Were the dice loaded in R v Barton, 2017 ABCA 216?

On June 30, 2017, the Alberta Court of Appeal, consisting of Chief Justice Catherine Fraser, Justice Jack Watson and Justice Sheilah Martin, threw out the jury acquittal of Bradley Barton on charges of murdering Cindy Gladue, and ordered a new trial for him.   https://www.canlii.org/en/ab/abca/doc/2017/2017abca216/2017abca216.html   Barton’s lawyer, Dino Bottos, has roundly criticised the ruling, in essence accusing the Court of Appeal of political grand-standing and egregious over-reaching:  http://edmontonjournal.com/storyline/acquittal-overturned-in-cindy-gladue-murder-case   Bottos also sharply criticised the Court of Appeal for having taken the four grounds of appeal brought by the Crown and [adding] their own, additional ground of appeal – without any warning to the defense, calling it a “very unfair” move on the part of the Court:  http://www.huffingtonpost.ca/2017/06/30/bradley-barton-case-alberta-court-orders-new-trial-for-indigeno_a_23010897/

In an article published on July 17, 2017, Alberta criminal law professor Steven Penney also criticised the Court of Appeal Judgment with respect to the issue of bias, saying that, although the Judgment  “… did a good job of outlining procedurally how the s. 276 rape shield process is supposed to work, and in emphasizing the importance of those protections in avoiding the prejudicial use of evidence of a complainant’s sexual history…” nevertheless, the Appeal Court also, he suggests, made a ““very restrictive” interpretation of s. 276 that is “out of step in many respects” with the appellate consensus that has emerged on how to interpret the rape shield…”  Suggesting that the Appeal Judgment is extremely unbalanced, “Penney highlighted the Supreme Court’s decision in R. v. Darrach 2000 SCC 46 — the leading case interpreting s. 276. “There I think the Supreme Court of Canada had a more flexible, and balanced, and pragmatic approach — one that I think fairly weighs the interests of both.”” You can read Professor Penney’s comments in full here:  https://www.thelawyersdaily.ca/business/articles/4225/bar-s-opinion-is-polarized-on-alta-ca-s-call-for-changes-in-sexual-assault-cases

[NOTE:  Calgary criminal defence lawyer Hersh Wolch collapsed at his home and died on Monday, July 17, 2017:  http://calgaryherald.com/news/local-news/calgary-lawyer-hersh-wolch-who-championed-david-milgaard-case-dead-at-77   Wolch was married to Justice Sheilah Martin, one of the three judges in the Alberta Court of Appeal Judgment under discussion in this blog-post.  Frankly, I can’t help wondering what the very well respected Mr. Wolch must have thought on June 30, when fellow defence lawyer Dino Bottos alleged in the media that Mr. Wolch’s wife and the other two judges in the Appeal Judgment had in effect Ambushed Bottos in that Court of Appeal Judgment, saying, for example here:  http://www.huffingtonpost.ca/2017/06/30/bradley-barton-case-alberta-court-orders-new-trial-for-indigeno_a_23010897/  that, “… in particular, [Bottos] was taken by surprise when the panel took the four grounds of appeal brought by the Crown and added their own, additional ground of appeal.  “The Court of Appeal believed the trial judge erred by instructing the jury incorrectly on post-offence misconduct,” Bottos said, adding it caught him unprepared, as counsel is usually given months’ notice as to what the issues are. “To have a fifth ground conjured up and thrown at you is very unfair…”

I also can’t help wondering, of the three judges in that Appeal, which of them its job was to ensure that notice of the fifth ground of appeal was given in a timely manner to Mr. Bottos, and just how, exactly, that notice [allegedly] did Not happen. R.I.P. Mr. Wolch.]

Defense lawyers in Alberta are not usually so vocal in their criticism of the Appeals Court; Dino Bottos’ remarks were the first about the case to catch my attention.   I decided to drop other things I was working on for the time being, and to take a good look at the case.

