R v Barton, 2020 ABQB 774

Court of Queen’s Bench of Alberta Citation: R v Barton, 2020 ABQB 774 Date: 20201211 Docket: 120294731Q2 Registry: Edmonton Between: Her Majesty the Queen Applicant (Crown) - and - Bradley Barton Respondent (Accused) Restriction on Publication: Information concerning this portion of the trial may not be published, broadcast, or transmitted in any manner before the jury retires to consider its verdict. See the Criminal Code , s. 648(1) .

Editorial Notice: The restriction on publication ended February 19, 2021. ______________________________________________________ Memorandum of Decision on Voir Dire #5 of the Honourable Mr. Justice S.D. Hillier _______________________________________________________

Introduction [1] The trial in this matter is set to begin in early 2021, and the parties have indicated that this fifth decision is the last of thepre-trial voir dire issues.

The Crown applies for a ruling that consent by a commercial sex worker to commercial sexual activity bevitiated on public policy grounds when that sexual activity results in the death of the sexual service provider, and there was anobjectively foreseeable risk of bodily harm, relying on the decision in R v Jobidon, [1991] 2 SCR 714, , 1991CarswellOnt 110 (Jobidon pin point cites are to Carswell). [2] Defence responds that the law of consent in a sexual assault requires the trial judge to instruct the jury as fact finders tomeasure all evidence from the Accused’s subjective perspective.

The law does not support vitiation of consent on an objective standardin this context. [3] Ms. Cindy Gladue died on June 21, 2011 due to blood loss from a vaginal injury caused by the Accused during sexualactivity. Counsel have described the circumstances surrounding her death as the putative evidence for trial, noting that this constitutes aretrial and these circumstances have been described in the earlier voir dire decisions: R v Barton, 2020 ABQB 247 (Barton 2020 #1); Rv Barton, 2020 ABQB 284 (Barton 2020 #2); R v Barton, 2020 ABQB 448 (Barton 2020 #3); and R v Barton, 2020 ABQB 564(Barton 2020 #4).

I will use the term “Putative evidence” in particular to capture that the sexual activity to be determined factually by thejury is expected to include Fisting as described in Barton 2020 #3. [4] It should be noted that the Supreme Court anticipated this issue in R v Barton, 2019 SCC 33 (at paras 181-182); however,the Court concluded it would be inappropriate to deal with the question at that time because: • It would have no bearing on the appeal; • The Crown did not appeal the trial judge’s instructions in that regard; • The record does not provide a proper foundation for this Court to address the matter; • The courts below did not “grapple with the issue” to reach a firm conclusion; and • The parties’ submissions before this Court on the implications were insufficient to provide the necessary full and comprehensiveanalysis the issue deserves.

Positions of the Parties Crown [5] The Crown sets out the legal basis for limiting the availability of consent to sexual activity, drawing from s. 273.1 of theCriminal Code and from the common law, beginning with the decision in Jobidon.

Section 273.1 includes an open list of enumeratedcircumstances which vitiate consent in sexual assault offences (ss. 271, 272 and 273). These sections are included in the relevant Codeprovisions set out in Appendix 1.

In Jobidon, the Supreme Court of Canada held that mutual consent to fistfights and brawls would bevitiated where the parties intentionally applied force to cause bodily harm to another, and serious harm was caused. [6] The rationale underlying the Court’s decision was the lack of social utility to fist-fighting, in contrast to socially usefulactivities like rough sporting events and surgical or other medical interventions.

The Court noted that where the activities have a “apositive social value and the intent of the actors is to produce a social benefit for the good of the people involved”, the Crown mustprove lack of consent as an element of the charge of assault (at 767). [7] The Crown argues that the Court must consider a number of factors when deciding whether consent should be vitiated in aparticular circumstance, including: 1. The social value and societal harm of the activity; 2. The protection of vulnerable people; 3. The prevention of physical harm and death; 4. The importance of restraint in the criminal law; and 5.

The importance of individual freedom and autonomy. [8] The Crown begins its analysis by discussing the Supreme Court’s approach to the social value and harms of commercial sexwork, citing two cases: R v Downey, [1992] 2 SCR 10, (SCC) (commercial sex providers are vulnerable and subject toviolence from pimps and customers); Bedford v Canada (Attorney General) 2013 SCC 72 (Code provisions that prevented commercialsex providers from protecting themselves from risk are unconstitutional). [9] At para 86 of Bedford, the Supreme Court emphasizes that commercial sex workers, whether by financial desperation, drugaddictions, mental illness or other compulsions, cannot be said to be truly choosing a business that puts them at risk for disease, violenceand death from pimps and johns.

[10] By any measure the law applicable to fist-fighting assaults ought to apply to commercial sex transaction assaults.

Although Rv Welch, (ON CA), 1995 CarswellOnt 987, 25 OR (3d) 665 (CA) was later effectively reversed by R v Zhao, 2013ONCA 293, the common law, including R v Donovan, [1934] 2 KB 498, [1934] All ER Rep 207 (CA); and R v Cullen, [1949] OR 10, (CA) affirmed [1949] SCR 658, (SCC), reinforce that consent to harm in the context of sexually relatedassaults cannot be supported. [11] The Crown urges that the real issue is not whether vitiation of consent applies to sexual assault, but rather the standard for itsapplication.

