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Page: | 17/03/2015 4:08 PM Final Barton Charge Her Majesty the Queen v. BRADLEY BARTON Action No. 120294731Q1 Instructions to the Jury Delivered by Mr. Justice R. A. Graesser March 17, 2015 Page: 2 Table of Contents Part I. Introduction: Part II. Duties of Jurors Introductory remarks, Jurors sole judges of the facts. Your duty to the community... Jurors analysis of the evidence... Reliance only on evidence received in the trial All evidence to be considered Qa aon e Part III. General Principles .. % Presumption of innocence. Proof beyond a reasonable doubt... Admissions..... Assessment of evidence... Assessing credibility. Direct and circumstantial evidence... Expert opinion evidence . Demonstrative aids used by counsel. Motive Character of Bradley Barton 32 Out of Court statements of Bradley Barton 32 After-the-fact Conduct.... 35 Testimony of Person Charged (WD Instruction)... 39 First Degree Murder. Sexual Assault With A Weapon Intention To Commit Murder Manslaughter UNLAWFUL ACT... CONSENT... Capacity Page: 3 HONEST BUT MISTAKEN BELIEF IN CONSENT. LIMITS ON CONSENT. Dangerous Act Part IV. W(D) Instruction In Respect To The Homicide Offences ‘Theories of Crown and Defence Theory of the Crown... ‘Theory of the Defence. Part V. Possible Verdicts _ [this is really a decision tree ] Part VI. Concluding Remarks Procedure and Verdicts. Procedure Listening with respect Unanimous verdicts required . Right to disagree Finding of not guilty... Finding of guilty Altering or qualifying instructions Additional explanations of the law Sequestration. Use of instructions... Charges Use of verdict sheets.. Pollin Retirement.. Part VIL. List of numbered exhibits... Page: 4 Part I. Introduction: [1] Members of the jury, we have now reached the stage in this trial when, after I give my instructions, you will retire to the jury room to deliberate and decide whether BRADLEY BARTON is guilty or not guilty of the charge contained in the Indictment. Part II. Duties of Jurors Introductory remarks [2] Now that you have heard the evidence and the submissions of counsel, I will instruct you on the legal elements of the offences charged and other legal considerations. When we started this case on February 17, I told you about several principles of law applicable to these proceedings and those instructions still apply. What follows now are my final instructions. You must accept the law as I give it to you. If counsel has said anything about the law that differs from Page: 5 what I tell you, you must accept my version. You must consider my instructions as a whole. Do not single out some parts and ignore others. [3] Once I finish instructing you, I will provide you with a copy of my instruction so that you may refer to the document to refresh your memory of what I have said. It is a rather long set of instructions and therefore I have included a table of contents to assist you in finding what I have to say on a particular subject. I have also attached to these instructions a list of the numbered exhibits (Part VII), which forms part of the evidence in this trial. Jurors sole judges of the facts [4] You are the sole judges of the facts. It is your function and your function alone to decide what inferences are to be drawn from the facts which you find. You alone will decide what evidence you Page: 6 believe and what evidence you do not believe. You will decide on the whole of the evidence whether Mr. Barton is guilty or not guilty of the charge in the Indictment. A copy of the Indictment will be in the jury room with you. Your duty to the community [5] Your duty to your community is to ascertain if a crime was committed and whether Mr. Barton committed the crime alleged against him. You have a responsibility to Mr. Barton to ensure that he is not improperly convicted of the charge made against him. Jurors analysis of the evidence [6] When examining the evidence, you must do so without sympathy or prejudice for or against anyone involved in these proceedings. That means you must now make good on your promise Page: 7 to put aside whatever biases or prejudices you may hold or feel. It also means that sympathy can have no place in your deliberations. Reliance only on evidence received in the trial [7] Ifyou have heard or read anything about this matter outside this courtroom, you must now banish it from your minds. You must decide solely on the evidence that you have heard during this trial. It is fundamental to our system of justice that an accused person can only be convicted by properly admitted evidence establishing facts that justify conviction. Public opinion, media reports, media opinions and comments by others have absolutely no role to play in your deliberations. All evidence to be considered [8] _ In the course of my instructions to you, I will review some portions of the evidence to assist you. However, I will not review all Page: 8 of the evidence with you. Please do not assume that because I did not mention some evidence that evidence was unimportant. You must consider all the evidence, whether I mention it or not. [9] It is your memory of the evidence that counts, not the memory of counsel or me. It is also your opinion of the evidence that counts, not the opinion of counsel or me. You must place your own interpretation on the evidence you have heard because you are the judges of the facts. [10] By evidence, I mean the testimony heard in Court, the admissions made, the documents that became exhibits and the contents of the video and audio tapes. In the case of the testimony you have heard, only the answers of witnesses given in Court are evidence. The questions asked by counsel are not evidence unless they were clearly accepted by the witness. Those questions provide context for the witness’ answers and may serve to provide you with Page: 9 the questioner's theory of the case, but the questions themselves are not evidence unless they were clearly accepted by the witness. Part III. General Principles Presumption of innocence [11] You are to presume Mr. Barton is innocent during your deliberations. You may find him guilty only if after you consider all of the evidence, you are satisfied the Crown has proved its case against him beyond a reasonable doubt. Mr. Barton does not have to prove anything. The onus is on the Crown and it never shifts. Proof beyond a reasonable doubt [12] I have just referred to “proof beyond a reasonable doubt”; what does that expression mean? Page: 10 [13] You will recall that I had mentioned this fundamental principle in my opening remarks, and I will now expand on what this principle means. [14] The principle of proof beyond a reasonable doubt is an essential part of the presumption of innocence. [15] A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that arises at the end of the case based on what the evidence or absence of evidence tells you or does not tell you. [16] It is not enough for you to believe that Mr. Barton is probably or even likely guilty. In those circumstances, you must find him not guilty, because the Crown would have failed to prove his guilt Page: I beyond a reasonable doubt. Proof of probable or likely guilt is not enough. [17] You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, proof of guilt beyond a reasonable doubt is much closer to absolute certainty than it is to probable or likely guilt. [18] At the end of the case, and after an assessment of all of the evidence, if you are not sure that Mr. Barton committed the offence he is charged with, or an included offence, then you must find him not guilty on that charge. I will be advising you about an included offence later on in this instruction. Page: 12 [19] On the other hand, if at the end of the case, based on all of the evidence, you are sure that Mr. Barton did commit the offence, or an included offence, then you must find him guilty. [20] Please remember that the rule of reasonable doubt also applies to the credibility of the witnesses. You need not definitely decide on the credibility of the witnesses called by the Crown or the Defence. You need not definitely decide on the credibility of a witness or a group of witnesses. You need not firmly believe or firmly disbelieve one witness or a group of witnesses. If at the end of the case you have a reasonable doubt as to the guilt of Mr. Barton arising from the credibility of witnesses, then you must find him not guilty. Admissions [21] Admissions of facts mean that you must accept these facts as proved. The Crown and the Defence have agreed on several matters which you must accept: Page: 13 . There is continuity of Ms. Gladue’s body, the scene of her death and of the exhibits entered at trial; . That the blood found on Ms. Gladue’s body, in the bathtub, on the bedspread Exhibit 30, on the brown blanket Exhibit 31 and on the towel found in the garbage bin contained Ms. Gladue’s DNA; . The deceased was Cindy Gladue, the person named in the Indictment; and + The garbage can in which Mr. Barton deposited the blood-stained towel was one of two garbage cans closest to the North East exit door. These two garbage cans were located on opposite sides of the fence in the hotel parking lot, very near the end of the fence. [22] Carrying on with what is evidence, a fact is something which you, the jury, decide has been proven by the evidence. It is the evidence which you believe and accept as correct. Page: 14 [23] When you are examining the evidence in the process of fact finding, examine individual facts and the context of the evidence as a whole, not separately or in isolation, You must avoid applying the reasonable doubt test to proof of individual facts. Remember, that the reasonable doubt test applies only to the proof of the guilt of Mr. Barton and proof of the essential elements of the offence charged and any lesser and included offence which I will tell you about later in this set of instructions. Assessment of evidence [24] As the judges of the facts, you will examine the evidence, assess the credibility of the witnesses, decide what weight you will give to the evidence, and decide what facts