to, however, no such document was located. The document that was entered into evidence was the 1986 Synopsis. In other words, no evidence that was not already before this court was discovered.

[9] The entry of the above documents into evidence in the Colorado criminal proceeding is relevant to the issue raised by amicus that pursuant to s. 11(h) of the Charter, Mr. Burke must not be punished twice for the same offence, and will be addressed further in these reasons.

The Circumstances of the Offences

[10] The circumstances of the offences are described in detail in my Reasons. I will reiterate only the most salient aspects here, as they relate to the appropriate sentence.

[11] At the time of the offences, Ms. Murdock and Ms. English were both young sex workers. Ms. Murdock was 22 years old. Ms. English was 17 years old. On separate occasions, Mr. Burke transacted with each of them for sexual services. Once they were in his vehicle, he confined them, threatened them and assaulted them in order to maintain control over them. He sexually assaulted both of them repeatedly and forcibly. He ignored their repeated pleas to stop assaulting them and to be let go. Both were subject to abusive and demeaning tirades from Mr. Burke.

[12] Certain aspects of the assaults were particularly degrading and terrifying to the two women. Mr. Burke threatened to kill Ms. Murdock, to drain her blood in the bathtub and dispose of her remains in a garbage bag. He choked her to the point of unconsciousness. Ms. Murdock was later forced to walk in the dark, while naked, into a field in a remote area, at which point Mr. Burke shot a gun. Ms. English was hog-tied and kept in the sleeper compartment of Mr. Burke’s truck. She was also tied to a tree, whipped and sexually assaulted. In both cases, Mr. Burke whipped the victims with a belt or strap. He also brandished a knife to threaten them and to secure their compliance with his demands.

[13] Each incident continued over hours. Ms. Murdock was held from the evening until the next morning. She eventually negotiated and bargained for her freedom. Ms. English was held for almost a day. She was so desperate to escape Mr. Burke that she jumped out of his moving vehicle on Highway 401.

The Circumstances of the Offender

The Pre-Sentence Report

[14] A pre-sentence report (PSR) was ordered and was completed on January 20, 2022. Raymond Burke was born in British Columbia, where he lived with his family until he was 16 years old. Mr. Burke attended three years of a four-year university program in Toronto. He worked as a truck driver for approximately six years, and owned his own truck.

[15] Mr. Burke was the youngest of three children. Mr. Burke described his familial relationships as “fine” but also reported being hit by his father often and without reason. His sister left the home at the age of 14 and Mr. Burke left to live with her when he was 16 years old. Mr. Burke had a tumultuous relationship with his brother, who was involved in crime and who introduced Mr. Burke to individuals involved in criminal activity. Mr. Burke has no contact with any immediate or extended family members.

[16] Mr. Burke was in a common-law relationship for approximately five years and had a son, with whom he had no contact or relationship. Mr. Burke had other relationships with women and denied any physical violence in those relationships. In the course of assisting Mr. Burke to make arrangements to leave his assets to his son, amicus discovered that he had died at the age of 20.

[17] Mr. Burke reported no past or current issues with alcohol or other substances.

[18] Mr. Burke reported being targeted and victimized by the criminal justice system. He denied involvement in many of the offences on his record and minimized the effect his actions might have had on others. Mr. Burke “categorically denied committing the offences for which he is being sentenced and described the victims as lying to the Court.” The PSR reports that Mr. Burke “regularly used disparaging terms when speaking about women in general and presented as callous when speaking about sex trade workers.” Mr. Burke stated: “I’m capable of showing remorse but cannot show remorse for something I didn’t do.”

[19] The writer of the PSR reviewed records from the TPS, including information received from the Colorado Correctional Services where Mr. Burke was incarcerated for 27 years. Incidents of misconduct, including verbal and physical aggression toward inmates and custodial staff, were reported. Mr. Burke also attempted to escape from prison in Colorado. Ministry of the Solicitor General Records reviewed by the writer show three misconducts during the remand period.

[20] While Mr. Burke reported participating in many programs while in custody in the U.S., the records do not reflect this. For reasons that are unclear, further consultation and/or assessments that were necessary for anger management programming and to determine whether substance abuse treatment was required did not take place. Mr. Burke remained on a waitlist for treatment for sexual offending behaviours.

[21] The Colorado records do not reflect any mental health diagnosis. During the most recent period of detention, Mr. Burke met with a psychologist for a total of six sessions from October 2020 to February 2021. Mr. Burke initiated the contact and advised of a previous diagnosis of agoraphobia. Mr. Burke was briefly placed on suicide watch in February 2021, but after he was seen by a psychiatrist, he was not diagnosed with any acute mental health issues. The suicide watch was ended the next day.

[22] In 2017-2018, when the charges were stayed on his s. 11(b) application, Mr. Burke was in the community for approximately 13 months. During that time, he reported regularly to his supervising officer, Detective Constable Scott Peters of the TPS. DC Peters recalled that Mr. Burke communicated well and did not incur any new charges during this period. However, based on his past offending behaviours and the serious nature of the current offences, DC Peters advised that there would be significant concerns should Mr. Burke be supervised in the community. Mr. Burke also received support from Circles of Support and Accountability. The employee with whom Mr. Burke had contact described him as friendly and cooperative. After several months of interaction, the agency eventually lost contact with Mr. Burke.

[23] The complainants, Nicole Murdock and Angela English, were also interviewed for the PSR. Their comments will be addressed in the next section.

[24] The writer of the PSR made the following observations in respect of Mr. Burke:

• He has a lengthy criminal history that includes convictions for serious offences including kidnapping, aggravated robbery, attempted rape, robbery and escape from lawful custody. From 1972 to 1988, he re-offended in a steady manner until receiving a lengthy sentence in the U.S.

• He re-offended while on parole in Vancouver in 1982 and violated parole on two occasions by incurring new charges. He breached the terms of his bail when he absconded to the U.S. His record shows more than one incidence of escaping lawful custody, in both Canada and the U.S. The only positive indication is the period during which Mr. Burke was in the community in 2017-2018.

• Mr. Burke is being sentenced for offences of a very serious nature. The pool of potential victims is large. The victims were young and vulnerable and were unknown to him.

• He lacks skills to deal with anger management. Mr. Burke was quick to anger, including with the writer, prone to placing blame for his outbursts on others. Although anger management and sexual offending were identified as requiring attention, he received no specific programming to address either.

• He lacks familial and professional supports in the community. As long as Mr. Burke denies committing the offences, certain supports will be unavailable to him.

• Full psychiatric and sexological assessments are required to determine what factors exist that would place him at risk of re-offending.

Mr. Burke’s Statement

[25] Mr. Burke did not testify or adduce evidence on sentencing.

