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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

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Joseph A. Neuberger, LL.B., LL.M., C.S.
Neuberger & Partners LLP

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

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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