have been proven. [25] What is evidence? By evidence, I mean the testimony of the witnesses and the exhibits filed. Page: 15 Assessing credibility [26] As the judges of the facts, you are the sole judges of the credibility of witnesses, including the contents of the audio statements made by Mr. Barton to 911 and to the undercover police officer in the van ride from Calgary to Edmonton. You have seen and heard witnesses who have given evidence at this trial, including Mr. Barton. You must assess the credibility of all the witnesses who appeared and gave evidence in the trial as to credibility or truthfulness in light of your own experience with people. [27] You may believe everything a witness said or nothing of what the witness said. You may believe part of what a witness said and reject other parts of what the witness said. Merely because evidence has not been denied does not mean that you are obliged to accept it as true. Page: 16 [28] When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses knew what they were talking about and whether they were telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’ testimony or the statements of Mr. Barton, or how much to rely on it in deciding this case. But here are a few questions you might keep in mind during your discussions. These questions are the kind that we silently ask ourselves when deciding whether we believe what we are being told. [29] Did the witness seem honest? Is there any reason why the witness would not be telling the truth? [30] Did the witness have any reason to give evidence that is more favourable to one side than the other? Page: 17 [31] Was the witness in a position to make accurate and complete observations about the event? Did he or she have a good opportunity to do so? What were the circumstances in which the observation was made? What was the condition of the witness at the time he made the observations? [32] Did the witness seem to have a good memory? Does the witness have any reason to remember the things about which he testified? Did any inability or difficulty that the witness had in remembering events seem genuine, or did it seem made up as an excuse to avoid answering questions? [33] Did the witness seem to be reporting to you what he or she saw or heard, or are they simply putting together an account based on information obtained from other sources, rather than personal observation? Page: 18 [34] Did the witness’ testimony seem reasonable and consistent? Was it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion? [35] What is the witness’ manner when she or he testifies? How does she or he appear to you? Do not jump to conclusions, however, based entirely on how a witness testifies. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different abilities, values and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or most important factor in your decision. [36] Did any inconsistencies in the witness’ evidence make the main points of his or her testimony more or less believable and reliable? Page: 19 Was the inconsistency about something important, or a minor detail? Did it seem like an honest mistake? Was it a deliberate lie? Was the inconsistency because the witness said something different, or because he failed to mention something on an earlier occasion? Was there any explanation for it? Did the explanation make sense? [37] As I said, most of the foregoing questions are really similar to the assessments we make every day when deciding whether we believe what we are told. That is what I meant when I said use your common sense to guide your decision as to what portion of what a witness said you accept. [38] These are only some of the factors that you should keep in mind. When you go to your jury room at the end of the case, these factors might help you decide how much or little you will believe of and rely upon a witness’ evidence. You may consider other factors as well. Page: 20 Direct and circumstantial evidence [39] Some of you may have heard the terms "direct evidence" and "circumstantial evidence". You may believe or rely upon either one or both as much or as little as the other in deciding this case. [40] Sometimes witnesses tell us what they personally saw or heard. For example, Constable Sled observed that he saw Mr. Barton sitting on the bed of Room 139, talking on the phone when he arrived shortly after 8:00 am on June 22, 2011. That is called direct evidence. Like witnesses, things filed as exhibits may provide direct or circumstantial evidence. [41] From the facts which you find have been proven, you may find that certain other facts can logically be inferred. We sometimes refer to this as proof based on circumstantial evidence. A classic type of circumstantial evidence is the fingerprint found at the scene of an incident from which it can be inferred that a person with those Page: 21 fingerprints was at the scene at some time. Mr. Barton’s fingerprint was found on one of the beer cans in Room 139. As the jury, you are entitled to make inferences of fact which logically arise from the facts you find to have been proven. Another form of circumstantial evidence is what is described as ‘post incident conduct’. I will say more about that later. [42] In making your decision in this case, both kinds of evidence count. The law treats both equally. Neither is necessarily better nor worse than the other. In each case, your job is to decide what conclusions you will reach based upon the evidence as a whole, both direct and circumstantial. [43] Direct evidence, circumstantial evidence and inferences drawn from either kind of evidence before you in this trial are all properly considered by you in making your decision. However, where the Crown seeks to prove an essential element of an offence by inference Page: 22 you need to be careful. A good test to apply is to ask yourself if on the evidence you accept, there is some reasonable inference that can be drawn which is consistent with some other explanation. If there is another reasonable inference that can be drawn, then you would have a reasonable doubt. [44] Having decided what facts have been proven and what inferences are to be made, you will take all of these into account in the context of the whole of the evidence in deciding whether you are satisfied beyond a reasonable doubt of Mr. Barton’s guilt on the charge in the Indictment or a lesser and included offence. Expert opinion evidence [45] Normally, witnesses may only testify about what they have seen or heard, and may not testify about their opinions. In this case a number of witnesses, because of their special training, education and experience, were permitted to give an opinion about a variety of Page: 23 issues. In the order of calling, Dr. Graham Jones was qualified as an expert in forensic toxicology and gave opinions about Cindy Gladue’s blood alcohol content at the time of her death. Cst. Nancy Allen was qualified as an expert in blood spatter patterns and gave opinions about the blood found on Ms. Gladue, in the bathtub of Room 139, on the walls and floor of the bathroom and on the bedding. Dr. Graeme Dowling was qualified as an expert in forensic pathology and gave opinions about the cause of Ms. Gladue’s death, the nature of the wounds to her vaginal wall and the cause of the wound to her vaginal wall. Dr. Catherine Carter-Snell was qualified as an expert in forensic assessment of allegedly sexually assaulted patients including injury identification and interpretation, and gave opinions about the nature of the larger wound to Ms. Gladue’s vaginal wall and the cause of that wound. Dr. Janice Ophoven was qualified as an expert in forensic pathology and gave opinions as to the nature of the wounds to Ms. Gladue’s vaginal wall and the cause of the wounds to her vaginal wall. While Jason Solinski, a DNA Page: 24 expert, did not testify, his expertise and the truth of his report, Exhibit 29, was admitted and is evidence in this trial. [46] The qualifications of all of the experts in this trial were admitted. That said it is still up to you to decide the extent to which you will rely on any expert’s opinion evidence. In considering the weight to assign to that evidence, you should consider the qualifications and experience of these expert witnesses, the reasons given for their opinions, the suitability of the methods used, whether these witnesses were impartial and the other evidence in this case. It is up to you to decide whether to accept all or some or none of these expert opinions. [47] These witnesses were asked to assume or rely on certain facts in giving their opinions. Those facts may be the same or different from what you later find as facts on the basis of all of the evidence in this case. The closer the facts assumed and relied on by these Page: 25 witnesses are to the facts as you find them to be, the more helpful these expert opinions may be to you. To the extent the expert witnesses relied on facts that you do not find supported by the evidence, you may find the opinions from an expert or experts less helpful. [48] You have heard certain audio tracks. You heard the audio tape of the 911 call made by Mr. Barton and you also heard the audio tapes of discussions between Mr. Barton and Detective Demaere on June 27 while they were driving to Edmonton from Calgary in a police van. [49] Please remember that the transcripts made from these recordings are just an aid to help you follow the recordings as they were played. The audio evidence is the evidence. The transcripts are just an assist to following the contents of the tape. They are not Page: 26 evidence of what was said, even though they have been marked as numbered exhibits. [50] If what you read in the transcripts differs from what you hear on the tape, you are to go by what you hear on the tape especially if the transcript says ‘unintelligible’. If the words you hear are different from those you read in the transcript, or if the speakers you hear are different from those identified in the transcript, it is for you to decide who is speaking and what was said. You decide this from what you hear on the tape and any other