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Supreme Court says trial judge failed to comply with rape shield provision

|Written By Elizabeth Raymer
Supreme Court says trial judge failed to comply with rape shield provision
Dino Bottos was lead counsel for the appellant Bradley Barton, who was charged with unlawful act manslaughter.

The Supreme Court of Canada has ordered a new trial on unlawful act manslaughter for an Ontario man charged in Alberta in the death of a woman who bled to death in a hotel bathtub. The court’s decision provides clarification regarding consent to sexual activity, disclosure of prior sexual activity and allowable defences.


In R. v. Barton, a sensational case that attracted national attention when, for the first time in a Canadian court, the dead woman’s vaginal wall was introduced into evidence at trial, the Supreme Court found that the trial judge had made several errors during the trial that resulted in the jury acquittal of Bradley David Barton for the death of Cindy Gladue.

"The central error committed by the trial judge was his failure to comply with the mandatory requirements set out under the s. 276 regime” of the Criminal Code, the rape shield provision in Canadian law that establishes guidelines for admitting an alleged victim’s prior sexual conduct into evidence.

“That error had ripple effects, most acutely in the instructions on the defence of honest but mistaken belief in communicated consent, upon which Mr. Barton relied,” Justice Michael Moldaver wrote for the majority in the 4-3 decision, with justices Suzanne Côté, Russell Brown and Malcolm Rowe concurring.

“In particular, non-compliance with the s. 276 regime, which serves a crucial screening function where an accused relies on the complainant’s prior sexual activities in support of his defence, translated into a failure to expose and properly address misleading evidence and mistakes of law arising from Mr. Barton’s defence. This in turn resulted in reversible error warranting a new trial.”

However, the majority found that “the new trial should be restricted to the offence of unlawful act manslaughter, not murder.” A murder charge would rest on one fact, which was that Barton had cut Gladue with a sharp object, rather than using his hand to cause fatal lacerations to her vagina during sexual activity, as he claimed.

Crown experts at trial had testified that the fatal injuries to Gladue, who bled to death in a hotel bathtub in Alberta in 2011 after being engaged by Barton for sex, were caused by a sharp object, whereas defence experts had concluded they were caused by blunt-force trauma. Barton said the fatal injuries caused to Gladue were unintentional.

Crown counsel argued at trial that Barton intentionally inflicted the fatal injury and was guilty of first-degree murder. Alternatively, Crown counsel argued that Gladue did not consent to the conduct that caused the injury and Barton was guilty of manslaughter because he caused death in the course of a sexual assault. A jury acquitted Barton. The Alberta Court of Appeal granted an appeal, set aside the acquittal and ordered a new trial.

The dissenting Supreme Court justices (Chief Justice Richard Wagner and Justices Rosalie Abella and Andromache Karakatsanis, who wrote the reasons) would have ordered a new trial on murder and manslaughter. They cited the fact that the rape shield law (s. 276 of the Criminal Code) was not followed and led to major consequences, including the introduction into trial of prior sexual conduct that should not have been admissible.

Prejudice was created toward the victim, 36-year-old Cindy Gladue, a Métis mother of three from northeastern Alberta who was a sex worker. The trial heard that Gladue had engaged in sexual activity with Barton over the course of two nights, and she was repeatedly referred to at trial as a “native,” a “native woman” and a “prostitute” (36 times for the latter).

The minority found that the unrestricted reference to the victim’s sexual history was compounded by the language used at trial: The trial judge permitted the deceased to be referred to as a native prostitute multiple times without providing any instruction to the jury to guard against potential prejudicial reasoning based on these descriptions. This affected the jury’s ability as a finder of fact to assess the evidence properly.

All seven judges agreed that the procedure of the rape shield law should have applied in this case, irrespective of which party had led the evidence regarding prior sexual history (in this case, the Crown had led it by referring to Gladue as a prostitute at the beginning of trial). The trial judge made a mistake in not following the procedures outlined in s. 276 for allowing admission into evidence of prior sexual history; these provisions applied in murder cases as well, the court found.

“One of the key [aspects of the decision] is the recognition of the rape shield law” and the failure of the trial judge to follow this law, says Beverley Jacobs, a professor at the University of Windsor Law, who is a spokeswoman for interveners the Institute for the Advancement of Aboriginal Women and Women's Legal Education and Action Fund.

The majority also found that major mistakes made at trial on what constitutes mistaken belief are what justified a new trial — errors that the trial judge made on defence of honest but mistaken belief. Consent to sexual activity means communicated consent, the court found, and not just impressions or assumptions of consent.

The majority of the court agreed with the defence “on four out of five grounds of appeal,” Dino Bottos, of Bottos Law Group LLP in Edmonton and lead counsel for the appellant Barton, told Legal Feeds. He cited "the issue of procedural unfairness to Barton caused by the Crown." The Court of Appeal added new grounds of appeal, which favoured the Crown at the hearing, without giving prior notice to the defence, Bottos says.

“That was unfair, and the Supreme Court’s majority said that was unfair.”

As the law now stands, if Barton subjectively foresaw or intended to cause bodily harm, he would be guilty of manslaughter, says Bottos. “The Crown argued, if there was objective foresight, then that is enough to sustain liability for manslaughter. But that’s not how liability is recognized in Canadian criminal law,” and the Supreme Court decision did not change this.

“What they said was, ‘we’ll leave to another day whether the roads to liability for manslaughter could be expanded to allow for guilt for objective foresight of bodily harm . . .”

Although the court took steps to address prejudice at trial, “these are small steps,” says Jean Teillet of Jean Teillet Personal Law Corporation in Vancouver, who represented the intervener Women of the Métis Nation before the Supreme Court.

“From my perspective, you can’t expect the SCC to fix the criminal justice system,” she says, noting that changes must come from Parliament and that there was “no good outcome here” following the death of Gladue and the fact that her mother and daughters will now have to experience another trial.

“I would hope that Parliament would take a good look at this and say we have a series of cases where the criminal justice system is not working properly.” More than 600,000 sexual assaults were reported last year, she told Legal Feeds, “and women believe they’ll be revictimized when they go to court.”

In the Gladue case, she says, “the state cut up her body and used it as evidence. It shows the justice system is cruel to Indigenous women. And none of the justices on court raised this as [an] issue. But this was issue for Indigenous women across the country; they were horrified.”

Jacobs agrees. The Supreme Court made “some good statements . . . about the racism and sexism, but I think it’s really indicative of the systemic problem . . . that the Supreme Court, in 2019, has to make those kinds of statements and make directions to trial judges. A big part of it is understanding what racism is and [what] racialized violence is and the training that needs to be done [to the judiciary] in understanding racism.”

In a statement to Legal Feeds, a spokeswoman for the Alberta Crown Prosecution Service wrote: “Today the SCC ordered that a new trial will be held for manslaughter in the Barton matter. The case will now return to the Court of Queen’s Bench in Edmonton for a trial in due course. Our thoughts remain with the family of Ms. Gladue and we thank them for their resilience and patience.”


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