Recent Court decision on a Sexual Assault Complainant’s prior sexual history, the defence of honest but mistaken belief in consent, and prejudice against Indigenous women and girls.

Published On: Jun 09,2019

Sexual Assault
Sexual Assault Complainant’s prior sexual history, the defence of honest but mistaken belief in consent, and prejudice against Indigenous women and girls.

In Regina v. Barton, 2019 SCC 33, a majority of the Supreme Court of Canada (4:3) allowed the accused’s appeal, in part, from a decision of the Alberta Court of Appeal and ordered a new trial on a charge of unlawful act manslaughter in connection with the 2011 death of the deceased-complainant.


The facts and procedural history in this case is critical. The deceased was a First Nations women, and an alleged sex worker.  Her body was found in the bathroom of the accused’s Edmonton hotel room.  The cause of death was attributed to an eleven (11) inch wound in her vagina.  The accused was charged with first (1st) degree murder.  He was residing in a hotel as part of his moving job.  The theory posited by the Crown was that Mr. Barton had hired the deceased for sexual services and provided her with alcohol to incapacitate her. While she was incapacitated, the Crown alleged that he cut the inside of her vagina with a sharp object with the intent to cause her seriously harm and/or kill her.   An alternative theory was advanced a manslaughter theory by the Crown: if the accused did not murder the deceased, he committed manslaughter by causing her death in the course of a sexual assault.


Mr. Barton elected to testify in this case to advance the element of consent.  Specifically, he stated that deceased engaged in “similar” consensual sexual activity on both the night leading up to her death and the previous night. Furthermore he stated that he: (a) used his hand during the sexual activity; (b) he did not use a sharp object; (c) he caused the fatal injury in a non-culpable “accident”; and (d) after he found the deceased’s dead body, he left the hotel in a panic, returned, called 911, and fabricated several false stories regarding what happened.


An acquittal was entered by the jury at this trial in the Court of Queen’s Bench of Alberta – Judicial District of Edmonton.   He was acquitted of first degree murder, and the included offence of manslaughter.  The Crown appealed the jury’s verdict, and the Alberta Court of Appeal allowed the Crown’s appeal, set aside the acquittal, and ordered a new trial on first degree murder.  The accused appealed that decision to the Supreme Court of Canada.  In allowing the accused’s appeal in part, Justice Moldaver, for the majority of the Supreme Court, held as follows:


  1. The trial judge erred by failing to comply with the mandatory requirements set out in 276 of the Criminal Coderegarding evidence of a complainant’s prior sexual activities. The s.276 regime applied in this case, notwithstanding that (i) the Crown did not object to the accused’s testimony about the deceased’s prior sexual activity, (ii) the offence charged was not one of the offences listed in s.276(1),and (iii) the Crown’s opening address contained some information about the deceased’s past sexual activities. Accordingly, before the accused adduced evidence of the deceased’s sexual activity on the night before her death, the procedural requirements under s.276 should have been observed. However, none of those requirements was observed. The majority also stated (at para. 84) that, “assuming without deciding that at least some of [the accused’s] evidence was admissible, a careful limiting instruction by the trial judge was essential to instruct the jury on the permissible and impermissible uses of that evidence.”


  1. The above error had ripple effects on other parts of the trial. Most notably, in his instructions on the defence of honest but mistaken belief in communicated consent, the trial judge erred “by failing to inoculate the jury against mistakes of law masquerading as mistakes of fact” (at para. 116). In particular, “the legally erroneous notions of implied consent, broad advance consent, and propensity to consent … each haunted the courtroom” (at para. 116).


The majority concluded (at para. 163) that the above errors were “devastating” and warranted a new trial. However, the majority held that the new trial should be restricted to the offence of unlawful act manslaughter, as it had not been demonstrated that the acquittal on murder was tainted by reversible error.


In addition to the above errors, the majority decision from the Supreme Court of Canada also addressed numerous other issues, including:


  1. the Crown’s limited right to appeal an acquittal; new issues raised by appellate courts; the scope of intervener submissions in criminal appeals;

  2. the trial judge’s jury instructions on (i) motive, (ii) the objective fault element of unlawful act manslaughter, and (iii) after-the-fact conduct;

  3. vitiation of consent to sexual activity for public policy reasons;

  4. jury instructions on the defence of accident; and

  5. jury instructions addressing prejudice against Indigenous women and girls in sexual assault cases.