evidence given about the identity of the speakers. [51] You also watched certain video discs from surveillance cameras located in various locations in the Yellowhead Inn: the front desk area, the bar, the hallway leading to Room 139 and the parking lot from the camera at the North East exit. The contents of these videos is the evidence. Page: 27 [52] You will be shown still photographs taken from the surveillance video recordings, being Exhibit 43 (Defence photos of Mr. Barton) and Exhibit 44 (Crown photos). These photographs are just an assist to following the video recordings. The photographs are not evidence of what was done, even though they have been marked as numbered exhibits. [53] You should rely on the entire video recordings rather than the individual photographs taken from the video recordings to put the individual photographs in proper context. [54] The tapes and videos will be preloaded on a computer which will be available to you in the jury room where you may listen to them or watch them again if you need to. It is up to you to decide whether you want to listen to or watch any parts of them again, you may listen to or watch them as many times as you wish to help you determine who the speakers are and what they are saying and what Page: 28 is happening, An IT specialist with the Courts will assist you if you need help in setting up this evidence for review. [55] Please also remember that as you listen to the tapes, be careful to distinguish between what Mr. Barton says and what others on the tape are saying. What the others say might help you figure out what Mr. Barton says and what his words mean. But Mr. Barton can be held responsible only for what he actually says or accepts, not for what others say. It is only what Mr. Barton said or adopted that is evidence concerning him. [56] In other words, what others say may provide a context for understanding what Mr. Barton says; but only his words, as understood in this context, can be used as evidence of what he has done or intended to do. Page: 29 Demonstrative aids used by counsel [57] Certain exhibits have no evidentiary value in themselves and are only demonstrative aids which were used by counsel to make it easier to follow and understand the evidence given by several of the witnesses. For example, Exhibit 1 includes a transcript of the 911 call. Exhibit 27 includes a transcript of the conversation between Mr. Barton and the undercover officer during the van ride. The Dubowski Chart, Exhibit 32 was referred to by Dr. Jones in his evidence concerning intoxication and impairment. In these cases, the audio recordings themselves are the evidence and govern over the transcripts. The Dubowski Chart is not evidence in itself, but may assist in understanding Dr. Jones’ evidence. [58] Other examples of demonstrative aids are the various Google maps which were marked up by various witnesses to demonstrate Page: 30 their evidence and the tracings of Mr. Barton’s left hand and the still photos of Mr. Barton taken from the hotel video recordings. Motive [59] Motive is a reason why somebody does something. [60] Proof of motive for the commission of an offence may be of assistance in determining whether Mr. Barton is guilty or not guilty of the offence charged or an included offence. [61] The Crown is not required to prove motive and it introduced no evidence of motive. [62] In deciding whether people are guilty of an offence, what generally matters is what they did and whether they did it Page: 31 intentionally, not their reasons for doing it, although motive or the absence of motive may be of assistance in some cases. [63] Itis for you to decide how much or how little you will rely on lack of motive to help you decide this case. [64] If you conclude that Bradley Barton had no motive to commit a particular offence, it would be an important fact for you to consider. It is a factor that might support Mr. Barton’s denial of guilt and raise a reasonable doubt that the Crown has proven its case. [65] Members of the jury, you should give the evidence of absence of motive the weight you think it deserves. Lack of motive is only a factor that may persuade you one way or another whether Mr. Barton is guilty or not guilty. You must consider the issue of motive in the context of all the evidence. Page: 32 [66] The Defence position is that Mr. Barton had no motive to kill Cindy Gladue. But I caution you again, it is up to you as to how much or how little you will rely on motive. Character of Bradley Barton [67] You have heard Bradley Barton hired a prostitute, Cindy Gladue. In doing so, he was being unfaithful to his wife. I caution you not to consider this evidence of his character in deciding the serious offence with which he is charged. Character evidence does not prove anything, Out of Court statements of Bradley Barton [68] In this case, you heard evidence that Mr. Barton provided statements to John Sullivan after he had checked out of Room 139, to Veronica Chysyk, the desk clerk, to obtain a new key for Room 139, the 911 operator, to Constable Jones when he was placed under Page: 33 investigative detention, and to Detective Demaere, the undercover police officer, during the van ride on June 27. [69] You can believe all, or some, or none of the statements. It is for you to decide what, if any, of this evidence you accept, although before any statement is used against Mr. Barton, you must conclude that the statement was made by him. [70] You should have no difficulty in finding that Mr. Barton made the 911 statement and the statements to the undercover officer, as these statements were recorded. [71] You will have to consider the credibility of Mr. Sullivan, Ms. Chysyk and Constable Jones as to whether you believe their accounts of what they say Mr. Barton said to them. Page: 34 [72] Some of the statements made by Mr. Barton may help him in his defence. You must consider those remarks that may help him along with other evidence unless you conclude that he did not make those statements. [73] In other words, you must consider all of the remarks that might help Mr. Barton even if you are not sure if he said them. [74] A criminal trial is not a credibility contest between Mr. Barton and the other witnesses. I will say more about how to treat Mr. Barton’s testimony later. [75] If you decide to believe none, some, or all of the out of court statements, you will decide what weight, if any, you will attach to this evidence. Page: 35, After-the-fact Conduct [76] You have heard evidence about certain things that Mr. Barton is alleged to have said or done after the incident charged in the Indictment. I will refer to this as “after-the-fact conduct.” In this case it was admitted by Mr. Barton in his testimony that he did some things that may be evidence of cleanup activity or even of knowing Cindy Gladue in the first place, including cleaning the bathroom floor and disposing of the bloody towel as well as the making of false statements to Mr. Sullivan, Veronica Chysyk, the hotel desk clerk, the 911 operator, Constable Jones and to the undercover officer. After-the-fact conduct is simply a type of circumstantial evidence. As with all circumstantial evidence, you must consider what inference, if any, is proper to draw from this evidence. You may use this evidence, along with all the other evidence in the case, in deciding whether the Crown has proved Mr. Barton’s guilt beyond a reasonable doubt. The Crown’s position is that this evidence is circumstantial evidence that can lead you to Page: 36 conclude that Mr. Barton is guilty of criminal conduct, as opposed to having caused Ms. Gladue’s death by accident. The Defence position is that this evidence has been explained by Mr. Barton and is of no probative value on any issue in this trial. [77] You must not infer Mr. Barton’s guilt from his after-the-fact conduct unless, when you consider it along with all the other evidence, you are satisfied that it is consistent with his guilt and is inconsistent with any other reasonable conclusion. [78] You cannot infer that Mr. Barton is guilty of any offence as a result of his after-the-fact conduct, but it may be used to assess his claim that Cindy Gladue’s injury was an accident. [79] Also keep in mind that evidence of after-the-fact conduct has only an indirect bearing on the issue of Mr. Barton’s guilt. You must be careful about inferring his guilt from this evidence because Page: 37 there might be other explanations for this conduct. You may use evidence of after-the-fact conduct to support an inference of guilt only if you have rejected any other explanation for this conduct. [80] When considering what inference, if any, to draw from evidence of after-the-fact conduct, keep in mind that people may lie extensively about doing bad things for entirely unrelated reasons, such as fear of a spouse finding out about infidelity or an employer finding out about immoral conduct. Mr. Barton testified that he was in shock and not thinking straight after he found Ms. Gladue apparently dead in his bathtub, and that he did not trust anyone. Even if Mr. Barton was motivated by a feeling of guilt, that feeling might be attributable to something other than the offence with which he is now charged. You must also consider the explanations that Mr. Barton has offered for his after-the-fact conduct. Also, please keep in mind always that Mr. Barton does not have to prove Page: 38 anything. The Crown must prove Mr. Barton’s guilt beyond a reasonable doubt. [81] Although Mr. Barton does not have to prove anything, he elected to give evidence and offered an explanation for that conduct, so you must also consider the explanations that Mr. Barton gave for his after-the-fact conduct: that he was in shock, didn’t know what to do and didn’t trust anyone, that he did speak to Mr. Sullivan about some of the circumstances and that he called 911 himself. The Crown must prove his guilt beyond a reasonable doubt. [82] This evidence might only be used to draw an inference relating to Ms. Gladue’s injuries being accidental. You cannot use this evidence to draw any conclusion as to which of the available