Focus On

SCC clarifies sexual assault law in case spotlighting justice system’s mistreatment of Indigenous women and sex workers

Friday, May 24, 2019 @ 10:35 AM | By Cristin Schmitz

Last Updated: Friday, May 24, 2019 @ 5:32 PM

Lexis Advance® Quicklaw®
In a much anticipated ruling that addresses jury charges, consent, the use of the rape shield and a host of other fraught issues in the law and prosecution of sexual assault, the Supreme Court of Canada has 4-3 allowed, in part, the appeal of Bradley Barton from an Alberta Court of Appeal ruling that ruled in 2017, after his acquittal by a jury, that Barton must face a new trial on murder and manslaughter in the 2011 death of Cindy Gladue following their sexual encounters.

The top court’s four-judge majority, led by Justice Michael Moldaver, ruled that Barton can be retried only for unlawful act manslaughter — not first-degree murder — since the Crown’s theory on the latter offence “simply did not hold up under scrutiny”: R. v. Barton 2019 SCC 33.


Justice Michael Moldaver

By contrast the three-judge partially dissenting opinion, endorsed by Chief Justice Richard Wagner and co-written by Justices Rosalie Silberman Abella and Andromache Karakatsanis, agreed with the Alberta Court of Appeal’s conclusion that a murder prosecution was also warranted. The minority said the trial judge’s failure to screen for the admissibility of the deceased’s prior sexual history, and to warn the jury about stereotypical and prejudicial assumptions about Indigenous women working in the sex trade, created an unfair image of the deceased, an Indigenous mother of three and sex worker, that permeated the whole trial and the jury’s deliberations on both murder and manslaughter.

Both the majority and minority agreed, however, on the importance of eradicating prejudice from sexual assault trials.

“We live in a time where myths, stereotypes and sexual violence against women — particularly Indigenous women and sex workers — are tragically common,” Justice Moldaver wrote. “Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society,” he stressed.

“While serious efforts are being made by a range of actors to address and remedy these failing both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done,” Justice Moldaver emphasized.


Justice Rosalie Silberman Abella

“Put simply, we can — and must — do better,” he admonished, echoing the call to action expressed unanimously below by the Alberta Court of Appeal panel (which included Justice Sheilah Martin, who was afterward appointed to the Supreme Court, and did not sit on Barton’s appeal).

Justice Moldaver’s indexed majority judgment deals with a number of vexed legal issues, including when and how the rape shield in s. 276 of the Criminal Code applies to evidence about a complainant’s prior sexual activities; the defence of honest but mistaken belief in communicated consent and the related jury instructions; as well as various jury instructions on: motive, after-the-fact conduct, the objective fault element of unlawful act manslaughter, the defence of accident, and prejudice against Indigenous women and girls in sexual assault cases.

Justice Moldaver instructed that going forward, trial judges would be well-advised, in sexual assault prosecutions where the complainant is an Indigenous woman or girl, to provide the jury with an express instruction aimed at countering prejudice, that goes beyond the generic admonition that a jury should reason impartially and without sympathy or prejudice. He gave trial judges specific suggestions, noting it would also be preferable for them to also consult with the Crown and defence. “There is no magic formula,” he advised.


Justice Andromache Karakatsanis

Justice Moldaver also cautioned that any such instruction on prejudice must not privilege the rights of the complainant over those of the accused. However, “to better ensure Indigenous women and girls receive the full protection and benefit of the law in sexual assault cases, our criminal justice system should take reasonable steps to address biases, prejudices, and stereotypes against Indigenous women and girls, openly, honestly, and without fear.”

Justice Moldaver addressed the fact that, in the Barton case, witnesses, Crown counsel, and defence counsel all repeatedly referred to the deceased as a “Native girl” or “Native woman” — yet there was no suggestion that her Métis and Cree heritage was somehow relevant to any of the issues raised at the trial.

“At the end of the day her name was ‘Ms. Gladue’, ‘not ‘Native woman’, and there was no reason why the former could not have been used consistently as a simple matter of respect,” Justice Moldaver admonished. While a person’s race, ethnicity or heritage may be relevant to a legal issue in some cases, “it is almost always preferable to call someone by his or her name,” Justice Moldaver said. He also suggested it could be appropriate, in some situations, for the trial judge to intervene to ensure this principle is respected.

