R v Barton: Interventions to Determine the Role of Interventions

In the 25 years since the introduction of the Canadian Charter of Rights and Freedoms [“Charter”], the Supreme Court of Canada (“SCC”) has become increasingly open to third-party intervenors, expanding their role within our justice system. However, new questions have arisen about the efficacy of such interventions as the Court opens its doors to more and more parties. In the last decade, the SCC has reduced the time allotted to intervening parties for oral submissions down from ten minutes to five minutes, and according to some, has taken a less selective approach as to who is granted leave to intervene in any particular case. Critics say that as the SCC widens its doors to allow a more diverse set of opinions, it will become increasingly unable to appreciate these unique perspectives with the depth that they deserve.

On 11 October 2018, the SCC heard arguments in the case of R v Barton, 37769. A fellow contributor for TheCourt.ca recently examined the admissibility of a complainant’s prior sexual conduct under s. 276 of the Criminal Code of Canada, RSC 1985 c C-46 [Criminal Code] and its relationship to Mr. Barton’s charge of first-degree murder.  The facts of the case, which resulted in the tragic death of Cindy Gladue, are outlined in that previous post. Rather than discuss Mr. Barton’s murder charge, this post will focus on the role that third-party intervenors play in the criminal justice system.

Role of the Intervenors on Appeal

Mr. Barton was acquitted by a jury on the charge of first-degree murder in relation to the death of Cindy Gladue. In hearing the Crown’s appeal on R v Barton, 2017 ABCA 216, the Alberta Court of Appeal (“ABCA”) granted leave to two joint-intervenors at the hearing: the Women’s Legal Education and Action Fund (“LEAF”) and the Institute for the Advancement of Aboriginal Women (“IAAW”). The joint-intervenor factum argued that the trial judge erred by failing to properly instruct the jury regarding the law of consent, and also erred by failing to require an application under s. 276 of the Criminal Code prior to admitting evidence of the complainant’s sexual history. The ABCA specifically acknowledged parts of these submissions in its analysis of whether or not the trial judge was required to hear a s. 276 application and drew from it in its reasoning to overturn Mr. Barton’s acquittal.

The role of the joint-intervenors in influencing the ABCA to overturn Mr. Barton’s acquittal became a key issue on appeal to the SCC, and ironically attracted several intervenors from across the country to seek leave to make submissions on what the role of intervenors should be in such proceedings. Did the ABCA overstep its bounds by relying too heavily on the submissions of the joint-intervenors? Were these submissions within the limits that intervenors must abide by, or did they raise new grounds of appeal that were not brought forward by the Crown?

Positions of the Parties

Mr. Barton’s counsel contended in its factum that the joint-intervenors essentially acted as a “second prosecutor” against the defendant (Barton Factum, paras 38-50). They submitted that, although appellate courts have the jurisdiction to allow intervenors a voice in criminal proceedings, they should implement several restrictions to preserve the balanced integrity of the adversarial process. Among these restrictions is the requirement that intervenors not advocate for a particular result, but rather should make principled submissions on legal points relating to the appeal. The defendant’s position was that in this case, the joint-intervenors had strictly advocated against Mr. Barton and sought to influence the court in a manner outside of their limited role (Appellant Factum, paras 38–50).

The Criminal Trial Lawyers’ Association of Alberta (“CTLA”) endorsed the appellant’s submissions and further emphasized that criminal matters can only seldom warrant the intervention of a third-party. Their factum argued that the binary process limited to the accused and the Crown should be sufficient in itself to give voice to all parties with proper standing. Any additional voice in an appeal may create an unfair disadvantage against the defendant who is already up against the formidable power of the state (CTLA Factum, para 20). Furthermore, the CTLA took the position that although intervenors may refer to particular facts of the case, they “may not argue that contested factual matters ought to be resolved in a certain manner, and may not present arguments as to how the law ought to be applied to the facts as found” (para 33). For the Court to permit otherwise would be a violation of the principles of fundamental justice, and thus a breach of a defendant’s section 7 rights under the Charter (para 25).

On the other side, the David Asper’s Center of Constitutional Law (DACC) responded to these arguments by stating that there was no impropriety in the weight given to the joint-intervenors by the ABCA.  The DACC highlighted the potentially unique perspectives that only third-party intervenors could bring to the courtroom, especially when representing institutionally marginalized segments of society. They argued that the prosecution’s distinct obligations to represent the broader public interest, in certain circumstances, do not align with representing certain disadvantaged sectors of the public. This is where intervenors can fill the void and give voice to those who otherwise would not be able to speak (DACC Factum, para 7). Additionally, the DACC took objection to the position that intervenors should not be able to refer to particular facts of the case. They distinguished between referencing facts in order to take a position on legal principles and procedures versus doing so in order to enhance the credibility of a particular version of the factual record. As such, in order to meaningfully address the issue on appeal surrounding the application of s. 276 of the Criminal Code, the joint-intervenors were compelled to base their legal arguments upon the facts of this particular case and were appropriately allowed to suggest an alternative interpretation of applying those facts (DACC Factum, para 14).

