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

May 24, 2018 update at 09:44 EDM:  This just in today:   https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17800/index.do  the Supreme Court of Canada’s decision on the Barton appeal.  In summary, it:

(i)  refines the law on consent:  “While the jurisprudence has consistently referred to the relevant defence as being premised on an honest but mistaken belief in consent, it is clear that in order to make out this defence, the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct. It is therefore appropriate to refine the judicial lexicon and refer to the defence more accurately as an “honest but mistaken belief in communicated consent”.

(ii)   places the blame squarely on the trial judge for having failed to properly caution the jury on bias with respect to the deceased’s sexual history and profession, or with respect to the issue of consent, and on a number of other issues as well:  See part C, Application.

(iii)  orders a new trial on the charge of “unlawful act manslaughter.”

(iv)  takes into account the jury’s decision when rejecting a new trial on a murder charge, while making a withering assessment of the trial prosecution’s competence:  “However, a new trial on first degree murder is not warranted. The Crown’s case on first degree murder turned primarily on its expert evidence that the deceased’s fatal wound was a cut. Evidently, the jury was not persuaded. Moreover, the Crown provided no plausible explanation for how the jury could have used prior sexual activity evidence to improperly reason its way through the first degree murder charge. Furthermore, the Crown acknowledged in the court below that the only ground of appeal implicating the murder charge was the motive issue. However, the motive instructions were not tainted by reversible error. Finally, there was a simple and obvious explanation for why the jury unanimously acquitted the accused of murder that does not require the Court to speculate about the potential influence of conscious or unconscious bias: the Crown’s theory simply did not hold up under scrutiny.”

I think that’s as good as it gets.  The SCC did not reveal its thoughts on the conduct of the Court of Appeal in the case of Barton.

Here is a good article by the The Lawyers Daily on the decision:  https://www.thelawyersdaily.ca/criminal/articles/12538/supreme-court-clarifies-sexual-assault-law-in-case-spotlighting-justice-system-s-mistreatment-of-indigenous-women-and-sex-workers

Still to come:  A FOIP inquiry into the issue of whether or not I should have had access to (an allegedly existent) ABCA “policy” on access to transcripts of oral proceedings.  The FOIP commissioner has now postponed the resolution of the inquiry until the spring of 2020, and has said she will send around a notice of the issues “in due course.”  In the media she has recently indicated that she is horribly backed-up and understaffed; so, I guess I’m lucky she’s even agreed to hold the inquiry.


February 12, 2018 update at 14:52 EDM:  I have begun a rundown of the issues on which the transcript fragments previously released to Dino Bottos have shed some light, on my Alberta Injustice Page:  https://marnietunay2.wordpress.com/alberta-injustice-failures-in-courts-and-government-public-accountability/

January 05, 2018 update at 23:25 EDM:  I picked up a reply from J.Fraser this afternoon to my January 10 request to access the transcripts for the Barton appeal hearing.  Here is a screenshot of my request:  

and here is a screenshot of the reply:

which came in a plain envelope with 84 cents of postage, and not in the self-addressed federal express envelope which I had enclosed with my request, and which they presumably tossed in the garbage.  It is a small thing, just 15 dollars down the drain, but it is not a nothing; I could have used that envelope elsewhere, and to my mind, it goes to show a fundamental disrespect for me as a person, for my monies, and even for that of the court’s.

Here is a link to that court decision she references:   https://www.canlii.org/en/ab/abca/doc/2016/2016abca419/2016abca419.html  and I must day, I do look forward to discussing it an a request for a FOIP review of the Ministry of Justice’s response, which will tell me I have to get that transcript from J. Fraser.  I know this because the Alberta Ministry of Justice has informally responded by phone to that effect, and they will put it in writing.  I expect to hear from the Ministry soon in writing with its response to that and to the rest of my request for any correspondence from the Ministry to any of the judges involved in the overturning of the Barton appeal, at which time I will file a request with Alberta FOIP Commissioner to review the Ministry’s response.  I think I can make a case for ‘clearly in the public interest,’ although that will require an expansion of the currently prevailing definitions in government, which are very restrictive and serve to benefit secrecy, not transparency.

