Barton v. Nova Scotia (Attorney General)

Barton v. Nova Scotia (Attorney General) Court Court of Appeal Date 2015-04-14 Citation 2015 NSCA 34 Docket CA 428964 Judge/Registrar/Adjudicator MacDonald, J. Michael (Honourable Chief Justice) (CA); Oland, Linda L. (Honourable Justice); Beveridge, Duncan R. (Honourable Justice) (CA); Farrar, David P.S. (Honourable Justice) (CA); Bryson, Peter M.S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Barton v. Nova Scotia (Attorney General) - 2015 NSCA 34 - 2015-04-14 - Library Sheet Decision Content Nova Scotia Court of Appeal Citation: Barton v. Nova Scotia (Attorney General), 2015 NSCA 34 Date: 20150414 Docket: CA 428964 Registry: Halifax Between: Gerald Gaston Barton Appellant v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia and The Attorney General of Canada Respondents Judges: MacDonald, C.J.N.S.; Oland, Beveridge, Farrar, and Bryson, JJ.A. Appeal Heard: January 28, 2015, in Halifax, Nova Scotia Held: Appeal dismissed without costs, per reasons for judgment of Beveridge, J.A.; MacDonald, C.J.N.S. and Oland, Farrar and Bryson, JJ.A. concurring Counsel: W. Dale Dunlop, Ian M. Gray, and James K. Harper for the appellant Debbie Brown for the respondent Attorney General of Nova Scotia Angela Green and Jessica Harris, for the respondent Attorney General of Canada Reasons for judgment: INTRODUCTION [1] There is no guarantee in Canada that money will be paid to compensate a person who claims to have been wronged after an acquittal. This case demonstrates that fact. [2] A baby was born. The teenage mother said the appellant was the father as a result of an unwanted sexual assault. The appellant gave a statement to the police that he had had sex with the complainant, but the act was consensual. [3] The appellant pled guilty to the offence of having sexual intercourse with a female who was between the age of 14 and 16 years, and of previous chaste character. The judge sentenced him to one year probation. Thirty-eight years later, the complainant recanted. DNA evidence confirmed that the father was not the appellant, but the complainant’s brother. [4] The appellant sought an extension of time to file an appeal from conviction. It was granted. On the appeal proper, the Crown conceded, in light of the information available, that there had been a “miscarriage of justice”. The Crown invited this Court to strike the guilty plea and enter an acquittal. We did so (2011 NSCA 12). [5] The appellant sued the Attorney General of Nova Scotia for the tort of malicious prosecution, and the Attorney General of Canada for the tort of negligent investigation. The suit was defended. [6] The Honourable Justice James Chipman presided at trial. On the morning of the trial, the appellant, with the permission of the trial judge, amended his statement of claim to advance a new claim: the Attorneys General violated his rights guaranteed by the Canadian Charter of Rights and Freedoms by failing to negotiate with him—they forced him to litigate. This, he claimed, violated his right to security of the person guaranteed by s. 7 of the Charter, and amounted to cruel and unusual treatment under s. 12 of the Charter. [7] During trial, the appellant abandoned his claim against the Attorney General of Nova Scotia for malicious prosecution. The trial judge found that the appellant had failed to prove his claim of negligent investigation, and dismissed the claim for Charter damages. [8] The trial judge assessed damages “provisionally”—that is, if it turns out that the Attorney General of Canada is liable for the tort of negligent investigation, what is the proper measure of damages to compensate him for the harm caused. Justice Chipman fixed general damages at $75,000.00. [9] The appellant’s Notice of Appeal sets out three grounds of appeal. They are: (1) The Learned Trial Judge erred in law when he failed to determine how Mr. Barton’s purported statement was created, and what the consequences at law would be; (2) The Learned Trial Judge erred in law when he dismissed Mr. Barton’s claim for damages under s. 7 of the Canadian Charter of Rights and Freedoms; and (3) The Learned Trial Judge erred in assessing provisional damages at $75,000. [10] The appellant advanced his argument in relation to the first ground somewhat differently in his factum, and in oral argument. I will discuss these nuances later. It is sufficient to say at the outset that I am not convinced the trial judge erred in law, or made any palpable and overriding errors in fact or mixed law and fact. Accordingly, I would dismiss the appeal. [11] Before turning to my reasons for my conclusion, many people, not the least of which, Mr. Barton, might ask, how is it that a conviction from 45 years ago can be quashed as being a “miscarriage of justice”, but the Courts do not order damages to be paid as compensation for such a “wrong”? [12] The answer lies in understanding what is meant by the phrase “miscarriage of justice”, and in appreciating that judges decide issues, and ultimately cases, based on the evidence adduced by the parties to the proceedings, and by what it is they are being asked to decide. No more, no less. MISCARRIAGE OF JUSTICE [13] An appeal court’s conclusion in criminal proceedings that a conviction is tainted by a “miscarriage of justice” has a very technical meaning. It does not necessarily follow that someone involved in the criminal administration of justice must be civilly liable. I will explain. [14] Appeals are strictly a creature of a statute. There is no common law right to appeal any judgment (see R. v. Meltzer, [1989] 1 S.C.R. 1764). The statute that provides for appeals in criminal cases, and defines the jurisdiction of an appeal court in such proceedings, is the Criminal Code, R.S.C., 1985, c. C-46. [15] Section 686(1) sets out the powers of an appellate court on an appeal from conviction. The court may allow an appeal if it concludes the verdict is unreasonable or not supported by the evidence, there was an error in law by the trial court, or on any ground that there was a miscarriage of justice. The section provides: 686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [16] It is unnecessary to delve into the intricacies of what has or has not been caught by the general power to allow an appeal from conviction based on a “miscarriage