As stated in R v Bruce, 55 BCAC 62, (BC CA) (at para 16): “...the intentional application of sufficientforce as to be capable of causing an injury that is more than trivial should operate to vitiate apparent consent in a domestic altercationbetween a man and a woman.” An important focus is the type of harm at risk where women may be forced into the sex trade: “They maybe the objects of physical and psychological assault. Sometimes they may be seriously hurt or even killed...

Sexual conduct that risks thissort of harm may violate society’s declared norms in a way that is incompatible with the proper functioning of society.” R v Labaye,2005 SCC 80 at para 48. [12] An objective standard based on the foreseeability of harm maintains a clear line between criminal and non-criminal conduct,as well as certainty. In the specific context of non-disclosure of HIV, the Court in R v Mabior, 2012 SCC 47 addressed the measure ofdeception and deprivation as “a significant risk of serious bodily harm” (para 91).

While proof to a standard of “the realistic possibility oftransmission” was confined to the specific circumstances, the Crown urges that a similar standard is both compelling and fair where anaccused induces a complainant into a high-risk sexual activity via payment and kills her. [13] The Crown advocates that the proper measure of harm in a commercial sex context which lacks social utility and results indeath should engage an objective test of objective foreseeability of bodily harm which is more than transient or trifling (Code s.2).

Defence [14] The Defence urges that the decision in Jobidon is flawed as a common law expansion of criminal offences which exceeds therole of the courts.

In contrast to the expansiveness of common law defences contemplated by s. 8 of the Code, the scope of criminalcharges is circumscribed by the language of s. 9 of the Code, which provides certainty and stability as to the current scope of criminalactivity: R v DLW, 2016 SCC 22at paras 59 and 63; R v Jarvis, 2019 SCC 10at para 97. [15] This principle dates back at least to cases such as Frey v Fedoruk, [1950] SCR 517, (SCC) as reinforced byR v Gralewicz, [1980] 2 SCR 493, (SCC) neither of which have been overruled. [16] Alternatively, Jobidon must be restricted to the specifics of fistfights or brawls where the vitiation of consent had already beensettled at common law, as thoroughly reviewed in the majority reasoning by Justice Gonthier who canvassed jurisprudence back to 1603. [17] The circumstances of sexual activity involve very different considerations than fistfights and it remains Parliament’s role tofurther refine the policy considerations related to consent.

Cases which have relied on vitiation of consent from Jobidon in the context ofsexual assault are uncompelling and should not be followed. [18] The language of s. 273.1, a non-exhaustive list of occasions which vitiate consent, must be interpreted cautiously.

Asexpressed in R v JA, 2011 SCC 28 the list “authorizes the courts to identify additional cases in which no consent is obtained, in amanner consistent with the policies underlying the provisions of the Criminal Code.” One such policy is the need to respect Parliament’ssupreme authority. [19] Thirdly, if Jobidon is considered in the context of sexual assault, the Defence argues that it should be restricted to cases wherethere is proof of intention to cause bodily harm as well as proof of such harm, as applied in Zhao, (at para 107) and the earlier decisionin R v Quashie, 198 CCC (3d) 337, (ON CA) (at para 57). [20] The need for proof of subjective intent is reinforced in R v Paice, 2005 SCC 22 at para 12, and consistent with the statementin R v Lucas, [1998] 1 SCR 439, (SCC) at para 64 that “in the absence of an express legislative provision, it shouldbe presumed that proof of subjective mens rea is a requirement of criminal offences.” See also R v Pappajohn, [1980] 2 SCR 120, (SCC) at 154-55 and R v Zora, 2020 SCC 14at paras 32-33. [21] Use of a subjective approach maintains a fundamental requirement of moral fault and is best reflected where the measure ofharm is serious as defined in R v McCraw, [1991] 3 SCR 72, (SCC) at 80.

This higher level of harm was applied in R vSullivan, 2011 NLCA 6 at para 41. [22] Lastly, Defence argues that a decision to endorse an objective standard would retroactively impose criminal liability which iscontrary to s. 11(

g) of the Charter. Cases such as Bedford and legislative amendments which post-date this 2011 matter virtually isolateMr. Barton as the only person who would not otherwise be captured under new law which prohibits obtaining sexual services forconsideration. Such restricted reasoning should not be used to support a change in the law related to vitiation of consent in the context ofsexual activity. Analysis Applicability of Jobidon

[23] Although the Defence strenuously critiques the jurisprudential value of Jobidon, particularly the application of common lawprinciples to the statutory provisions of the Code, the Supreme Court has not resiled from its reasoning as applied 14 years later in Paice. [24] Jobidon was cited again in DLW (at para 15) where the Court restated the relevance of the common law to interpreting thedefinition of statutory offences and to give "content to the various principles of criminal responsibility those

definitions draw from". TheCourt went on in that passage to note that “Many of the ‘basic premises’ of the criminal law – the necessary conditions for criminalliability – are left to the common law.” [25] Our Court of Appeal referenced Jobidon in R v Gardiner, 2018 ABCA 298 for the principle that a person cannot consent toserious hurt or non-trivial bodily harm (at para 6). In the appeal of the first trial, R v Barton, 2017 ABCA 216, the Court asked counsel toaddress the appropriate approach to Jobidon.

While it did not reach a conclusion on that issue because the record was insufficient, itinvited the new trial judge to determine the issue. [26] Similarly, the Supreme Court in Barton SCC did not deal with the issue, for stated reasons.