[26] At the sentencing hearing, Mr. Burke chose to make a statement after submissions from the Crown and amicus. Mr. Burke detailed the period during which he was released after the stay of proceedings was ordered in May 2017 and until he was re-arrested in 2018. Mr. Burke initially stayed in a men’s hostel but had to leave for his own safety because of a news story about him. He lived in his car for two months and received welfare. He eventually secured an apartment and worked part-time as a mover and in construction. Mr. Burke regularly reported to DC Peters, with whom he had a good rapport and who helped him a great deal. Mr. Burke continued to report to DC Peters after his peace bond lapsed.

[27] Mr. Burke said that he did not know how to cope with freedom after 35 years in jail. He stated that his long-term memory suffered and that he has “mental scars” from his incarceration. Mr. Burke stated that the victim’s accounts of the 1986 assaults have “shocked [his] 2022 conscience” and that his 70-year old self “has great difficulty coming to terms with the details of the crimes the court has found me guilty of at age 33.” He struggles to reconcile the “monster” of 1986 with his present-day self. Mr. Burke expressed the hope that the finding of guilt “will help women everywhere to win their struggle against the men who abuse them.” Mr. Burke stated that for the rest of his life, he will atone for his shortcomings and champion women willingly and sincerely.

Victim Impact Statements

[28] Both victims provided victim impact statements. I would note that rather than to dwell on the negative impact of Mr. Burke’s attacks on them, both women chose to focus on how they have been able to overcome the incidents. This is not surprising, given the length of time that has passed. This does not, in my view, negate the profound impact of the offences on both women. Both women had testified to some of those damaging effects during the trial.

Nicole Murdock

[29] In her statement,[^4] Ms. Murdock stated that after the incident, the “emotional torture continued for 36 years.” Ms. Murdock described having flashbacks and how the thoughts she had suppressed resurface, for example, when she hears a gunshot in a movie. She reacts aggressively when someone touches her neck. Ms. Murdock described how difficult it was to testify because “to tell our story in the most authentic way we must unfortunately relieve it.”

[30] Ms. Murdock now has a partner, grown children and grandchildren. Ms. Murdock stated that she has been able to have a family and a “wonderful life” because she decided not to let the incident control her. In fact, for 36 years, she never spoke of the incident. As a result of the trial proceeding, Ms. Murdock disclosed the incident to her children for the first time, and described the pain of having to tell them, an experience that “will never leave [her] soul.”

Angela English

[31] In her statement, Ms. English expressed that Mr. Burke took years away from her and left her with significant trauma. After the incident, she lost sight of her dreams, hopes and goals and stopped going to school. She lost a modelling contract because of the injury to her foot. She felt unsafe and dove into a life of addiction to mask the pain. At trial, Ms. English had testified that she used a lot of drugs over a period of approximately ten years to try to block out what Mr. Burke had done to her. In her statement, Ms. English stated that she was unable to trust and, as a result, had unhealthy relationships. She struggles to leave the house and cannot be around a lot of people. She experiences PTSD on the anniversary of the incident, which manifests as anger and moodiness. Ms. English has had a lot of counselling. Like Ms. Murdock, Ms. English expressed her pride at having been able to overcome the negative impact of the events.

Analysis

The Parties’ Positions

[32] The Crown seeks a global sentence of 24.5 years’ incarceration minus credit for pre-sentence custody of 6 years and 11 months (Summers credit) and an additional 6 months for harsh conditions during the pandemic (Duncan credit), leaving a sentence of 16 years and 7 months. The Crown also seeks a DNA order and a lifetime weapons prohibition under s. 109 of the Criminal Code.

[33] Mr. Burke did not make submissions as to the appropriate sentencing range. During the course of the sentencing hearing, Mr. Burke made various statements, which ranged from maintaining his innocence to stating that he would accept any sentence the court ordered, including life imprisonment. For the purposes of certainty, I have disregarded Mr. Burke’s statements that he would accept any sentence the court ordered.

[34] Amicus submits that the sentence proposed by the Crown is excessive, and that a more appropriate sentencing range, in view of all the applicable principles and relevant circumstances, is 10 to 14 years before deducting pre-sentence custody. Amicus further submits that other penalties, such as a peace bond under s. 810, probation, and conditions including counselling, treatment and rehabilitative programs would be appropriate.

The Principles of Sentencing

[35] In determining an appropriate sentence, I must consider the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[20] Pursuant to s. 718.1 of the Criminal Code, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 40.

[36] The sentencing judge must also have regard to the following:

• any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv) of the Criminal Code;

• the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b));

• the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and

• the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

[21] The principles of parity and individualization mandate that a sentence must both be similar to sentences imposed on similar offenders for similar offences and highly individualized: s. 718.2(b); R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 29.

[37] In terms of the principle of totality, in R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.), the Court of Appeal stated that when sentencing an offender on multiple counts with multiple victims, the correct approach is for the sentencing judge to identify at the outset the gravamen of the conduct giving rise to the criminal offences and the total sentence to be imposed. The judge should then impose sentences for each offence which result in the total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In doing so, the judge will have to consider the appropriate sentence for each offence but also whether, in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed. See also: R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314.

Aggravating and Mitigating Factors

Aggravating Factors

[38] In this case, there are a number of aggravating factors. Section 718.2(ii.1) expressly lists as an aggravating factor evidence that the offender, in committing the offence, abused a person under the age of eighteen years. Ms. English was a child of 17 years old. While s. 718.2(ii.1) does not apply to Ms. Murdock, who was 22 years old, she was also relatively young.

[39] Second, both women were engaged in street-level sex work at the time and were thus very vulnerable. Sentences must emphasize denunciation and deterrence to protect vulnerable sex workers from victimization: R. v. R.(D.), 2004 BCSC 336, [2004] B.C.T.C. 336, at para. 91.

[40] I note that in finding Ms. English’s age to be an aggravating factor in this case, I reject amicus’ submission that the impact of Ms. English’s age is attenuated because she was 17 years old and engaged in sex work. Ms. English was no less vulnerable or subject to harm: See R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 74-86. Similarly, she did not assume the risk of harm by engaging in sex work and is no less worthy of protection: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 201.

[41] Third, both victims testified to being terrified during the kidnappings and sexual assaults. Both believed that Mr. Burke might kill them. Both testified to experiencing significant and ongoing trauma as a result of the offences. Their testimony and victim impact statements reflect the profound and persistent impact of the offences on them.

[42] Fourth, both victims were kidnapped for a prolonged period of time and were subject to multiple gratuitous and degrading acts of sexual violence. Ms. English was hog-tied, which was particularly degrading, uncomfortable and put her in a vulnerable position. Ms. Murdock was choked to the point of unconsciousness. Choking has been found to be an inherently dangerous act that is easily capable of causing death or brain injury. Choking is “an act of cruel domination met by sheer horror and often accompanied by serious physical and psychological harm.” R. v. Lemmon, 2012 ABCA 103, 524 A.R. 164 at para. 28.