offences Mr. Barton might be guilty of. Page: 39 [83] The Crown and Defence agree that there are three possible verdicts in this case: 1. first degree murder, 2. Manslaughter, and 3. acquittal. [84] They are also agreed that you should only consider first degree murder if you are satisfied beyond a reasonable doubt that the wound to Ms. Gladue’s vaginal wall was caused by a sharp instrument. If you are not satisfied that the wound was caused by a sharp instrument, you should only consider manslaughter. Testimony of Person Charged (WD Instruction) [85] You will recall that prior to giving his testimony in Court Mr. Barton swore to the Court that he would tell the truth to you and to me. Page: 40 [86] Following his oath, Mr. Barton gave lengthy testimony both in direct and cross-examination. When a person charged with an offence testifies, you must assess that evidence as you would assess the testimony of any other witness, keeping in mind my instructions to you earlier about the credibility of witnesses. You may accept all, part, or none of Mr. Barton’s evidence given in Court. [87] If you believe Mr. Barton’s testimony that he did not commit the offence charged you must find him not guilty. [88] However, even if you do not believe Mr. Barton’s testimony, if his testimony leaves you with a reasonable doubt about his guilt in respect to any essential element of the offences charged, you must find him not guilty of that offence. [89] Even if Mr. Barton’s testimony does not raise a reasonable doubt about his guilt (or about an essential element of the offence Page: 41 charged), if after considering all the evidence, you are not satisfied beyond a reasonable doubt of his guilt, based on the evidence that you do accept, you must acquit him of that charge. The homicide offenses (1) The elements of the offences [90] These Instructions deals with two of the offenses which fall under the general heading of homicide. While Mr. Barton is specifically charged with having committed first degree murder, in this case there is one lesser and included offence to first degree murder: unlawful act manslaughter (referred to as “manslaughter hereafter). [91] A ‘homicide’ is the killing of one person by another. First degree murder, and the lesser and included offence manslaughter are both species of homicide. Page: 42 [92] This part of my charge is complex and consists of legal explanations as to the elements of these two homicide offenses and how you may come to a conclusion of guilt or not on these alleged offenses. [93] As you know Mr. Barton is charged with first degree murder. The formal charge is: That Bradley Barton, on or about the 22nd day of June, 2011, at or near Edmonton, Alberta, did unlawfully cause the death of Cindy Gladue, thereby committing first degree murder, contrary to section 235(1) of the Criminal Code of Canada. [94] Manslaughter is a lesser included offense in first degree murder and I will explain more details in respect to that offence later. Page: 43 [95] In this case I am required by law to charge you on the first degree murder charge and the lesser and included offense of manslaughter. The fact that I am charging you on what I call the two homicide offenses is not a comment by me on the strength or weakness of the Crown’s case on the first degree murder charge. First Degree Murder [96] I will now turn to the elements of first degree murder. [97] You must find Mr. Barton not guilty of first degree murder unless the Crown has proved beyond a reasonable doubt that he is the person who committed this offense on the date and in the place described in the Indictment. Specifically, the Crown must prove each of the following essential elements beyond a reasonable doubt that: 1. Mr. Barton committed sexual assault with a weapon; Page: 44 2. His use of the weapon caused Cindy Gladue’s death; 3. He had the intent required for murder; and 4. The specified offence of sexual assault and the use of the weapon were part of the same series of events. [98] Unless you are satisfied beyond a reasonable doubt that the Crown has proved all of these essential elements, you must find Mr. Barton not guilty of first degree murder. Sexual Assault With A Weapon 199] The elements of sexual assault with a weapon which must be proven beyond a reasonable doubt are as follows: ¢ First, that Bradley Barton is the person who actually committed the offence. Page: 45 ¢ Second, that the offence occurred at the time and place set out in the Indictment. © Third, that Bradley Barton applied force directly or indirectly to Cindy Gladue. ¢ Fourth, that Bradley Barton intended to apply force to Cindy Gladue. Fifth, that Cindy Gladue did not consent to the application of force by Bradley Barton. . Sixth, that Bradley Barton knew that Cindy Gladue did not consent. ¢ Seventh, that the assault was of a sexual nature. « Eighth, that Bradley Barton carried, used, or threatened to use a weapon or an imitation of a weapon when he committed the sexual assault. [100] The Crown must prove the elements that Mr. Barton caused the death of Cindy Gladue on June 22, 2011 in Edmonton, Alberta. Page: 46 In respect of that element you should likely have no difficulty in finding that Bradley Barton caused the death of Cindy Gladue on that date. He admitted inflicting the wound to Ms. Gladue’s vaginal wall in some fashion and that wound was the cause of her death in Room 139 at the Yellowhead Inn on June 22, 2011. [101] Mr. Barton is seen walking to Room 139 with Ms. Gladue in the early hours of June 22. The hallway video surveillance does not show anyone leaving that room until Mr. Barton leaves at about 7:40 a.m. that morning by himself. No one else is seen entering the room. [102] You should recall that the surveillance video of the hallway is incomplete as it cut out sometimes after people walked past Mr. Akins’ room. From what the video surveillance picked up and what you saw on the video, however, it is likely that only Mr. Barton had Page: 47 the opportunity to cause the wound to Ms. Gladue. No weapon has ever been found. [103]If you are convinced that Mr. Barton cut Ms. Gladue’s vaginal wall with a sharp object you will likely have concluded that a number of elements of sexual assault with a weapon have been proven: that Mr. Barton committed the act, that the act happened at the time and place set out in the Indictment, that force was applied to Ms. Gladue, that Mr. Barton intended to apply force to Ms. Gladue, that the act was of a sexual nature and that a weapon or imitation weapon had been used. [104] Key to the determination of whether Mr. Barton sexually assaulted Ms. Gladue with a weapon is your assessment of Mr. Barton’s testimony in which he denied sexually assaulting Ms. Gladue or using any weapon on her. You will also have to consider the evidence of Dr. Graeme Dowling, the forensic pathologist called Page: 48 by the Crown, Dr. Catherine Carter-Snell, the expert in forensic assessment of allegedly sexually assaulted patients including injury identification and interpretation called by the Crown, and Dr. Janice Ophoven, the forensic pathologist called by the Defence. [105] The Crown alleges that Mr. Barton used a sharp object to cut Ms. Gladue’s vaginal wall, which constitutes a sexual assault with a weapon. This argument is supported by Dr. Dowling’s and Dr. Carter-Snell’s expert opinions which were that that the wound that caused Ms, Gladue’s death was caused by a sharp object. [106] That is denied by Mr. Barton in his evidence. Mr. Barton’s denial is supported by Dr. Ophoven’s expert opinion that the wound was not caused by a sharp object but rather was caused by blunt force trauma, possibly the insertion of fingers into Ms. Gladue’s vagina by Mr. Barton and thrusting in the manner demonstrated by him in his testimony. Page: 49 [107] If you are not satisfied beyond a reasonable doubt that Mr. Barton used a sharp object to cut Ms. Gladue’s vaginal wall, you must find him not guilty of first degree murder and move on to consider the lesser and included offence of manslaughter. [108] If you are satisfied beyond a reasonable doubt that Mr. Barton used a sharp object to cut Ms. Gladue’s vaginal wall, you should move on to the next element in considering the charge of first degree murder: consent. [109] For the purposes of the first degree murder charge, it is only necessary for me to advise you that the law is that for public policy reasons, people cannot consent to being harmed to the extent that they are caused serious hurt or non-trivial bodily harm. Since I do not know how your deliberations will go I suggest to you that if you find that Mr. Barton penetrated Ms. Gladue’s vagina with a sharp object and by so doing cut her vagina then in law she was not Page: 50 capable of consenting to that type of wound. If that is the case, you need not consider the issue of consent any further. In such circumstances, it is also not necessary for the Crown to prove that Mr. Barton knew that Ms. Gladue was not consenting. [110] Therefore, if you are satisfied beyond a reasonable doubt that the injury to Ms, Gladue’s vaginal wall was caused by a sharp object, you should be satisfied that Mr. Barton committed sexual assault on Ms. Gladue with a weapon. That would satisfy the first clement of first degree murder. [111]I would suggest that in these circumstances you will also have no doubt that the sexual assault with a weapon caused Ms. Gladue’s death, It is not controversial that Ms. Gladue died from blood loss that resulted from the vaginal wall injury. No other cause has been suggested in the evidence. Page: 51 [112] This would satisfy the second element of first degree murder. [113] In these circumstances, I also suggest that you should also have no doubt about the fourth element of the offence: that the sexual assault and the use of the weapon were part of the same series of events. [114] What would remain on your deliberations on first degree murder would be the issue of whether Mr, Barton intended to commit murder. Intention To Commit Murder [115] This third element involves whether Mr. Barton had the intent required for