Different verdicts against co-accuseds not inconsistent: Alberta Court of Appeal

A jury did not render inconsistent verdicts against three individuals charged with criminal harassment when it only convicted two of them, the Alberta Court of Appeal has ruled.

In R v. Walton, 2022 ABCA 276, Stephen Walton, a retired detective of the Calgary Police Service (CPS), and Heather Walton, his spouse and a former CPS civilian employee, operated a private security company.

Kenneth Carter hired the company to provide private protection services for himself and his infant daughter after his separation from her mother, Akele Taylor. The Waltons did the following:

• gathered information against Taylor relating to a custody dispute over the child
• conducted surveillance over Taylor and others through employing numerous active, suspended, and retired CPS officers
• accessed police databases
• installed a GPS tracker on Taylor’s vehicle
• asked for information from Taylor’s friends, family, and associates about her lifestyle and offered them money in exchange.

Carter and Stephen Walton were convicted of criminal harassment under s. 264(1) of the Criminal Code. The Waltons received convictions for bribery of a peace officer under s. 120(b) of the Code and unlawful storage of firearms under s. 86(2) of the Code. Carter sought a stay or a new trial.

The Waltons also asked for a new trial.

Jury’s differing conclusion came from different evidence

The Court of Appeal disagreed with the ground of appeal that the jury rendered inconsistent verdicts. The evidence for the criminal harassment charge against Heather Walton was different from the evidence against the other two accused individuals, which accounted for how the jury members could have reached a different conclusion for her and resulted in a hung jury.

However, all the jury members agreed that Heather Walton made payments with the intent to facilitate or to procure the criminal harassment offence, the appellate court noted. The jury members received the instruction that, if the Crown failed to prove all the elements of criminal harassment, they could still convict the accused on the bribery charge.

The jury did not render unreasonable verdicts due to a tainted process, the appellate court concluded.

Next, the appellate court ruled that the Waltons had no standing to object to the admissibility of their electronic communications with Anthony Braile – one of the police officers that the Waltons hired – under s. 8 of the Canadian Charter of Rights and Freedoms.

The appellate court said that the trial judge properly found that the Waltons had no reasonable expectation of privacy and Braile voluntarily disclosed the scope of the surveillance activities to CPS detectives.

The judge correctly relied on R v. Marakah, 2017 SCC 59 and R v. Reeves, 2018 SCC 56 did not supersede Marakah, the appellate court held. The present case, like Marakah, dealt with the question of standing arising in the context of seized text messages. Reeves, on the other hand, tackled the issue of standing in connection with a shared device.

Even presuming that the Waltons had a subjective expectation of privacy in their communications with Braile, it was not objectively reasonable in the circumstances of this case, the appellate court said.

The appellate court ordered Carter and Stephen Walton to surrender themselves within 48 hours of the release of its judgment.