[43] Fifth, the nature of sexual assaults is an aggravating factor. Mr. Burke was convicted of one count of sexual assault with a weapon in respect of each victim. He also repeatedly, without a condom, forced oral, vaginal and anal intercourse on them. The circumstances were also demeaning – Ms. English was raped on the side of a highway and while tied to a tree in an open field. Mr. Burke used weapons, violence and threats of death to secure their compliance.

[44] Sixth, Mr. Burke caused visible physical injuries to both Ms. Murdock and Ms. English. Ms. Murdock had markings on her neck, chest and buttocks. Ms. English had bruises and markings on her buttocks and legs. Ms. English also suffered a broken bone in her foot when she jumped from the moving car.

[45] Seventh, Mr. Burke used a knife in the course of kidnapping both victims. In addition, Mr. Burke shot a gun after he told Ms. Murdock to walk forward in a field. The use of a knife and gun are aggravating factors because they posed a particular threat to the victims’ safety: R. v. Kavinsky, 2017 ONSC 3792, at para. 28.

[46] Eighth, Mr. Burke committed the offences against Ms. English while on bail for the charges relating to Ms. Murdock. He then absconded from the jurisdiction in order to obstruct the criminal justice process. As a result, Ms. Murdock and Ms. English both had to wait for over 35 years for a trial. Ms. Murdock’s statement reflects how difficult it was to recount the offences, so many years after the offences took place.

[47] Ninth, Mr. Burke has a significant criminal record that predates these offences. He has a prior conviction for attempted rape in April 1982. He also has a prior conviction for escaping lawful custody in May 1983, which predates his escape to the United States.

The Gardiner hearing evidence

[48] The Gardiner hearing related to evidence of Mr. Burke’s behaviour toward Ms. Murdock and Ms. English after judgment was rendered, when they were exiting the courtroom. The Crown submits that Mr. Burke’s conduct toward them is an aggravating factor.

[49] The Crown must prove beyond a reasonable doubt facts that it intends to rely upon for the purposes of sentencing.

[50] At the hearing, Inspector Stephenson testified that after judgment was rendered, and after the court had adjourned, she started to make her way out of the courtroom. Ms. Murdock and Ms. English, who were both present, also started to move toward the exit of the courtroom. Mr. Burke, who was standing in the prisoner’s box, yelled racial slurs at his former counsel. Inspector Stephenson attempted to put herself between Mr. Burke and Ms. Murdock and Ms. English in order to block his view of them. She observed Mr. Burke turn toward the courtroom exit and yell in the two victims’ direction. Inspector Stephenson did not recall the precise words but testified that Mr. Burke called them “whores” and stated that he wished they got COVID and that they would die from it. Both women were still in the courtroom when the statements were made. Inspector Stephenson described Mr. Burke as upset, angry and agitated, and that his voice was raised. Inspector Stephenson further testified that both Ms. Murdock and Ms. English were visibly upset by Mr. Burke’s comments. On cross-examination by Mr. Burke, Inspector Stephenson admitted that she did not recall his precise words, and it was possible that he said “witches” as opposed to “whores.”

[51] Detective James Thompson was also present in the courtroom when judgment was rendered. He described Mr. Burke as agitated and raising his voice. Detective Thompson also heard Mr. Burke direct derogatory and racist terms at his former counsel. He testified that Mr. Burke called Ms. Murdock and Ms. English “whores” and said that he hoped they got COVID. Detective Thompson, who had also tried to position himself between Mr. Burke and the two women, testified that Mr. Burke was looking past him and directing his comments at them. On cross-examination by Mr. Burke, Detective Thompson disagreed that Mr. Burke directed his comments at the officers. He maintained that Mr. Burke called Ms. Murdock and Ms. English “whores” as opposed to “witches.”

[52] In their victim impact statements, Ms. Murdock and Ms. English both describe the impact of Mr. Burke’s outburst on them. It reminded them of the anger, hate and intimidation that he directed at them during the commission of the offences. Ms. English’s statement reflects that Mr. Burke’s outburst triggered feelings of being held captive and being degraded by him.

[53] Because the incident took place after court adjourned on November 5, 2021, the transcript of the hearing does not include the interaction at issue. During the hearing that day, after judgment was rendered, Mr. Burke made various comments disputing the decision that are recorded in the transcript.

[54] The Crown submits that Mr. Burke’s courtroom conduct breached the s. 515(12) order made on July 12, 2018, pursuant to which he was to have no contact with the victims while in custody during the entire court process.

[55] Amicus submits that Mr. Burke’s conduct should not be treated as an aggravating factor on sentencing, and that the court should take into consideration the impact of the judgment on Mr. Burke’s mental and emotional state.

[56] The evidence of the two officers was not significantly undermined on cross-examination. I find that the Crown has demonstrated beyond a reasonable doubt that Mr. Burke had an outburst in the courtroom after the court had adjourned for the day and that he used racist language. I find that he called the two victims “whores” and that he expressed the wish that they got COVID. Given that the officers do not recall Mr. Burke’s exact words after making reference to COVID, I am not satisfied beyond a reasonable doubt that he said that he hoped they would die from COVID.

[57] While I find that Mr. Burke engaged in inappropriate and unacceptable behaviour toward the victims, I am not convinced that it ought to be considered an aggravating factor on sentencing. I accept that Mr. Burke’s outburst was a reflection of the significant emotional and mental strain of receiving the judgment. I do not condone Mr. Burke’s outburst in any manner, and my findings should not be taken as suggesting that his response was in any way reasonable or acceptable. However, when Mr. Burke had the outburst, he had just been found guilty of multiple serious offences, after a lengthy criminal process. I also note that this was at the height of the pandemic, when conditions in the institution were particularly harsh.

[58] I do not minimize the impact of Mr. Burke’s outburst on Ms. Murdock and Ms. English. I accept that it was shocking and upsetting. Moreover, nothing in my reasons should be taken as condoning Mr. Burke’s behaviour in any way. Intimidating or attempting to intimidate the victims, who were witnesses at trial, is improper and unacceptable. In testifying, they have discharged a weighty and difficult task essential to the functioning criminal justice system. They ought not to be subject to further abuse as a result of having come forward to testify. Similarly, shouting racist terms at one’s counsel, or anyone, is abhorrent conduct and has no place in a courtroom or anywhere else.

