Case: R. v. Barton, 2016 ABCA 68 (CanLII)

Keywords: Leave to Intervene in Criminal Appeals; Alberta Rules of Court; R. v. J.L.A., 2009 ABCA 324.


The Crown appeals following a trial for first degree murder (s. 235(1) of the Criminal Code) in which the Respondent, Mr. Bradley Barton, is found not guilty of causing the death of Ms. Cindy Gladue.

The grounds of appeal are as follows:

  1. The trial judge erred in law in his instruction to the jury with respect to manslaughter.
  2. The trial judge erred in law in his instruction to the jury with respect to motive.
  3. The trial judge erred in law in making a ruling under 276 of the Criminal Code (concerning evidence of the complainant’s sexual activity) after the close of evidence without any application having been brought by the defence and without a hearing on the issue.
  4. The trial judge erred in law in instructing the jury that the complainant’s consent on a previous occasion could be used to support a finding of honest but mistaken belief in consent on this occasion.
  5. Such further and other good grounds as counsel may advise.

The Women’s Legal Education and Action Fund Inc. (“LEAF”) and the Institute for the Advancement of Aboriginal Women (“IAAW”) seek leave to intervene in the appeal.

The proposed interveners intend to file one joint factum of 20 pages or less and make oral submissions not exceeding 20 minutes. The anticipated focus of these submissions is on the definition of “sexual activity” at s.273.1(1) of the Criminal Code, a substantive equality analysis on the meaning of consent, and observations on the procedure required by s.276 of the Criminal Code.

Berger J.A. concludes that the 3 judges of the Court of Appeal who will sit in judgment on the ultimate appeal should benefit from the unique perspective of the applicant interveners; that written submissions will assist the Court in a meaningful way. Leave to intervene is granted, but confined to the proposed joint factum. The application to make oral submissions is denied.


Prior to the Alberta Court of Appeal decision in both R v Vallentgoed, 2016 ABCA 19 (CanLII) and in the present case, R. v. Barton, 2016 ABCA 68 (CanLII), the pervasive attitude towards intervention in criminal appeals was generally negative. The Court’s decision in Barton will potentially expand the frequency of interventions in criminal matters – a positive opportunity for appellate counsel and interest groups alike to explore alternatives to the traditional binary process.

Rules 14.37(2) and 14.58 of the Alberta Rules of Court, AR 124/2010, provide that a single appeal judge may grant leave to a party to intervene in an appeal and impose conditions on the intervention. Unless otherwise ordered, the applicant intervener cannot raise or argue novel issues on appeal: Rule 14.58(3).

Berger J.A. set out the considerations that govern applications for intervener status in criminal cases at para. 4 of the judgment as follows:

  1. The nature of the case;
  2. The issues which arise;
  3. The likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties;
  4. Whether the applicant will provide a fresh, distinctive and useful perspective;
  5. Whether the applicant’s proposed submission links to an issue raised by the parties; new issues not argued in the court below will generally not be entertained at the instance of an intervener;
  6. The prejudice to either party if the intervention is granted;
  7. Whether the intervention will transform the court into a political arena;
  8. The applicant’s particular expertise on the subject matter of the appeal;
  9. Whether the presence of the intervener is necessary for the court to properly decide the matter;
  10. Whether the arguments advanced by the intervener are repetitive of those of the appellant or the respondent;
  11. The extent that the proposed intervener is a well-recognized group with a special expertise and a broadly identifiable membership base; and
  12. Whether the proposed intervener has a real, substantial and identifiable interest in the subject matter of the proceedings.

Citing Watson J.A. in R. v. J.L.A., 2009 ABCA 324, the Court found that interventions in criminal appeals are “very unusual” because judges typically take the position that the issue in such cases is solely between an individual and the state – with no room for outside perspectives which may cause prejudice to the parties.

For Berger J.A., however, the relevant inquiry is simply this: whether the proposed intervener will advance different and valuable insight that will actually further the court’s determination of the matter (see, for example, Canadian Doctors for Refugee Care v. Canada (Attorney General), 2015 FCA 34 (CanLII) at para. 15; Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21 (CanLII) at para. 11).

Moreover, says Berger J.A., courts must be mindful that the issue of whether or not to grant leave to intervene is not an all or nothing proposition (to either grant leave with respect to the entire appeal or not at all). Instead, courts may appropriately ask whether there are specific issues in the appeal which warrant intervention and then consider imposing limiting conditions on that intervention which vouchsafe the integrity of the appeal process.

“I say, with great respect, that judges are too quick to shun intervention by a third party in a criminal case. Watson J.A. has observed ‘all necessary voices with proper standing will necessarily be heard through the traditional binary process’ – but not always” (see para. 10).

Berger J.A. expressed concern that the traditional justification for denying intervener applications in criminal matters – that other voices can distort an appeal – is gratuitously invoked to deny apposite interventions by a party who could assist that court but whose submissions may also happen to prove useful to the defendant in the case.

In the present matter, however, the applicants (LEAF and IAAW) are acknowledged to have contributed helpful interventions in many cases; particularly those which concern the topic of gender discrimination. Significantly, Berger J.A. found no prejudice to the respondent – so long as the applicants’ submissions are confined simply to the proposed joint factum.

Counsel for the Respondent (Appellant): Joanne Dartana (Alberta Department of Justice and Solicitor General, Edmonton)

Counsel for the Respondent (Respondent): Dino Bottos (DePoe and Bottos, Edmonton)

Counsel for the Applicants Women’s Legal Education and Action Fund Inc. and Institute for the Advancement of Aboriginal Women (Proposed Interveners): Ritu Khullar, Q.C. & Kristen McLeod (Chivers Carpenter, Edmonton)