However, it concluded that thequestion of whether Jobidon applied to sexual assault and whether the test should be an objective or subjective one were importantissues deserving full and comprehensive analysis (at para 181); accordingly, it left the issue open for another day (at para 182). [27] Other Alberta Court of Appeal decisions have cited Jobidon on the issues of the invalidity of consent to bodily harm and thecommon law’s authority to limit the scope of consent: R v Briscoe, 2015 ABCA 2 (at para 24); R v Ashlee, 2006 ABCA 244 (at para23); R v Richer (AB CA), 82 CCC (3d) 385 (1993), (AB CA) (at 402). [28] Jobidon remains the law in Canada and Alberta, notwithstanding academic controversy. [29] This decision does not purport to reconcile the broader debate surrounding consent.

What the case requires is a pragmaticresponse to the application, intended to address the question of vitiation as it relates to the specific circumstances. Acknowledging thatthe actual trial evidence will be fulsome, there is no dispute that the Putative evidence includes two key elements: a commercial sextransaction and death as a result of the sexual activity in question, which included Fisting. The timing of a decision that addresses consentat this stage is intended to assist counsel in preparation for trial, including the anticipated treatment of any vitiation as part of the finaljury instruction.

Applicability of vitiation of consent beyond fistfights [30] In addition to its critique of the reasoning in Jobidon, Defence invites the Court to, at minimum, restrict the application ofthat decision. This alternate position raises fundamental concerns about the Supreme Court’s focus on the lack of social value in fist-fighting, as well as on the effect of ss. 8 and 9 of the Code on the Court’s exercise of judicial power to develop the common law inrelation to the criminal law. [31] Obviously, the courts must exercise caution when applying Jobidon to an area other than consensual fistfights (Mabior, atpara 55).

However, quite apart from public policy considerations, both the statutory wording of the Code, as well as the case law speakagainst such a narrow

interpretation. Statutory Wording [32] Parliament has defined assault in s. 265(1) as the application of force without consent; the wording of s. 265(2) expresslyapplies the definition to all forms of assault, including the various charges of sexual assault. Then, s. 265(3) prescribes a number ofscenarios in which no consent can be obtained, including threats, fraud, and the exercise of authority. [33]

Section 273.1 provides further content to the definition of consent, and situations in which, as a question of law, there is noconsent in the specific context of the various forms of sexual assault. For the purposes of these offences consent means “the voluntaryagreement of the complainant to engage in the sexual activity in question”.

Consent “must be present at the time the sexual activity inquestion takes place” (s. 273.1(1.1)). [34] Additionally, s 273.1(2) sets out scenarios in which no consent is obtained: when the complainant is unconscious or incapableof consenting; the accused induced the complainant to engage in the activity by abusing a position of trust, power or authority; or wherethe complainant, expressed, by words or conduct, a lack of agreement to continue to engage in the activity. [35] With all that added attention, Parliament then specified in s. 273.1(3):

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [36] In my view, s. 273.1(3) expressly provides that the list of circumstances in which there is no consent is not exhaustive. Asnoted in JA, the exercise of authority must be consistent with policies underlying the Code. The power cannot be rendered meaninglessby reference only to the supremacy of Parliament. Caution and respect are not the same as curtailment.

If the net effect is that judgescannot address other parallel circumstances, the words as drafted would lack any meaning. [37] In Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5, the Court noted that it is a principle of statutoryinterpretation that the legislature does not use unnecessary language, citing Canada (Attorney General) v JTI-Macdonald Corp, 2007SCC 30 at para 87). It is presumed that every feature of a legislative text has been deliberately chosen and has a particular role to play in the legislativedesign.

The legislature does not include unnecessary or meaningless language in its statutes… (R. Sullivan, Statutory

Interpretation (3rded. 2016), at p. 43).

[38] Moreover, it is important to interpret the language within the legislative purpose of the statute. In Canada (Canadian HumanRights Commission) v Canada (Attorney General), 2011 SCC 53, the Court noted (at para 38): Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose." As formerChief Justice Lamer put it in R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 28, "[i]t is a well accepted principle of statutoryinterpretation that no legislative provision should be interpreted so as to render it mere surplusage." [39] The language of s. 273.1(3) must be given meaning consistent with its purpose: that the list in s. 273.1(2) is not exhaustive,and that read in conjunction with s. 273.1(1.2), the courts have the authority to determine other situations in which no consent isobtained. Case Law [40] Given the statutory language, it cannot be said that Jobidon marks an end-point as argued by the Defence.

The Supreme Courtexpressly considered how the statutory provisions in s. 265 “concretized, and made more explicit, basic limits on the legal effectivenessof consent which had for centuries formed part of the criminal law in England and in Canada” (at para 54).

As the Court went on todiscuss the aspects of public policy that formed the basis for the common law limits on consent, it discussed cases that did not involvefistfights and public brawls, for example: Wright’s Case, (1603), Co Litt f 127 a-b (cutting off another’s arm not justified by consent);Matthew v Ollerton (1693), Comb 218, 90 ER 438, (a person cannot consent to have another beat them). [41] Further, the Code has been frequently amended to reflect development of the common law dealing with sexual assault and thenature of consent.

The decisions in Pappajohn and Sansregret v The Queen, [1985] 1 SCR 570, (SCC) on the nature ofmistaken belief in consent led to the addition of s. 273.2(a)(ii) of the Code.

