Nova Scotia

Gerry Barton's rape conviction falls apart after family feud surfaces

A Nova Scotia man's 40-year-old rape conviction began to unravel when an RCMP officer witnessed a feud over a family's dark secret, a court heard Tuesday.

RCMP Const. Brent Kelly spent 3 years clearing wrongly accused Nova Scotia man

Gerry Barton, who was falsely convicted of rape decades ago, arrives in court Tuesday in Halifax for his hearing into his lawsuit against the Nova Scotia Crown and the RCMP in Digby. (CBC)

A Nova Scotia man's 40-year-old rape conviction began to unravel when an RCMP officer witnessed a feud over a family's dark secret, a court heard Tuesday.

Const. Brent Kelly said he was called to break up a scuffle between two brothers near Digby in July 2008, when one brother accused the other of abusing their siblings and fathering a son with one of his sisters.

That prompted Kelly to begin investigating why another man — Gerry Barton — had been convicted of raping the girl in Digby County in 1970.

Barton, who was exonerated in 2011 as a result of Kelly's efforts, has now launched a civil suit against the RCMP and the province of Nova Scotia. The case is being heard in the Supreme Court of Nova Scotia in Halifax this week.

The 64-year-old man now lives near Edmonton.

Const. Brent Kelly testified Tuesday in Gerry Barton's civil suit about how his work led to evidence that helped exonerate Gerry Barton. (CBC)

Kelly told the court he took a statement from the brother making the accusation, who said the family — whose identities are protected by a publication ban — had conspired at the time to blame his sister's pregnancy on Barton, telling police the 19-year-old had broken into their house in Jordantown.

Court heard Kelly then took a statement from the complainant, who admitted she lied about Barton and said she had repeatedly been sexually assaulted by her brother, starting when she was just nine years old. 

Kelly got a warrant for blood sampling and lab tests confirmed the brother was the child's father, not Barton.

"He was 1.9 million times more likely to be the father than anyone else," Kelly testified.

Kelly then tracked down Barton and found him at work in Dartmouth. The Mountie met with Barton and his lawyer to get a statement on how the wrongful conviction had affected his life.

Dale Dunlop, Barton's lawyer, said court records show the brother was charged with indecent assault, but the charge was dismissed in 2009, though the reasons for that have been redacted from records.

In 2011, the Nova Scotia Court of Appeal admitted the DNA evidence in Barton's reopened case that proved he was not the father of the child born to the original complainant, who has since died. His conviction was quashed and the court concluded he was a victim of a miscarriage of justice.

Barton has said he never stood trial and always denied guilt, but no one listened to him. Instead he was convicted, served a year's probation and carried the "rapist" label for four decades.

Outside court, federal lawyer Angela Green dismissed Barton's claim.

"There's no evidence that any of the RCMP's investigation … was in any way negligent," said Green.

RCMP investigator remembers little of Barton

Earlier Tuesday, the RCMP inspector who investigated the allegation that led to Barton's wrongful conviction testified he remembers little about the case.

Earl Walker Hamilton, who is now 84 and retired since 1986, told the Nova Scotia Supreme Court that he was posted to Digby in 1966.

He said he doesn't remember Barton, nor the girl who made the false accusation or her family. He said he didn't know she was the victim of incest and that her brother was the father of her child.

In his file at the time, Hamilton said Barton "is a Negro, is not going to school and is of below-average intelligence."

Hamilton testified he received the case from Charles Haliburton, who was the Crown prosecutor and is now a retired Supreme Court justice. Hamilton said Haliburton asked him to investigate after receiving a complaint from the girl.

Hamilton said he interviewed community members to learn about the complainant before taking a statement from her.

He told the court he was trying to determine "whether she was promiscuous, whether she was intelligent and whether she was of chaste character."

The retired RCMP investigator said the information was important because of the nature of her allegations. 

The girl told him Barton had raped her. He believed her and described her at the time as "of chaste character [and] known to be a quiet girl who keeps to herself."

Hamilton interviewed the girl's brother, who turned out to be the actual assailant, but didn't suspect him of anything. The brother told Hamilton that Barton had "had" his sister. The girl's mother also blamed Barton. 

Case files destroyed

Hamilton said he doesn't recall taking a statement from Barton, but he did sign a typed statement supposedly from Barton. Barton said he did not make the statement and would not have used the words found in it. 

Hamilton told the court Barton admitted to having consensual sex with the victim, a charge Barton also says is false. 

Hamilton said he took the results of his investigation to Haliburton and the Crown lawyer recommended laying statutory rape charges. Hamilton swore information against Barton on Oct. 14, 1969.

He doesn't know what happened to his notebooks from the time and said the file would have been destroyed after five years. The information presented in court this week comes from some police files and the preliminary inquiry from the original case. 

Hamilton said he investigated the case alone, apart from having another officer witness one statement. 

The government has refused to apologize to Barton or discuss compensation. The government says few records remain from his 1970 conviction.

With files from The Canadian Press