of justice”. It is sufficient to say that the jurisdiction is engaged if it is established that something occurred during the trial process that calls into question the fairness or appearance of fairness of the trial. This could include: improprieties in the jury selection process (see R. v. Barrow, [1987] 2 S.C.R. 694; R. v. Latimer, [1997] 1 S.C.R. 217; R. v. Hobbs, 2010 NSCA 62); improper contact with jurors during deliberations (R. v. Cameron (1991), 64 C.C.C. (3d) 96 (Ont. C.A.)); failure to disclose relevant information (R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Taillefer, 2003 SCC 70); misapprehension of evidence by a trial judge that played an essential role in the reasoning process that led to conviction (R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.); R. v. Lohrer, 2004 SCC 80); incompetence of counsel (R. v. G.D.B., 2000 SCC 22; R. v. Fraser, 2011 NSCA 70). The usual remedy is an order for a new trial, but the court may direct an acquittal. [17] In Mr. Barton’s case, there was no trial. He pled guilty. Hence there was no basis to question the verdict as being unreasonable or not supported by the evidence, nor could there be a trial judge’s decision tainted by legal error. [18] An appeal court nonetheless has the ability to permit an appellant to withdraw a guilty plea. The power to do so is broadly defined. An appeal court can grant the relief if satisfied that there are “valid grounds for doing so” (Adgey v. The Queen, [1975] 2 S.C.R. 426). This includes situations where: pleas have not been entered voluntarily; the accused did not intend to admit the elements of the offence; on the admitted facts, as a matter of law, a conviction is not available; or the plea was triggered by threats or improper inducements. Any one of these scenarios could be said to have been a miscarriage of justice (see: R. v. Messervey, 2010 NSCA 55, ¶60-64). [19] With this background in mind, I turn to the information that was before the Court of Appeal on Mr. Barton’s appeal from conviction. [20] Mr. Barton swore a number of affidavits on his motion to extend the time to file a Notice of Appeal. I will refer to the gist of the ones that were introduced at the trial before Justice Chipman. [21] Initially, all that Mr. Barton said was that he had been convicted in 1970 of having sexual intercourse with a female between 14 and 16 years of age, contrary to s. 138(2) of the Criminal Code. Both the complainant and he were residents of a small community outside Digby. She was black, and he, bi-racial. There were no records of what had happened at the time. An RCMP investigation in 2008 had uncovered “fresh evidence” relating to the charge. [22] Supplementary affidavits by Mr. Barton set out, what he cautioned as being, his fragmented memories. He acknowledged that it appeared that he had pled guilty. He offered some thoughts on why he would have done that. He said two of the primary actors in the events leading to his conviction were the father of the complainant and the Crown prosecutor, who he identified as John R. Nichols. Mr. Barton deposed that the complainant’s father and Mr. Nichols had grown up together as best friends in Digby, and that this relationship created a serious conflict of interest. [23] The record from the Canadian Police Information Centre, commonly referred to as CPIC, showed that Mr. Barton had been sentenced on January 14, 1970 in Digby, Nova Scotia to one years’ probation. There is no information on the CPIC record whether there had been a trial or a guilty plea. [24] Mr. Barton swore that he recalled on January 14, 1970, the RCMP came to his house and took him to the courthouse. He recalled that his parents, the victim’s parents and John Nichols were present. He explained: 11) I do not recall at any time pleading guilty, and believe that someone may have entered a guilty plea on my behalf, including possibly duty counsel (if present) or the Crown; 12) In addition, as an innocent sixteen year old, I believe that I felt significant and unfair pressure from the RCMP and Crown to plead guilty (or at least acquiesce to it being entered for me), in order to resolve the matter and avoid a complicated prosecution of the true offender; 13) I believe that in bringing this fabricated matter before the Court, there was no proper investigation of the case by the RCMP, no legal counsel appointed to me, and no trial of the facts before a jury or the judge; [25] Mr. Barton added that he remembered that an amount of bail was required to secure his release, and his mother had to place a mortgage on their small house to raise the money. [26] The Crown consented to the requested extension of time to file the Notice of Appeal. The Notice of Appeal named John Nichols as the Crown Prosecutor. The grounds of appeal were straightforward; he sought to withdraw his guilty plea based on relevant and credible fresh evidence, which he proposed to adduce, to demonstrate that it would be unjust to maintain the plea. [27] What was the fresh evidence? Cst. Brent Kelly was called to a disturbance at a home just outside Digby in 2008. Two of the complainant’s brothers had argued. One of them told Cst. Kelly that the other had sexually abused him and his siblings when they were children. Included was the suggestion that his brother was the father of the complainant’s son. [28] Cst. Kelly contacted the complainant. She confirmed some kind of sexual activity with her brother, but disclaimed intercourse with him. Importantly, she also disclaimed having any intercourse with Mr. Barton. When she gave birth to her son in 1969, she told her parents that her brother was the father, but they did not want to believe her. Her father had a temper. This caused her to name Mr. Barton as the father. [29] DNA testing on samples from the complainant, her son, and her brother confirmed that her brother was the father. [30] Cst. Kelly got in touch with Mr. Barton. A statement was taken from him on January 15, 2009. Mr. Barton’s lawyer was present. It is a very short document. [31] Mr. Barton told Cst. Kelly that he recalled leaving his house in or around 1968; he walked by the old house where the complainant lived. She was outside. He left and went into the woods. He also said that “we always knew” that [name of brother] was abusing the complainant. One day