My Preliminary Observations                                                                                                                 I didn’t have to look far to see that, hell yeah the Court over-reaches – and it’s not shy about doing so, either.  Starting in S. 162:   https://www.canlii.org/en/ab/abca/doc/2017/2017abca216/2017abca216.pdf    they use the Judgment as a platform to set out their “draft proposal” for how judges should be instructing juries in (i) “cases involving race and/or gender:”  “[162] A caution in the opening instructions to the jury would be appropriate where, as here, the case involves not only gender (a woman) but also race (Aboriginal) and class (sex trade worker). A draft opening instruction could include the following. In making this suggestion, we stress that this is by way of example only. Further refinements may well be called for based on submissions by Crown and defence counsel…” and in (ii) cases involving evidence of prior sexual conduct:  [S. 163]  It seems to me that teaching other judges on how to instruct juries with a “draft proposal” would be more appropriate in a legal seminar, not in a court judgment. Putting it in a judgment sends a clear message, in my opinion, that:  “Judges better do things the way we want them to and never mind any established “pattern jury instruction [S. 201];”  we know best and you’d better do it our way, or we’ll rule against you on appeal – and we won’t be nice about it, either.”

I also find it very interesting that additionally in S. 163, the Court of Appeal states:  “As with all jury instructions, it is beneficial if the trial judge reviews drafts in advance with Crown and defence. This militates against the need to recharge the jury should the trial judge determine that either counsel has any legitimate concerns.”  That’s really interesting, because the Defense has repeatedly stated [most recently, here]:  https://www.thelawyersdaily.ca/business/articles/4225/bar-s-opinion-is-polarized-on-alta-ca-s-call-for-changes-in-sexual-assault-cases   that “in fact it was the Crown prosecutors at trial that agreed to this [jury] charge…” in the trial of Bradley Barton.

The contradistinction between the Court of Appeal’s remark in S. 163 and that last quoted statement by Dino Bottos raises a question in my mind of possible bias on the part of the Court, and it doesn’t take too long to find grounds for concern on that score either.

On the bottom of page 03 in the same judgment is the note that, even though Cindy Gladue’s official date of death is June 22, the Court of Appeal nevertheless refers to “June 21 as the night Gladue died since that is when the interactions with Barton began that led to her death on June 22. “  This, mind you, is from the same judgment that goes on to order a fresh trial for Barton on murder charges.  And in S. 185 of that judgment, the Court of Appeal states that:  “… the real issue was whether she consented to what the jury determined that Barton actually did that caused her death.”

Okay, is it just me, or does it also sound to other people as if the Court had in fact already convicted Barton in their heads, even though they had ostensibly ordered a new trial for him?  Particularly so, in view of the facts that:  in the original trial, (i)  there was a real issue of whether or not the statements made by Bradley to the cops came while he was in what a judge euphemistically termed an “unofficial investigative detention:  https://www.canlii.org/en/ab/abqb/doc/2013/2013abqb673/2013abqb673.html   and (ii)  several witnesses had testified to the presence of other people in the vicinity of the room where Gladue’s body was found near the time of her death, including that of Gladue’s boyfriend:   https://www.canlii.org/en/ab/abqb/doc/2011/2011abqb492/2011abqb492.html   both of said which factors could very well have a significant bearing both on the jury’s decision to acquit as well as in any future trial.

In R v Barton, 2013 ABQB 673  https://www.canlii.org/en/ab/abqb/doc/2013/2013abqb673/2013abqb673.html concerning statements made by the accused to cops and the concomitant issue of whether or not he was under investigative detention,   I see problems with the judge’s perspective.  It appears to me from the judge’s summary that Barton was indeed under investigative detention at the time and I would say that his statements to the cops should have perhaps been suppressed, and that they may well be suppressed in a new trial.

The issue in the original trial of the admissibility of Barton’s statements doesn’t bother the Court of Appeal at all, however; the Court flat-out calls pretty much all of the defendant’s own statements “lies:”   https://www.canlii.org/en/ab/abca/doc/2017/2017abca216/2017abca216.html  “[72] Had the jury been properly instructed, many of Barton’s after the fact actions and statements might have impacted the jury’s assessment of his honesty, trustworthiness and believability. That included lies to Sullivan; the hotel clerk; the 911 operator; the initial investigating officer; Constable Jones, Atkins; and an undercover officer.