So too, the decision in JA, holding there cannot be advanceconsent and that an individual cannot consent while unconscious; and R v Ewanchuk, [1999] 1 SCR 330, (SCC)holding that a mistake of law is not a defence and that only affirmatively communicated words or conduct constitute consent, led to theimplementation of Bill C-51, which added ss. 273.1(1.1), 273.1(2)(a.1), 273.1(1.2), and 273.2(c). [42] It is clear that the jurisprudence has developed the meaning and application of consent as an element of the offence of sexualassault and the availability of honest but mistaken belief in communicated consent, which were then implemented statutorily – part of theSupreme Court’s dialogue with Parliament (Vriend v Alberta, [1998] 1 SCR 493, (SCC) at paras 138-39; R v Mills,[1999] 3 SCR 668, (SCC) at paras 20, 57, and 125). [43] Finally, the Court in Jobidon noted that the factors in s. 265(3) vitiating consent are broadly applicable to many differentsituations, but that this was not inherently true of limitations arising from policy considerations which are, by their very nature, fact-specific.

Importantly, the Court noted that s. 265(2) was deliberately left open in s. 265(3) to permit the courts to expand upon thosesituations where effective consent may not be given. Parliament was able to enumerate the basic elements of assault in ss. 265(1)(

a) to(c); the specific circumstances in s. 265(3) where consent would be vitiated due to a coerced or misinformed volition; and the requiredstate of mind for the defence of honest but mistaken belief in consent in s. 265(4): all elements that would be applied without exception,irrespective of the peculiar form of assault. But as to other situations where the validity of consent might arise as a result of public policyconcerns, the Court noted, (at para 66): It would have been quite impractical, if not impossible, for Parliament to establish an adequate list of exceptions to apply to all situations,old and new.

Policy-based limits are almost always the product of a balancing of individual autonomy (the freedom to choose to haveforce intentionally applied to oneself) and some larger societal interest. That balancing may be better performed in the light of actualsituations, rather than in the abstract, as Parliament would be compelled to do. (emphasis added) [44] I support that it must remain open to the courts, in the appropriate circumstances, to develop the common law as part of itsdialogue with the legislatures.

Parliament has clearly envisaged that there maybe additional situations in which “no consent is obtained.” Incremental Change [45] The Defence raises legitimate concerns about the potential criminalization of a broad range of consensual sexual activity, inconflict with the legitimate autonomy of adults to explore and engage in aggressive acts. [46] The Crown counters that the application before the court is narrowly focused on a specific scenario derived from the Putativeevidence: • a commercial sex worker • engaged in a commercial sex transaction • that includes real risk of bodily harm and • which results in death. [47] It is true that both Jobidon and Paice have emphasized that the court must be cautious in expanding criminal sanctions toactivities that were never intended by Parliament to be criminalized.

Recognizing this caution, I find the components listed by the Crownmay accord with the Putative evidence and there is no need for this court to extend the analysis to differing scenarios. Vitiation [48] The real issues to be decided at this point are:

1. The appropriate perspective from which to assess whether there can be consent in the Putative evidence; 2. The appropriate threshold for the extent of harm that will justify a vitiation of any consent. [ 49 ] These assessments require some further review of the public policy concerns and the legal effect which vitiation may impose on the accused’s legal position. Public policy concerns [ 50 ] The public policy grounds that motivated the Court in Jobidon (at paras 112-124 ) were specific to fistfights and public brawls.

These included: the lack of public utility of fistfights, the risk that such fights may expand to a more general brawl and increased violence; the deterrence factor; the potential that some persons might derive pleasure from causing pain and “eventually lose all understanding that that activity is the subject of a powerful social taboo”; and the sanctity of the human body. The Court concluded that consent must be vitiated in circumstances involving:

a) consent between adults;

b) to intentionally apply force to each other;

c) that causes serious hurt or non-trivial bodily harm;

d) in the course of a fistfight or brawl. [ 51 ] The Court concluded (at 766): This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances.

But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it. [ 52 ] As noted above, the courts are particularly well suited to the task of balancing the public policy factors in the broad array of real-life situations in which the offence of assault arises, where complicated actions and motivations interact (at 744).

Further, the Court noted at 744-45: The common law is the register of the balancing function of the courts – a register Parliament has authorized the courts to administer in respect of policy-based limits on the role and scope of consent in s. 265 of the Code . [ 53 ] Thus, the Court made it clear that the limitations on vitiating consent in the case of a fistfight was premised on the public policy reasons regarding a fistfight: a mutual consent to inflict harm on each other. [ 54 ] The public policy concerns in this case are different, and must be examined as to the scope of justifiable limitations, including whether the force is intentional and the degree of harm. [ 55 ] The Crown set out a number of public policy factors to justify its formulation of a test for vitiating consent based on the Putative evidence.

Two factors are similar to concerns about fist-fighting: the lack of social utility and a responsibility to protect against physical harm, particularly death. Additional factors may warrant stricter limits on consent to commercialized sexual activity causing death: a significant power imbalance and a public duty to protect vulnerable persons.

Nevertheless, other social objectives endure: the importance of certainty and clarity in the law, the caution against over-criminalization, and society’s interest in autonomy and freedom. [ 56 ] I conclude that the power imbalance and vulnerability policy rationales justify different limitations on these facts than on those set out in Jobidon .