murder. To establish that Mr. Barton had the intent required for murder the Crown must prove beyond a reasonable doubt either: Page: 52 1. That Mr. Barton meant to cause Cindy Gladue’s death; or 2. That Mr. Barton meant to cause Cindy Gladue bodily harm that he knew was likely to cause her death and that he was reckless whether death ensued or not. [116] In other words, you must decide whether the Crown has proved beyond a reasonable doubt that Mr. Barton meant to kill Cindy Gladue or that he meant to cause Cindy Gladue bodily harm that he knew was so dangerous and serious that he knew it was likely to kill her and that he proceeded despite his knowledge of that risk. [117] The Crown does not have to prove both alternatives. Nor do you have to agree on the same form of intent so long as each of you is satisfied that one or the other has been proven beyond a reasonable doubt. Page: 53 [118] To determine whether the Crown has proved that Mr. Barton had one of the two forms of intent required for murder, you must consider all the evidence, including the nature of the harm inflicted, and anything said or done in the circumstances. You may take into account, as a matter of common sense, that a person usually knows what the predictable consequences of his or her actions are, and means to bring them about. [119] However, you are not required to draw that inference about Bradley Barton. Indeed, you must not do so if, on the whole of the evidence, you have a reasonable doubt whether Mr. Barton had one of the intents required for murder. In particular, consider whether the evidence causes you to have reasonable doubt whether Mr. Barton knew that Cindy Gladue was likely to die at the time he inflicted the injury, or was reckless as to whether death ensued or not. Page: 54 [120] You cannot consider any of the evidence of Mr. Barton’s after- the-fact conduct on the issue of intention. [121] You will have found beyond a reasonable doubt that Mr. Barton committed all elements of first degree murder, and your deliberations will end and you should find Mr. Barton guilty of first degree murder. Manslaughter [122] If you are not satisfied beyond a reasonable doubt that the wound to Ms. Gladue’s vaginal wall was caused by a sharp object, or if you have a reasonable doubt that Mr. Barton did not intend to kill Ms. Gladue as discussed above, you will need to consider the lesser and included offence of manslaughter. Page: 55 [123] For the offence of unlawful act manslaughter, the Crown must prove each of the following essential elements beyond a reasonable doubt that: 1. Mr. Barton committed an unlawful act; 2. His unlawful act was dangerous; 3. His unlawful act caused Cindy Gladue’s death. [124] You will see in respect of manslaughter that the Crown must prove the element that Mr. Barton caused the death of Cindy Gladue on June 22, 2011 in Edmonton, Alberta. [125] In respect of that element you should likely have no difficulty in finding that Bradley Barton caused the death of Cindy Gladue on that date. [126] As I noted above, Mr. Barton admitted inflicting the wound to Ms. Gladue’s vaginal wall in some fashion and that wound was the Page: 56 cause of her death in Room 139 at the Yellowhead Inn on June 22, 2011. That her death resulted from the wound is not controversial. [127] Mr. Barton is seen walking to Room 139 with Ms. Gladue in the early hours of June 22. The hallway video surveillance does not show anyone leaving that room until Mr. Barton leaves at about 7:40 a.m. that morning by himself. No one else is seen entering the room. [128] You should again recall that the surveillance video of the hallway is incomplete as it cut out sometimes after people walked past Mr. Akins? room. From what the video surveillance picked up and what you saw on the video, however, it is likely that only Mr. Barton had the opportunity to cause the wound to Ms. Gladue. [129] The element of the commission of an unlawful act is a key element to manslaughter. Page: 57 [130] The Crown alleges that if you believe that the injury to Ms. Gladue’s vaginal wall was caused by something other than a sharp object, it was done by Mr. Barton as part of an unlawful act committed by him against Ms. Gladue. [131] The unlawful act the Crown alleges is sexual assault. [132] You will have to decide if Mr. Barton assaulted Ms, Gladue in some way and seriously hurt Ms. Gladue or caused her non-trivial bodily harm. ACCIDENT [133] Mr. Barton denies any intention to hurt Ms. Gladue and maintains that the wound to her vaginal wall was accidentally caused during consensual sexual activities. Page: 58 [134] There is evidence before you that raises the defence of accident. Mr. Barton does not have to prove that this defence applies. The Crown must prove beyond a reasonable doubt that this defence does not apply. If you are left with a reasonable doubt about whether this defence applies, the Crown has not proven its case beyond a reasonable doubt and therefore you must find Mr. Barton not guilty. [135] In this case it is suggested by the Defence that the conduct of Mr. Barton should be excused and he should be found not guilty of manslaughter because the harm allegedly caused by him to Cindy Gladue was a pure accident for which he is not criminally responsible. [136] The defence of accident may succeed in these circumstances if, at the time the offences allegedly occurred, Mr. Barton was not engaged in an unlawful act. Page: 59 [137] For these purposes, an accident is an unintentional and unexpected occurrence that produces hurt or loss. [138] You must determine from the evidence whether there is a reasonable doubt that the harm to Cindy Gladue came about unintentionally and unexpectedly as a result of the conduct of Bradley Barton. If it did, and if it was not otherwise the product of an unlawful act, he is entitled to be found not guilty. UNLAWFUL ACT [139] “Assault” is the application of force to another person without that person’s consent. Force simply means physical contact. There can be force without physical violence. This element is proven if you are satisfied beyond a reasonable doubt that Mr. Barton touched Ms. Gladue without her consent. Page: 60 [140] An assault is a sexual assault when the victim’s sexual integrity is violated. You should have no difficulty determining that the wound to Ms. Gladue’s vaginal wall violated Ms. Gladue’s sexual integrity. [141]“Bodily harm” is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. [142] Regardless of the mechanism of injury, you should have little difficulty concluding that Mr. Barton applied force to Ms. Gladue in some way, satisfying one of the ingredients of assault, and that this occurred in a sexual context. [143]I have reviewed some of the evidence related to manslaughter above. I have indicated that you should not likely have difficulty in concluding that Mr. Barton caused the death of Cindy Gladue. As Page: 61 with the murder charge discussed above, you will have to decide if in doing so he committed the unlawful act of sexual assault. You will also have to consider intention, consent, the absence of consent, honest but mistaken belief in consent and legal limitations on consent in your deliberation on whether an unlawful act was committed against Ms. Gladue. [144] If you have determined beyond a reasonable doubt that Mr. Barton committed an unlawful act it is implicit in that finding that the unlawful act was dangerous. [145]I will deal firstly with consent. With manslaughter, consent is a more difficult and complex issue. [146] will preface my remarks by telling you that if: Page: 62 - You are satisfied beyond a reasonable doubt that Mr. Barton assaulted Cindy Gladue, - You are satisfied that the assault took place in the circumstances of a sexual nature such as to violate Cindy Gladue’s sexual integrity, and - The sexual assault caused bodily harm, and - You are satisfied beyond a reasonable doubt that Mr. Barton intended to inflict serious hurt or non-trivial bodily harm on Ms. Gladue (subjectively), then the issue of consent does not arise. [147| If you find beyond a reasonable doubt that Mr. Barton intended the type of harm described above, it does not matter if Cindy Gladue had the capacity to consent, or if she consented. As discussed above, you cannot consent to bodily harm being inflicted on you. Page: 63 [148] If you make that determination, you will have concluded that Mr. Barton committed an unlawful act, the unlawful act caused Ms. Gladue’s death, and that the unlawful act was dangerous. [149] In those circumstances, you should find Mr. Barton guilty of manslaughter. [150] Your consideration of consent only arises if you are not satisfied that the Crown has proven beyond a reasonable doubt the Mr. Barton intended to inflict serious hurt or non-trivial bodily harm on Ms. Gladue. If you are in doubt on this issue, you will then proceed to consider consent. CONSENT [151] For there to have been a sexual assault, you will have to decide if Ms. Gladue consented to being touched by Mr. Barton, including Page: 64 consenting to sexual activity with Mr. Barton, and also including consenting to the type of sexual activity described and demonstrated by Mr. Barton in his testimony. There are many aspects to the issue of consent. [152] Consent is a matter of the subjective state of mind of Cindy Gladue at the time the force was applied to her. The question is whether, at that time, she in her mind consented to the application of force. [153] You will have to give careful thought about Ms. Gladue’s ability to consent and whether the Crown has proven beyond a reasonable doubt a lack of consent. [154] In this case, there is some evidence that Cindy Gladue consented to the application of some force by Mr. Barton, Page: 65 including sexual activity and to the activity described by Mr. Barton in his testimony. [155] You should understand that people do not necessarily consent because they submit or fail to resist. [156] The chronology of events between Mr. Barton and Ms. Gladue is important to aspects of the issue of consent. You have heard evidence that Cindy Gladue was a prostitute and that