But wouldn’t the defendant be entitled to a fresh presumption of innocence on all counts, in the new trial the Court of Appeal ordered in that self-same Judgment?

So then I took a quick look at the judges involved in the 2017 Court of Appeal Judgment:

Justice Jack Watson is the most familiar of the names to me personally.  Of the first three cases I have to date discussed here:  https://marnietunay2.wordpress.com/alberta-injustice-failures-in-courts-and-government-public-accountability/  Jack Watson was a judge in all three of them.

1.  In R. v. Crazyboy, 2012 ABCA 228  https://www.canlii.org/en/ab/abca/doc/2012/2012abca228/2012abca228.html    Justice Peter Martin stated [s.10] “the trial judge seemed to think that the respondent was automatically entitled to a discounted sentence because of his aboriginal ancestry,” a statement Justice Constant Hunt “concurred in.”

Jack Watson, who concurred in the “result” of the Appeal, demurs somewhat on the issue of what the trial judge thought about the ‘race factor,’ saying

“[s.  [31]  “As pointed out in Ipeelee, even at the respondent’s mature age, the court must pay respectful obeisance to Parliament’s directives concerning restraint in the imposition of sentences as set out in ss. 718.2(d) and (e) of the Code, in particular. What the sentencing judge said was this:

 [35]   I must say that although I have some concerns, as stated above, I cannot ignore the Accused’s unfortunate background as an aboriginal offender, and I give it particular attention in the circumstances of this case.

 [32]   The statement that he would “give it particular attention” is not explained in the reasons. It is to be recalled that Ipeelee took pains to repeat that “Section 718.2(e) does not create a racebased discount on sentencing. The provision does not ask courts to remedy the over-representation of Aboriginal people in prisons by artificially reducing incarceration rates.”

However, what the trial judge actually says https://www.canlii.org/en/ab/abpc/doc/2011/2011abpc380/2011abpc380.html  is:

“[33]    During the course of argument, the Court raised with Counsel the application of the principles enunciated by the Supreme Court of Canada, in R. v. Gladue, (1999) 1999 CanLII 679 (SCC), 133 CCC (3d) 385 and R. v. Wells, (2000) 2000 SCC 10 (CanLII), 141 CCC (3d) 368 in this case.

 [34]   Crown Counsel submitted, that any consideration by the Court of Section 718.2(e) of the Code, and the Accused being treated more leniently because he is an aboriginal offender with a dysfunctional developmental history, has been lost because of the seriousness of the present offences and the Accused’s extensive and related criminal record.

 [35]   I must say that although I have some concerns, as stated above, I cannot ignore the Accused’s unfortunate background as an aboriginal offender, and I give it particular attention in the circumstances of this case.”

And the discerning will note that it was the Crown that had raised the issue of whether or not the Aboriginal ancestry of the defendant should “automatically entitle him” to a break in sentencing, not the trial judge.

2.  In 321665 Alberta Ltd. v. Husky Oil Operations Ltd., 2013 ABCA 221  https://www.canlii.org/en/ab/abca/doc/2013/2013abca221/2013abca221.html  .it’s best to read my summary here:  https://marnietunay2.wordpress.com/alberta-injustice-failures-in-courts-and-government-public-accountability/  as I can’t condense it anymore than I already have on that page.

3.  Shuchuk v. Alberta (Workers’ Compensation Board), 2012 ABCA 50 in essence allowed the Appeals Commission to consider once again whether or not “whether the MVA contributed to the continuation of his condition after December 1996…”  – thereby  just handing back to the Commission the very power to choose December 1996 as a cut-off date that was taken away from them in a 2005 decision by Justice Lefsrud – the subsequent appeal of which decision was, as Justice Martin himself states in writing for the Court in the 2012 decision,  unsuccessful: “[10] The WCB unsuccessfully appealed the reviewing judge’s decision to this Court.”  Logically, this would mean that in fact the one thing the Commission cannot reasonably do is to consider December 1996 as a potential cut-off date, but the power to do so is exactly what 2012 Alberta Court of Appeal decision gave the Commission.  See my full analysis of the case here:  https://marnietunay2.wordpress.com/alberta-injustice-failures-in-courts-and-government-public-accountability/

