Defendant who used the wrong medical records shows why you should not represent yourself in court

The law in Canada allows a defendant to appear in court “pro se”, or on one’s own behalf. To many, especially those with a relatively low income, being a self-represented litigant may seem like an attractive prospect. In reality, self-represented defendants have a much lower success rate in court than those who hire a lawyer. What you stand to save by taking a do-it-yourself approach to the law might not be worth the risk if you are facing criminal charges and the possibility of going to jail.

We are asked all the time, what can a lawyer do that you can’t do yourself? Not only will a lawyer have the legal knowledge necessary to come up with the best defence, they have experience of the court system and will pick up on things a layperson might miss.

Some of the issues with representing yourself were evident in a recent Court of Appeal decision involving a man convicted of aggravated assault. Kenneth Burgar was granted a new trial, but only after a “confluence of unfortunate events” lead him to build his defence using medical records belonging to someone else.

The wrong records

Mr Burgar had previously been on trial at BC Supreme Court charged with assault.  Mr Burgar maintained throughout the trial that he acted in self-defence after being sucker punched.[pullquote]Once the mistaken medical records were discovered, a mistrial was necessary to prevent a miscarriage of justice.”[/pullquote]

Mr Burgar conducted his defence under the honestly-held but mistaken belief that medical records he had obtained with the assistance of Crown counsel to support his position were his own. It wasn’t until after he rested his case, however, that the jury noticed some of those records related to another person.

At this point, the judge, the Crown and the defendant faced a conundrum. Should they start over with a completely new trial? Or should they carry on and hope the fairness of the trial had not been tainted by the mistake?

The trial judge chose the latter options. The records were replaced and the jury was instructed not to let the mistake affect their judgment of Mr Burgar’s honesty because of the mistake when reaching their verdict. They found him guilty.

Where the error occurred

Before the trial, Mr Burgar sought disclosure of a number of items including medical records which he said showed he sustained a fractured orbital bone and broken ribs during the altercation.  The information about his injuries was also based on what he had been told by a doctor at Surrey Pretrial Services Centre, whose opinion was probably also based on the wrong records.

Crown counsel said it was for Mr Burgar to obtain his medical records but ultimately agreed to assist Mr Burgar in doing so. The case R v Stinchcombe established the Crown has an obligation to make disclosure to the defence. A lawyer would have ensured the Crown fulfilled this duty and would have sought the disclosure of all relevant information pertaining to the case. The fact the records ultimately supplied by the Crown were not checked and later found to be false could also give credence to the argument that the Crown failed in its duty to supply the relevant information.

Unbeknownst to all involved, the first two pages in the report related to another person.

When the mistake was discovered, Mr Burgar told the court he had assumed the report, which showed x-rays and CT Scans regarding a fracture to the face and nose related to him.

Had Mr Burgar hired a lawyer this wasted trial could have been avoided. What commonly happens when someone represents themselves in a matter they are personally involved in is their judgment becomes clouded. A lawyer would have made sure their evidence was water-tight and checked it with the defendant to make sure he remembered receiving the injuries. The mistake might then have been spotted sooner.

Had a lawyer been fighting his case, Mr Burgar might not have agreed to allow the jury to continue to reach a verdict after learning about the mixup. His credibility would have immediately been thrown into doubt and tainted his entire testimony. At this point, a lawyer arguing for a retrial could have been successful because once the case reached the BC Court of Appeal, the judge recognized the need to start fresh.

The appeal court judge said: “A confluence of unfortunate events effectively pulled the rug out from under Mr Burgar’s defence and trial strategy, including his decision to testify.  

“Evidence he had counted on vanished at the last minute, causing the very foundation of his theory of the case to fall away,” adding “Once the mistaken medical records were discovered, a mistrial was necessary to prevent a miscarriage of justice.”

Mr Burgar may have felt pressured into allowing the trial to continue, or merely wanted it all to be over with. What is clear is that if someone with more experience of the law had been present for the defence, the time and costs of appeal court case could have been avoided altogether.

Benefits of hiring a lawyer

We highly recommend you hire a lawyer to represent you in court. Of course, we are going to say that but hear us out.

A lawyer must perform due diligence whenever representing a client. That means they will review all the relevant documentation and will leave no stone unturned when forming a defence.

Lawyers are also trained professionals in advocacy and persuasion. They know how to appeal to juries to make sure you come across in the best light.

If you plead guilty to an offence, they are also more likely to reach a satisfactory deal with the Crown for the lesser included offence.

Lawyers can also quote the relevant case law because they deal with similar cases day in, day out. They can put forward cases that are similar to your own to give you a better chance of success.

Acumen Law was recently voted to have the most effective lawyers out of law firms with similar practice areas in BC so you can be sure you are being represented by some of the best legal minds in the province.

Give us a call today on 604-685-8889 for a free consultation.


Written by