she and Mr. Barton entered into a commercial transaction for sexual relations on June 20, 2011. [157] She returned voluntarily to the Yellowhead Inn on June 21 and met Mr. Barton at approximately 10:30 that night. You should consider the evidence of Mr. Barton, Mr. Atkins and the bartender, Tanya Dunster as to Ms. Gladue’s behavior that Page: 66 night. [158] You should also consider Mr. Barton’s evidence that similar sexual activities occurred on both nights and that Ms. Gladue appeared to him to be enjoying herself. [159]I caution you that since consent must be found at the time of the sexual activity itself, evidence of what transpired between them the night before is relevant only to the issue of Mr. Barton’s belief in Ms. Gladue’s consent on June 22. You cannot use the evidence of what transpired on June 20 as evidence of what Ms. Gladue actually consented to on June 22. [160] Consent is only one part of this puzzle as people cannot be said to consent to anything unless they have the capacity to do so. You heard evidence in this case that raises the possibility that Ms. Gladue was incapacitated by alcohol so you will have to Page: 67 decide whether Ms. Gladue had the necessary capacity to consent to being touched or for sexual activity including the activity described by Mr. Barton, or whether Ms. Gladue had no capacity to do so because of her consumption of alcohol. Capacity [161] Consent to being touched and to sexual activity requires a conscious, operating mind, capable of granting, revoking or withholding consent to each and every act. [162] Capacity to consent requires something more than the capacity to execute base-line physical functions. The capability to speak or perform a sexual act does not preclude a determination that the complainant lacked capacity to consent in the circumstances. [163] You should consider the evidence as to Ms. Gladue’s blood alcohol content and the expert opinion evidence of Dr. Graham Jones, the forensic toxicologist. His evidence Page: 68 described Ms. Gladue’s level of intoxication, but he was careful to distinguish between intoxication and impairment noting that different people have different tolerances for alcohol and different levels of impairment at similar blood alcohol levels. [164] The question is the degree to which intoxication negates comprehension or volition. A drunk person may retain the capacity to consent and mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control. A drunken consent is still a valid consent. [165] Where the line is crossed into incapacity may be difficult to determine at times. You will have to determine yourselves whether Ms. Gladue was so drunk as to be incapacitated to the point where she could not understand the sexual nature of [166] [167] Page: 69 the act or realize that she could choose to decline to participate and thus did not have a conscious operating mind so as to provide consent. In considering Dr. Jones’ evidence, you should be careful not to place too much significance on the Dubowski Chart describing “stages of acute alcoholic influence and intoxication”, Exhibit 32. That chart is not evidence in itself, and is before you as a reminder of some of Dr. Jones’ evidence. You should rely on Dr. Jones’ testimony and not the Chart itself. You should also consider the evidence of Mr. Barton and Mr. Atkins as to their observations about Ms. Gladue’s sobriety, as well as the evidence of Tanya Dunster, the bartender who served Mr. Barton, Mr. Atkins and Ms. Gladue during the evening of June 21. You should also consider the video of Mr. [168] [169] [170] Page: 70 Barton, Ms. Gladue and Mr. Atkins walking down the hall initially to Mr. Atkins’ room and then on to Mr. Barton’s room, Room 139 sometime after 12:40 am on June 22. That video is part of Exhibit 7. The Crown must prove beyond a reasonable doubt that Ms. Gladue did not have the capacity to consent, or did not consent to being touched, to sexual activity, and to the activity described by Mr. Barton in his testimony. The Crown must also prove that Mr. Barton knew that Ms. Gladue did not consent or that she did not consent validly. You must base your decision on this issue on the evidence before you and you should not speculate as to what might or might not have occurred. Page: 71 HONEST BUT MISTAKEN BELIEF IN CONSENT [171] Even if Ms. Gladue was not capable of consenting to being touched by Mr. Barton, or to sexual act ity including the activity described by Mr. Barton in his testimony, you will also have to decide if Mr. Barton had an honest but mistaken belief that Ms. Gladue was consenting and that she had never withdrawn her consent before she was injured. [172| If you find beyond a reasonable doubt that Ms. Gladue could not or did not consent to the sexual activity described by Mr. Barton in his testimony, there is evidence before you that raises the defence that Mr. Barton made a mistake of fact regarding Ms. Gladue’s capacity to consent and to her consent to the activities they did together. Mr. Barton does not have to prove that this defence applies. The Crown must prove beyond a reasonable doubt that this defence does not apply. Page: 72 [173] The defence applies when a person is mistaken about a critical ingredient or circumstance concerning the offence. Because of that mistake, the person lacks the criminal intent necessary for that offence. [174] Here is a simple example. Suppose a man is having dinner in a restaurant. When he leaves, he takes by mistake an umbrella that looks identical to his. In this instance, he would not be guilty of theft. At the time, he honestly believed that he was taking his own umbrella. There was no guilty intent in his mind to take someone else’s property. [175] Mistake of fact is a defence if the mistake is honestly held by Mr. Barton. This is so even if the mistake may seem unreasonable. [176] When you are considering whether Mr. Barton honestly believed that Cindy Gladue was capable of consenting to being Page: 73 touched, and to sexual activity and to the touching described by Mr. Barton in his testimony, you should consider whether there were any reasonable grounds for that belief. There is no legal requirement that the mistaken belief be based on reasonable grounds, But the presence or absence of reasonable grounds for the mistaken belief is a factor that you are entitled to take into account in deciding whether or not you believe or have reasonable doubt that Mr. Barton was really mistaken. The more unreasonable the mistake, the harder it is to believe that Mr. Barton could make such a mistake. [177] In making this decision, you should consider Mr. Barton’s testimony about his perceptions of Ms. Gladue’s responses — verbal and non-verbal — to the activity he says was taking place between them. Page: 74 [178] You should also consider Mr. Barton’s testimony about what had occurred between him and Ms. Gladue the night before, on June 21. He testified that he and Ms. Gladue had a similar sexual encounter, although he testified that on June 22, his fingers penetrated Ms. Gladue’s vagina more deeply, the thrusting was harder and this activity went on for a longer time. You should also consider the video evidence from Exhibit 7 showing Mr. Barton and Ms. Gladue leaving Room 139 on June 21, walking down the hallway. [179] Along with Mr. Barton’s testimony, you should consider the evidence of Dr. Dowling, Dr. Carter-Snell, and Dr. Ophoven as to the amount of force necessary to cause the blunt force wound to Ms. Gladue’s vaginal wall shown in the autopsy photographs and by the tissue itself. Page: 75 [180]I caution you however about the use of expert opinion evidence as to the amount of force it may take for fingers or a fist to penetrate the vaginal wall. While the three experts are highly trained professionals, they all acknowledged that they have little if any experience with the practice of fisting and were testifying largely from things they had read on the subject. Wounds resulting from this type of activity are rare, and their observations and opinions about force and strength of vaginal walls were theoretical and not specific to Ms. Gladue. [181] You should consider their opinions in the context of the limitations on their knowledge and experience expressed during their testimony. It is up to you as to how much if any use you make of the opinions they expressed in this area. [182] You should also consider the evidence of the blood spatter expert, Constable Allen, Exhibit 39, the photographs used by her for Page: 76 the purposes of her report, Exhibit 40, the photographs of room 139 (part of Exhibit 17) and the exhibits taken from the room, the bedspread, Exhibit 30 and the blanket, Exhibit 31. [183] You should consider whether the Crown has proven beyond a reasonable doubt that Mr. Barton failed to take reasonable steps in the circumstances known to him at the time to satisfy himself that Ms. Gladue was consenting to the type of sexual activity he described in his testimony. Remember that the onus is not on Mr. Barton to prove any of this; the onus remains on the Crown to prove that he failed to do so. [184] If Bradley Barton honestly believed that Cindy Gladue was capable of consenting and did consent to being touched, to sexual activity and to the touching described by Mr. Barton in his testimony, or you have a reasonable doubt about that, then subject to what I have to say in a moment about limits on consent (which I Page: 77 discussed above in the context of first degree murder), Mr. Barton must be acquitted because he did not commit an unlawful act on Ms. Gladue. [185] If you are satisfied beyond a reasonable doubt that Cindy Gladue was incapable of consenting, and you are also satisfied beyond a reasonable doubt that Mr. Barton did not have an honest but mistaken belief as to Ms. Gladue’s capacity to consent, as discussed above, you must find that Mr. Barton committed an unlawful act on Ms. Gladue and you will proceed to consider whether the unlawful act was dangerous. [186] If Ms. Gladue was capable of consenting to sexual activity including the activity described by Mr. Barton in his testimony