the complainant’s father came to their yard and demanded money. If there was no payment, he would take him to court. That is how he ended up in court where Mr. Nichols was the prosecutor, who convinced the judge at trial that it had happened—but Mr. Barton had told them over and over that he did not have sex with the complainant. [32] In response to a question by Mr. Barton’s lawyer, “How did the police treat you”, he responded: “They treated us pretty good. It was the RCMP that arrested me. I don’t think they took a statement from me”. [33] On the appeal proper, Mr. Barton filed no factum. The factum on behalf of the Public Prosecution Service urged this Court to permit the appellant to withdraw his guilty plea on the basis that there had been a miscarriage of justice. Rather than direct a new trial, the Crown asked that the Court enter an acquittal. The relevant parts of the judgment by this Court are as follows: [1] Largely for the reasons set out by Mr. Scott in his factum on behalf of the respondent and which were adopted by Mr. Dunlop on behalf of the appellant, we are unanimously of the view that the relief claimed ought to be granted. [2] The fresh evidence proves that the appellant did not commit the offence to which he pleaded guilty. This Court retains a discretion, to be exercised in the interests of justice, to receive fresh evidence in order to explain the circumstances that led to the plea and which demonstrates that a miscarriage of justice occurred. [3] Accordingly, we admit the fresh evidence to explain the circumstances that led to Mr. Barton's guilty plea in 1970 to a charge of having sexual intercourse with a female between 14 and 16 years of age, pursuant to s. 138(2) of the Criminal Code of Canada, (1953-54, c. 51) and which demonstrates that a miscarriage of justice occurred; we grant leave to the appellant to withdraw his plea; and we order that the conviction be quashed and that an acquittal be entered with respect to the sole count which gives rise to this appeal. [34] Relying on this evidentiary record, and the conclusion that there had been a miscarriage of justice, Mr. Barton sued the Attorneys General. [35] There is no axiomatic concordance between criminal and civil proceedings. For example, in criminal proceedings, a finding of not guilty is tantamount to a finding of innocence. This was succinctly set out in by Lamer C.J., in R. v. Grant, [1991] 3 S.C.R. 139: [28] …It is a well-established principle in our criminal law that an acquittal is equivalent to a finding of innocence, and that "any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused": Grdic v. The Queen, [1985] 1 S.C.R. 810, at p. 825; see also R. v. Carlson, [1970] 3 O.R. 213 (H.C.). [36] Therefore, an acquittal determines legal innocence. However, an acquittal at trial, or on appeal, is not a determination that any number of the individuals or entities that make up the criminal administration of justice engaged in behaviour that was malicious or that they breached the appropriate standard of care, entitling the accused or the appellant to an award of damages. [37] An acquittal of an accused is no impediment to a victim suing that same accused in a civil action (see Polgrain Estate v. Toronto East General Hospital, 2008 ONCA 427). Indeed, it is unlikely that the fact of the acquittal is even admissible in a civil action (Rizzo v. Hanover Insurance Co. (1993), 14 O.R. (3d) 98 (Ont. C.A.)). The burden of proof, rules of evidence, and the parties are all different in civil proceedings. [38] On the other hand, an accused may be precluded from challenging a conviction in subsequent civil proceedings as an abuse of process (see: Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63). [39] Here, it is the appellant, a former accused, who has now been acquitted, that seeks redress. It is important to keep in mind what was actually decided in the criminal proceedings, and what claims were advanced by the appellant in the subsequent civil proceedings. [40] Mr. Barton did not sue the complainant or her family for the wrong he says he suffered by being falsely accused and convicted. Instead, he sued the Attorneys General of Nova Scotia and Canada. It is necessary to focus on the legal foundation of the claims advanced against the Attorneys General, because it illustrates what it was the trial judge was asked to, and did decide. THE CIVIL CLAIM BY MR. BARTON [41] There is no such thing as the tort of wrongful conviction. The appellant did not claim at trial, nor on appeal, any such tort. [42] From its inception in June 2012 to the opening day of trial, there were numerous amendments to the statement of claim advanced against the Attorneys General. There is no need to detail each version. Broad strokes are sufficient. [43] Initially, the appellant alleged that the Attorney General of Nova Scotia (AGNS) had wrongfully convicted him of the offence under s. 138(2) of the Criminal Code. He said he was taken before a Provincial Court Judge in Digby, and without the benefit of a lawyer, or entering a guilty plea, found guilty. [44] The agent of the AGNS said to have been involved was John R. Nichols, acting as the Crown prosecutor. It was asserted that Mr. Nichols was a close personal friend of the complainant’s father. [45] The Attorney General of Canada acts as the named party for government agencies and departments. This includes the RCMP. The appellant alleged that the RCMP arrested and charged him based merely on the word of the complainant. [46] In sum, he claimed that his conviction was caused by the actions of both the RCMP and the AGNS, whether negligent or intentional. The particulars were: there was a failure to properly investigate as to who the true perpetrator was; convicting the appellant when he had no lawyer, and without him understanding the legal process; and allowing a crown prosecutor to proceed despite having a conflict of interest. [47] Everyone believed that no documents existed concerning the RCMP investigation and the proceedings in Digby. This turned out to be wrong. [48] The record is not entirely clear, but it appears that a file was found sometime in the summer of 2013. Included were what today would be referred to as a “Crown Sheet”, RCMP investigative reports, a typed copy of a statement given to the police by the appellant, some