[59] Mr. Burke’s conduct is indicative of a lack of remorse and a lack of respect for court orders. For the purposes of clarity, I do not consider Mr. Burke’s lack of remorse to be an aggravating factor, rather, it is the absence of a mitigating factor. Mr. Burke’s language demonstrated a continued lack of empathy for the victims and disdain for them as former sex workers. This behaviour was consistent with the observations in the PSR that Mr. Burke used disparaging terms when speaking about women in general and was “callous” when speaking about sex trade workers. Mr. Burke’s behaviour also speaks to his prospects for rehabilitation and whether he would pose a threat if released into the community. Mr. Burke’s conduct demonstrates that he continues to have difficulty with self-regulation in the face of challenge, particularly in controlling his impulses and managing his anger and behaviour. This was apparent multiple times during the trial.

Mitigating Factors

Age and health

[60] Amicus submits that Mr. Burke’s age and health are mitigating factors on sentencing. Amicus submits that the average life expectancy of a person in prison is 60 years old, as opposed to 82 years for the average Canadian.[^5] Mr. Burke is 69 years old.

[61] I find Mr. Burke’s age to be a mitigating factor. Moreover, Mr. Burke’s ability and inclination to commit similar offences in the future is likely to be more limited as a result of his age.

[62] During the course of the hearing, Mr. Burke made reference to various medical concerns. However, no specific diagnosis is in evidence before me. Nor has Mr. Burke led any evidence demonstrating that he cannot receive adequate treatment in custody. Under the circumstances, Mr. Burke’s health is not a mitigating factor: R. v. S.(H.), 2014 ONCA 323, 308 C.C.C. (3d) 27, at para. 38.

Passage of time

[63] The Crown submits that the passage of 35 years since the offences is not a mitigating factor in this case.

[64] The Court of Appeal, quoting the Alberta Court of Appeal’s decision in R. v. Spence, 1992 ABCA 352, 131 A.R. 301, at para. 10, has held that “the lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation”: S.(H.), at para. 53. The Court went on to find that the only sentencing principles which may be affected by the passage of time are individual deterrence and rehabilitation, for example, where a defendant has gone on to live an “exemplary life” and is remorseful when eventually faced with their earlier conduct. See also R. v. W.W.M.(W.W.) (2006), 2006 CanLII 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A.), at paras. 21-23.

[65] Deliberate acts to evade detection weigh against assigning a mitigating impact to the fact of delay: R. v. Critton, 2002 CanLII 3240 (Ont. S.C.), at para. 76. To do so would be to allow offenders to benefit from avoiding prosecution and would bring the administration of justice into disrepute.

[66] In this case, the 35-year lapse was caused by Mr. Burke’s flight to the U.S. and his subsequent commission of offences and incarceration there. Those events demonstrate that Mr. Burke has not lived an exemplary life since he committed the offences against Ms. Murdock and Ms. English in 1986. Throughout the hearing, Mr. Burke continued to minimize his conduct and the impact of the offences on the two victims. Until the last day of the sentencing hearing, Mr. Burke did not accept responsibility for his actions and demonstrated no remorse. There has been no rehabilitation. The need for denunciation and general and specific deterrence remain. As a result, I find that the passage of 35 years has no mitigating effect.

[67] I note that there is a period of delay which is not entirely attributable to Mr. Burke, the period between April 2017 and May 2018 when the charges were stayed and Mr. Burke was released into the community. The delay in the criminal proceeding during that time was not because of Mr. Burke’s flight but because of a decision of this court.

Behaviour during release

[68] Mr. Burke and amicus submit that his behaviour during the 13-month period when he was released from custody in 2017-2018 should be considered a mitigating factor. During that time, Mr. Burke reported to DC Peters, sought support from a community organization, and did not engage in any criminal behaviour. He also secured a residence and employment. Mr. Burke has indicated a willingness to seek support from a probation officer or social worker, and a willingness to be subject to a s. 810 order if he is released.

[69] While I acknowledge that Mr. Burke was compliant and able to avoid further criminality while on release in 2017-2018, I find that this conduct is of minimal mitigating effect. The period during which Mr. Burke was in the community was relatively brief, in comparison to his long criminal history. In my view, Mr. Burke’s conduct during that period of time is insufficient to find that he has gained an ability to control his anger or any insight into his behaviour. This was evidenced by Mr. Burke’s outburst in the courtroom, which raises concerns about his ability to self-regulate when challenged, his attitude towards women, and his respect for authority and court orders.

Recent publicity

[70] Amicus submits that after the publication ban was lifted, Ms. Murdock and Ms. English appeared on a television news segment where Mr. Burke’s photograph was shown and he was referred to as a “serial rapist.” Amicus submits that the segment could have easily been viewed by inmates at his current institution or inmates of a penitentiary, raising the prospect of danger or other negative consequences. At his age, Mr. Burke could be particularly vulnerable to such actions.

[71] The Crown submits that the segment appeared on the news as part of the open and transparent court process, and that it was not inflammatory. The Crown submits that Mr. Burke’s sentence should not be reduced because of the hypothetical possibility that someone in the institution saw the news segment and would engage in vigilantism against Mr. Burke.

[72] While it is within the court’s discretion to find that publicity is a collateral consequence relevant to the sentencing process, in this case it is impossible to assess what, if any, actual harm could arise as a result of the reporting: R. v. Fawcett, 2019 BCPC 125, at paras. 87-94. As a result, I do not consider the recent publicity to be a mitigating factor.

“Duncan” Credit

[73] Mitigation can also be given on account of particularly difficult and punitive pre-sentence custody conditions, including extended time spent on lockdown and lack of access to facilities. In determining whether any enhanced mitigation should be given, the court may consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused: R. v. Duncan, 2016 ONCA 754, at paras. 6-7. In R. v. Marshall, 2021 ONCA 344, at para. 50, the Court of Appeal found that the “very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a ‘Duncan’ credit.”

[74] The Duncan credit, however, is not a deduction from an otherwise appropriate sentence, but one of the factors to be taken into account in determining the appropriate sentence: Marshall, at para. 52. Quantifying the Duncan credit in the same manner as the “Summers” credit for pre-sentence custody, which is dealt with further in these reasons, might improperly skew the calculation of the ultimate sentence: Marshall, at para. 53.

[75] The parties submitted an Agreed Statement of Facts, which states that Mr. Burke was in segregation on two occasions for misconduct during his pre-sentence custody: (i) on December 9, 2020 for eight days; and (ii) on October 29, 2015 for nineteen days. During the remaining periods, Mr. Burke was housed in segregation at his own request or at the discretion of the Toronto South Detention Centre (“TSDC”) due to his personal circumstances. There was a total of 780 lockdowns at the TSDC during the relevant time period, although many were partial days. The lockdowns were mainly due to staff shortages.

