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| John L. Hill |
The names of his two victims were not disclosed in the published judgment. The public was first introduced to the two victims on March 25, 2022, when they shared their story on CBC’s The National, not as Burke’s victims but as survivors of sexual assault. Nicole Murdock and Angela English, although nervous, were willing to speak about a man who had brutally raped them 35 years earlier, and they wanted to explain to the sentencing court why he should be imprisoned for life.
In September 1986, Burke kidnapped Murdock (then 22), threatened her with a knife and gun, whipped her, choked her to the point of unconsciousness, and anally and vaginally raped her over many hours. The very next month, while he was on bail for the charges in relation to Murdock, he abducted English (then 17), tied her
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Burke fled to the United States while on bail. There, he was convicted of other unrelated violent offences and received a 52-year sentence. Burke was paroled in the United States in 2015 and deported to Canada. He was later arrested on the outstanding charges. Over time, some police records and pieces of evidence had been removed from police custody.
At his trial, Burke argued that the loss of evidence was caused by “unacceptable negligence” in the Murdock file, and the justice system failed due to the negligent loss of parts of the English file. After he was convicted, he appealed and again raised these issues in the Ontario Court of Appeal.
The Ontario Court of Appeal, in its decision released on Sept. 8, 2025 (R. v. Burke, 2025 ONCA 619), stated that the law is quite clear: if the accused demonstrates that relevant evidence has been lost, the Crown must prove that the loss was not due to unacceptable negligence; otherwise, a breach of the s. 7 Charter right to disclosure will be recognized. When the Crown shows the loss was not due to unacceptable negligence, thus countering this Charter claim, the accused must demonstrate actual prejudice to their fair-trial rights or that the loss resulted from an abuse of process to establish a Charter breach (R. v. La, [1997] 2 S.C.R. 680; R. v. Bero, [2000] O.J. No. 4199; R. v. G.S., 2010 ONCA 296; R. v. Hersi, 2019 ONCA 94). Police and the Crown are not held to a standard of perfection regarding unacceptable negligence; reasonableness is assessed in context, considering retention policies and the perceived utility of continued storage.
The Court of Appeal found that the withdrawal of the Murdock charges in 2013 (which were reinstated once Burke returned to Canada) and the police’s loss of contact with Murdock, who had made her complaint under the name Caramel Holiday at the time of the offence, did not constitute unacceptable negligence. The policy that was in place was considered reasonable at that time. The trial judge reasonably concluded that, given those circumstances, purging a withdrawn brief in accordance with policy was not unacceptable negligence. Not only does adherence to a reasonable record retention policy weigh against a finding of unacceptable negligence, but the police cannot be expected to retain evidence indefinitely when they reasonably believed that dropped charges would not be re-laid (R. v. F.C.B., 2000 NSCA 35).
The Appeal Court also found it would be improper to look behind the 2005 withdrawal of charges decision. It was a prosecutorial discretion that would be reviewable only if an abuse of process could be shown reviewable for an abuse of process (R. v. Beare, [1988] 2 S.C.R. 387; Krieger v. Law Society of Alberta, 2002 SCC 65; R. v. Anderson, 2014 SCC 41; R. v. Varennes, 2025 SCC 22). No abuse of process application had been brought, nor had an evidentiary foundation been offered to displace the presumption of good faith. Thus, the Crown was not required to adduce further evidence to justify its decision to withdraw charges. The trial judge was right to proceed on the basis that the withdrawal was a lawful exercise of discretion in the public interest, given what was then known.
The Appeal Court dismissed Burke’s appeal and upheld his convictions. To the two sexual assault survivors, it might seem like justice delayed, but it is certainly not justice denied.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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