Chief Justice Catherine Fraser    In R. v. Gashikanyi, 2017 ABCA 194  https://www.canlii.org/en/ab/abca/doc/2017/2017abca194/2017abca194.html  Justice Ronald Berger roundly trashes another decision, R v Hajar, 2016 ABCA 222  https://www.canlii.org/en/ab/abca/doc/2016/2016abca222/2016abca222.html  in which both Catherine Fraser and Jack Watson were among the judges, stating:  at S. 19 that:  “…the majority reasons [including both Fraser and Watson] in Hajar fail to provide meaningful guidance to sentencing judges in Alberta. The abandonment of sentencing ranges and substitution by this Court  of starting points without first determining the “acceptable range of sentence” before fixing the starting point, operates in practical terms as a constraint on the discretion afforded to sentencing judges to impose individualized sentences. After all, sentencing ranges are, as the Supreme Court of Canada has made clear, “historical portraits” for the use of sentencing judges whose discretion should not be interfered with absent demonstrable unfitness…”  and at S. [20] that:  “The majority in Hajar not only failed to conduct a detailed, comprehensive review of the minimum and maximum sentences for sexual interference imposed in the past by both trial and appellate judges, but also summarily resiled from the established sentencing range with the admonition that “…the Reasons [of the sentencing judge] overlook the fact that sentencing precedents from this Court are of limited precedential value.” (at para. 150)…”

There’s more along that vein.  A lot more.  But that’s not all.  Justice Berger also raises as a significant potential issue what he perceives to be a bias in the selection of judges to hear sentencing panels, the selection of whom is one of the primary responsibilities of the Chief Justice.  Who is Catherine Fraser.  J. Berger goes on to say:  “[70]   As noted in the introduction to this judgment, this Court has failed to establish and abide by a protocol that provides for the random assignment of judges to sentencing panels.  [71]  The presence of individual discretion in a system of assignment poses a risk that some may think that panelists will be selected based on their perceived predispositions.[1] An appellate court that utilizes discretionary non-random methods to assign (or to replace an assigned judge) leaves open the potential for manipulation. It is this potential that is problematic because, even if manipulation is not actually occurring, the lack of objective guarantees or protections against such abuse can breed suspicions or perceptions of want of impartiality, thereby eroding the integrity of, and public confidence in, the administration of justice….

As a June 27, 2017 report in ‘The Lawyers Daily’  https://www.thelawyersdaily.ca/articles/4072/alberta-court-of-appeal-judge-calls-for-random-assignment-of-judges-to-panels  remarks:  “Justice Berger’s ruling is also remarkable for its arguments against the unfettered discretion of chief justices to assign cases — an issue puisne judges at all court levels, and likely in all courts, have complained about at various times over the years — but almost never in public…”  (There’s a lot more there, too, on J. Berger’s comments.)

Justice Sheilah Martin.  Sheilah Martin is a relatively recent appointee to the Alberta Court of Appeal.  “Sheilah Martin, the other Alberta appeal court appointee, was the law dean at the University of Calgary with a long list of publishing credits to her name focused on the equality section of the Charter of Rights and Freedoms. She, too, was promoted from the Court of Queen’s Bench.”  Quoted from the article:  https://www.theglobeandmail.com/news/national/liberal-appointments-signal-intent-to-diversify-canadian-judiciary/article30532954/  .  I don’t read as much law as I used to.   I’ve quickly scanned a few QB judgments in which Martin was one of the judges; they looked okay to me.  I chiefly remember her from the Kellog, Brown & Root (Canada) QB ruling [later overturned] on drug testing.  Sadly, that judgment no longer appears to be online; it must have fallen through the cracks when the Alberta Courts web-site turned over trusteeship of its Judgments to canlii.org.  But here’s a good run-down of the KBR drug-testing saga:   https://ablawg.ca/2008/01/12/court-of-appeal-sends-court-of-queen%E2%80%99s-bench-decision-to-rehab/