notes by the Crown prosecutor, and a certified copy of the transcript from a preliminary inquiry held in the Digby Provincial Magistrate’s Court on October 28, 1969 into the charge under s. 138(2). The appellant’s statement to the police described a consensual act of intercourse between he and the complainant. [49] According to the preliminary inquiry transcript, John Nichols was Mr. Barton’s defence lawyer, not the Crown Prosecutor. The Crown Prosecutor was Mr. Charles Haliburton. Both of these gentlemen later became judges; Mr. Nichols, a Judge of the Nova Scotia Provincial Court; Mr. Haliburton, a Justice of the Nova Scotia Supreme Court. [50] In due course, an examination for discovery was arranged for Mr. Haliburton. In preparation for that event, Mr. Haliburton found his file. It contained essentially the same materials previously discovered, along with additional notes made by him. [51] Given the new information, the statement of claim was amended in August 2013. Much of the basics remained the same. Added was the suggestion that prior to charges being laid, the complainant’s father had gone to the Bartons and demanded a payment of $900 to prevent charges. It was not paid. The complainant’s father then contacted Mr. Haliburton who referred the matter to the RCMP. [52] The appellant pled that the evidence of the complainant at the preliminary inquiry, and that of her brother, was false. The purported statement given by the appellant was false. He had never met with the RCMP, nor signed a statement. [53] The acts and omissions of the respondents were said to have caused the appellant to be convicted of a crime he did not commit. Further, the actions of the AGNS were alleged to have been motivated by malice; in the case of the AG Canada, by gross negligence. [54] Particulars were again set out. As I noted at the outset, the appellant ultimately abandoned his claim against the AGNS for malicious prosecution. But the allegations he had made were serious. He claimed that the AGNS had arranged for the appellant to be found guilty in order to provide a logical explanation for the complainant’s pregnancy; and had engaged in a charade with John Nichols as the appellant’s purported counsel, to ensure that the appellant was found guilty. [55] The claim of gross negligence against the AG Canada was that the RCMP had: failed to properly investigate; wilfully or negligently disregarded exculpatory evidence; ignored significant differences between the statement of the appellant and that of the complainant; and read into the preliminary inquiry a statement the appellant had not made. THE EVIDENCE AT TRIAL BEFORE JUSTICE CHIPMAN [56] There were only five witnesses. The appellant and his current wife were the witnesses for the plaintiff’s case. The AG Canada called Inspector (ret’d) Earl Hamilton of the RCMP and Cst. Brent Kelly. The AGNS called the Honourable Charles E. Haliburton. [57] All of the relevant details of the viva voce testimony, and the essence of the documentary evidence adduced, are set out in the comprehensive and thorough reasons for judgment written by Justice Chipman. The decision is reported as 2014 NSSC 192. To understand the appellant’s complaints, a synopsis of the evidence is sufficient. Additional detail can be added later where necessary. [58] Mr. Barton testified that he had never been in trouble with the law, before or after the events that led to his conviction. He left school when he was 16. In the fall of 1969, he was 19 years old, living with his family in the Digby area. The complainant’s father came to the yard and demanded $900 or there would be court. He said he told his father he had never touched the girl. [59] The very next day the RCMP came with a summons to go to court. He said that he was never at the RCMP detachment, nor did he give a statement to the police. The appellant did profess having a memory of going to the courthouse in Digby. There were lawyers, the RCMP and the judge. He listened to the testimony of the complainant and was shocked. He said her brother also testified. [60] Mr. Barton denied ever having pled guilty to the charge. He said he only went to court once. According to the appellant, there was no investigation. They just took him to court and threw him into jail. He at no time talked to Inspector Hamilton of the RCMP. [61] Inspector Hamilton identified the documents in his former file. None refreshed his memory of the events. He had no recall of having taken statements from any of the witnesses, or from Mr. Barton. All of his reports, and the transcript from the preliminary inquiry, were introduced into evidence under the Nova Scotia Evidence Act, without objection. [62] Inspector Hamilton’s file contained a typed version of a statement made by the complainant on August 14, 1969. In the statement, she recounted how the previous November she was home from school, sick. It was the season for rabbit hunting. Mr. Barton was out hunting. He came into her house and asked for a match. She said they had none. She said he then grabbed her, pushed her down on a cot, and with force, had intercourse with her against her will. She only disclosed the rape after she had given birth to her son. [63] Also in Inspector Hamilton’s file was a typed version of a statement, the original of which was said to have been signed by Mr. Barton on September 25, 1969, witnessed by Inspector Hamilton and Cst. W.S. Thompson. According to this document, Mr. Barton told the police that he was hunting rabbits near the complainant’s house. He went into her house to get a light for his pipe. Intercourse occurred, but it was consensual. It happened in the kitchen, standing up. He did not ejaculate—“I did not “go off” in her.” The actual handwritten statement was introduced as an exhibit at the preliminary inquiry. [64] It was Inspector Hamilton’s view that the version of events as between the complainant and the appellant were very different. At the end of the day, it was the Crown prosecutor who decided what charge to proceed with. [65] Cst. Brent Kelly described his investigation from 2008 to 2011, including the laying of charges of indecent assault against the complainant’s brother. The Crown eventually abandoned that prosecution. [66] It is unclear exactly when, but it was common ground among the parties that