[76] The Crown does not dispute that the conditions at TSDC during the pandemic have been particularly harsh, and that the lockdowns created stress and anxiety for Mr. Burke. The Crown notes, however, that Mr. Burke was often in segregation at own request. The Crown submits that in the circumstances, an additional credit of six months would be appropriate.

[77] Consistent with the approach mandated by the Court of Appeal in Marshall, I decline to attribute a specific number of months to account for the particularly harsh conditions, resulting from COVID-related lockdowns, to which Mr. Burke was subject at the TSDC. Rather, I have taken it into consideration as a mitigating factor in arriving at the total sentence.

The Appropriate Range

[78] Subsection 11(i) of the Charter states that any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[79] The Crown provided a table comparing the punishment under the Criminal Code provisions in force at present to those in force in September to October 1986. For all of the offences for which Mr. Burke was convicted the maximum punishment has remained the same:

• Choking – life

• Utter threat – life

• Assault – 5 years

• Assault with a weapon or causing bodily harm – 10 years

• Sexual assault with a weapon or causing bodily harm – 14 years

• Kidnapping – life

[80] As stated above, sentencing is a highly individualized matter. I have considered all of the cases referred to by the Crown and amicus and have compared them to the facts of this case for purposes of addressing the parity in sentencing principle. The cases that I found to be the most similar are set out below:

• R. v. Sylvester, 2014 ONSC 2838, aff’d 2019 ONCA 900, the court imposed a 20-year sentence after the offender pleaded guilty to rape of a 14-year-old girl and carrying a weapon for a purpose dangerous to public peace in 1981; and sexual assault with a weapon, robbery, forcible confinement, and threatening death against a 53-year-old woman in 1993. The offender was 58 years old at the time of sentencing. His cold case was re-opened and he was found in prison in Pennsylvania, having spent most of the last 30 years in prison for various offences.

• In R. v. Last, 2008 ONCA 593, 91 O.R. (3d) 561, the Court affirmed a 27-year sentence for aggravated sexual assault, sexual assault, overcoming resistance, and breaches of undertakings with respect to two victims. The offender threatened the first victim with a firearm and choked and raped her. He knocked the second victim unconscious at her own apartment where he then raped her.

• In R. v. M.(W.E.J.), 2009 ONCA 844, 256 O.A.C. 207, the offender was designated a long-term offender and sentenced to 14.6 years in prison and 10 years supervision in the community after pleading guilty to two counts of aggravated sexual assault and overcoming resistance by choking. While on a peace bond, the offender raped a sex worker who refused to provide services, choking her with a cloth belt; and nine days later he punched in the face, choked with a bandana, and raped a different woman who identified herself as a former sex worker. The offender had an extensive criminal record of sexual offences. The offender was Indigenous and had fetal alcohol spectrum disorder.

• In R. v. Richards, 2016 ONSC 2940, the offender was sentenced to 7 years for unlawful confinement and assault of a pregnant sex worker and for sexual assault with a weapon, unlawful confinement, dangerous driving, threatening death, and mischief in relation to another sex worker. On each occasion the offender picked up the victim and refused to let them leave after they asked to be paid upfront. For the second victim, he punched her head, slashed her body with the dull side of a knife and threatened to kill her while raping her. She fled out of his moving car. The offender had no criminal record.

[81] The following cases involved a single victim:

• In R. v. Kavanagh, 2009 ONCA 759, 255 O.A.C. 285, the Court of Appeal imposed a sentence of 10 years minus 2 years of pre-sentence custody for sexual assault with a weapon, unlawful confinement, and robbery where he raped, without a condom, a convenience store clerk working alone at night by locking the store door and forcibly taking her to a back room while threatening her with a knife.

• In R. v. M.(R.), 2020 ONCA 231, 150 O.R. (3d) 369, the offender was sentenced to 8 years for a gang sexual assault, sexual assault with a weapon, uttering threats, and robbery against a 21 year-old sex worker in 1990. The offender was 17 years old at the time, he grabbed the victim with another man and they raped her at knifepoint repeatedly, stole $500, and fled. The offender was charged in 2014.

• R. v. Themeliopoulos, 2021 ONSC 7059, the offender was sentenced to 8 years, less pre-sentence custody of four years and five months. He punched, choked, tied and sexually assaulted the complainant, whom he contacted for sexual services.

• In R. v. Assing, 2008 CanLII 58607 (Ont. S.C.), the offender was sentenced to 9 years minus 5.5 years for pre-sentence custody for sexual assault with a weapon, robbery, and unlawful confinement of a 43-year-old woman walking through a forested park near her home. He forced her to an empty house at knifepoint, tied her up and raped her twice while hitting and punching her throughout for a total of 3.5 hours.

• In R. v. Clancy, 2009 CanLII 34779 (Ont. S.C.), the offender was sentenced to 18 years with concurrent sentences for assault, sexual assault, sexual assault with a weapon, attempted choking, and threatening death against a 16-year-old girl in 1988. The offender dragged the victim behind a fence, punched her, choked her with his belt, removed her clothes and raped her while threatening to kill her if she screamed. A DNA warrant was executed in 2008. The offender already had a dangerous offender designation.

• In R. v. Gillis, 2009 ONCA 312, 248 O.A.C. 1, the offender was received a global sentence of 12.5 years minus 2.5 years for pre-sentence custody for sexual assault with a weapon, unlawful confinement, and theft under $5000 in which he convinced the 15-year-old victim to drive with him to a secluded area where he bound her hands and raped her at knifepoint 14 times over a 10-hour period. The offender had 27 prior convictions.

• In R. v. Brown, 2020 ONCA 657, 152 O.R. (3d) 650, the offender was sentenced to 12 years for the aggravated sexual assault of a random woman who was walking home at night from her restaurant job. He stalked her while extremely drunk, then attacked her by shaking her neck and smashing her head on rocks, choked her unconscious and raped her.

[82] A number of the cases relied upon by amicus differed from the factual circumstances of this case because they did not involve kidnapping or prolonged forcible confinement, or the entire sentence related to a single victim: R. v. Blake, 2020 ONSC 5658; R. v. Kane, 2011 BCSC 345; R. v. R.(D.), 2004 BCSC 336; R. v. Sidhu, 2005 BCCA 308, 213 B.C.A.C. 185.

[83] Based on the foregoing case law, I find that the appropriate sentencing range is from 16 to 21 years.

The Totality Principle

[84] As noted above, under the principle of totality, where consecutive sentences are imposed, the combined sentence should not exceed the overall culpability of the offender: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42. An unduly harsh or excessive sentence may frustrate the goals of the sentencing process and cause confidence in the fairness and rationality of the sentencing process to deteriorate: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 20. At the same time, a sentence should not be overly lenient or unresponsive to other principles underlying the sentencing regime and an offender “ought not to be seen to be reaping benefits from his previous serious criminal misconduct.” R. v. Johnson, 2012 ONCA 339, 291 O.A.C. 350 at para. 23.

