Bottos Law Group Files Supreme Court of Canada Factum in R v Barton

1. This case has received enormous public attention, partly because of its unusual facts and evidence, partly because it involves the unfortunate death of Cindy Gladue, an Indigenous woman, and partly because of the approach taken by the Court of Appeal of Alberta (ABCA) to the crime of sexual assault, at a time in history when concerns about this type of offending have perhaps never been more pronounced. Lost in the public discourse of this case, however, is what can go wrong when appellate courts ignore critical due process norms. As this Court noted in R v Mian,1 “[a] departure from the usual conduct of an appeal could lead the court to be seen to be intervening on behalf of one of the parties, thus impugning the impartiality of the court.”

2. In the third paragraph of its factum before the ABCA, the Crown summed up its view of the case by opining that “it is difficult to fathom how the jury acquitted”. The ABCA appears to have taken this message to heart in hearing this appeal. The Court’s distaste for the jury decision is evident from its treatment of the legal and procedural issues and disregard for the difficult task faced by a well-respected trial judge who worked tirelessly with the parties to prepare a fair and balanced jury charge at the end of a complex four week trial. Amongst other concerns, the ABCA: (1) ignored instructions from this Court about how an appellate court can raise issues of its own motion; (2) allowed an intervener to raise new grounds of appeal; (3) ignored the fact that most of the Crown’s grounds of appeal contradicted positions taken at trial, even though this was a central theme of the Appellant’s factum; (4) reversed a number of discretionary decisions made by the trial judge; and (5) dissected the jury charge rather than looking at it as a whole, picking out every problematic word or phrase. In short, the ABCA’s treatment of this appeal reveals a flawed process and an improper result, both of which stem from a troubling disregard of well- established restrictions upon an appellate court’s review function.