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CRIMINAL CODE OFFENCES - Offences against person and reputation - Sexual assault - Consent - Honest but mistaken belief

Friday, May 24, 2019 @ 4:43 PM  

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Appeal from a judgment of the Alberta Court of Appeal setting aside Barton’s acquittal and ordering a new trial. Gladue, an Indigenous woman and a sex worker, was found dead in the bathroom of Barton’s Edmonton hotel room with an 11 cm wound in her vaginal wall. Barton, who was in town for a moving job, was charged with first degree murder. At trial before a judge and jury, the Crown’s theory was that on the night of Gladue’s death, during the course of commercial sexual activities and while she was incapacitated by alcohol, Barton cut the inside of her vagina with a sharp object with intent to seriously harm or kill her. He then carried her to the bathroom where she bled to death. This was, in the Crown’s submission, murder while committing sexual assault with a weapon. As such, it constituted first degree murder. Alternatively, the Crown took the position that if Barton did not murder Gladue, he committed unlawful act manslaughter by causing her death in the course of a sexual assault. On both occasions, he said, he formed his fingers into a cone and penetrated her vagina, thrusting repeatedly. He claimed that on the second night, after thrusting deeper, more forcefully, and for a longer duration, she started to bleed unexpectedly, at which point the sexual activity came to a halt. Gladue then went into the bathroom and he promptly fell asleep, only to awake the next morning to find her dead in the bathtub. He said that after discovering her lifeless body, he left the hotel in a panic, returned, called 911, and fabricated different versions of a false story. Although he admitted at trial that he tore her vaginal wall and thereby caused her death, he claimed this was a non-culpable “accident”. He denied ever using a sharp object and asserted that she consented to the sexual activities in question, or at least he honestly believed she did. At trial, although Barton testified at length about his sexual activity with Gladue on the night before her death, no application was made, and no separate hearing held, to determine the admissibility of that evidence. Nor was the jury given any limiting instruction identifying the purposes for which that evidence could and could not be used, despite the regime under s. 276 of the Criminal Code, which imposed these and other requirements. After having received the trial judge’s final charge outlining the legal principles to be applied, the jury acquitted Barton of first degree murder and the included offence of unlawful act manslaughter. The Crown appealed, seeking a new trial. The Alberta Court of Appeal identified a list of errors that it said warranted a new trial. It set aside Barton’s acquittal, and ordered a new trial on first degree murder. Barton now appealed. He maintained that he was denied procedural fairness at the Court of Appeal and that the legal errors identified by that court were either non-existent or of no moment. On this basis, he asked that his acquittal be restored. The Crown, for its part, maintained that the Court of Appeal observed the requirements of procedural fairness and that its decision to order a new trial on first degree murder was sound.

HELD: Appeal allowed in part. While the Crown did not object to Barton’s testimony about Gladue’s prior sexual activity, its failure to do so was not fatal. The ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lay squarely with the trial judge, not with the Crown. Before adducing evidence of Gladue’s sexual activity on the night before her death, Barton was required to make an application under s. 276.1(1) and (2). Similarly, the trial judge was required to determine whether that evidence was capable of being admitted under s. 276(2) and, if so, hold an in camera hearing to determine the admissibility of that evidence. None of these requirements was observed. The failure to observe the requirements of the s. 276 regime had ripple effects, most acutely in the instructions on the defence that was commonly associated with s. 276: the defence of honest but mistaken belief in communicated consent. To the extent Barton might have honestly perceived Gladue’s consent due to a subjective misunderstanding of the law, rather than a misperception of the facts, the defence of honest but mistaken belief in communicated consent could afford him no shelter. The trial judge in this case erred by failing to inoculate the jury against mistakes of law masquerading as mistakes of fact. It was incumbent on the trial judge to caution the jury against acting on these mistakes of law. The absence of such an instruction had an immediate impact on the defence of honest but mistaken belief in communicated consent, as it allowed the defence to proceed while these mistakes of law were left unaddressed, thereby leaving the jurors without the necessary tools to engage in a proper analysis. This error was inextricably linked to the failure to hold a s. 276 hearing, which would have subjected the admissibility and permissible uses of the evidence of Gladue’s prior sexual history to rigorous scrutiny and assisted in filtering out the mistakes of law raised by Barton’s defence. The trial judge’s charge on after-the-fact conduct adequately, albeit imperfectly, conveyed to the jury that they could consider Barton’s after-the-fact conduct in assessing guilt and equipped them to do so. In the circumstances of this case, it would be contrary to the principle against double jeopardy, enshrined in s. 11(h) of the Canadian Charter of Rights and Freedoms, to force Barton to face a second trial on first degree murder.

R. v. Barton, [2019] S.C.J. No. 33, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown and M. Rowe JJ., May 24, 2019. Digest No. TLD-May202019013-SCC