Justice Moldaver stressed at the end of his 211-paragraph judgment that “our criminal justice system holds out a promise to all Canadians: everyone is equally entitled to the law’s full protection and to be treated with dignity, humanity and respect.”

“Ms. Gladue,” the former criminal defence counsel wrote, “ was no exception. She was a mother, a daughter, a friend and a member of her community. Her life mattered. She was valued. She was important. She was loved. Her status as an Indigenous woman who performed sex work did not change any of that in the slightest. But as these reasons show, the criminal justice system did not deliver on its promise to afford her the law’s full protection, and as a result, it let her down — indeed, it let us all down.”


Jean Teillet, Pape, Salter, Teillet

Counsel for the intervener Women of the Métis Nation, Jean Teillet of Vancouver’s Pape, Salter, Teillet, lauded Justice Moldaver’s “beautiful statement” and “stirring plea.”

But “that doesn’t change the law,” she told reporters at the Supreme Court in Ottawa, shortly after the judgment was handed down. “I think we need ... to re-examine the Criminal Code and actually change it so that it actually helps women.”

Teillet said Justice Moldaver “made some strong statements about what trial judges have to do, and how we should interpret some sections” of the Criminal Code. But it’s what I call ‘timorous tinkering’ with the law, and I think we need ... wholesale change, because I don’t believe the criminal law, especially with respect to sexual assault, … serves the interests of 50 per cent of the population — which are women — and it certainly doesn’t serve Indigenous people.”

Teillet said there were more than 600,000 sexual assaults in Canada last year — a number she said underreports the problem.

“More than 85 per cent of that never went anywhere in the criminal justice system,” she noted. “I think that tells us that the criminal justice is absolutely inadequate for dealing with violence against women, and particularly violence against Indigenous women. ... If 600,000 men were being assaulted in such a violent way something would have happened [to change the law] a long time ago.”

Teillet also called it “shocking” that neither the majority nor minority judges commented on the indignity visited on Gladue’s body — and the resulting trauma to the deceased’s mother and the rest of her family — when her severed vagina was entered into evidence by the Crown — a first in Canadian history. The judges “didn’t say a word about it — I suspect because it wasn’t raised by either of the parties — but they ... made other gratuitous comments about things that were not raised” by the parties,” Teillet opined. “I’m appalled — because if you go over the press on this from the trial all the way up, that’s the single issue that shocked the conscience of Canadians,” she pointed out. “I asked [the judges] directly to raise their voice and tell the courts, and lawyers and Crown counsel, that you cannot bring in women’s body parts — that women’s body parts are not the price that we pay for justice.”

Teillet said it is possible Gladue’s bodily tissue could be introduced as evidence at a new trial.


Dino Bottos, Bottos Law Group

Co-counsel for Barton, Dino Bottos of Edmonton’s Bottos Law Group and University of Alberta associate law dean Peter Sankoff, told The Lawyer’s Daily by e-mail “we are quite pleased about the decision, having won on four out of the five substantive grounds of appeal, and ensuring that the jury’s acquittal on the murder charge, which of course carries the harshest penalty in Canadian law, was upheld.”

Barton’s defence team said the ruling confirms that the Alberta Court of Appeal was wrong to allow the Crown to reverse on appeal its positions, taken at trial, on multiple of grounds of appeal. “This decision confirms the critical principle that an accused person cannot be subject to a trial twice, and that the Crown must live with decisions it makes at the trial stage,” Bottos and Sankoff opined. “Second, the Supreme Court reinforces the due process idea that there are limits to what an appellate court can do in raising new grounds of appeal. It rejected the Alberta Court of Appeal’s attempt to upset the jury verdict of acquittal by raising new grounds of appeal without proper notice.”

Sankoff and Bottos noted the judgment will take time to digest, especially in respect of the court’s comments on the rape shield in s. 276 of the Criminal Code. “The court went into great detail about how these applications should proceed in future,” they remarked. “One point is clear, however: the failure by the Crown to object to the raising of prior sexual history evidence is not fatal. Nor does it necessarily matter if the Crown introduces, or makes reference to, the [sexual history] evidence. For greater certainty, defence counsel should raise the possibility of a s. 276 hearing in any case, even when the Crown ‘opens the door’ ” and refers to such evidence.

