Barton v. Nova Scotia (Attorney General) et al., (2015) 358 N.S.R.(2d) 104 (CA)

• Judge: MacDonald, C.J.N.S., Oland, Beveridge, Farrar and Bryson, JJ.A.
• Court: Nova Scotia Court of Appeal
• Case Date: April 14, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 358 N.S.R.(2d) 104 (CA);2015 NSCA 34

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Barton v. N.S. (A.G.) (2015), 358 N.S.R.(2d) 104 (CA);

    1131 A.P.R. 104

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Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.024

Gerald Gaston Barton (appellant) v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia and The Attorney General of Canada (respondents)

(CA 428964; 2015 NSCA 34)

Indexed As: Barton v. Nova Scotia (Attorney General) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Oland, Beveridge, Farrar and Bryson, JJ.A.

April 14, 2015.

Summary:

In 2011, Barton's 1970 conviction for sexually assaulting a 14 year old girl was set aside based on a miscarriage of justice. DNA evidence cleared him (see [2011] N.S.R.(2d) Uned. 11). The girl recanted the allegation and disclosed that her older brother had been the one who impregnated her. Barton had been briefly incarcerated and sentenced to one year's probation. Barton brought an action for damages against the provincial Attorney General for malicious prosecution and the federal Attorney General for negligent police investigation by the R.C.M.P. Barton alleged, inter alia, that the prosecutor was a friend of the father of the girl, that the matter was never investigated and that he was brought before the judge, without counsel and without being allowed to answer the charge, and convicted. The Attorneys General brought a motion for summary judgment to dismiss the tort claims as failing to disclose a reasonable cause of action.

The Nova Scotia Supreme Court, in a judgment reported (2013), 329 N.S.R.(2d) 2; 1042 A.P.R. 2, granted summary judgment in part. The negligent police investigation claim against the federal Attorney General was dismissed, but was allowed to proceed as against the R.C.M.P. Barton also claimed damages against the Crown under ss. 7 and 12 of the Charter for refusing him compensation for his wrongful conviction. The malicious prosecution claim was abandoned.

The Nova Scotia Supreme Court, in judgment reported (2014), 346 N.S.R.(2d) 1; 1095 A.P.R. 1, dismissed the claims, but provisionally assessed $75,000 general damages. Barton appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1206.5

Security of the person - Right to psychological integrity (incl. dignity, reputation, etc.) - In 2011, Barton's 1970 conviction for sexually assaulting a 14 year old girl was set aside based on a miscarriage of justice - DNA evidence cleared him - The girl had recanted in 2008, disclosing that it was her older brother who had impregnated her - In a police statement at the time of arrest, the 19 year old Barton had falsely admitted to having consensual sexual intercourse with the girl and did not dispute the statement at his preliminary inquiry - Barton was briefly incarcerated and sentenced to one year's probation - After the province refused to provide compensation for his wrongful conviction, Barton brought an action for damages under s. 24(1) of the Charter, claiming that the psychological harm caused by denying him compensation breached his rights under s. 7 (security of the person) and s. 12 (cruel and unusual punishment) of the Charter - The trial judge rejected the "novel" claims - Although s. 7 could be triggered by the infliction of purely psychological stress, Barton failed to establish that the denial of compensation caused him serious psychological harm - The trial judge stated that Barton "has not provided any evidence that by failing to compensate him for his wrongful conviction and 'forcing' him to litigate, the defendants caused him to suffer serious and profound psychological harm beyond the ordinary stress and anxiety that a person would usually experience in litigation" - Further, "he has failed to provide any factual or legal support to establish that refusal to provide compensation in respect of an alleged wrongful conviction is so grossly disproportionate to his personal situation so as to rise to the level of cruel and unusual treatment prohibited by s. 12 of the Charter" - The Nova Scotia Court of Appeal held that the trial judge did not err - The Charter claim was legally and factually without merit - See paragraphs 103 to 109.