and did so, or if Mr. Barton was under the honest but mistaken belief that Ms. Gladue was consenting to the activity, there are still circumstances that void any consent otherwise given. Page: 78 LIMITS ON CONSENT [187] As I said previously, no one can validly consent to being wounded, maimed, disfigured or to have their life endangered. [188] No one can validly consent to serious hurt or non-trivial harm. [189] When a person consents to the application of force, including during sexual activity, that consent only covers a certain amount of force. It does not cover force that goes beyond the consent. For example, suppose two people agree to have an arm-wrestling contest. Obviously, each of them consents to the application of force by the other. But that consent would only cover the force necessary for arm-wrestling. It would not cover something like punching or kicking. You will have to decide whether, if Cindy Gladue validly consented to being touched, to sexual activity and to the touching described by Mr. Barton in his testimony, she consented to the amount of force that Mr. Barton used. Page: 79 [190] The burden is on the Crown to prove beyond a reasonable doubt that the force used by Mr. Barton exceeded the amount of force consented to by Ms. Gladue. If you have a reasonable doubt as to whether Ms. Gladue consented to the application of such force, you must give the benefit of that doubt to Mr. Barton. [191] If you make the determination that Ms. Gladue consented to the type of touching described by Mr. Barton in his testimony but did not consent to the amount of force used by him, or if you have determined that Ms. Gladue did not have the capacity to consent to sexual activity including the activity described by Mr. Barton in his testimony, you will have decided that Mr. Barton committed an unlawful act but you will still have to decide if that unlawful act was dangerous. Page: 80 [192]In making your decision on this issue, you should consider Mr. Barton’s testimony as well as the evidence of Dr. Dowling, Dr. Carter-Snell and Dr. Ophoven as to the nature of the force required to cause a blunt force injury such as that sustained by Ms. Gladue. [193] again caution you however about the use of expert opinion evidence as to the amount of force it may take for fingers or a fist to penetrate the vaginal wall. While the three experts are highly trained professionals, they all acknowledged that they have little if any experience with the practice of fisting and were testifying largely from things they had read on the subject. Wounds resulting from this type of activity are rare, and their observations and opinions about force and strength of vaginal walls was theoretical and not specific to Ms. Gladue. [194] You should consider their opinions in the context of the limitations on their knowledge and experience expressed during Page: 81 their testimony. It is up to you as to how much if any use you make of the opinions they expressed in this area. [195] Consent otherwise given may be vitiated if you decide that Mr. Barton realized that the activity described by him in his testimony would subject Ms. Gladue to the risk of bodily harm. That is the type of activity the law recognizes that you cannot consent to. Dangerous Act [196]1f you are certain that Mr. Barton intended to cause serious harm to Ms. Gladue or to inflict non-trivial injuries to her, I suggest that you will also have found that the unlawful act committed by Mr. Barton was dangerous. [197] In these circumstances, you will have decided that Mr. Barton committed the unlawful act of sexual assault, that the unlawful act Page: 82 caused Ms. Gladue’s death and that the unlawful act was dangerous. You must then convict Mr. Barton of the offence of manslaughter. [198] If you are uncertain that Mr. Barton intended to cause serious hurt or non-trivial bodily harm to Ms. Gladue, you will have to consider whether the Crown has proven beyond a reasonable doubt that Ms. Gladue did not consent to the activity described. [199] If you find beyond a reasonable doubt that Ms. Gladue had no capacity to consent or did not consent and Mr. Barton did not have an honest but mistaken belief in her capacity and consent, or if you find beyond a reasonable doubt that Mr. Barton exceeded the limits of any consent given to him by Ms. Gladue, you will have found that he committed an unlawful act on Ms. Gladue, namely sexual assault, which caused her death and therefore you will convict him of manslaughter. Page: 83 [200] If you have a reasonable doubt that Ms. Gladue had the capacity to consent to the activity described, or if you have a reasonable doubt that Ms. Gladue consented to the activity described, or have a reasonable doubt that Mr. Barton did not have an honest but mistaken belief in her consent, you will have to give Mr. Barton the benefit of the doubt and find him not guilty. Part IV. W(D) Instruction In Respect To The Homicide Offences [201] It is worth me repeating how you should approach Mr. Barton’s evidence. If after considering the evidence of Mr. Barton given in Court you believe him and conclude that it has not been proven beyond a reasonable doubt that Mr, Barton intentionally killed Cindy Gladue, then you must find him not guilty of first- degree murder and then you must go on to consider manslaughter. If you believe him and conclude that it has not been proven beyond a reasonable doubt that Mr. Barton intentionally inflicted serious hurt or non-trivial bodily harm to Cindy Gladue or committed a Page: 84 dangerous unlawful act against her then you must find him not guilty of manslaughter. Your deliberations will terminate. [202] If after considering the testimony which Mr. Barton gave in Court you do not believe him when he denies intentionally killing Cindy Gladue but are left in reasonable doubt about his guilt, or about an essential element or elements of first degree murder, then you must give him the benefit of the doubt and find him not guilty of first degree murder. If you do not believe him when he denies intentionally causing serious hurt or non-trivial bodily harm to Cindy Gladue or to committing a dangerous unlawful act against her but are left in reasonable doubt about his guilt, or about an essential element or elements of manslaughter, then you must give him the benefit of the doubt and find him not guilty of manslaughter and terminate your deliberations. Page: 85 [203] If after considering Mr. Barton’s testimony in Court you do not believe him when he denies intentionally killing Cindy Gladue and his evidence does not raise a reasonable doubt, or if you do not believe him when he denies intentionally causing serious hurt or non-trivial bodily harm to Cindy Gladue, or to committing a dangerous unlawful act on Cindy Gladue then you must still go on to consider if other evidence which you do accept raises a doubt about his guilt. If that other evidence which you accept raises a doubt for you about his guilt on either of these homicide charges, then you must give Mr. Barton the benefit of the doubt and find him not guilty in respect to the offense on which you have a reasonable doubt and terminate your deliberations on the offense or offenses in respect to which you have found him not guilty. [204] If that other evidence does not raise a reasonable doubt and you are convinced by the evidence which you accept beyond a Page: 86 reasonable doubt then you must find him guilty of the appropriate charge. Theories of Crown and Defence Theory of the Crown [205] Mr. Barton hired Ms. Gladue for sexual services. She went to the Yellowhead Inn and eventually went with Mr. Barton to his room. While there, she became overcome. She did not have the capacity to consent to sexual activity. Mr. Barton used a sharp edged instrument and inserted it into Ms. Gladue’s vaginal wall. He then carried her into the bathroom and got her into the bathtub. Alternatively, at some point after Ms. Gladue had become incapacitated, Mr. Barton put his hand into Ms. Gladue’s vagina using extreme force. His thrusts were excessive, causing the damage to Ms. Gladue’s vaginal wall. Page: 87 Theory of the Defence [206] Mr. Barton caused the accidental death of Cindy Gladue. This is based on his experience of some 26 hours earlier where they had similar sexual activity and his interactions with her on the night in question. He had her consent during manual stimulation of her vagina on June 22. In doing so, he passed his knuckles one or two centimetres further than the night before and, unforeseeably to him, perforated Ms. Gladue’s vaginal wall, causing bleeding and her death. Part V. Possible Verdicts [this is really a decision tree] [207] The verdicts that are open to you are as follows: - You can find Mr. Barton guilty of first-degree murder; - Or you can find him not guilty of first degree murder but guilty of manslaughter; - Or you can find Mr. Barton not guilty of any offence. Page: 88 [208]I am now going to work through a decision tree with you which I will give you through the jury officer so you can follow along with the suggested questions I propose that you tackle in your deliberations. AL Possible verdicts on the Indictment [decision tree] Question 1: Has the Crown proven beyond areasonable doubt that Bradicy Barton unlawfully killed Cindy Gladue? Yes o Tf the answer is yes - go to Question 2 No o Not sure Qo If the answer is no or not sure, you must find Bradley Barton not guilty and terminate deliberations. Page: 89 Question 2: Has the Crown proven beyond a reasonable doubt that Bradley Barton had the necessary intention to murder Cindy Gladue? Yes a If answer is yes, you will find Bradley Barton guilty of first-degree murder. No o Not sure o If the answer is no or not sure, you must go on to consider manslaughter. Question 3: Has the Crown proven beyond a reasonable doubt that Bradley Barton committed the unlawful act of sexual assault on Cindy Gladue? Page: 90 If answer is yes, you will find Bradley Barton guilty of manslaughter. No ao Not sure o If the answer is no or not sure, you will find Bradley Barton not guilty. Part VI. Concluding Remarks