- Our Town
Wrongfully convicted man loses lawsuit
By Michael MacDonald, The Canadian Press
HALIFAX - A Nova Scotia judge has ruled that a man wrongfully convicted of statutory rape in 1970 has failed to prove the miscarriage of justice was a violation of his Charter rights or the result of a negligent RCMP investigation.
Judge James Chipman of the province's Supreme Court, in a written decision delivered Thursday, concluded there was nothing wrong with the way the Mounties investigated the case against Gerald Barton of Jordantown, N.S.
Chipman concluded that Earl Hamilton, an RCMP corporal at the time, interviewed the right people and properly obtained an incriminating statement from Barton, then 19, in the presence of another officer.
"Given the facts and applying the law, I am satisfied ... Hamilton did or omitted nothing which would constitute a negligent investigation," the judge said.
Barton, who filed a lawsuit against the Mounties, could not be reached for comment Thursday. One of his lawyers, Ian Gray, said it was too early to say if there would be an appeal.
Chipman's decision goes on to say there was no evidence to suggest Hamilton fabricated Barton's false statement, in which he admits to having sex with a 14-year-old girl, who later gave birth to a boy in August 1969.
"It is too simple to conclude that just because the statement is untrue, it must have been fabricated or forced by the RCMP," the judge said.
During court hearings last month in Halifax, Barton said he never gave a statement to police. He also testified the sexually explicit terms in the police statement were words he wouldn't have understood at the time.
His lawyer, Dale Dunlop, told the court Hamilton could have manufactured the statement or encouraged Barton to say he had consensual sex with the girl to spare the accused from facing a more serious rape charge.
But the judge didn't buy those arguments.
"There is no evidence or motive suggesting why Cpl. Hamilton would invent Mr. Barton's statement, provide the statement to the Crown prosecutor and read it into the record," Chipman said.
"Cpl. Hamilton's investigation did not cause Mr. Barton to be convicted of statutory rape. His conviction was caused by (the 14-year-old complainant) making a false statement to police and lying under oath."
Barton also testified that he didn't have a lawyer in 1969 and never pleaded guilty to the charge in Digby, N.S., even though court records say otherwise.
Again, the judge rejected Barton's account, saying the record was clear.
Barton, now 64, spent a few hours in jail and was sentenced to a year of probation.
His conviction was quashed by the Nova Scotia Court of Appeal in 2011 after the complainant recanted her story and blamed her brother for getting her pregnant. DNA testing showed her brother was 1.9 million times more likely to be the father of the boy than anyone else.
The brother was later charged with indecent assault, but the charge was dismissed in 2009. His name and that of his siblings and immediate family are protected by a publication ban.
When the case was heard in April, Barton's lawyer told the court that his client had suffered mental anguish over the years as a result of the wrongful conviction.
However, Chipman concluded that Barton's rights under the Charter of Rights and Freedoms had not been breached even though there had been a miscarriage of justice and no compensation from the province or police.
Chipman said Barton failed to prove the province or the RCMP had infringed his right to security of the person or had subjected him to cruel and unusual treatment.
The judge said Barton did not provide any evidence that the defendants caused him serious and profound psychological harm beyond the "ordinary stress" that comes with litigation.
Chipman added in his ruling that he would have awarded $75,000 in general damages to Barton if his case had succeeded.
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