Damage Awards - Topic 630.1

Torts - Injury to the person - Wrongful conviction - In 2011, Barton's 1970 conviction for sexually assaulting a 14 year old girl was set aside based on a miscarriage of justice - DNA evidence cleared him - The girl had recanted in 2008, disclosing that it was her older brother who had impregnated her - In a police statement at the time of arrest, the 19 year old Barton had falsely admitted to having consensual sexual intercourse with the girl and did not dispute the statement at his preliminary inquiry - Barton was briefly incarcerated and sentenced to one year's probation - After the province refused to provide compensation for his wrongful conviction, Barton brought an action for damages against the R.C.M.P. for negligent police investigation - The trial judge dismissed the action, but provisionally assessed general damages for the wrongful conviction - Barton never obtained medical attention, counselling or medication to deal with alleged psychological issues - His employment as a labourer was unaffected - However, there was no question that Barton had to live for almost 45 years with the stigma of being labelled a rapist, when he knew that he did nothing wrong - He could not travel to the United States, as he could not, as a convicted rapist, obtain a passport - His claim of diminished income was too speculative - The trial judge accepted that Barton's life "has been profoundly negatively affected as a consequence of his wrongful conviction" - The court provisionally assessed $75,000 general damages - The Nova Scotia Court of Appeal held that the trial judge was entitled to deference - There was no basis to intervene where no error in principle was alleged - Barton merely requested a higher award - That was not the court's function - See paragraphs 114 to 115.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - In 2011, Barton's 1970 conviction for sexually assaulting a 14 year old girl was set aside based on a miscarriage of justice - DNA evidence cleared him - The girl had recanted in 2008, disclosing that it was her older brother who had impregnated her - In a police statement at the time of arrest, the 19 year old Barton had falsely admitted to having consensual sexual intercourse with the girl and did not dispute the statement at his preliminary inquiry - Barton was briefly incarcerated and sentenced to one year's probation - After the province refused to provide compensation for his wrongful conviction, Barton brought an action for damages against the R.C.M.P. for negligent police investigation - The trial judge dismissed the claim - In the pre-Charter context of how investigations were conducted in 1969, the R.C.M.P. did not do anything, or omit to do anything, that would constitute a negligent investigation - The claim had to be determined on the standard applicable at that time (1969) - The R.C.M.P. interviewed all of the proper persons and reasonably believed the victim - They had no reason to believe that the girl was being sexually abused by her brother (who backed the girl's story) - Both the girl and her brother gave false statements and perjured themselves - There was no failure to pursue exculpatory evidence, as there was none - Further, Barton admitted to at least consensual intercourse (which constituted statutory rape at the time) and did not challenge that statement when he had an opportunity to do so at the preliminary inquiry, where he was represented by a lawyer - There was no allegation that the false statement was forced or fabricated by the R.C.M.P. and it was not for the court to speculate as to why the accused admitted having sex with the girl when he did not - The Nova Scotia Court of Appeal dismissed Barton's appeal - The trial judge did not commit palpable and overriding error in refusing to find that the R.C.M.P. was negligent - See paragraphs 41 to 102.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - [See Damage Awards - Topic 630.1 ].

Torts - Topic 5905

Negligent investigation - Criminal prosecutions - [See Police - Topic 5031 ].

Cases Noticed:

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 14].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 16].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 16].

R. v. Hobbs (K.P.) (2010), 293 N.S.R.(2d) 126; 928 A.P.R. 126; 2010 NSCA 62, refd to. [para. 16].

R. v. Cameron (1991), 44 O.A.C. 278; 64 C.C.C.(3d) 96 (C.A.), refd to. [para. 16].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 16].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 16].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 16].

R. v. Lohrer (A.W.) (2004), 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 16].

R. v. G.D.B. (2000), 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 16].

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 16].

Adgey v. R., [1975] 2 S.C.R. 426, refd to. [para. 18].

R. v. Messervey (A.C.) (2010), 291 N.S.R.(2d) 359; 922 A.P.R. 359; 2010 NSCA 55, refd to. [para. 18].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, refd to. [para. 35].

Polgrain Estate v. Toronto East General Hospital et al. (2008), 238 O.A.C. 1; 2008 ONCA 427, refd to. [para. 37].

Rizzo et al. v. Hanover Insurance Co. (1993), 64 O.A.C. 230; 14 O.R.(3d) 98 (C.A.), refd to. [para. 37].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al. (2003), 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 38].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 75].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al. (2007), 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 77].

R. v. Pearson (1957), 25 C.R. 342 (Alta. C.A.), refd to. [para. 89].

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 89].

Ward v. Vancouver (City) et al. (2010), 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 104].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 110].

Bezanson v. Hayter (2009), 284 N.S.R.(2d) 171; 901 A.P.R. 171; 2009 NSCA 113, refd to. [para. 114].

Counsel:

W. Dale Dunlop, Ian M. Gray and James K. Harper, for the appellant;

Debbie Brown, for the respondent, Attorney General of Nova Scotia;

Angela Green and Jessica Harris, for the respondent, Attorney General of Canada.

This appeal was heard on January 28, 2015, at Halifax, N.S., before MacDonald, C.J.N.S., Oland, Beveridge, Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On April 14, 2015, Beveridge, J.A., delivered the following judgment for the Court of Appeal.