On the latter issue, the majority highlighted (at paras. 195-200) the problem of “widespread racism against Indigenous people in our criminal justice system” and stated that “our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons — and in particular Indigenous women and sex workers — head-on.” The majority added (at para. 200) that “in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls.” Justice Moldaver provided some guidelines as to the content of such an instruction (at paras. 201-203)

200.   With this in mind, in my view, our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons — and in particular Indigenous women and sex workers — head-on. Turning a blind eye to these biases, prejudices, and stereotypes is not an answer. Accordingly, as an additional safeguard going forward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls. This instruction would go beyond a more generic instruction to reason impartially and without sympathy or prejudice.

201. Insofar as the content of such an instruction is concerned, there is no magic formula. In my view, trial judges should be given discretion to tailor the instruction to the particular circumstances, preferably after having consulted with the Crown and the defence. In a case like the present, the trial judge might consider explaining to the jury that Indigenous people in Canada — and in particular Indigenous women and girls — have been subjected to a long history of colonization and systemic racism, the effects of which continue to be felt. The trial judge might also dispel a number of troubling stereotypical assumptions about Indigenous women who perform sex work, including that such persons:

  •      are not entitled to the same protections the criminal justice system promises other Canadians;

  •      are not deserving of respect, humanity, and dignity;

  •      are sexual objects for male gratification;

  •      need not give consent to sexual activity and are “available for the taking”;

  •      assume the risk of any harm that befalls them because they engage in a dangerous form of work; and

  •      are less credible than other people.

  • 202. An instruction of this nature supports several core concepts upon which our justice system rests, including substantive equality, which represents the animating norm of s. 15of the Charter (see Withler v. Canada (Attorney General)2011 SCC 12 (CanLII), [2011] 1 S.C.R. 396, at para. 2); the court’s truth-seeking function; the right to an impartial tribunal, protected under ss. 7 and 11(d) of the Charter; and, relatedly, trial fairness, which as already indicated must be assessed “from both the perspective of the accused and of society more broadly” (Bjelland, at para. 22).

[203]                     With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused. The objective would instead be to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in the particular case and attempt to remove them from the jury’s deliberative process in a fair, balanced way, without prejudicing the accused.

Finally, the majority decision of the SCC commented on the language used to address the deceased at trial. Witnesses, Crown counsel, and defence counsel all repeatedly referred to the deceased as a “Native girl” or “Native woman.”:

203.                  Being respectful and remaining cognizant of the language used to refer to a person is particularly important in a case like this, where there was no suggestion that Ms. Gladue’s status as an Indigenous woman was somehow relevant to the issues at trial. While there is nothing to suggest that it was anyone’s deliberate intention in this case to invoke the kind of biases and prejudices against Indigenous women discussed above, the language used at trial was nevertheless problematic. 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.


In the minority decision Justices Abella and Karakatsanis JJ opined that they would have dismissed the accused’s appeal. This is because the the trial judge’s failure to comply with the s.276 regime was a fundamental error that “caused a cascade of prejudice and errors warranting a new trial on murder as well as manslaughter”. They stated, in relevant part, at para. 220):


  1.                   We would dismiss the appeal. Section 276is designed to ensure that the jury does not engage in impermissible and prejudicial reasoning about a victim, based on her prior sexual activity. The failure to comply with it caused a cascade of prejudice and errors warranting a new trial on murder as well as manslaughter. It resulted in Mr. Barton’s unfiltered testimony going to the jury and infecting the whole trial, and created a significant risk that the jurors would make impermissible inferences based on prejudicial reasoning that would have tainted both their view of Ms. Gladue and their assessment of Mr. Barton’s testimony. In our view, these errors would have “had a material bearing on the acquittal[s]” in the “concrete reality” of this case (R. v. Graveline2006 SCC 16 (CanLII), [2006] 1 S.C.R. 609, at para. 14). Because of the inextricably integrated nature and significance of the errors, we agree with the Alberta Court of Appeal that a new trial is required on the charge of both murder and the included offence of manslaughter.


Finally, the minority opinion would have found that the indexed errors in the trial judge’s instructions regarding the accused’s after-the-fact conduct warranted a new trial on both murder and manslaughter.


If you have been charged with sexual assault under the Criminal Code of Canada, call Mr. J.S. Patel, Barrister at  403-585-1960 for a free initial consultation.