For Bottos and Sankoff, the decision confirms that jury instructions negotiated with the Crown are binding upon the Crown on appeal. “This is a big deal for the defence,” they suggested. “It means that there is less need to worry that decisions made at the trial stage will suddenly be subject to scrutiny on appeal after an acquittal.”

Peter Sankoff

Peter Sankoff, University of Alberta associate law dean

In addition, a key message in both the majority and minority judgments “is that in sexual assault proceedings, it is very easy for the parties and judges alike to make errors that can adversely affect the dignity of victims, and raise a doubt about the integrity of the decision made by the jury or trier of fact,” they advised. “All parties need to be sensitive to these issues going forward.”

Bottos and Sankoff added that the biggest remaining open issue, which the court did not address (as requested by the appellant), is whether consent to sexual touching can be vitiated by the objective foreseeability of bodily harm where harm results. “We anticipate that the Crown will be seeking that route to liability at Mr. Barton’s retrial for manslaughter,” they said.

Counsel for the respondent Alberta Crown, Joanne Dartana and Christine Rideout, had not responded by press time to a request for comment.


Lise Gotell, on behalf of LEAF and the Institute for the Advancement of Aboriginal Women

Lise Gotell, on behalf of the joint intervener Women’s Legal Education and Action Fund (LEAF) and the Institute for the Advancement of Aboriginal Women, told The Lawyer’s Daily the groups are “pleased” with the decision. Their intervention, part of a long battle fought by women’s and Indigenous groups to obtain “Justice for Cindy Gladue,” “significantly shaped both the majority and dissent’s reasons on s. 276 and on consent,” Gotell said. “This is a resounding endorsement of women’s sexual autonomy.”

She said “the court provided clear and conclusive direction on consent — including that: there is no defence of implied consent; the accused cannot rely on past sexual history evidence to ground a belief in consent; and that expressed consent to every sexual activity is necessary.”

In addition, she advised, “the court sent a strong message that men are not free to rely on their own prejudicial views about what women do, or do not, want when engaging in a sexual act. Only expressed, communicated consent to every sexual act is sufficient.”

Gotell also commended the court for its clear acknowledgment, and denunciation of, the systemic mistreatment of Indigenous women by the criminal justice system. “However, we had hoped that the court would directly address the complete dehumanization of Cindy Gladue during the trial,” she observed. “The court had an opportunity, but failed to adequately hold all members of the original trial proceeding — the judge, the Crown, the defence — to account for perpetuating racism in the trial and allowing the humiliating dehumanization of an Indigenous woman,” Gotell opined.

Daniel Song

Daniel Song, Sprake Song & Konye

Daniel Song of Edmonton’s Sprake Song & Konye, co-counsel with Matthew Nathanson for the intervener Independent Criminal Defence Advocacy Society, told The Lawyer’s Daily “we are pleased that the Supreme Court reaffirmed the importance of procedural fairness in the criminal appellate process. Specifically, the Crown has a limited right of appeal, and cannot ordinarily raise a new theory of liability on appeal without offending the rule against double jeopardy.”

Song suggested another significant ramification of Barton is that, given the Crown’s limited right to appeal acquittals, where the Crown later impugns an aspect of the jury instructions that it had helped to formulate, “an appellate court may refuse to allow an appeal, even if that portion of the jury charge was tainted by legal error.”

University of British Columbia law professor Janine Benedet, whose articles were cited by the court, and who was co-counsel with Gwendoline Allison for an intervener coalition of women’s groups, including the Vancouver Rape Relief Society and the Aboriginal Women’s Action Network, expressed some reservations about the ruling.


Janine Benedet, University of British Columbia law professor

“While the court helpfully clarifies that the [limits on the admissibility of sexual history evidence] apply to any criminal trial where a sexual offence is at issue — and provides some additional details on the defence of mistaken belief in consent that will be of assistance in sexual assault trials generally — it is disappointing that the Supreme Court seems to believe that this will have any practical application in the context of prostitution,” Benedet remarked. “It is wishful thinking to imagine that women in prostitution can successfully negotiate specific consent to each sexual act; or that consent means the same thing in this context as any other. The facts of this case should have demonstrated that so-called indoor prostitution is not safe for women and that women are not objects to be bought and sold.”