In particular, Jobidon and the other fistfight cases, address situations of mutual consent and reciprocal risks with ostensibly equal parties; as well, these contests carried an early history that was loosely associated with a reciprocal defence of honour. [ 57 ] By contrast, in the commercial sex trade there is broad judicial and parliamentary consensus about exploitation and that commercial sex workers are particularly vulnerable.

See for example: Parliament by the Special Committee on Pornography and Prostitution (the "Fraser Committee") ( Pornography and Prostitution in Canada , vol. 2 (Ottawa: Minister of Supply and Services Canada, 1985)) cited in Downey ; Bedford ; Bill C-36, Protection of Communities and Exploited Persons Act , SC 2014, c 25

An Act to Amend the Criminal Code . [ 58 ] Clearly the Supreme Court envisioned that courts would both determine specific instances in which consent would not be effective and that the courts would be able to craft those limitations based upon different public policy rationales than those of fistfights. It is impractical, if not impossible, for Parliament to enumerate the myriad of fact situations that would parallel these concerns, which is exactly the purpose of enacting s. 273.1(3).

Legal effect of vitiation of consent in sexual assault [ 59 ] The matter of vitiation, as a legal conclusion that no consent can adhere to the Putative evidence, will only arise at trial if the jury concludes that the Crown has not proved beyond a reasonable doubt that the complainant withheld her consent to the sexual activity in question. [ 60 ] If the jury finds beyond any reasonable doubt that Ms.

Gladue did not consent to the sexual activity in question, the issue of vitiation does not arise. [ 61 ] The Defence argues that any test that renders consent of no effect must ensure that a potential conviction engages sufficient

moral culpability to justify criminal sanction. What is the effect of vitiation of consent in this context? The mens rea for sexual assault [62] In Pappajohn, Dickson J (in dissent but not on this issue), held that the mens rea for sexual assault (at that time rape) was theintention to have sex knowing that the complainant was not consenting or recklessness as to whether she was consenting.

He cited Learyv The Queen [1978] 1 SCR 29 (at 58), (SCC) with approval (at 144): “The mens rea is knowledge that the woman is notconsenting or recklessness as to whether she is consenting or not.” [63] In Sansregret, McIntyre J defined recklessness as follows (at 582): In accordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminalmens rea, must have an element of the subjective.

It is found in the attitude of one who, aware that there is danger that his conductcould bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct ofone who sees the risk and who takes the chance. (emphasis added) [64] The Court in Sansregret further clarified the mens rea for sexual assault, holding that an accused cannot rely on the honestbut mistaken belief in consent defence when he has deliberately remained ignorant of the facts by blinding himself to reality.

The Courtheld that the concepts of recklessness and wilful blindness should be kept distinct, holding at 584: Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has becomeaware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remainignorant.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. (emphasisadded) [65] This formulation of the mens rea has been restated frequently in R v Park, [1995] 2 SCR 836, (SCC) at para39 (per L’Heureux-Dubé J, in concurring reasons); R v Esau, [1997] 2 SCR 777, (SCC) at para 33 (per L'Heureux-Dubé J, dissenting but not on this point); Ewanchuk, at para 23; JA, at para 24; Barton SCC at para 87. [66] Thus, the Supreme Court has held that criminal sanction may be imposed where the Crown has proved an accused’s intention,or his recklessness or wilful blindness, to commit the offence charged.

In the context of sexual assault, the Court has said an accused hasthe required mental state when “he or she knew that the complainant was not consenting to the sexual act in question, or was reckless orwilfully blind to the absence of consent.” (JA at para 24). [67] Vitiation of consent prevents an accused from relying on the victim’s consent and from relying on his own honest butmistaken belief in consent. To vitiate consent, therefore, the test must be proportional to the culpability of the offence and the degree ofharm.

An objective vs subjective test [68] The Crown argues that an objective test is an appropriate one to limit consent to the narrow scenario as previously outlined(para 46): a commercial sexual transaction, in which the sexual activity in question raises real risk of bodily harm and which results indeath. [69] The Defence argues that if consent in a sexual transaction is to be limited by the common law, the limitation must accord withthe test established in Jobidon, and restated in Paice, requiring proof that the accused intended to cause harm and harm actually resulted.To implement an objective test, the Defence argues, would impose criminal liability on an innocent mind. [70] The Crown’s position would mark a dramatic move away from the measures of criminal responsibility.

The fundamentals ofcriminal law require the Crown to establish not just culpable behaviour, but a level of intention and moral accountability. Even in thespecific scenario raised by the Putative evidence, the Crown must meet its onus to prove the requisite mental element justifying criminalsanction. [71] The Defence, however, cannot derive significant support from the Jobidon and Paice decisions as to the test to be appliedhere.

First, those decisions did not conclude that subjective intention was necessary and that objective foreseeability was insufficient.The Court’s concerns regarding over-criminalization emphasized that both intention and harm were necessary. There was no dispute thatbodily harm is intended in a fistfight. Second, there are differing policy reasons that vitiate consent in fistfights as distinct from sexualconduct in the commercial context causing death. As already identified, the law recognizes a power imbalance and vulnerability.

Thesediffering policy grounds may provide a basis for a different standard. [72] Neither approach is properly responsive to these specific circumstances. Nonetheless, I will deal with the further points whicharose during argument which led to the Court’s question whether a hybrid test may be needed. Case law on subjective and objective tests [73] The Defence emphasized that, quite apart from Jobidon and Paice, the jurisprudence to date has almost unanimously applieda subjective test of intention to cause harm. Three exceptions were listed as Welch, R v Atagootak, 2003 NUCA 3, and R vVandermeulen, 2013 MBQB 118.

