The Supreme Court, Sexual Assault and "Twin Myths"

On May 24, 2019, the Supreme Court handed down an important clarification of Canadian sexual assault law: R. v. Barton, 2019 SCC 33.

The Court heard the appeal of Bradley Barton, who was charged with the first-degree murder of Cindy Gladue. Ms. Gladue was an Indigenous woman, who died from blood loss caused by an 11 cm wound in her vaginal wall. Mr. Barton was initially acquitted by the jury at trial. The Alberta Court of Appeal then ordered a new trial on first degree murder. The Supreme Court held that a new trial was warranted, but the majority limited the charge of the new trial to unlawful act manslaughter. This holding was based primarily on the parties’ failure to comply with the provisions of s.276.

S.276 of the Criminal Code governs the admissibility of evidence of the complainant’s prior sexual activity. It is supposed to protect the truth-seeking function of the courts from the prohibited inferences of the twin myths, which erroneously conclude that evidence of prior sexual activity makes the complainant either less worthy of belief, or more likely to have consented to the sexual activity in question. Evidence of the complainant’s past sexual history is not admissible if it is used to support either of these inferences.

This section is categorical – it applies regardless of which party leads the evidence, and compliance with the s.276 regime is mandatory. Ultimately it is the trial judge’s responsibility to ensure that s.276 is enforced. However, as Barton makes clear, both the Crown and defence counsel also have an important role to play in the proper judicial administration of s.276 proceedings.

It is important to understand that not all evidence of past sexual activity is inadmissible. However, if defence counsel wishes to cite such evidence, they must first make a s.276 application, and a hearing must be held to determine admissibility prior to the trial. As per s.276(2), if defence counsel is able to demonstrate that the evidence in question is not being adduced to support one of the twin myths; is relevant to an issue at trial; is of specific instances of sexual activity; and has significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice, then a trial judge may determine that the evidence is admissible. The trial judge must provide reasons for this determination, and must also give instructions to the jury on the purposes for which this evidence can be used. In this way, s.276 attempts to protect the integrity of the trial from the false logic of the twin myths.

Barton establishes that this protection is also required when the Crown leads evidence of the complainant’s extrinsic sexual activity. Writing for the majority, Justice Moldaver affirms that “the reasoning dangers inherent in prior sexual activity evidence are potentially present regardless of which party adduces the evidence.”  While Crown-led evidence of this nature is not subject to the s.276 regime, the Court in Barton ruled that there must be a separate hearing called a voir dire to determine its admissibility, in keeping with the principles articulated by the Court in Seaboyer. 

Following Barton, the duties of each party are crystal clear: the Crown cannot lead evidence of the complainant’s prior sexual history without a voir dire; defence counsel cannot lead evidence of the complainant’s sexual history without submitting a s.276 application; and the trial judge must enforce compliance with the s.276 regime, and ensure that the jury is properly instructed on the use of such evidence. Sadly, in this particular case, none of this took place.

Instead, the Crown referred to Ms. Gladue as a “prostitute” and mentioned the “working relationship” between Ms. Gladue and Mr. Barton in its opening address. No voir dire was held to determine whether this evidence was relevant to the issue of whether or not Ms. Gladue consented to the sexual activity that ultimately resulted in her death. Mr. Barton then attempted to argue that he did not have to bring a s.276 application because the Crown had opened the door to evidence of their prior sexual history. Thus, absent a s.276 hearing, Mr. Barton gave detailed testimony of the sexual activity that he engaged in with Ms. Gladue on the night before her death.

The Supreme Court rejected this argument. Justice Moldaver juxtaposed the “basic narrative recounted by the Crown” with Mr. Barton’s testimony and held that “these were mere drops in the expansive pool of information Mr. Barton flooded the jury with through his testimony. In short, the Crown did not give him a “free pass” and cloak his evidence with immunity from the s. 276 regime.” 

Finally, the trial judge not only failed to implement the s.276 regime, but also failed to properly instruct the jury on how they ought to use the prior sexual history evidence adduced at trial. Justice Moldaver stated that these errors were “particularly grave” in this case because Ms. Gladue was “an Indigenous woman who engaged in sex work and who was not alive to tell the jury her side of the story.” Justice Moldaver reasoned that this led to an “exceptionally high risk” of prior sexual activity evidence “being used improperly.”

The prejudicial myths and stereotypes that exist against Indigenous women and sex workers form an important part of the Supreme Court’s commentary throughout the Barton judgment, and both the majority and the dissent discuss the desirability of a specific jury instruction to address this prejudice. However, as Justice Moldaver notes in his opening paragraph, this case makes it clear that far more needs to be done in this regard.

Ultimately, the Court was unanimous in holding that the errors made in relation to s.276, and the mistakes of law that were made in relation to the defence of honest but mistaken belief, necessitated a new trial. However, the majority and the minority disagreed about the charge on which the new trial should be ordered. While the minority held that these errors permeated the entire proceedings, necessitating a new trial on first-degree murder, the majority held that the new trial should be limited to the charge of unlawful act manslaughter.  The majority’s holding in this regard was based on the Crown having put forward a specific theory of liability at trial, which rested on the jury finding that Mr. Barton cut Ms. Gladue with a sharp object. On this factual question, the majority found that the Crown had “lost in a battle of experts”, and that to force Mr. Barton to face a second trial on first degree murder would be “contrary to the principles of double jeopardy enshrined in s.11(h) of the Charter”.

- Kate Rawson, Queen's Law class of 2020