01/28/2015 04:15 EST | Updated 03/29/2015 05:59 EDT

Compensate Nova Scotia man wrongfully convicted of sex with minor: lawyer

HALIFAX - An appeal court was described as Gerald Barton's last chance at justice Wednesday by a lawyer who argued RCMP negligence contributed to his client's wrongful conviction on a statutory rape charge 45 years ago.

"This is probably Gerry Barton's final stop on his quest for justice and I hope you will entertain arguments on his behalf," Dale Dunlop told the five-judge panel of the Nova Scotia Court of Appeal.

Dunlop argued that a Nova Scotia Supreme Court judge erred last April when he cleared the RCMP of wrongdoing and ruled there was nothing wrong with the way police investigated the case against Barton, who is now 64.

Justice James Chipman should have found Barton's confession in 1969 was false and caused by some form of police coercion when the then 19-year-old gave a statement in Digby, N.S., he said.

Since the woman recanted her story in 2008 and blamed her brother for causing her pregnancy, Dunlop said the confession must be both false and improperly obtained.

"Why did Gerry Barton say he had sex with someone when he didn't? ... There was no sex," he said. "The onus is on the other side to explain how they got this through correct police methods."

He urged the judges to award Barton significant damages in his lawsuit against the Mounties.

A lawyer representing the RCMP defended Chipman's conclusion that Earl Hamilton, an RCMP corporal at the time, interviewed the right people and properly obtained an incriminating statement from Barton.

Angela Green said there is no factual evidence to show that police somehow coerced Barton into his admission of sex with the girl.

"There's obviously no evidence of threats or promises. ... There's no evidence, nothing, about police trickery," she said.

Dunlop also argued the Charter of Rights and Freedoms may have been violated when the province refused to negotiate compensation with Barton over the past four years.

Recommendations stemming from the inquiry into the wrongful murder conviction of Donald Marshall Jr. suggest the province should have had a third party conduct an inquiry and set proper compensation in similar cases, he said.

But a lawyer for the provincial Crown said there was no duty on the part of the Nova Scotia government to negotiate compensation or order inquiries. Debbie Brown argued that the recommendations of the Marshall inquiry weren't relevant because the two cases were drastically different and there was no finding of wrongdoing by the Crown or the police in Barton's case

The Nova Scotia Court of Appeal originally quashed Barton's conviction in 2011 after the complainant withdrew her story.

DNA testing showed her brother was 1.9 million times more likely to be the father of the boy than anyone else. He was later charged with indecent assault, but the charge was dismissed in 2009.

His name and that of his siblings and immediate family are protected by a publication ban.

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