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Supreme Court of Canada Clarifies Use of Prior Sexual Activity and Re-defines Consent in Honest but Mistaken Belief in Consent Defences in Sexual Assault Cases Archives

Supreme Court of Canada Clarifies Use of Prior Sexual Activity and Re-defines Consent in Honest but Mistaken Belief in Consent Defences in Sexual Assault Cases

Joseph A. Neuberger, LL.B., LL.M., C.S. Neuberger & Partners LLP www.nrlawyers.com
In a recent precedent setting case out of Alberta, the Supreme Court of Canada overturned Bradley Barton’s manslaughter acquittal and ordered a new trial due to the Crown’s failure to be alert to the issue of the victim’s privacy regarding her sexual history.

Mr. Barton was on trial for first degree murder in the death of an Indigenous woman and sex worker, who was found dead in the bathroom of the accused hotel room. The cause of death was determined to be an 11cm wound in the vaginal wall. The Crown argued two theories for conviction on first degree murder and then alternatively unlawful act manslaughter that would have occurred during the course of a sexual assault. The accused testified and during testimony extensive reference was made to previous sexual activity with the deceased. The evidence was not left to the jury with a limiting instruction. The accused was acquitted by of first degree murder, and of the alternative Crown theory on the charge of manslaughter however the acquittals were overturned on appeal by the Crown to the Supreme Court. The accused was ordered back to trial but only on the manslaughter allegation.

The accused Barton maintained at trial that the death was accidental and relied upon honest but mistaken belief in consent. The evidence of prior sexual activity was used by the defence throughout the trial and no warnings were given to the jury about how they could or could not use such evidence. In addition, the Crown introduced the fact that the deceased, Ms. Gladue, was a sex worker and her and the accused had struck up a working relationship on the night before her death. There was no application by the accused under ss. 276.1(1) and 276.1(2) of the Criminal Code to adduce evidence of the deceased’s prior sexual activity.

Although the accused was not charged specifically with a count of sexual assault prior sexual history was a central issue at trial. As such, the Supreme Court dealt with the issue of whether an application under section 276 is required even when it is the prosecution and, not defence that introduces the issue of prior sexual history as part of their case. The Supreme Court emphasized that regardless of whether there is a count of sexual assault, prior sexual history, including statements about the particular deceased being a sex worker, cannot be used by either side to argue what are called the “twin myths”; that a person is more likely to have consented or less worthy of belief because of previous sexual encounters.

The Supreme Court ruled that “this section is categorical in nature and applies irrespective of which party led the evidence.” In the trial the prosecutor repeatedly referred to Ms. Gladue as an Indigenous “prostitute” which, the defence argued, opened the door for him to use that evidence in court. Regardless decision clarified that since the defence was using prior sexual history, a section 276 application was a must. However, the Court noted that the prosecutor should only make reference to prior sexual history when “necessary” and the Court did not bar the Crown from making such references without first making an application to do so. The Court noted that a delay in the midst of a trial is disadvantageous to everyone. Thus the defence must be on guard that when the Crown introduces such evidence, the defence cannot rely on such evidence without an application.

As a complicating factor, the recent amendments to the former section 276, introduced an additional layer of delay. Under the current regime a complainant is entitled to individual counsel with standing to participate in the application process. While the logic of the Supreme Court decision is sound, how to address this particular change in a murder case and prevent undue delay in cases of sexual assault is yet to be resolved. On another significant issue, the Barton decision included a clarification by the Supreme Court of Canada on the issue of the defence of honest but mistaken belief in consent. To make out this defence, traditionally the accused must adduce evidence that the complainant actually communicated consent either by words or conduct. The actus reus means that the complainant in her mind wanted the sexual touching to take place. At this stage, the focus is placed on the complainant’s state of mind and the accused’s perception of that state of mind is irrelevant. For the purposes of mens rea, and specifically to make out the defence of honest mistaken belief in consent, consent means that the complainant affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. The focus thus shifts at this stage to the mental state of the accused, and the question becomes whether the accused honestly believed the complainant effectively said “yes” through her words and actions. The fallacious idea that a failure to say “no” indicates consent is one of the forbidden lines of reasoning in sexual assault cases. At the same time, signs of consent are not always verbal and continue to include actions that indicate receptivity. Thus to help clarify the language in articulating this defence, the Supreme Court added “communicated” to the judicial lexicon. The decision gave guidelines on a number of issues regarding the duty of care expected from an accused who is claiming honest but mistaken belief in consent. Justice Moldaver added the word “communicated” to emphasize that the myth that consent is implied when there is no verbal protest to an act is entirely wrong. The refinement is intended to focus all justice participants on the crucial question of communication of consent to avoid inadvertently straying into forbidden territory of implied consent. Thus, an accused must be able to explain how and why that evidence informed his honest but mistaken belief that the complainant communicated consent at the time it occurred.

The argument that an accused took reasonable steps to obtain consent was also addressed in this decision. Guidance was provided on what was deemed an “underdeveloped” area of law. The Supreme Court stated that “an accused’s attempt to ‘test the waters’ by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step.” While there are no specific words deemed to be required before changing or advancing a sexual activity, it is important for people to recognize that affirmative consent is now becoming the standard if a sexual partner later claims they felt pressured into a sexual act.

Every trial must be adjudicated on the specific facts of the case and charges that engage questions about the subjective thoughts of an alleged victim are difficult to prove. One point is made clear by this decision - that with the growing complexities in sexual related charges, there is a mounting challenge faced by any defendant to establish consent, especially in a case of honest but mistaken belief in “communicated consent”. A defence cannot be premised on equivocal or ambiguous conduct of the complainant but rather affirmative words or conduct that in essence amount to actual communicated consent.

Time will tell what other developments will come in sexual assault related cases and for any accused facing such charges careful choice has to be made about which lawyer to retain to effectively navigate the myriad of issues and need to develop compelling evidence for a defence.

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