[85] The court must balance the need to protect the integrity of the sentencing process against the recognition that “there will be situations where, globally speaking, a combined sentence will simply be too harsh and excessive.” R. v. Johnson, at para. 24.

Was Mr. Burke Already Punished for the Offences?

[86] Amicus submits that Mr. Burke has already been punished for the offences against Ms. Murdock and Ms. English because the Colorado court took their allegations into consideration when sentencing him in that proceeding. Amicus submits that under s. 11(h) of the Charter, Mr. Burke has a right not to be resentenced for the same offences.

[87] The Crown submits that Mr. Burke was not punished for the offences against Ms. Murdock and Ms. English. The Crown’s position is that taking the lengthy Colorado sentence into consideration would be akin to rewarding Mr. Burke for having absconded and committed other offences in the U.S.

[88] Section 11(h) of the Charter states that any person charged with an offence has a right, if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again. In R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, at para. 21, the Supreme Court of Canada identified the following two routes by which a sanction could meet the criteria of punishment: (i) if, by its very nature, it is a criminal proceeding; or (ii) if a conviction in respect of the offence may lead to true penal consequences. Mr. Burke bears the burden of establishing on a balance of probabilities that he has already been punished for the offences.

The Colorado Proceeding

[89] In January 1988, Mr. Burke was convicted by a Colorado court of kidnapping in the second degree, aggravated robbery, and third-degree assault. The court found that on January 20, 1987, Mr. Burke approached a woman after driving into an alley behind her home. Mr. Burke grabbed the victim and choked her with his hands. The victim struggled against Mr. Burke, who told her it was a robbery. Mr. Burke then put the victim in his car. The victim refused to get on the floor in front of the passenger seat. When Mr. Burke went to retrieve the victim’s purse, she was able to put the car in motion but, because of ice, was unable to drive away. Mr. Burke got in the car and threatened to get a knife. He then produced a crowbar from under the seat. The victim grabbed the crowbar and eventually managed to open the passenger door. Mr. Burke hit and choked the victim with his hands. The victim continued to struggle until another vehicle came. Mr. Burke then fled.

[90] The judge sentenced Mr. Burke to 32 years for kidnapping and 20 years for aggravated robbery, for a total of 52 years. A 24-month sentence for third-degree assault ran concurrently. Under the applicable laws, Mr. Burke was sentenced to an aggravated range on the kidnapping and robbery counts, which had mandatory minimum sentences of 24 years and 16 years respectively. The range of sentence for kidnapping was 24 to 48 years; the range of sentence for robbery was 16-32 years. Because Mr. Burke was found guilty of two felonies, the judge was required by law to impose consecutive sentences.

[91] The transcripts of the Colorado proceeding show that the statement of Ms. English and the 1986 Synopsis in relation to Ms. Murdock were, against the defence’s objection, admitted into evidence on the sentencing hearing. While the judge admitted the documents, he stated that he did not think he could give much weight to them because they related to charges, as opposed to convictions, and because of the presumption of innocence: “So, they are admitted but I may limit how much they influence me in the sentence I impose.” The judge nonetheless found that “the community would be greatly endangered and other women greatly endangered by Mr. Burke if he were to remain free, or on probation or some other sort of sentence where he was not confined to a strictly and closely guarded penal institution.”

[92] According to the transcript, the Colorado judge considered the following factors as relevant to the appropriate sentence: specific deterrence and protection of the community; the offence at issue was unprovoked and had a serious impact on the victim; the absence of remorse; Mr. Burke’s lengthy criminal record, including offences that would be considered felonies; the fact that he had previously been granted probation but had shown no benefit or rehabilitation; and Mr. Burke’s conduct in custody, which included misconduct, outbursts, fighting with correctional officers and having a weapon in jail. In respect of the information relating to Ms. Murdock and Ms. English, the judge stated that he did not treat Mr. Burke as guilty of the crimes but took into consideration the conduct alleged, which showed a similar pattern of behaviour as the Colorado offences. The judge did not specify the reasons for increasing the sentence by 12 years over the mandatory minimum; nor did he specifically state that the sentence was increased by a particular amount based on the Canadian allegations.

[93] Amicus submits that the Colorado judge relied on Ms. English’s statement and the 1986 Synopsis as demonstrating a pattern of behaviour on Mr. Burke’s part, justifying a lengthy sentence. Amicus submits that it was the allegations relating to Ms. Murdock and Ms. English that resulted in the judge sentencing Mr. Burke to 12 years in excess of the mandatory minimums.

[94] It is clear that the sentencing principles applied in the Colorado criminal proceeding differed significantly from those that would be applicable in Canada. The mandatory minimum sentences and the statutory requirement that the sentences be imposed consecutively led to a minimum sentence of 40 years, a sentence unlikely to pass constitutional muster in Canada. See: R. v. Bissonnette, 2022 SCC 23. Moreover, the use of evidence of unproven allegations for the purposes of sentencing would not have been permissible in Canada: R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728.

[95] As a result, it is impossible to deconstruct how the court arrived at the 52-year sentence. Given the many factors considered by the judge, and the mandatory minimum of 40 years, it is unlikely that the entire 12-year increase is attributable to the allegations relating to the Canadian charges. The judge’s comments show that he was cognizant that Mr. Burke had not been convicted on the Canadian charges and that it would be an error to presume he would be convicted. Even without the unproven allegations, there was substantial evidence that Mr. Burke posed a risk to the public and of criminality, given his lengthy criminal record, including a 1982 conviction for attempted rape, and the circumstances of the Colorado offences. Mr. Burke continued to offend despite being on probation; he misbehaved in prison. The judge clearly formed the view that Mr. Burke represented a significant danger to the public, not only because of the offence at issue and the Canadian charges, but also because of his behaviour in prison, his lack of remorse and the absence of any past attempts at rehabilitation.

[96] Accordingly, I find that Mr. Burke was not previously punished for the Canadian offences under either branch of the Wigglesworth test. The Colorado proceeding did not relate to the Canadian offences, and that court did not have jurisdiction to punish Mr. Burke for those offences. In addition, the Colorado sentence did not result in true penal consequences to Mr. Burke. The sentence does not reflect that the purpose of the sentence was to redress the wrongs to society or to the two victims of the Canadian offences. Section 11(h) thus has no application here.

What is the Impact of the Colorado Sentence?

[97] In the alternative, amicus submits that the lengthy period that Mr. Burke spent incarcerated in Colorado must be taken into consideration by this court when applying the totality principle. The Crown disagrees.