Finally, the joint-intervenors LEAF and IAAW adopted the submissions of the DACC and further reiterated the position that during the ABCA appeal, they were simply supporting the grounds of appeal already set forth by the Crown (LEAF Factum, para 8).

The SCC Hearing

With a multitude of issues to be determined, the high-stakes nature of this appeal was in full display even prior to the commencement of the proceedings. Members of the public lined up outside the SCC to secure a seat in the audience. The moderately-sized but packed courtroom was filled with various counsel, including those representing the 15 intervenors at hand. Adding to the drama, a quick glance around the room gave a good idea as to where each intervenor stood on the eventual disposition of this matter, even though they were asked to adopt a neutral position.

The hearing began with submissions on behalf of the appellant. Although counsel outlined their intent to address the role of the joint-intervenors in the ABCA’s decision, the strict time requirements for oral arguments precluded them from doing so. Their submissions instead focused on other significant issues to be determined, such as the validity of the trial judge’s charge to the jury, novel issues arising on appeal, and the absence of a s. 276 application.

Aside from the respondent’s reply, what proceeded was an array of short oral submissions by a host of different intervening parties. The court was generally strict regarding its five-minute time requirement, but engaged more enthusiastically with some over others. The issue regarding the role of intervenors took center stage in the courtroom during the submissions by the CTLA. These arguments mainly echoed the positions put forward in their factum but were enhanced by being spoken in front of the bench. Counsel for the CTLA discussed how the Crown is only permitted to appeal a case on an error of law. However, if intervening parties were given permission to raise mixed errors of law and fact on appeal that were otherwise not raised by the Crown, this would create an ultimate side-stepping of the rule. This sparked a query by Justice Abella as she referred to R v Mian, 2014 SCC 51, where the SCC had ruled that appellate courts have jurisdiction to raise new issues on appeal and that there must be notice given to parties in order to respond. She asked whether this framework could be applied to intervenors as well, allowing new issues to arise as long as they are accompanied by an opportunity for parties to respond. Counsel for the CTLA calmly responded by suggesting that the current issue is distinguishable as it essentially creates a two-on-one scenario against the defendant and is fundamentally unfair and beyond procedural safeguards. The discussion concluded with the ironic acknowledgement by the CTLA that they were standing at the Court intervening in a criminal case in order to submit that there should be few interventions.

The issue arose again at the end of the proceedings when the DACC stood up for its submissions. As counsel for the DACC was around half-way through their submissions, they were interrupted by Justice Rowe who asked whether there is a distinction between intervenors submitting on what the general state of law should be versus the actual guilt or innocence of the accused on trial? The DACC tactfully acknowledged that generally an intervenor should not take a position on the outcome of a matter; however they repeated the argument from their written factum about the inadequacy of raising artificial barriers between legal issues and factual evidence.

Following an opportunity for a brief reply by appellant counsel, the hearing concluded and the bench reserved its judgement for a later date.

 Concluding Remarks

It is valid to ask why the issue of intervenors is even important in a case that is dealing with many other pertinent legal matters. The Barton hearing tackled everything from statutory interpretation, degree of consent, charges to the jury and human dignity to the court’s right to find answers to novel concerns. Even against this backdrop, the role of third-party intervenors in Canada’s judicial system does not lose its significance. Barton is a prime example of the multitude of issues that have been discussed in recent literature regarding interventions. The Court is essentially tackling the question of who gets to have say in a matter between the state and a private individual. Is the state even capable of bearing the responsibility of ensuring that the interests of all segments of society are represented in a hearing? How should the court balance its responsibility to improve access to justice for the voices that seek to be heard while ensuring fairness to the private citizen who is already facing the might of the state?

The SCC has an opportunity to rule on these matters within this case and provide guidance to the lower courts as to how such issues should be resolved. The limited nature of five-minute intervenor submissions makes it difficult to assess where the Court was leaning during the actual hearing. As such, it will be interesting to see how the Court rules on this important matter, not just for its impact on this specific case, but for the broader implications across our justice system.

Saad Gaya

Saad is currently completing a Juris Doctor program. In addition to contributing to TheCourt.ca, he is also a volunteer for the Canadian Civil Liberties Association, and on the editorial team for the Transnational Legal Theory Journal. He strongly believes in smart advocacy and is developing broad interests in several areas of law, including constitutional, administrative, and regulatory law.

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