Procedure and Verdicts [209]I am nearly done, but I must talk to you about some procedural matters and advise you on the process of coming to your decision. Page: 91 Procedure [210] Upon leaving the courtroom, your first responsibility is to elect a foreperson who will preside over your deliberations and assist you in the orderly discussion of the issues. Listening with respect [211] Each juror should have the opportunity of expressing his or her own points of view without being unnecessarily repetitive. When you are discussing the issues, you should listen attentively to the arguments of your fellow jurors and approach your duties in a rational way, putting forward your own points of view in a calm and reasonable manner. Unanimous verdicts required [212] Because this is a criminal trial, you must be unanimous in whatever verdicts you see fit to return. Each of you must make your own decision in relation to whether Bradley Barton is guilty or not guilty. You should do so only after a consideration of the evidence Page: 92 with your fellow jurors and you should not hesitate to change your mind when you are convinced that you are wrong. Unless you are unanimous in finding Bradley Barton not guilty of a charge, you cannot acquit Bradley Barton of that charge, nor can you return a verdict of guilty unless you agree unanimously that he is guilty of that particular charge. Right to disagree [213] While you must be unanimous on any verdict you reach, any one or more of you has the right to disagree. In other words, if you are not able to agree on a unanimous verdict of guilty or not guilty in relation to a charge or an included offence after a sincere consideration of the facts and the law and honest discussion with your fellow jurors, you are entitled to abide by your conscientious conclusion. Should you be unable to agree on a verdict, I will have to order a mistrial on that charge. In that event, the trial of Bradley Page: 93 Barton will begin again on that charge at some future time with an entirely new jury. Finding of not guilty [214] If you have a reasonable doubt concerning the guilt of Bradley Barton on a charge, you must give the benefit of that doubt to him and find him not guilty of that charge. You are doing him no favor by so acting. You are merely doing the duty cast upon you by the law. Finding of guilty [215] On the other hand, if you do not have a reasonable doubt concerning the guilt of Bradley Barton on a charge, you must find him guilty of that charge upon which you are sure he is guilty. That too is your plain duty. The law requires no more from you than that. Page: 94 [216] The question of penalty or sentence is my responsibility. You have heard comment that Mr. Barton faces serious charges. You must not concern yourself with the consequences of your verdicts. Your sole duty is to determine whether Mr. Barton is guilty or not guilty of the charges before you. Altering or qualifying instructions [217] In a few minutes you will retire to the jury room and all exhibits except the video tapes of the evidence of Dr. Dowling and Dr. Ophoven will go with you. You can examine those if you want to. However, do not commence your deliberations until the Jury Officer tells you to begin, As soon as you leave the courtroom, I must ask counsel if they have any submissions to make with respect to my Instructions. [218] It may be that both or either of them will want me to give you some additional instructions or to alter or qualify what I have Page: 95 already said. If I agree, I will ask you to return to the courtroom. Otherwise, I will tell the Jury Officer to inform you that you may commence your deliberations. [219] In the event that I agree to give you further instruction you should not treat that further instruction any differently from the instruction previously given to you. Everything I have told you or will tell you is of the same importance, unless I tell you otherwise. Additional explanations of the law [220] If at any time after you begin to deliberate you should encounter difficulty with respect to the law, just give a note to the Jury Officer. He will deliver it to me. We will then reassemble the Court and I will try to help you by answering your questions. Page: 96 Sequestration [221] Once you retire to consider your verdict, the law requires that you be kept separate and apart until you reach a verdict. It is only after that you will be free to leave the courthouse and return to your homes or places of business. [222] When you reach a unanimous verdict, just inform the Jury Officer. He will tell me that you are ready to return to the courtroom for the purpose of announcing your verdict. We will then go about reassembling the court for that purpose. Use of instructions [223] As I said, I will be providing you with a copy of the instructions that I have just read to you. Page: 97 Charges [224] To assist you with your deliberations, I have prepared a two part decision tree. It contains the questions I have posed for you in the order that you will need to answer them. You should work your way through that decision tree. [225] To answer the questions you must consider the principles of law that bear on the question as I have explained them to you and you must consider all of the evidence which bears upon the question. Use of verdict sheets [226] Included in the things that will go with you to the jury room is a verdict sheet with respect to the charges. On this sheet, I have listed the verdicts that you may reach in this case on the particular charges. Page: 98 [227] If you reach a verdict, your foreperson should place a check mark in the box opposite the verdict you have reached. [228] Your foreperson should bring the completed verdict sheets into the courtroom when you return to announce your verdicts. These completed verdict sheets will become the last exhibit in this trial. [229] Upon your return to the courtroom, the clerk will ask your foreperson if you have reached a verdict. If so, the foreperson, should then stand and reply. Polling [230] Once your foreperson has announced a verdict on a charge, each of you will be called by number and asked to stand one after the other in order to declare your agreement with the verdict of your foreperson on that charge. Page: 99 Retirement [231] Members of the jury, thank you for your attention, you may now retire. It will be a few minutes before you will be able to actually begin your deliberations, [232] The Clerk will deliver the exhibits and a copy of the Indictment to you in the jury room. Please do not begin to deliberate until you have received the exhibits and a copy of the Indictment. [233] A DVD player, speaker and screen will be provided to you in the jury room if you wish to review videotaped evidence or audio evidence. A member of the court staff will be available to assist you in operating this equipment if required. Page: 100 [234] Needless to say, you must not deliberate unless you are alone in the jury room. If you require technical assistance, please advise the jury officer by way of a written note. [235] If you have any questions in the course of your deliberations, please send me a note setting out your question. It may be a matter which I will wish to discuss with counsel before providing a reply. Because of this, it may take a short while before I can provide an answer. [236] Members of the jury, thank you for your attention. I now invite you to retire to the jury room. Page: 101 Part VII. List of numbered exhibits 1. Audio dise of 911 call and transcript 2. Topographical map of Yellowhead Inn area 3. Closer view topographical map of Yellowhead Inn area Mr. Barton’s room registration form at Yellowhead Inn Ms, Chysyk’s marked-up version of Exhibit 3 4 5 6. Video disc of front desk surveillance camera 7. Video disc of hallway surveillance camera 8. Mr. Atkin’s marked up version of the aerial view of the Yellowhead Inn area 9. Video disc of bar surveillance camera for June 21 10. Mr. Cameron’s diagram of the North hallway of the Yellowhead Inn towards Room 139 10. Large overhead topographical map of Yellowhead Inn area 11. Mr. Cameron’s drawing of hotel exits 12. Video disc of North East exit door surveillance camera for June 22 13. Photo showing road around Yellowhead Inn property 14. Topographical photo of Yellowhead Inn area 15. Lock audit for Room 139 during Mr. Barton’s stay 16. Criminal Investigation Services photos (Room 139, autopsy and exhibits) 18. 19. 20. 21. 22. 24, 25. 26. 27. 28. 29. 30. 31. 32. 33. Page: 102 Sketch of Room 139 by Cst. Hawrish (Craddock) Curriculum vitae for Constable Allen (bloodspatter expert) Detective Lowe’s photo of Mr. Barton’s hands on June 24, 2011 Curriculum vitae for Dr. Graham Jones (forensic toxicology expert) Toxicology report Curriculum vitae for Dr. Graeme Dowling (forensic pathology expert) Dr. Dowling’s drawing of 11 centimetres Autopsy report Curriculum vitae for Dr. Catherine Carter-Snell (forensic assessment of allegedly sexually assaulted patients and injury identification and interpretation expert) Audio disc of undercover conversation in van and transcript Curriculum vitae for Jason Solinski (DNA expert) Jason Solinski’s DNA report Bedspread from Room 139 Blanket from Room 139 Dubowski chart showing stages of acute alcohol influence and intoxication Mr. Barton’s tracing of his left hand (1 fingers spread, 2 fingers closed) Mr. Barton’s sketch of his path of travel in morning of June 22 (on topographical map) Page: 103 Video disc of North East exit surveillance camera, earlier period from Exhibit 13 (showing June 20) Mr. Barton’s cell phone records Mr. Barton’s cell phone bill Curriculum vitae for Dr. Janice Ophoven (forensic pathology expert) Nancy Allen (bloodspatter expert) report Photos used by Nancy Allen to prepare report USB stick containing evidence of Dr. Dowling USB stick containing evidence of Dr. Ophoven Still photos of Mr. Barton from video surveillance Still photos used by Crown from video surveillance Google Map of Yellowhead Inn area showing location of garbage cans near NE exit door

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