[98] Where an offender is already serving a sentence and is sentenced for further offences, the effect of the totality principle is tempered by the continuing criminality of the offender: Johnson, at para. 31. In R. v. Learning, 2019 BCCA 332, at paras. 25, 29-31, the British Columbia Court of Appeal held that sentencing judges should consider previous or current sentences when assessing totality, but are not obliged to automatically reduce the second sentence or to impose it concurrently. They must assess the offender’s overall culpability based on the information available to them.

[99] In Mackie v. Drumheller Institution, 1996 ABCA 366, 187 A.R. 385, the defendant absconded to the United States during his trial on charges of overcoming resistance and sexual assault. He was charged and convicted of sexual assault in Montana and sentenced to 20 years. The defendant was then paroled and deported to Canada to face the outstanding charges. The Alberta Court of Appeal held that ordering the defendant to serve his sentence in Canada consecutive to his sentence in the U.S. was not cruel or unusual.

[100] Where an offender has fled the jurisdiction, the totality principle should not work to their advantage: R. v. Leschenko, 2012 ABQB 47, 532 A.R. 216, at para. 51. In that case, the court stated that “it would send the wrong message to have a fugitive gain credit for time [they] spent in custody outside Canada for serious crimes committed there while unlawfully at large from this country.” Similarly, in R. v. Sylvester, 2014 ONSC 2838, at para. 75, Molloy J. held that the sentence that the defendant was serving in the United States should have no impact on the sentence to be ordered.

[101] In my view, it would not be appropriate to reduce Mr. Burke’s sentence because of his lengthy incarceration in the U.S. Rather than face prosecution in Canada, Mr. Burke chose to abscond the jurisdiction, and commit further offences. While his sentence was lengthy and in excess of what would have been ordered in Canada, that should not result in a mathematical reduction in his sentence in this proceeding. To do so would be to permit Mr. Burke to benefit from having fled.

[102] Nonetheless, and despite my finding that Mr. Burke was not previously punished for the offences against Ms. Murdock and Ms. English, I find that the allegations had some bearing on the sentence imposed by the Colorado judge. While the judge stated that he could not consider that Mr. Burke was guilty of the crimes, he found that he could consider Mr. Burke’s “conduct,” which indicates that, despite the fact that they had not been proven, the judge accepted the allegations as true. The judge relied on the allegations to find a pattern of conduct and that the community and women would be “greatly endangered” if Mr. Burke were to remain free. Although it is not possible to quantify in years, I find that what the judge referred to as Mr. Burke’s “conduct” was a factor in the Colorado sentence.

[103] Based on the foregoing, in my view, it would be more appropriate to treat Mr. Burke’s lengthy sentence in Colorado as a collateral consequence. In R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 46-49, the Supreme Court of Canada held that, a collateral consequence is relevant to sentencing if: (a) it arises “from the commission of an offence, the conviction for an offence or the sentence imposed for an offence” and (b) it “impacts the offender.” As the Court observed, “[t]he question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of [their] personal circumstances.” In my view, in tailoring the appropriate sentence in this case, it is appropriate to take the Colorado sentence into account as a collateral consequence that speaks to Mr. Burke’s personal circumstances.

Summary of the Application of the Sentencing Principles

[104] The most significant principles engaged in this case are denunciation, deterrence and the separation of the offender from society.

[105] In this case, Mr. Burke kidnapped two young, vulnerable sex workers and repeatedly assaulted and sexually assaulted them for his own gratification. He threatened their lives and used weapons to secure their compliance. Ms. Murdock was choked to the point of unconsciousness and wanted to die. Ms. English risked her physical safety by jumping out of a moving vehicle. It is necessary to denounce such brutal and horrific crimes in the strongest terms. This court must signal that to victimize young, vulnerable women and to subject them such cruel, degrading and prolonged criminal acts is reprehensible.

[106] During the course of the sentencing hearing, Mr. Burke persisted in disputing the court’s findings of guilt, in minimizing his behaviour and calling the victims liars. His lack of remorse and insight was noted in the PSR. It was only in the final moments of the sentencing hearing that Mr. Burke expressed regret. It is evident that Mr. Burke was affected by Ms. Murdock and Ms. English’s victim impact statements. However, even when Mr. Burke made his statement, he carefully avoided admitting that he committed the offences against Ms. Murdock and Ms. English. He stated that he had difficulty coming to terms with “the details of the crimes the court has found me guilty of at age 33.” He continued to try to distance himself from the conduct of the crimes. He said that he “desperately” wished to apologize to Ms. Murdock and Ms. English but did not do so when they were in court. His expressed intention to “champion women” rings hollow in the face of his criminal record and his comments toward Ms. Murdock and Ms. English in the courtroom on the day that judgment was delivered.

[107] Without repeating my findings, the foregoing demonstrates that Mr. Burke’s rehabilitative potential is limited. At the age of almost 70 years old, Mr. Burke has spent much of his adult life in prison. Other than the thirteen months during which he was released, Mr. Burke has not lived in society among others for over 35 years. In his statement, Mr. Burke admitted that he did not know how to cope with freedom after such a long time in prison. The need to separate Mr. Burke from society for the protection of vulnerable members of the community remains.

[108] Amicus submits that if Mr. Burke is sentenced to 24.5 years, he would be over 90 years old at the end of his sentence, which would far exceed his expected remaining life. The sentence would come close to crushing all hope, which would be contrary to the principle of totality.

[109] The Crown submits that even if Mr. Burke is sentenced to 24.5 years, after deducting pre-sentence custody, the sentence would be approximately 16 years and 7 months. He would be eligible for parole after serving one-third of his sentence, or 7 years.

[110] I agree with amicus that a sentence of 24.5 years for an offender who is almost 70 years old would be nothing short of crushing. In R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 74, the Supreme Court of Canada found that the goals of sentencing will eventually begin to exhaust themselves once the sentence starts to surpass the offender’s likely remaining life span: “the judge should generally avoid imposing a fixed term sentence that so greatly exceeds the expected life span that the traditional objectives such as deterrence and denunciation have lost their value.” More recently, in R. v. Bissonnette, 2022 SCC 23, the Supreme Court of Canada struck down as unconstitutional s. 745.51 of the Criminal Code, which authorized consecutive parole ineligibility periods. In doing so, the Court held that sentences that far exceed human life expectancy do not serve the objectives of denunciation and deterrence and bring the administration of justice into disrepute because they undermine public confidence in the fairness and rationality of the criminal justice system (at para. 94).

[111] In arriving at the appropriate sentence, I am also mindful that the Crown has not brought a dangerous offender application or sought an indeterminate sentence. In this case, the Crown submits that a lengthy sentence is sought because of the gravity of the offences.

[112] Based on all of the circumstances, taking into consideration the gravamen of the offences, as well as the aggravating and mitigating factors, and collateral consequences, detailed above, and applying the approach mandated by the Court of Appeal in Jewell, I find that an appropriate total sentence for the offences is 19 years.