Next up is a request to the Prime Minister’s office for records showing what it did to verify the claims made in Justice Sheilah Martin’s SCC application, as well as for any correspondence between that Office and any of the judges involved in the overturning of the Barton acquittal.


January 03, 2018 update at 10:17 AM:  Maybe this racoon:   could sit as a judge on the Alberta Court of Appeal, because it seems to have a better memory than the judges who wrote in R v Barton, 2017 ABCA 216 that the defense had provided no information as to the steps taken to obtain consent, excepting for a question the court alleges the defense lawyer posed:  “what’s a man to do?”  See that excerpt from the Judgment here:  https://bottoslaw.ca/wp-content/uploads/2017/09/R-v-Barton-2017-ABCA-216-Paragraphs-258-260.pdf  And this despite the fact that the Chief Justice, Catherine Fraser, appears to me to have conceded twice on page 101 of the court transcript of the hearing:  https://bottoslaw.ca/wp-content/uploads/2017/09/August-17-2017-Letter-from-Court-of-Appeal.pdf  that the defense had in fact provided adequate information as to the steps taken at least to obtain consent to sexual acts.  As a tax-payer off of whose dollars those judges dine, I am outraged. I intend to follow up this matter via Alberta’s Freedom of Information and Privacy legislation for the identity of the person who wrote those two paragraphs in the Judgment, as well as for the trial judge’s instructions to the jury, which were also impugned severely by the ABACA, which used that to justify throwing out the jury’s finding of acquittal. And I think it’s a sad sad day, when a little old lady like me has to put down her stack of Old Norse court poetry and throw down the gauntlet to the ABCA, simply because: (i) it clearly needs doing; (ii) I think I can do it; (iii) I have been unable to fob the job off onto the shoulders of any “investigative” reporter worthy of the name.  I am requesting the identity of the individual who wrote those two paragraphs in the Judgment, as well as a copy of the trial judge’s instructions to the jury, w which were also impugned by the ABCA and used by the latter as grounds for throwing out the jury’s verdict of ‘not guilty.’  I also want to see the instructions given to the crown, the defense and the interveners as to what the reviewable issues were going to be in the Appeal hearing, including for any “supplementary” factotums.  I would like to get more, such as why J. Jack Watson appears to be speaking gibberish in one paragraph on page 71, and just how many times the judges interrupted the defense when he was speaking, but I probably wouldn’t get those.  But they won’t be able to argue successfully that my requests fall into the class of privileged deliberations.  So here we go.  Stay tuned.  It pisses me off that I can’t shrug this off.  I can see all too clearly in Turkey what happens when a judiciary becomes corrupted, and at least in twenty years if Canada suffers the same tragedy, my own daughter will have the knowledge that mom tried to do something to stop it.  But there was a time when there would have been investigative reporters all over this case, which stinks like a three-week-old herring.


December 13, 2017 update at 20:25 EDM:  On December 05, Supreme Court Justice nominee Sheilah Martin held a question-and-answer session with Members of Parliament, and she also gave a brief speech, which was uploaded to YouTube by the Canadian Press on Dec. 07:

At 00:28 – 00:32 approx.  Sheilah Martin states that she was “working on a team seeking compensation for David Milgaard, who was wrongfully convicted for the murder and rape of a Saskatchewan nurse.”

at 00:45 – 00:47 she says “that legal team [seeking compensation for Milgaard]” was headed by” Hersch Wolch.

On the web-site of Greg Rodin, a lawyer who worked with Wolch for years:  https://www.rodinlawfirm.com/lawyer/greg-rodin-q-c/   it is stated that Rodin was the “lead counsel” in the Milgaard compensation case.

at 01:03 – 01:05 she references “the Honourable Justice Gold,” who, she says, “did  the negotiations on behalf of the “federal government.”  It’s true Alan Gold was appointed to negotiate a settlement for the Milgaard case, but he did not represent the federal government; he represented the provincial government of Saskatchewan:





Neither Gavin Wolch, Hersch Wolch’s son:  https://www.calgarycriminaldefence.ca/lawyers/gavin-wolch/  nor Greg Rodin (see above) replied to an emailed request last weekend from me asking for confirmation that Justice Martin had worked on the compensation case for Milgaard.   The only place I could find any reference to her working on that case is on the University of Alberta site here:  https://www.ualberta.ca/law/news/main-news/2017/november/sheilah-martin but the link they gave references only a much later case, a public inquiry into why Milgaard was convicted in the first place:  http://www.publications.gov.sk.ca/freelaw/Publications_Centre/Justice/Milgaard/Transcripts/V04011805.PDF  and that later inquiry was not either for compensation Nor was it headed up by Alan Gold.   Furthermore, the Cosgrove inquiry was also held in a Saskatchewan court, which makes me wonder:  if all one has to do to represent a client in another province is to simply show up, then why did her husband Hersch Wolch go to the trouble of getting admitted to the bar in three provinces, since there is no indication that I could find that Sheilah herself was ever admitted to the Saskatchewan bar.  It’s certainly not listed on her SCC application in her history timeline:  http://www.fja-cmf.gc.ca/scc-csc/nominee-candidat-eng.html , nor, for that matter, is there any mention of anything to do with the Milgaard cases.  She mentions having been an expert witness in another case on compensation, that of Thomas  Sophonow’s, in the year 2000, but nothing on the much better-known Milgaard case.  At the bottom of that application , in part 2 of a short essay, she states:  “I was part of a team of three lawyers who sought compensation for David Milgaard to address the losses he suffered when wrongfully convicted of the rape and murder of Saskatchewan nurse Gail Miller. The Supreme Court concluded that David’s conviction was unsafe after a unique process, in which the Court heard evidence for five days, including the cross-examination of the man eventually convicted for this rape and murder. DNA testing subsequently confirmed that David Milgaard was innocent. As a result, the federal government appointed retired Chief Justice Alan Gold from Québec to negotiate compensation. What was contemplated was an ex gratia payment from the public purse, and there was therefore a pressing need for a principled approach to achieve a just and fair settlement.

She’s not mentioned in that Supreme Court case she references, either:  https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/864/index.do  which gives as Milgaard’s solicitors of record as having been Herb Wolch’s Winnipeg law firm:  ” Solicitors for David Milgaard:  Wolch, Pinx, Tapper, Scurfield, Winnipeg.”

And at 01:15 – 01:22 in the video above, she states that working on the Milgaard case for compensation is where she recognized “the importance of the presumption of innocence.”  One might have thought she would have learned that in law school; but then one might also have thought she would remember which government had given ‘her’ client ten million dollars.

On September 20, 2017, Barton’s lawyer Dino Bottos stated publicly that the Alberta Court of Appeals had refused to give him the transcript of its hearing into the Barton case:  http://edmontonjournal.com/news/crime/paula-simons-court-of-no-record-albertas-court-of-appeal-defies-open-court-tradition  As of this writing, the court has apparently given Mr. Bottos mere scraps from the transcript, as well as some attitude:  https://bottoslaw.ca/letter-re-alberta-court-appeals-ruling-r-v-barton/


November 30, 2017 update at 06:37 EDM:  This just in a few hours ago:  Justice Sheilah Martin, one of the judges in R v Barton, 2017 ABCA 216, has just been appointed to the Supreme Court of Canada:  PM picks feminist constitutional scholar from Alberta for SCC

No comment.


September 16, 2017 update at 09:35 EDM:  Well I did a little more thinking about that Globe and Mail article I just linked to, below.  In it, Justice Sheilah Martin says, of her late husband, Hersh Wolch:  “”Hersh was so supportive of his children. We would sit down regularly to ask: How is everybody doing? Did they need our support? How could we help? Hersh was a good and dutiful father,” Ms. Martin said.

(The couple created a blended family that included Ms. Martin’s two sons from a previous marriage, Rory and Sean.)”  His children.  Not ‘and my children, too,’ or ‘our children.’  And do you know, I almost fell for that, even though I’ve read the plaudits about Mr. Wolch’s having been among the kindest men in the world.  It strikes me now that Justice Martin has made a kind of living out of promulgating the idea that women are treated unequally in the justice system and presenting ways to fix that perceived problem.

Except that:  in R v Barton 2017 ABCA 216, which appears to me to carry on that tradition of highlighting perceived gender injustices as well as getting in a new proposal on how to fix that alleged problem in jury instructions, it would also appear to me that, at the exact same time the Court is crying ‘foul’ about how badly and condescendingly everybody had treated the female murder victim in the original trial, the same Court, of which Ms. Martin was a member, also ambushed the (male) defendant’s (male) criminal lawyer (see below for details).