Benedet said that in restoring Barton’s acquittal on first-degree murder, the Supreme Court declined to recognize that jury instructions on lack of motive have no place in a sexual assault trial. “Telling a jury that they could consider whether Mr. Barton had a motive whether or not to harm Ms. Gladue ignores the fact that sexual violence generally is motivated by misogyny, and that men who buy sex are frequently the source of harm, including death, to women in prostitution,” she explained.

She pointed out that the Criminal Code was changed in 2014 to criminalize the act of buying sex. Consequently this offence can be the underlying unlawful act for an unlawful act manslaughter conviction — without raising questions of consent, or belief in consent, that come into play when the alleged underlying unlawful act is sexual assault (as it is in the Barton case which arose in 2011.)

“The law today is much better than what existed at the time Cindy Gladue was killed,” Benedet observed. “So in future cases this could be argued, and would provide a much simpler path to conviction. ... If the same facts were to arise again, the Crown could prove the unlawful act of offering consideration to obtain sexual services and say that it was buying her in prostitution that caused her death. Then consent and all the related issues don't matter. It's a distinct benefit of having that law in place.”

Megan Savard

Megan Savard, Addario Law Group

Megan Savard of Toronto’s Addario Law Group, who represented the intervener Criminal Lawyers’ Association of Ontario (CLA), told The Lawyer’s Daily the CLA “is pleased that the Supreme Court of Canada resisted calls to substantively change sexual assault law. The court’s approach and decision are consistent with our position that the law, properly applied, already protects complainants and witnesses from illegal myth-based conduct.”

Savard added that the decision “offers welcome clarification in many areas.”

However, “sexual assault/consent law is not one of them,” she suggested. “The court used different words to draw the same confusing ‘line’ between legal and illegal conduct that existed before today. For example, refining the language of honest but mistaken belief in consent — which is now honest but mistaken belief in communicated consent — does not change the law of consent, only the words we use to talk about it,” she remarked. It “is not a substantive change to the law of sexual assault, but simply an evolution in how we are speaking about it.”

Savard said the availability of the honest but mistaken belief “defence” remains ill-defined. “It is confusing for defendants and judges. It does not reflect the reality of much human sexual behaviour,” she observed. “Not all careless or unethical behaviour is criminal. The meaning of any action in the context of human sexual behaviour is fluid and depends on the parties’ relationship and dynamic. It is problematic that there continues to be such a blurry line dividing criminal and non-criminal sexual conduct.”

Savard praised the court for placing “strict limits on the Crown’s ability to advance contradictory positions on appeal. It offends the principle of double jeopardy to let the Crown reverse course on appeal in an attempt to secure a conviction they could not get the first time around.”

She added it was also “good to see” Justice Moldaver endorse balanced jury instructions as a means of dispelling myths and stereotypes about Indigenous peoples. “We should expect defence lawyers and trial judges to be equally sensitive to the need for similar instructions when the defendant is Indigenous,” Savard said.

The Alberta Court of Appeal in 2017 held that errors of law made at Barton’s trial and in the jury charge were several in number, serious in scope and significant in impact, including erroneous instructions on what use the jury could make of Barton’s after-the-fact conduct; misleading instructions on motive; noncompliance with the rape shield in s. 276 of the Criminal Code limiting the admissibility of prior sexual conduct evidence; failing to adequately warn the jury about improper reliance on sexual conduct evidence; and providing deficient and internally inconsistent instructions on unlawful act manslaughter, including failing to instruct the jury properly on the law of sexual assault relating to ‘consent,’ the ‘sexual activity in question’ and mistaken belief in consent; and failing to instruct the jury properly on dangerousness and manslaughter.

Barton’s appeal to the Supreme Court, which attracted 18 interveners, showcased conflicting arguments on many issues, including on the central issue of consent in s. 273.1 of the Criminal Code, and other key questions, such as when does the s. 276 rape shield apply to evidence of a complainant’s prior sexual activity?

The infamous case arose from the tragic death of Gladue, who bled to death in an Edmonton hotel room in 2011 from a large tear in her vagina. The ensuing murder trial of the appellant sparked a public outcry in respect of how all the justice system players dehumanized and disrespected her in court, describing her as a “native girl” and as a “prostitute.” The Crown’s and judge’s decision to have Gladue’s severed preserved vagina entered into evidence (rather than using photos) was a Canadian first that also shocked and appalled many, including Gladue’s family who couldn’t bury her because her body tissue was not returned to them.

