R. v. Barton (B.), 2015 ABQB 159

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 25, 2015
• Citations: 2015 ABQB 159;(2015), 614 A.R. 93 (QB)

R. v. Barton (B.) (2015), 614 A.R. 93 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.087

Her Majesty the Queen (Crown) v. Bradley Barton (accused)

(120294731Q1; 2015 ABQB 159)

Indexed As: R. v. Barton (B.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

February 26, 2015.

Summary:

The accused was charged with first degree murder. The victim was a woman who was allegedly a prostitute. The Crown's theory was that the victim bled to death as a result of a wound to her vaginal wall. To that end, in addition to pictures, the Crown sought to have the preserved pelvic region of the victim, which was preserved during an autopsy, entered into evidence.

The Alberta Court of Queen's Bench noted that there did not appear to be any Canadian law directly on point on the use of the human tissue in court. The issue being novel, the court started with the general principles concerning admissibility of evidence. The tissue was real evidence and the best evidence. There was no exclusionary rule relating to the use of the tissue at trial. The court held that the tissue in this case was presumptively admissible. It was not a graphic depiction of evidence, it was the evidence in itself. If the autopsy photographs were admissible, the object of the photograph itself should be admissible as real evidence. The court held that the issue became one of balancing the probative value of the evidence and the prejudicial effect. The court held that the tissue evidence was highly probative (i.e., highly relevant and material to the key issue). As to the prejudicial effect of using the tissue, the court recognized that there was a natural discomfort to the presence of a body part in court. The court noted that it was perhaps unprecedented to present this type of evidence to a jury, at least in Canada, but the absence of precedent did not mean that it should not be done. The court was mindful of its responsibility to guard the accused's rights to a fair trial. However, the onus of proving that the prejudicial effect of introducing the tissue outweighed the probative value of its introduction was on the accused. The court was not satisfied the defence met that burden. The potential for prejudice was speculative. The court, therefore, allowed the doctor who conducted the autopsy to use the tissue during his evidence at trial. The court stated that it was not necessary for the jury to see the tissue other than on the screen so the court directed the doctor to testify when he was using the tissue from the side of the courtroom that was opposite the jury, and to be shielded by a screen. The court ruled also that it was important that the tissue be kept in the doctor's possession when not in court, as it was intended to be shown to defence experts. It should be preserved appropriately until the case (including all appeals, if any) were finally disposed of.

Criminal Law - Topic 5586

Evidence and witnesses - Scientific and medical evidence - Human tissue - See paragraphs 20 to 64.

Counsel:

C.A. Downey and C.D. Godfrey, for the Crown;

D. Bottos and E. McIntyre, for the accused.

This voir dire was held in Edmonton, Alberta, on February 25, 2015, before Graesser, J., of the Alberta Court of Queen's Bench, who rendered a decision on February 26, 2015, and issued written reasons on March 10, 2015.