The latter two cases adopted the statement in Welch (at para 87) that “the victim cannot consent tothe infliction of bodily harm upon himself or herself, as defined by s. 267(2) of the Code, unless the accused is acting in the course of agenerally approved social purpose when inflicting the harm.”

[74] The Ontario Court of Appeal in Quashie, and Zhao, held that an intent to cause harm was necessary, along with proof ofactual bodily harm. In Quashie, the Court quoted with approval the above statement from Welch and then reviewed other jurisprudencethat focused on deliberate or intentional harm. It did not expressly deal with whether an objective test was applicable. [75] However, the Court of Appeal in Zhao reverted to a subjective test, noting that Welch was focussed on sado-masochistic sex,and was not applicable to sexual conduct generally.

In particular, the Court held that the same public policy arguments underlying barfights were not applicable to intimate sexual relationships given their social utility (at para 79).

The Court concluded that the objectivetest applied by the trial judge relying on Welch was incorrect and that the test should be a subjective intention to cause harm. [76] The circumstances in Zhao and other cited decisions have not addressed a commercial sex transaction that resulted in death. [77] Interestingly, the additional cases cited by the Defence do not all support a purely subjective test of intention in cases ofsexual assault.

At least three of the decisions suggest variations on a subjective/objective test (a hybrid test). [78] In R c Roy, 2010 QCCQ 7927, the Defence points specifically to para 93: En effet, il a appliqué intentionnellement la force sur la plaignante en la pénétrant par voie anale avec ses doigts et ensuite avec sa main,geste qu'il savait ou devait savoir de nature à causer des lésions corporelles sérieuses et il ne s'en est pas soucié… (emphasis added) [79] The Defence translated this as “accused intentionally applied force to the complainant by penetrating her anally with hisfingers and then with his hand,

an act which he knew was likely to cause serious bodily harm,” focusing on the highlighted word todemonstrate that the court was applying a subjective test. However, this translation leaves out a very important phrase, highlightedabove.

The more accurate translation is “…an act which he knew or should have known… was likely to cause serious bodily harm.”This is a fairly classic statement of an objective/subjective test, incorporating an intention to apply force (subjective) and the likelihoodthat such force would cause serious bodily harm (objective). [80] In R v Gonzalez-Hernandez, 2011 BCSC 392, the accused was charged with aggravated sexual assault on his girlfriend.Among the injuries, the accused bit off the complainant’s nose and claimed it was an accident.

The Defence quotes para 78, againhighlighting the word “intentional” to demonstrate the court’s application of a subjective test: “…the intentional application of sufficientforce as to be capable of causing injury that is more than trivial cannot be consented to.” I do not accept this as the court’s endorsementof a purely subjective test. [81] First, this sentence was from the Crown’s argument in the case, not the trial judge’s finding.

Second the paragraph is similarto the objective/subjective test in Roy: intentional application of force (subjective) sufficient to be “capable of causing injury” (objective).Third, the trial judge’s actual finding was that “Any reasonable person would foresee that biting down on a nose and closing one's teethwith the force required to remove the nose in its entirety from a person's face would cause severe injury - in this case a wound, maimingand disfigurement.” (at para 85).

From my reading, the court applied a modified subjective/objective test of intention. [82] In R v Allard, 2011 BCSC 587, the court noted (at para 59): “The intentional application of sufficient force as to be capableof causing injury that is more than trivial, as is the case here, cannot be consented to.” Like the previous cases, this expresses a hybridstatement of the test, with the intention to apply force that would be “capable” of causing harm.

Intention in this formulation is directedtowards the application of force, not to causing harm. [83] In several of the cases cited by Defence, no argument was raised that an objective test should be applied; it was apparent thatthe accused intended to cause harm, which is similar to the fistfights in Jobidon and Paice. Virtually none of them dealt with a commercial sexual transaction in which the service provider died.[1] Concerns re objective test [84] The Defence argues that criminal liability cannot be constitutionally imposed on an accused without a sufficient mentalelement – the mens rea.

The Defence further points to the decision in Lucas “... in the absence of an express legislative provision, itshould be presumed that proof of subjective mens rea is a requirement of criminal offences” (at para 64). [85] However, a presumption is not a mandatory dictate, as already illustrated by the hybrid cases noted above.

Criminal mens reais not restricted to purely subjective intention, as Dickson J noted in R v Sault Ste Marie, [1978] 2 SCR 1299, (SCC) (at1309): Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited actdid so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. (emphasisadded) [86] There are, of course, offences with an objective mens rea including, as in this case, unlawful act manslaughter (R v Creighton,[1993] 3 SCR 3, (SCC)); arson (R v Tatton, 2015 SCC 33); and driving offences (R v Beatty, 2008 SCC 5).

I ammindful of an important distinction: the first two include underlying subjective elements to the predicate offences or recklessness, whilethe latter deals with negligence-based offences. [87] Certainly, some objective assessments may be justified in specific cases. I am highly respectful of the concerns aboutvulnerability and serious consequences which may arise from exploitation of commercial sex workers.

However, the use of a purelyobjective test here would preclude attaching any weight to the evidence of actual intention, knowledge, and experience of the accused.The law must look to minimize such inflexibly harsh impacts on the right to make full answer and defence.