the complainant passed away at some point in time after she gave a statement to Cst. Kelly. [67] Mr. Haliburton’s evidence was straightforward. He decided to proceed with the charge under s. 138(2) of the Code as opposed to the more serious charge of rape. In his view, there “was a real prospect that there would not be a conviction” on the rape charge. He had no reason to disbelieve the complainant, but was not confident he could convince a jury the intercourse was non-consensual. He viewed the statements of the complainant and the appellant to be remarkably similar. He testified that race played no role in his decisions. [68] Some of Mr. Haliburton’s handwritten notes were made before, during, and after the preliminary inquiry. His notes make clear there was no trial. The appellant was not thrown into jail. Mr. Barton’s appearance in Magistrate’s Court had been compelled by way of a summons. After being committed to stand trial, the appellant was released on a recognizance in the amount of $500, with one surety, to bind his promise to appear at the next sitting of the superior court. [69] On the appellant’s first appearance in Supreme Court, he pled guilty to the charge under s. 138(2) of the Code, and was sentenced to a period of probation for one year. [70] At the end of the evidence at trial before Justice Chipman, counsel for Mr. Barton formally withdrew all allegations of malicious prosecution levied against the AGNS—an offer he announced he had made prior to trial, if the AGNS would consent to the addition of a claim that the appellant’s rights under the Charter had been violated. [71] Since the trial judge had granted permission to amend the statement of claim, there were two claims left: that the RCMP were liable for negligent investigation; and from 2011 to the opening day of trial, Mr. Barton’s rights under the Charter had been infringed by the failure of the Attorneys General to compensate him. [72] It is with this background, I turn to the appellant’s grounds of appeal, which are that: there was no finding of how the appellant’s statement was obtained; there was a s. 7 violation; and the judge erred in his provisional award of damages. FAILURE TO DETERMINE HOW THE STATEMENT WAS OBTAINED [73] Initially, the appellant asserted that the putative error was one of law. A trial judge, on questions of law, must be correct. We would owe no deference. But in the appellant’s factum, and confirmed in oral argument, the claimed for error is framed differently. [74] Gone is any suggestion that the trial judge erred in law. Instead, the first ground of appeal is identified as: Did the Learned Trial Judge make an error when he failed to make a finding as to how Mr. Barton’s statement was obtained? [75] Citing the leading case of Housen v. Nikolaisen, [2002] 2 S.C.R. 235, the appellant says this ground of appeal attracts the highest standard of review—requiring demonstration of “palpable and overriding error”. I agree. [76] However, with respect, I am unable to agree that the judge made any error, let alone one that is palpable and overriding, about how the statement was obtained. My explanation follows. [77] The trial judge needed to resolve the issue whether the RCMP was guilty of the tort of negligent investigation. Until Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, courts had divided on whether the police owed a duty of care to a suspect. That case recognized that police owe such a duty. The impugned conduct is to be measured against the standard of a reasonable police officer in similar circumstances, judged by the standards in existence at the time. Further, the normal rule of tort recovery applies. The plaintiff must establish that the claimed harm would not have occurred but for the breach of the appropriate standard of care. [78] The trial judge found the appellant to be a credible witness, in the sense of a person who was attempting to tell the truth. But he found his evidence was not reliable. Justice Chipman gave reasons for his findings. He summed up by saying: [98] In the result, when Mr. Barton's evidence conflicts with the documentary evidence (as spoken to by Mr. Haliburton and Mr. Hamilton), I have preferred the latter. [79] The appellant makes no complaint about this finding. Instead, the appellant focuses on the existence of the statement taken by Inspector Hamilton. He claims that the statement must be viewed as false, and hence it could only come into existence by Inspector Hamilton concocting the contents, or by coercing the appellant into making the statement by the use of threats or inducements. In either event, such conduct by Inspector Hamilton breached the standard of care. [80] It is clear from reading all of Justice Chipman’s reasons that he fully accepted that Inspector Hamilton took a statement from the appellant, an occurrence which the appellant vehemently denied. In the trial judge’s analysis section, he started by saying that he was satisfied that Inspector Hamilton did or omitted nothing which would constitute a negligent investigation (¶114). [81] The trial judge described Inspector Hamilton’s investigation. This included obtaining a statement from the appellant. Justice Chipman wrote of this process: [117] Impressed with this information, Mr. Hamilton took what I would regard as the next logical step when he sought out Mr. Barton. Remembering that these events were occurring over a decade before the Charter, it is not surprising that having administered the police warning, Corporal Hamilton proceeded to take a statement from the (then) unrepresented 19-year-old Gerald Barton. [82] The trial judge was well aware of the position of the appellant that there was misconduct about the taking of the statement, but simply did not accept it. He put it this way: [119] The plaintiff makes the argument that his 1969 inculpatory statement cannot be reconciled with his 2009 exculpatory statement. Furthermore, there is Mr. Barton's 2014 trial evidence that he did not have sexual relations with R.M., indeed, that he "did not touch her". Furthermore, the plaintiff points out that when R.M. gave her videotaped statement in 2008, she not only said L.M. was E.M.'s father but that she never had sexual relations with Mr. Barton. [120] Might it now follow that Mr. Barton's 1969 statement was somehow falsified by