The Supreme Court released its highly anticipated decision in R v. Barton today. The case, which dealt with a myriad of issues arising from the murder trial of Bradley Barton, touches many areas of law, including use of prior sexual activity, honest but mistaken belief in communicated consent, accident and motive. The Court ultimately ordered a new trial on the count of manslaughter, given the errors, particularly with respect to the evidence of the complainant’s sexual history, that has ripple effects that prejudiced the trial. While there are many issues to discuss, this post will simply draw out a few of the key points of the decision.
Sexual assault law has been a pervasive topic in the news and courts as of late. Considering the publicity around the Barton trial and the treatment of Indigenous women in the court system, coupled the new legislative changes stemming from Bill C-51, the tension between the rights of the accused and the dignity of complainants continues.
While the Supreme Court in Barton doesn’t resolve this tension, it does speak to the need for all participants in the justice system to work towards enforcing the legal standards enshrined in the Criminal Code and our case law. Instead of the blame being cast merely on defence lawyers, the Court acknowledged the role of trial judges, Crown attorneys and defence lawyers in upholding the relevant principles to ensure trial fairness.
One of the main take-aways of the case is the importance of s. 276 of the Criminal Code, which demands that an accused person bring a written application in order to rely on evidence of a complainant’s prior sexual activity. The Court emphasized that s. 276 can apply outside of a charge of sexual assault, so long as it has some connection to the offence charged. Moreover, it urged a trial judge to raise the issue with the parties if there is some uncertainty, in order to allow for submissions and a ruling on the matter.
On the other hand, the Court found that the Crown is not entitled to rely on the prior sexual activity of the complainant without an application either. While s. 276 applies to evidence adduced by or on behalf of the accused, the Crown remains bound by the law in R v. Seaboyer, which limits the use of prior sexual activity. Still, the Court maintained that the responsibility for enforcing s. 276 requirements falls squarely on the trial judge.
In his majority decision, Justice Moldaver also took time to, as he put it, “refine the judicial lexion” with respect to honest, mistaken belief in consent. In Barton, as with many cases involving sexual assault, the accused often relies on their subjective belief that the complainant was consenting. Barton focuses instead on the communication of consent, not just the consent itself. In other words, the accused must show how and why they believe that the complainant had communicated their consent, as opposed to simply showing why they believe there was no lack of consent.
The decision leaves much to unpack in terms of legal issues and the treatment of Indigenous people in the courts. Still, the Court in Barton emphasizes the need for all of those involved in the justice system: trial judges, Crowns and defence lawyers alike, to be mindful of the laws surrounding sexual assault law in order to ensure the proper admission of evidence and trial fairness.