Concerns re subjective test [88] The purely subjective test proposed by the Defence would require the Crown to prove an accused’s intention to cause seriousbodily harm beyond a reasonable doubt. Yet, the mens rea requirement for sexual assault, a general intent offence, requires: “intention totouch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched.” (Ewanchuk at para42, emphasis added). [89] A subjective assessment, focused only on what can be inferred about the accused’s intention, does not meet the public policyconcerns at issue here.

It is, quite simply, disproportionate to the specific circumstances of risk and consequences. [90] Although I will shortly turn to the requisite degree of harm, I note at this point that the Crown’s scenario from the Putativeevidence profiles that the commercial sex provider is dead and cannot testify. In light of the mens rea of the underlying offence, a testthat incorporates recklessness and wilful blindness to risk of harm will, in my opinion, be more proportional to potential culpability.

Measures of bodily harm [91] There is a range of bodily harm defined in the common law and the Code for different levels of assault.

Bodily harm isdefined in s. 2 of the Code as any hurt or injury that interferes with health or comfort that is more than merely transient or trifling innature (see also R v Dixon, (BC CA), 42 CCC (3d) 318 at 332). [92] Serious bodily harm means “any hurt or injury, whether physical or psychological, that interferes in a substantial way with theintegrity, health or well-being of a victim.” McCraw, at 88. [93] The degree of harm required for aggravated assault is defined in s. 268(1) of the Code as wounding, maiming, disfiguring orendangering the life of the complainant. [94] The Crown proposes that the foreseeable standard of harm should be that of simply “bodily harm.” Fairly minor injuries havebeen found to constitute bodily harm: small scratches and abrasions, some bruising and swelling, a sore hand or sore throat.

These are allrisks inherent in many (non-criminal) sexual activities. The low threshold is illustrated in cases cited in R v Bulldog, 2015 ABCA 251 atpara 44. [95] The actual level of harm suffered, based on the Crown’s submissions, falls at the most serious end of the spectrum: vitiationwould only arise if the commercial sex worker died as a result of the sexual activity.

However, the requisite level of harm at issue here isnot in relation to the consequences, but relates to the accused’s intention and anticipated risks. [96] The Crown asserts that any purported consent would be vitiated if it was objectively foreseeable that the sexual activity couldcause bodily harm and death resulted.

Thus, if a reasonable person would have known that the sexual activity could cause non-transientand non-trifling hurt to the complainant’s well-being or comfort, no consent would be effective. [97] In the Defence’s submission, vitiation of a sex worker’s alleged consent should only occur if the accused intended to causeserious bodily injury and death resulted. In other words, the test should be whether the accused intended to injure a complainant in asubstantial way that would interfere with the integrity, health or well-being of a victim (McCraw).

That position has its own problems asan unrealistic burden tied exclusively to the thoughts of an accused. But the need for a level of harm which exceeds the definition in s. 2of the Code is supported by cases such as Sullivan. [98] Given that even fairly minor injuries have been found to constitute “bodily injury,” the Crown’s approach could criminalizesome relatively non-hazardous sexual activity that would otherwise not be criminal (see Mabior, at para 19).

Notwithstanding that thecomplainant’s death remains a key part of the Crown’s application and maximizes the actual harm, the focus here must be on theperspective of the accused, but inclusive of wilful blindness and recklessness. [99] In my view, the law can only vitiate consent if the sexual activity in question is so contrary to public policy that the criminallaw cannot condone the activity and permit a commercial sex worker to consent to it.

Foreseeability of mere “bodily harm” is notsufficient for the criminal law to intervene and set aside an alleged agreement between the parties, even if death results. [100] Fisting, by itself, is not contrary to public policy.

Rather, it is the engagement in the sexual activity causing “serious bodilyharm” which needs to be measured by an appropriate test of intent, as I will address shortly. [101] In Labaye, McLachlin CJ noted that sexual conduct which risks physical and psychological injury, including serious hurt anddeath may “violate society’s declared norms in a way that is incompatible with the proper functioning of society” and thus give rise tocriminal sanction (in that case indecent conduct) (at para 48).

Further, she noted that the more extreme the harm, the lower degree ofrisk is required to enforce a criminal sanction (at para 61). In Jobidon, Sopinka J made a similar observation saying, “the more seriousthe assault, the more difficult it should be to establish consent.” (at 773).

Modified Test [102] From a full review, there are fundamental problems with both a purely objective test of the risk of mere bodily harm and withan entirely subjective test of intent to cause serious bodily harm. [103] As raised during oral submissions, the policy considerations must acknowledge a level of generic consent to sexual activity in acommercial context. At issue here is the intention to cause harm by the specific sexual activity in question. On that, the Crown mustprove beyond a reasonable doubt an intention to cause some level of harm.

[104] The specific risk of actual harm does not need to be subjectively intended, so long as the circumstances meet the more objectivestandards of wilful blindness or recklessness. This adopts an objective/subjective test that would be responsive to the specificcircumstances, rather akin to cases like Roy, Gonzalez-Hernandez, and Allard. [105] In Tatton, Moldaver J noted that the intent element in assault is merely the intention to apply force, without consent, but thatintent to cause harm is not an element (at para 35).