Corporal Hamilton and that there was accordingly, a negligent investigation? For the reasons outlined below, the answer to this question must be a resounding, "no". [83] Justice Chipman found no evidence or motive to suggest that Inspector Hamilton would invent the appellant’s statement (¶130). [84] The appellant focuses our attention on a comment made by the trial judge that he found “many aspects surrounding” the taking of the statement to be troubling. This, and the kind of language used in the statement, so the argument goes, should have led the trial judge to draw the only reasonable inference that the confession was involuntary, and that Inspector Hamilton actively shaped the statement. [85] With respect, I am unable to agree. First, the trial judge’s comment about being troubled was in the context of the far more stringent approach imposed by the Charter on police practice today. The actual comment by the trial judge is as follows: [123] I must say, it is troubling to me as a judge sitting in 2014 to accept that the statement was fairly taken. Nevertheless, I am mindful of the Supreme Court of Canada direction not to impose today's post-Charter values on police practice dating back 45 years. [86] Not only does Justice Chipman properly direct himself that he must not impose post-Charter dictates on police conduct in 1969, his earlier and subsequent comments make it clear he was not satisfied the statement was improperly taken by Inspector Hamilton. [87] The trial judge clearly accepted that the practice followed by Inspector Hamilton, in the whole of the circumstances, did not lead him to conclude his conduct fell below the acceptable standard. He wrote: [121] First of all, Mr. Barton's 1969 statement cannot be viewed in isolation. It is too simple to conclude that just because the statement is untrue, it must have been fabricated or forced by the R.C.M.P. It is not appropriate for the Court to speculate as to why the statement is false on the critical point of the sexual act. [122] The statement was taken in the pre-Charter era. Nevertheless, Corporal Hamilton testified as to his practice regarding taking a warned statement which Mr. Barton's statement appears to have been. He added that as it was his practice to have a second officer witness warned statements, he had Constable Thompson (who was with the Digby R.C.M.P. detachment at the time) witness Mr. Barton's signature. [Emphasis added] [88] After referring to the lack of evidence about the appropriate standard of care, from any of the parties, the trial judge posed, and then answered the following question: [126] How then am I to judge the appropriateness of the statement and whether its contents and/or the mere taking of the statement equates with negligent investigation? The answer to this question, I believe, lies in how the statement was handled at the time. [127] The R.C.M.P. did not ignore exculpatory evidence. There was no exculpatory evidence to ignore. Corporal Hamilton took a statement from the victim and interviewed her mother and her brother. R.M. identified Mr. Barton as the perpetrator. There were no witnesses to the rape. Corporal Hamilton interviewed Mr. Barton and obtained a statement from him. Mr. Barton told the police he had sexual intercourse with R.M., satisfying the essential elements of the statutory rape charge. [89] The language attributed to the appellant in the statement, and whether the statement was not voluntary in the sense that the police had induced the appellant to give a statement by the hope of advantage or fear of disadvantage, were live issues at the appellant’s preliminary inquiry. Then, as now, if the Crown does not establish beyond a reasonable doubt that utterances said to have been made by an accused are free and voluntary, they are inadmissible in criminal proceedings (see R. v. Pearson, (1957), 25 C.R. 342 (Alta. C.A.); R. v. Oickle, 2000 SCC 38). [90] When Insp. Hamilton gave his evidence at the preliminary inquiry, he described, under oath, how he came to have the opportunity to speak with the appellant, and what happened during the statement taking process. [91] In a general way, he testified that the appellant voluntarily came to the RCMP detachment. Inspector Hamilton asked the appellant to come into his office. Once there, he told Mr. Barton very carefully about the rape allegation, but before asking him any questions, warned him: “You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat, whether or not you do say anything. Anything you do say may be used in evidence.” [92] Inspector Hamilton testified that he asked him if he understood the warning. Mr. Barton said he did. Hamilton then added that Mr. Barton did not have to say anything, but if he did he would take it down in writing. Mr. Barton agreed to give a statement. Over the next fifteen minutes, he took a short statement from Mr. Barton. [93] Inspector Hamilton described how he asked Cst. Thompson to come into the office to witness the statement. Hamilton read out loud the content of the statement to Mr. Barton, and then gave it to him to read. He asked Mr. Barton, if the statement was true to the best of his knowledge and belief, to sign it. He did. The statement was then signed by Inspector Hamilton and Cst. Thompson. [94] At the Preliminary Inquiry, Mr. Haliburton examined Inspector Hamilton about the general circumstances surrounding the taking of the statement. In Inspector Hamilton’s opinion, Mr. Barton was not under the influence of alcohol, and appeared normal. The Crown prosecutor asked the Provincial Magistrate to admit the statement. [95] Defence attorney John Nichols cross-examined Inspector Hamilton. He asked about the setup of the room, how the police were dressed, and whether Inspector Hamilton had advised him at the time of giving the statement to get a lawyer. As to the words used, and some of the general circumstances, Mr. Nichols cross-examined Hamilton as follows: Q. He voluntarily came into the office and you asked him to give the statement? A. Yes. Q. The statement you took was in questions and answers? A. Yes. Q. Some of the words used in it were in your own words to him and he would answer whether he did or didn’t know what they meant? A. Yes. Q. The statement was in narrative form from him so as a result of questions you put to him you would copy his answers? A. Yes. Q. Did you ask the accused if he could read and write? A. Yes, I did. He told me. Q. You saw him sign his name? A. Yes, I saw the accused write. [Emphasis added] [96] At the end of the cross-examination, the Court reporter endorsed the transcript, “The statement is admitted.” The statement was introduced as Exhibit W-1, with Mr. Barton being identified in court as the person who gave the statement. [97] Mr. Nichols then had a further opportunity to question Inspector Hamilton: Q. These big words in the statement are your words to the accused? A. Yes Q. Of course you were satisfied he knew what they meant? A. I asked him if he knew. Q. You were sure he understood “go off”? A. Those were his words. Q. Did the accused seem nervous at all? A. No, he didn’t. Q. Did you have conversation with the accused that you didn’t think it should be a rape charge? A. No I didn’t. I just told him the girl’s complaint. Q. And you said “it seems funny to have a rape charge nine months after.” A. I said it was unusual to have a rape charge nine months after the event. Q. This was after the statement? A. Yes. [Emphasis added] [98] It is clear that Mr. Nichols had taken instructions from the appellant. How else would he have known to ask about some of the exchanges that occurred during and after the statement taking process? This is also borne out by Mr. Nichols’ cross-examination over the demand by the complainant’s family for $900. The point is, if there were legitimate issues about whether Mr. Barton had ever been to the RCMP detachment and given a statement, or gave one that was tainted by promises of favour, or threats of disadvantage, Mr. Nichols would have pursued these lines of inquiry. He did not. [99] Justice Chipman clearly found as a fact that the appellant did give that statement to Inspector Hamilton. That finding is reasonable and clearly supported by the evidence. The appellant does not suggest otherwise. [100] The appellant nonetheless argues that the failure of the trial judge to draw the inference that Inspector Hamilton must have engaged in practices that violated the appropriate standard of care when he took the statement constitutes a palpable and overriding error. With respect, in light of the totality of the evidence, I disagree. [101] Furthermore, as discussed earlier, any plaintiff alleging that negligent police investigation caused harm must demonstrate that the identified conduct caused such harm. Here, the trial judge found the necessary ingredient of causation had not been made out. Chipman J. wrote: [134] To establish liability, Mr. Barton must show, on a balance of probabilities, that but for Corporal Hamilton's wrongful conduct, his damages would not have occurred. As the Supreme Court of Canada noted in Hill, supra, if others contribute to the injury so significantly that the same damage would have been sustained even if the police investigated irresponsibly, causation will not be established. A defendant is not liable when his conduct is not the cause (Resurfice Corp. v. Hanke, 2007 SCC 7, at paras. 21-22). [135] Here, Corporal Hamilton's investigation did not cause Mr. Barton to be convicted of statutory rape. His conviction was caused by R.M. making a false statement to police and lying under oath during the Preliminary Inquiry. The true perpetrator, L.M., also lied to Corporal Hamilton and committed perjury. These are the individuals responsible for Mr. Barton's criminal conviction, not retired Inspector Hamilton. [136] In the result, I dismiss the negligent investigation claim against the Attorney General of Canada. [102] I would dismiss this ground of appeal VIOLATION OF SECTION 7 OF THE CHARTER [103] There is no legal or factual merit to the appellant’s claim for damages as a remedy for breach of his rights under s. 7 of the Charter. [104] In Vancouver (City) v. Ward, 2010 SCC 27, the Chief Justice, writing for the full court, recognized that damages may be an appropriate remedy under s. 24(1), but the plaintiff must first establish a Charter violation: [4] I conclude that damages may be awarded for Charter breach under s. 24(1) where appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages. [105] The appellant at trial claimed that both Attorneys General violated his rights under s. 7 and s. 12 of the Charter by denying responsibility for his wrongful conviction and by refusing to negotiate. Instead the respondents forced the appellant to engage in stressful litigation, and made him continue to live with the knowledge that neither the Province nor the RCMP took any responsibility. This conduct was said to have inflicted significant mental and emotional stress, justifying an award of $100,000.00. [106] The claim that this amounted to cruel and unusual treatment under s. 12 was dismissed. The appellant does not appeal from that dismissal, nor does he any longer advance any claim against the Attorney General of Canada for any alleged breach of his Charter rights. [107] Effectively, the appellant’s counsel appears to be saying: “We abandoned at trial the claim in tort against the AGNS because we recognized that the AGNS was not liable for what happened to Mr. Barton in the criminal proceedings; but because the AGNS didn’t compensate Mr. Barton, you caused him mental and emotional stress and are obligated to pay him damages under the Charter as a violation of his right to security of the person under s.7.” [108] In other words, despite the fact that the position of the AGNS that she had no legal obligation to compensate the appellant was completely vindicated — by refusing to compensate, the AGNS caused the appellant other compensable harm via the Charter by refusing to pay. The appellant acknowledged to Justice Chipman, and to this Court, the novelty of the claim. It is legally without merit. [109] Nonetheless, the learned trial judge addressed the substance of the s. 7 claim, and found it factually not made out. I see no error in the trial judge’s analysis and conclusion. [110] In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 Bastarache J., for the majority set out the parameters for an infringement of s. 7: [57] Not all state interference with an individual's psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to "serious state-imposed psychological stress" (Dickson C.J. in Morgentaler, supra, at p. 56). I think Lamer C.J. was correct in his assertion that Dickson C.J. was seeking to convey something qualitative about the type of state interference that would rise to the level of infringing s. 7 (G. (J.), at para. 59). The words "serious state-imposed psychological stress" delineate two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations. These two requirements will be examined in turn. [Emphasis added] [111] Here, the trial judge found, as a fact, that the appellant had not demonstrated the AGNS’s refusal to compensate resulted in serious psychological harm: [143] With respect, I find that the plaintiff has not demonstrated that the state's refusal to compensate him has resulted in serious psychological harm. To constitute a breach of one's psychological security of the person, the impugned action must have a serious and profound effect on the person's psychological integrity. In G.(J.), supra, the Supreme Court of Canada made it clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. [144] The plaintiff has not provided any evidence that by failing to compensate him for his wrongful conviction and "forcing" him to litigate, the defendants caused him to suffer serious and profound psychological harm beyond the ordinary stress and anxiety that a person would usually experience in litigation. After all, there was no expert medical evidence introduced; indeed, the plaintiff has not received medical attention. [Emphasis added] [112] The appellant does not suggest that the trial judge committed any error in these findings. I see none. Therefore, the claim for a s. 7 infringement is also factually unsustainable. [113] I would therefore not give effect to this ground of appeal. PROVISIONAL AWARD OF DAMAGES [114] The appellant acknowledges that damage awards arrived at by a trial judge are entitled to deference. A different award can only be substituted where a court of appeal finds there was no evidence upon which the judge could have reached his or her conclusion, or the judge proceeded on a wrong principle, or the award was wholly erroneous. This deferential standard was reviewed by Fichaud J.A. in Hayter v. Bezanson, 2009 NSCA 113: [16] In Woelk v. Halvorson, [1980] 2 S.C.R. 430, at p. 435 Justice McIntyre for the Court discussed appellate review of damages awards: It is well settled that a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have come to a different conclusion. It is only where a Court of Appeal comes to the conclusion that there was no evidence upon which a trial judge could have reached this conclusion, or where he proceeded upon a mistaken or wrong principle, or where the result reached at trial was wholly erroneous, that a Court of Appeal is entitled to intervene. Justice McIntyre drew this exposition from Nance v. British Columbia Electric Railway Co. Ltd., [1951] A.C. 601, at p. 613, a statement of principle that this court has followed: for example, Fraser v. Hunter, 2000 NSCA 63 at para. 8; Kern v. Steele, 2003 NSCA 147, at para. 43 and Campbell v. Force Construction Ltd., 2009 NSCA 20, at para. 9. See also Saturley v. Lund, 2008 NSCA 84 at para. 5 and cases there cited. [115] The appellant does not suggest that the trial judge committed any error in principle, but just asks us to substitute a higher award. That is not our function. I would not give effect to this ground of appeal. SUMMARY AND CONCLUSION [116] A finding by an appeal court that there has been a miscarriage of justice such that a conviction is vacated, and an acquittal entered, does not mean that an appellant has suffered a civil wrong that must be compensated by way of damages. [117] On Mr. Barton’s appeal from conviction, this Court was asked to admit fresh evidence to demonstrate that it would be a miscarriage of justice not to permit the withdrawal of the appellant’s guilty plea. We did so. At the request of the Public Prosecution Service, an acquittal was entered. [118] The only information before this Court on Mr. Barton’s conviction appeal was: during the criminal proceedings he had no lawyer; the Crown prosecutor was a close personal friend of the complainant’s father; the allegation that there was no proper investigation, and the appellant had been unfairly pressured into pleading guilty; the complainant had since given a statement recanting her allegation of intercourse with the appellant, and had named her brother as the father of her child. This latter detail was confirmed by DNA tests. [119] In the civil proceedings before Justice Chipman, documents, viva voce evidence, and the transcript from a preliminary inquiry revealed a different story. [120] The police in 1969 had conducted an investigation. Although the appellant in a 2009 statement to Cst. Brent Kelly said he did not remember if the RCMP took a statement from him, documents and the sworn evidence from the preliminary inquiry in October 1969 showed the appellant had given a statement to the RCMP. In that statement, he acknowledged having had sexual intercourse with the complainant in her home, but that it was consensual. [121] The appellant had legal counsel at the preliminary inquiry who thoroughly cross-examined the Crown witnesses, including the officer who took the statement from the appellant. There was no suggestion at the time that the appellant had not given such a statement, or that the words used were not his. There was also no suggestion at the time of improper conduct in how the statement was taken. [122] What is important is that this appeal is limited to the claim the trial judge made a palpable and overriding error by not finding that the RCMP had breached its duty to the appellant in how they took the statement; and the trial judge should have allowed his claim for damages as a just and appropriate remedy for the infringement of his s. 7 Charter rights by the AGNS’s failure to compensate him. [123] The trial judge did not err in his refusal to find the police breached the standard of care in the taking of the statement. The claim for Charter damages is legally and factually without merit. There is no basis to intervene in the award of provisional damages. [124] I would therefore dismiss the appeal. Costs are not sought. None are ordered. Beveridge, J.A. Concurred in: MacDonald, C.J.N.S. Oland, J.A. Farrar, J.A. Bryson, J.A.