Barton testified that Gladue, who was highly intoxicated when she bled to death, was accidentally injured by their consensual paid “rough sex,” using his hand and fist, on two successive nights. He was acquitted by a jury of first degree murder and of manslaughter in 2015. The Crown argued that he intentionally caused a fatal injury, possibly using a sharp instrument, or alternatively, that he was guilty of manslaughter for causing death in the course of a sexual assault. The Alberta Court of Appeal allowed the Crown’s appeal, and ordered a new trial in a controversial 91-page (single-spaced) judgment that identified numerous errors at trial, and condemned the continued application of rape myths, biases against Indigenous people and sex workers and antiquated pattern jury charges that deny women their right to equal protection of the law in sexual assault cases: R. v. Barton 2017 ABCA 216.

The Alberta appeal panel’s multipronged per curiam decision below was hailed by women’s advocates as a “huge step forward” in fairness for complainants and for Indigenous women, but the defence bar warned that the court’s novel approach to the law risked wrongful convictions and jeopardizing accused’s fair trial rights.

At the Supreme Court, Justice Moldaver, writing also for Justices Suzanne Côté, Russell Brown and Malcolm Rowe, held that the trial judge failed to comply with the mandatory requirements in s. 276 of the Criminal Code which govern and limit the admissibility of a complainant’s sexual history — including prior sexual activity with the accused. This error had ripple effects “most acutely” in the jury instructions on the accused’s defence of honest but mistaken belief in “communicated consent”, Justice Moldaver explained.

The accused testified that he had engaged in the same consensual paid sexual activities with Gladue on two nights — on the night she died, and on the night before she died. The Crown did not object, and the trial judge did not order a separate hearing, to consider the admissibility and permissible uses of Barton’s evidence. The accused denied the Crown’s suggestion that he used a sharp object to lacerate the deceased’s vagina. He testified Gladue’s death was caused by a non-culpable accident. He said she consented to all their sexual activities, or at least he honestly believed that she did.

Justice Moldaver held that the non-compliance at trial with the s. 276 regime translated into a failure to expose, and properly address, misleading evidence and mistakes of law arising from the accused’s defence. This resulted in reversible error warranting a new trial for unlawful act manslaughter.

However, the majority held that Barton’s acquittal by the jury on the murder charge was not similarly tainted by reversible error.

Justice Moldaver explained that the Crown’s case on first-degree murder turned primarily on the prosecution’s expert evidence that the deceased’s fatal wound was a cut.

“Evidently the jury was not persuaded,” Justice Moldaver observed. “Moreover, the Crown provided no plausible explanation for how the jury could have used prior sexual activity evidence to improperly reason its way through the first degree murder charge.”

He explained there was also a simple and obvious explanation for why the jury unanimously acquitted the accused of murder — one that does not require the court to speculate about the potential influence of conscious or unconscious bias: “the Crown’s theory simply did not hold up under scrutiny.”

In joint partially dissenting reasons, Justices Abella and Karakatsanis said the errors enabling unrestricted reference at the trial to Gladue’s sexual history, as well as the lack of any limiting instructions to advise the jury that such evidence could not be used to show that Gladue was more likely to have consented, were compounded by the fact that the trial judge permitted, on dozens of occasions, Gladue to be referred to as a Native prostitute — again without any instruction to guard against possible resulting potential prejudicial reasoning by the jury.

“This left the jury with an essentially unchallenged version of the accused’s interactions with the victim,” the minority said. “In summary, the trial judge’s failure to apply the requirements in s. 276 created a significant risk that the evidence of the victim’s prior sexual conduct not only tainted the jury’s perception of her character and conduct, but also fundamentally affected the factual foundation upon which their deliberations were based. This error permeated the entire trial and may have had a material bearing on the jury’s deliberations, affecting their verdicts for both murder and manslaughter.”

The minority concluded there should accordingly be a new trial on both murder and manslaughter.

Photo of Justices Michael Moldaver and Rosalie Silberman Abella by Phillipe Landreville
Photo of Justice Andromache Karakatsanis by David Balfour Photography