What Jobidon did is say that in certain circumstances proof of no consent will beremoved as an essential element, provided that there is proof of an intent to cause harm and harm results. [106] This substitution of mens rea should parallel, to as great a degree as possible, the mens rea of the underlying offence. That is,the test to vitiate consent, must at a minimum reflect the mens rea of sexual assault and not merely objective foreseeability of some levelof harm.

This is further reinforced by ss. 273.2(a)(ii), which similarly limits a defence where the accused is reckless or wilfully blind. [107] I conclude that the appropriate test is the following: In a commercial sexual transaction, in which the sexual service provider died as a result of the sexual activity in question, any consent orpurported consent by the deceased sexual service provider will be vitiated if: i. the accused intended to cause the sexual service provider serious bodily harm; or ii. the accused was reckless to the risk that the sexual activity in question could cause serious bodily harm; or iii. the accused was wilfully blind to the risk that the sexual activity could cause serious bodily harm. [108] Overall, all three routes recognize a level of culpability, such that there can be no criminalization attributed to accidental orinadvertent injury.

It is the latter two considerations, recklessness or wilful blindness, which involve a partially objective component:whether a reasonable person, in the position of the accused, would know that there was a risk of serious bodily harm. To clarify thismodified test, I will address each route separately. Subjective Intention [109] The first route examines proof of the actual subjective intention of the accused to cause serious bodily harm. As Lamer J noted,in R v Robinson, [1996] 1 SCR 683, (SCC) (at para 62) it is reasonable for a jury to infer that a person intends thenatural consequences of his actions.

However, upon review of the whole circumstances, the evidence must support an intention to hurt orinjure at a level that substantially interferes with the integrity, health or well-being of a victim.

Recklessness [110] The assessment of recklessness is partly subjective – in light of all the circumstances known to the accused at the time of thesexual activity in question; it is also partly objective – does the conduct show a clear disregard for the consequences? [111] Recklessness is defined in Tatton: “Recklessness describes the act of one who sees the risk and acts without regard for theconsequences: Sansregret v The Queen, (SCC), [1985] 1 SCR 570, at p. 582.” (at para 49).

At issue are twocomponents: would a reasonable person, in the accused’s circumstances, know there was a risk of serious bodily harm, and if so, then didthe accused proceed to engage in the sexual activity in question without regard to the consequences? [112] The more probable a fact-finder finds the risk of serious bodily harm to be, the easier it will be for the fact-finder to infer fromthe accused’s actions that he proceeded in spite of an objectively foreseeable risk. On the other hand, if the risk is more remote, a fact-finder may find that the Crown has not proved recklessness beyond a reasonable doubt.

Wilful Blindness [113] Wilful blindness is described in R v Briscoe, 2010 SCC 13 (at para 21) as: The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the needfor further inquiries, but deliberately chooses not to make those inquiries. [114] To more fully separate the concepts of recklessness and wilful blindness, Charron J then quoted Glanville Williams withreference to the following key restriction (at para 23): The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law.

It is, at the same time, anunstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almostbe said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the finalconfirmation because he wanted in the event to be able to deny knowledge.

This, and this alone, is wilful blindness… (Criminal Law: The General Part (2nd ed. 1961), at p. 159 (cited in Sansregret, at p. 586).) [115] Wilful blindness amounts to a subjective focus (Briscoe SCC, at para 24) that deliberately ignores the probable risk orconsequences of a given behaviour.

The test in the context of this case is whether the accused suspected that the sexual activity inquestion could likely cause serious bodily harm, but did not obtain final confirmation so that he could deny knowledge of suchconsequence. [116] An affirmative finding beyond a reasonable doubt from any of these three routes will vitiate against any purported consent inthis specific case.

Section 11(

g) of the Charter [ 117 ] The Defence argues that applying vitiation of consent would retroactively impose criminal liability contrary to s. 11(

g) of the Charter . In particular, the Defence notes that this approach would criminalize activity that was not criminal in 2011. I disagree. There was jurisprudence in 2011 which profiled that one cannot consent to sexual activity leading to bodily harm. See for example the following – cited in these Reasons: Donovan ; Cullen ; Welch ; Quashie ; R v Hancock , 2000 BCSC 1581 ; Atagootak ; Roy ; Gonzalez- Hernandez ; Allard .

While the nature of the test varied among these cases, the test I have set out properly reflects sufficient subjective culpability to fall within the case law in effect as of 2011. [ 118 ] The Defence also argues cases such as Bedford and legislative amendments which post-date this 2011 matter virtually isolate Mr. Barton as the only person who would not otherwise be captured under new law which prohibits obtaining sexual services for consideration.

I will not speculate on how future cases will deal with unlawful act manslaughter under the legislative changes, but note that the Supreme Court made it clear that further exceptions to consent would be developed on a case by case basis. To do so, I have relied on the Putative evidence in this case. The ties to the circumstances faced by Mr. Barton are not “targeted”; they are a function of a case by case analysis. Conclusion [ 119 ] In

summary, I have concluded that Jobidon principles and the Code permit the common law to apply vitiation of consent beyond fistfights to appropriate sexual assault situations. The basis for vitiation of consent will vary based on the social policy reasons that must fully consider the balance between personal autonomy and public good. [ 120 ] Given the timing in advance of trial, this decision needs to be particularly case specific.

To repeat, it applies to the scenario arising from the Putative evidence of a commercial sex transaction in which the sexual activity in question includes a risk of serious bodily harm and which results in death of the sexual service provider. [ 121 ] To vitiate any consent or purported consent by Ms. