Reasonable Doubt: On Gerald Barton and fixing the past

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      In 1970 in Digby, Nova Scotia, Gerald Barton was convicted of statutory rape of Rebecca Miller and was sentenced to one day in jail and a year of probation. After she gave birth to her son, Miller accused Barton of sexually assaulting her. It appears from the court record that after a preliminary inquiry, Barton pleaded guilty to the lesser but included offence of sexual intercourse with a female between the age of 14-­16.

      In 2008, Miller recanted her statement and told police that her older brother had sexually assaulted her for years as a child and that her brother was the father of her son. A DNA warrant was obtained and executed and it showed that this was in fact the case. In 2011, the Nova Scotia Court of Appeal gave leave to Barton to withdraw his plea and quashed the conviction for statutory rape stating a miscarriage of justice had occurred.

      In May 2014, a Nova Scotia Supreme Court judge denied Barton's claim for damages in connection with the miscarriage of justice. In short, there is no remedy today, for the wrongs done to Barton in the past.

      Why did Barton plead guilty for something he did not do? Why can he not get any compensation for the wrongs done to him?

      To give the story some context, Barton is biracial (black and aboriginal) and was from a poor family in a poor neighbourhood in Nova Scotia. In 1970, he, nor his family, had any assets and he himself had very little education. Miller and her family were black and lived in the same neighbourhood as Barton.

      Today he doesn't remember making a statement to police and signing it, nor does he remember ever having a trial or even being represented by a lawyer. To be fair, his memory of what happened during that time was not very clear.

      The reason that Barton did not remember having a trial is that it appears from the prosecutor's notes that he pleaded guilty. It seems he may have done that to minimize risk; if he had gone to trial on a sexual assault charge, his credibility would have been compared to the credibility of Miller. The issue at trial for the prosecution would have been whether or not Miller gave consent, not whether or not the sexual act occurred (that was a given).

      During the investigation, Barton apparently made a statement to police that strangely matched up with the circumstances laid out in the statement of Miller, except that he said she consented to the sexual activity. In 2014, in re­examining the statement, Barton points out that several words are used in the statement that he would not have known as a 19-year-old boy in 1969.

      This statement was deemed conclusive proof that Barton was the father of Miller's son. The practice in 1969 in taking a statement from an accused person was for the police officer to handwrite the statement in the accused person's words; he would then have the accused person sign it. The statement would later be typed and not signed. The police officer would ask if the handwritten statement was true and then have the accused person sign it.

      Nowadays, there are all sorts of rules and laws about how a statement is to be taken from an accused person. These laws were created to avoid false confessions, which occur all the time when pressure tactics are used. There is no evidence of the way Barton was treated when he gave the statement he gave. We do not know what kind of pressure he was under; we do know that he did not have the benefit of any legal advice.

      It seems to me that the only way a statement could have been made by Barton that matched up with Miller's statement, would have been if someone had told him what, according to Miller, had happened, and then convinced him to agree that some variation of this had in fact happened.

      When Miller recanted her 1969 statement in 2008, she advised the police officer taking the statement that she had never had sexual relations with Barton. So the entire incident as she described it in 1969 was fabricated, yet somehow Barton gave a statement about a sexual encounter with Miller that was similar in many respects, save the issue of consent.

      In 2014, in assessing whether or not police were negligent in their investigation and as a result Barton should be provided compensation for the wrongful conviction, the court disagrees with me that it can speculate that Barton's 1969 statement was falsified in any way. This is what the judge says on this issue:

      Might it now follow that Mr. Barton's 1969 statement was somehow falsified by Corporal Hamilton and that there was accordingly, a negligent investigation? For the reasons outlined below, the answer to this question must be a resounding, “no”.

      First of all, Mr. Barton's 1969 statement cannot be viewed in isolation. It is too simple to conclude that just because the statement is untrue, it must have been fabricated or forced by the R.C.M.P. It is not appropriate for the Court to speculate as to why the statement is false on the critical point of the sexual act.

      The statement was taken in the pre-­Charter era. Nevertheless, Corporal Hamilton testified as to his practice regarding taking a warned statement which Mr. Barton's statement appears to have been. He added that as it was his practice to have a second officer witness warned statements, he had Constable Thompson (who was with the Digby R.C.M.P. detachment at the time) witness Mr. Barton's signature.

      I must say, it is troubling to me as a judge sitting in 2014 to accept that the statement was fairly taken. Nevertheless, I am mindful of the Supreme Court of Canada direction not to impose today's post-­Charter values on police practice dating back 45 years.

      The judge considers the statement in the context of all the information known to police at the time. There was no evidence at all showing it not to be true. Furthermore, there was no evidence showing the police officer at the time had a motive or reason to falsify evidence in this case. As a result, he concludes that the investigation was not negligent. The only reason Barton suffered the stigma of being a sex­ offender for 45 years was because Miller and her family lied to police.

      What this says to me, is that the courts today will not speculate on the ways racism and poverty affected investigations and informed police practices in the past. The courts will not hold the government accountable for these social ills and lives ruined as a result.

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