More recently, Justice Martin gave the ‘conference overview speech:’  https://ciaj-icaj.ca/en/videos/conference-overview-the-honourable-justice-sheilah-martin-1749  at the 2012 conference “The Courts and Beyond: The Architecture of Justice in Transition,” held by the Canadian Institute for the Administration of Justice.  https://ciaj-icaj.ca/en/library/videos/annual-conferences/   At around 09:50 in her speech, it starts to become clear that Justice Martin, one of the conference co-chairs, thinks of herself and her fellow judges as being ‘architects of justice.’ Speaking for myself alone, I personally don’t see judges as being ‘architects of justice.’ I see that as being the role of those who draft legislature and policy, and the role of law-Makers, generally, including politicians, whose role in the ‘building of justice,’ Ms. Martin deprecates about a minute beforehand, saying that politicians generally try to devise a justice plan that is a ‘big tent’ that tries to fit everyone under it. MS. Martin’s perspective on the role of judges in the justice system is of interest to me, because Bradley Barton’s lawyer, Dino Bottos, has in essence accused the Court of Appeal of overstepping its bounds, saying in the Edmonton Journal article:   http://edmontonjournal.com/news/crime/acquittal-overturned-in-cindy-gladue-murder-case  that “”…the appeal court is making a political statement, as much as a legal one.””

But there is also, to my mind, a telling moment about Justice Martin right at the beginning of that ‘conference overview speech,’ in her reaction to the applause she reaps for a lame joke that she tells badly.

The self-approval is strong in this one.

From all of the foregoing, I concluded there was a distinct possibility of bias in the 2017 Court of Appeal decision, so I took a look at the law, starting with the 2016 decision in which Leave to Appeal the jury acquittal was given:  https://www.canlii.org/en/ab/abca/doc/2016/2016abca68/2016abca68.html  .

GROUNDS ON WHICH LEAVE TO APPEAL WAS GIVEN:

From  R. v. Barton, 2016 ABCA 68:  “[S. 2] The Crown has appealed. The grounds of appeal as framed by the appellant are the following:

1) The trial judge erred in law in his instruction to the jury with respect to manslaughter.

2) The trial judge erred in law in his instruction to the jury with respect to motive.

3) The trial judge erred in law in making a ruling under s. 276 of the Criminal Code after the close of evidence without any application having been brought by the defence and without a hearing on the issue.

4) The trial judge erred in law in instructing the jury that the complainant’s consent on a previous occasion could be used to support a finding of honest but mistaken belief in consent on this occasion.

5) Such further and other good grounds as counsel may advise.

Additionally, leave to the interveners to join the appeal was also granted, on the grounds that:  “S. [12]   In the case at bar, the arguments which the proposed interveners intend to proffer, as counsel explained, will focus on the definition of “sexual activity” in s. 273.1(1) of the Criminal Code. I am told that the proposed interveners intend to provide a substantive equality analysis of the meaning of consent and also observations on the procedure required by s. 276 of the Criminal Code. The relief prayed for is that they be permitted to file one joint factum of 20 pages or less and to make oral submissions not exceeding 20 minutes.

In the Respondent’s [Dino Bottos for the accused, Bradley Barton] Memorandum of Argument] against the interveners’ being allowed in the Appeal,  https://ablawg.ca/wp-content/uploads/2016/06/Barton-Respondents-Memo.pdf  he stated:  “[S.3] … “an intervener must take the case as she finds it and cannot, to the prejudice of the parties, argue new issues which require the introduction of fresh evidence;”  and further, in [S.5] that this is exactly what the interveners intended to do.  He states that the first ground of appeal argued by the interveners:  http://www.leaf.ca/wp-content/uploads/2016/05/2016-05-02-final-LEAF-IAAW-factum-R-v-Barton-ABCA.pdf  as to whether or not the trial judge erred in law with respect to his instructions to the jury on manslaughter “does not adhere to the ground of appeal being argued by the Crown.”  In [S. 6] Bottos indicates that the intervener’s ground of appeal on liability is overly broad and intended to effectively upend “the prevailing law in Canada” on liability.  In [S. 7] Bottos flat-out accused the interveners of trying to sneak their way into ‘legal party status,’ just so that they could help get Botto’s client convicted.  This is a really serious allegation, basically accusing the interveners of malicious prosecution.  In [S.9], Bottos also accuses the interveners of having “failed to comply with their promise” not to introduce new facts or evidence.”  I don’t know where the interveners would have made that promise.   I don’t see any indication of it in their ‘factotum,’ (which of course certainly doesn’t necessarily mean they didn’t make the promise).  He goes on to say in S.9 that the Intervener’s Approach represents a markedly different approach from that of the Crown’s at trial.

Perhaps most significantly, there is no indication in Bottos’ Memorandum that he was aware that the trial judge’s instructions to the jury on post-offence conduct were going to be a grounds for appeal.   But there it is in the Appeal Decision:  https://www.canlii.org/en/ab/abca/doc/2017/2017abca216/2017abca216.html  starting at “V. Errors in Jury Charge on Barton’s After the Fact Conduct

  1. Introduction

[54] “After the fact conduct” or, as it is sometimes called “post offence conduct”, refers to anything said or done by an accused after the commission of the offence alleged. It includes a vast array of words and conduct. In his charge to the jury, the trial judge defined this category of evidence as “things that Mr. Barton is alleged to have said or done after the incident charged in the indictment”.26”  

And the Court goes on to say exactly when, apparently, Dino Bottos first heard that the ‘after the fact conduct’ was even going to be an issue in the Appeal.  It was at the hearing of the Appeal itself:  “[55] Both Crown and defence acknowledged at the hearing of this appeal that the trial judge erred in law in his treatment of this nuanced subject. But counsel disagreed about the significance of that error.”

The Court even goes on to make the admission that the issue would involve the introduction of evidence“[57] “After the fact conduct” or “post offence conduct” – which includes actions and words – is a form of circumstantial evidence.”

So, yes, I would say that Dino Bottos was ambushed by the Alberta Court of Appeal in R v Barton, 2017 ABCA 216.

Further with respect to that Judgment, this here is the Supreme Court of Canada Judgment https://www.canlii.org/en/ca/scc/doc/2000/2000scc46/2000scc46.html  said by University of Alberta criminal law professor Steven Penney to have “a more flexible, and balanced, and pragmatic approach [to s.276 of the Criminal Code] — one that I think fairly weighs the interests of both –“ in contradistinction to the analysis that takes up much of the Alberta Court of Appeals’ Judgment in  R v Barton, 2017 ABCA 216.   https://www.thelawyersdaily.ca/business/articles/4225/bar-s-opinion-is-polarized-on-alta-ca-s-call-for-changes-in-sexual-assault-cases  .

The Alberta Court of Appeals also goes on and on about how unfair and prejudicial it was to call the victim, Cindy Gladue, a prostitute.  However, testimony offered in the original trial:  https://www.canlii.org/en/ab/abqb/doc/2011/2011abqb492/2011abqb492.html  from several credible witnesses including Gladue’s own boyfriend, would lead a reasonable person to conclude that Cindy Gladue was a prostitute, in my opinion, and that, moreover, her relationship with the defendant was that of a prostitute and a client.  Furthermore, the prosecution also called Gladue a prostitute repeatedly, so it seems a bit rich for the Court of Appeals to suddenly take it upon themselves to decide that it’s no longer politically correct to state what would appear to have been a fact agreed to by both the defence and the prosecution in the original trial.  I also think it’s actually incredibly patronizing for the Court of Appeal to conclude that a jury would somehow think it was more okay for someone to murder a prostitute than to murder anyone else – ironic, since the Court of Appeal threw the word ‘patronizing’ around at pretty much everyone else who was involved in the original trial.

So yes, from all of the foregoing, I would say the dice were loaded in R v Barton, 2017 ABCA 216.

http://www.animatedimages.org/data/media/710/animated-dice-image-0103.gif

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About Marnie Tunay

I'm not here much at the moment. You can visit my web-sites to learn more about me. https://marnietunay2.wordpress.com/
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