It strikes me, now, re-reading that Globe and Mail interview with Justice Martin, that a mask can grow to one’s face, a posture can become habitual and hard to drop; and just perhaps, Ms. Martin is in a place of being unable to stop adopting a stance of victim-hood, professionally and personally – not even to honor the legacy of her late husband.  Kinda reminds me of Angelina Jolie in that way.


September 16, 2017 update at 04:14 EDM:  From this revealing and insightful mini-bio of the late Hersh Wolch:  https://beta.theglobeandmail.com/news/national/hersh-wolch-a-voice-for-the-wrongly-convicted-dies-at-77/article35891787/?ref=http://www.theglobeandmail.com&   ““He placed a premium on justice.”” “Beverley McLachlin, Chief Justice of Canada, summed up Mr. Wolch’s contributions to Canadian jurisprudence: “Hersh represented the highest ideals of our criminal law system – fairness, equity and a profound commitment to justice for all, whether high or low.“”  Yep, it must have really hit Mr. Wolch very hard, to hear fellow Calgary criminal defense lawyer Dino Bottos tell the world he was ambushed by the Court in R v Barton, 2017 ABCA 216.  Oh sure, heavy workload and all that, but I bet the news about the alleged R v Barton ambush was enough to push him over the edge, too.

September 03, 2017 update at 07:50 EDM:  I have added an interesting and informative article on by thelawyersdaily on the passing of Hersh Wolch and his legacy (see 4th paragraph, below):  

August 02, 2017 Update at 06:24 EDM:  This just in:  A new trial was ordered yesterday in Edmonton for Bradley Barton:  http://aptnnews.ca/2017/09/01/cindy-gladues-accused-killer-goes-to-trial-in-february/  to take place on February 25, 2019.  I reckon there was no money for an appeal to the Supreme Court of the June 30, 2017 ruling that: (i) threw out his acquittal; (ii) tossed in a new issue his lawyer had allegedly not been informed of prior to the Appeal hearing;  (iii) set out its own ‘draft proposal’ for jury instructions, (a proposal slammed by a university law professor for broadly over-reaching the court’s mandate in the case); and that (iv) repeatedly called Barton a liar at the same time it was ordering a new trial for him.  So much for ‘innocent until proven guilty,’ eh.


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

Sept. 03/17 update:  From a July 20, 2017 thelawyersdaily article on Hersh Wolch and his legacy:  “… Wolch, who was married to Alberta Court of Appeal Justice Sheilah Martin, died of a heart attack in Calgary on July 17 at the age of 77…. “  “Hersh’s biggest legacy is that he was instrumental in changing the judicial and public consensus on issues of wrongful conviction and miscarriages of justice and helped make that an acceptable proposition in the criminal justice system,” said [Toronto criminal lawyer Daniel] Brodsky…  Best known as the dedicated defender of high-profile, wrongly convicted clients David Milgaard and Steven Truscott, iconic criminal defence lawyer Hersh Wolch is being remembered for the humanity and changes he brought to the way the law is administered and interpreted in Canada….”  Read the rest of the article, including interviews with one of his children, Gavin Wolch, who is also a practicing lawyer, Calgary criminal defence lawyer Greg Rodin and with Toronto criminal lawyer Daniel Brodsky, and others,  here: https://www.thelawyersdaily.ca/articles/4250/iconic-defence-lawyer-wolch-remembered-as-lion-of-the-law

[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.

And there is another telling moment at about 06:02 in that conference video, where Justice Martin chooses not to thank the person who brings her a glass of water.  It’s a startling instance of rudeness on the part of a public speaker, to my mind.  Small moments can be very telling, with respect to a person’s fundamental character.   How do people treat those from whom they think they have nothing to gain?  Not to thank someone who brings you a glass of water is under any circumstances a marked act of discourtesy.  To my mind, it suggests a grasping character, one which considers its own advantage first, which would also accord with Dino Bottos’ claim of political grandstanding on the part of the Court in R v Barton 2016 ABCA 68.

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  .


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.


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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