Consecutive or Concurrent

[113] All of the offences in relation to Ms. Murdock arise from the same incident and should be sentenced concurrently. Similarly, the offences in relation to Ms. English arise from the same transaction and should be sentenced concurrently.

[114] The offences against Ms. Murdock were committed in September 1986 and the offences against Ms. English were committed in in October 1986. I find that the two incidents were separate and distinct. The incidents were separated by Mr. Burke’s arrest and release on bail on the charges relating to Ms. Murdock. As a result, the sentences for the offences in relation to Ms. Murdock, on the one hand, and the sentences for the offences against Ms. English, on the other, should run consecutively. In my view, given the gravamen of the offences, in the circumstances, consecutive sentences would not offend the totality principle.

[115] For the foregoing reasons, on the offences relating to Ms. Murdock, Mr. Burke is sentenced to the following terms of imprisonment:

• Count 1 – Sexual assault with a weapon (knife) – 9 years;

• Count 2 – Assault with a weapon (knife) – 3 years, concurrent to Count 1;

• Count 3 – Overcoming resistance to commission of an offence – 5 years, concurrent to Count 1;

• Count 4 – Kidnapping with intent to confine – 7 years, concurrent to Count 1;

• Count 5 – Uttering a threat – 1 year, concurrent to Count 1; and

• Count 6 – Assault with a weapon (gun) – 4 years, concurrent to Count 1.

[116] On the offences in relation to Angela English, Mr. Burke is sentenced to:

• Count 7 – Sexual assault with a weapon (knife) – 10 years;

• Count 8 – Kidnapping with intent to confine – 8 years, concurrent to Count 7;

• Count 10 – Assault with a weapon (knife), – 3 years, concurrent to Count 7;

• Count 11 – Uttering a threat – 1 year, concurrent to Count 7; and

• Count 12 – Sexual assault causing bodily harm – 10 years, concurrent to Count 7.

Pre-Sentence Custody

[117] In February 2010, the Truth in Sentencing Act, S.C. 2009, c. 29 (“TISA”), came into effect and amended s. 719 of the Criminal Code to impose an upper limit on the ratio at which credit for pre-sentence custody could be granted. The maximum ratio is now 1.5:1. Section 5 of TISA, however, stipulates that ss. 719(3)-(3.4) of the Criminal Code only apply to individuals charged after the date that the subsections came into force. Offenders charged before TISA came into effect are constitutionally entitled to be sentenced under the previous regime. Offenders who were charged after TISA came into force but committed the offence before that date are also entitled to be sentenced under the old regime: R. v. S.(R.), 2015 ONCA 291, 20 C.R. (7th) 336.

[118] Mr. Burke spent a total of 1,942 days in pre-trial custody, to the end of the sentencing hearing. This includes the four days in September 1986 during which Mr. Burke was held in custody before being released on bail. Under R. v. Summers, accounting for credit for pre-sentence custody at a rate of 1.5:1 days, Mr. Burke would be entitled to 2,913 days credit.

[119] The Crown submits that Mr. Burke is entitled to no more than 1.5:1 credit for pre-sentence custody. The Crown further notes that in taking into consideration the length of Mr. Burke’s pre-sentence custody, it is relevant that Mr. Burke discharged numerous counsel, and the trial was adjourned at least four times as a result. In fact, that is the circumstance that led to the appointment of amicus. Mr. Burke eventually agreed to re-elect to be tried by judge alone, and to proceed by videoconference, which permitted the trial to proceed.

[120] Amicus submits that Mr. Burke should be given 2:1 credit for the entire period of his pre-sentence custody, or at minimum 1.8:1, based on the sentencing regime and because of the conditions in which Mr. Burke was held. If the enhanced credit is not granted, amicus submits that Mr. Burke should be given 405 days, or 13.5 months, in mitigation for COVID-related lockdowns and restrictions.

[121] In R. v. T.(J.), 2021 ONSC 366, McArthur J. sentenced the offender to a global sentence of 16 years for multiple counts of historic sexual assault and sexual interference. McArthur J. applied the TISA, and found that a credit of 1.6:1 days was appropriate for the period after the offender was returned to Ontario (after absconding) to the end of the dangerous offender hearing.

[122] Mr. Burke is eligible for sentencing credit under the pre-sentence custody credit regime that applied when the offences were committed. I find that Mr. Burke is entitled to 2:1 credit for the four days he was held before being released on bail in September 1986, before TISA came into force, for a total of eight days.

[123] In respect of his pre-sentence custody from October 26, 2015 to the end of the sentencing hearing, I find that it would not be appropriate to apply the full 2:1 credit given that Mr. Burke absconded from the jurisdiction, causing the significant delay in this matter coming to trial, and because of the repeated delays caused by Mr. Burke discharging his counsel. At the same time, a 1.5:1 credit does not sufficiently account for the particularly harsh pre-sentence conditions to which Mr. Burke was subject during the pandemic. I find that a credit of 1.7:1 should apply, for a total of 3,295 days (1938 x 1.7 = 3,294.6).

[124] The total Summers credit is thus 3,303 days (3,295 + 8 = 3,303).

Ancillary Orders

[125] The Crown seeks a DNA order, an order under the Sex Offender Information Registration Act, S.C. 2004, c. 10 for 10 years, and a s. 109 weapons prohibition order for life. The orders shall be made.

Conclusion

[126] Therefore, Mr. Burke is sentenced to a total of 19 years. After deducting pre-sentence custody of 3,303 days, the total remaining sentence is 3,632 days, or 9 years and 11 months (6,935 days - 3,303 days = 3,632 days).

Nishikawa J.

Released: June 6, 2022

COURT FILE NO.: CR-16-70000786

DATE: 20220606

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Raymond Burke

REASONS FOR SENTENCE

Nishikawa J.

Released: June 6, 2022

[^1]: The applicable Criminal Code provisions are those that were in force at the time of the offences, in the fall of 1986.

[^2]: At the sentencing hearing on March 23, 2022, the Crown advised that both complainants wished to have the publication ban under s. 486.4 of the Criminal Code lifted as an aspect of their healing process. Given the complainants’ request, to which the Crown consented, an order lifting the publication ban was made.

[^3]: Count 9, the charge of unlawful confinement under s. 247(2) of the Criminal Code was stayed pursuant to the principle in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[^4]: In her victim impact statement, Ms. Murdock expressed a view as to an appropriate sentence for Mr. Burke. Pursuant to s. 722 of the Criminal Code, I have not taken this portion of the statement into consideration.

[^5]: The statistic was recently referenced by the Supreme Court of Canada in R. v. Bissonnette, 2022 SCC 23, at para. 76.