Corrections Canada says it’s not legally liable for injuries suffered by an imprisoned outlaw biker because he was exercising with a makeshift barbell built with bags of water. The claim is contained in a statement of defence filed last week in a Kingston court in response to a lawsuit launched in May by Carl Thomas Bursey, who is behind bars at Kingston Penitentiary for drug dealing. The Bandidos outlaw bike gang member (symbolized by the Fat Mexican wielding a gun and a machete) is suing the federal government for $5 million, claiming he suffered a crippling injury because he got substandard medical care from prison staff after he hurt himself while exercising.
Bursey’s claims have not been tested in court.
“He willingly assumed the risk of his actions by his conduct, and particularly by constructing and/or using dangerous and impermissible exercise equipment, including, but not limited to, weights made of plastic bags filled with water,” states the defence document, filed by the Attorney General on behalf of the government.
Bursey’s Kingston lawyer, Philip Osanic, said his client used an improvised weight bar – a broom handle with water bags attached at each end.
“It’s known to staff; it’s acquiesced to,” Osanic said.
The lawyer said it’s not the real issue anyway.
“It’s completely about what happened afterwards,” he said.
Bursey’s lawsuit alleges that Corrections staff at Kingston Pen misdiagnosed herniated or fractured vertebrae as an aggravated sciatic nerve.
Bursey is now in a wheelchair and has been diagnosed with “progressive paraplegia,” according to his lawyer.
Bursey’s suit claims that a nurse at the prison was argumentative and dismissive when Bursey complained about excruciating pain the day after he had exercised.
He was sent back to his cell from the health care centre twice, despite claims of increasing pain and numbness, according to the lawsuit. Bursey claims he wasn’t seen by a doctor for several days.
He was eventually taken to outside hospital where he underwent surgery.
The government claims Bursey got the “requisite standard of care.”
“The defendant’s servants competently and thoroughly assessed his condition, properly consulted a medical practitioner for advice and prescribed a course of treatment that was reasonable and warranted in the circumstances,” the defence document states.
Corrections “denies the allegations of gross negligence, recklessness, malice or bad faith.”
The government response to the suit suggests that if Bursey suffered serious injury, it is because of his own negligence.
“At all material times to this action the defendant knew and permitted, or acquiesced to, the regular practice of inmates exercising on the range or in their cells with books, broom handles and/or plastic bags containing weight for water,” Bursey claims, in a reply to the statement of defence.
Bursey loves outdoor activities, his wife said.
“He’s definitely going through the depression stage right now,” Tarynn Bursey, 25, said in an interview Wednesday at her home in Kingston. “It’s taking a toll on him.”
She said Bursey can no longer frolic with his three-and-a-half-year-old daughter Justice, who visits him regularly at Kingston Pen.
“That breaks his heart,” she said. “They used to be on the floor the whole time, playing blocks and [he’d be] throwing her up in the air.”
She said he has recovered some limited sensation in his upper legs but not enough that he’s able to walk. She said visiting is difficult because Kingston Penitentiary is not fully wheelchair accessible.
Doctors have said they’re not sure if he’ll recover any more mobility.
Bursey was once the most-wanted man in Ontario and a feared outlaw biker described by police who tracked him as violent and ruthless.
He has a record of more than 50 criminal convictions. He was snared in a two-year undercover investigation by Kingston Police and the RCMP that cracked a major drug ring centred in Kingston.
Bursey was convicted of cocaine trafficking and in September 2008 was sentenced to 10 years in prison.
His wife said he was trying to turn his life around at the time of the injury. He had taken high school credits and hoped to move on to business courses.
She and Bursey were married inside Kingston Pen three weeks before his injury, she said.
Bursey is eligible to seek full parole in 2012. Parole records acquired by Cancrime show that Bursey has repeatedly failed to follow conditions imposed when he’s been freed from prison in the past on early release. During his last release, in 2006, Bursey twice tested positive for cocaine use and the use of oxycodone. The board said “it is apparent at this point that you have a considerable problem with drug abuse.” A revolver also was found by police with his fingerprints on it. The board revoked Bursey’s early release in a decision in October 2006.
“Risk in your case is primarily linked to abuse of alcohol and drugs and to the influence of negative associates, including members of criminalized motorcycle groups or other criminal organizations.”
Note, in the photo top right, in which Bursey is being handcuffed by Kingston Police in 2002, a diamond patch with the symbol 1% is clearly visible. It’s a badge of honour, symbolizing the wearer is a member of an outlaw motorcycle gang, in this case, the Bandidos. The 1% signifies the notion that 99% of motorcycle clubs are law-abiding, while the other 1% are outlaws who reject society’s rules. The concept was coined after an incident in Hollister, California in 1947 in which biker clubs descended on the small community and caused chaos. A spokesman for the American Motorcyclist Association later said 99% of all bikers were law abiding. Biker gangs seized on the term “one-percenter” as a rallying cry for their rejection of societal values.
Records of seven decisions by the National Parole Board between 2001 and 2006:
Civil lawsuit filed by Bursey in May 2010:
Statement of defence filed by the Canadian government, in response to Bursey’s lawsuit:
Reply filed by Bursey to the government’s statement of defence:
(This story also appears today in The Kingston Whig-Standard)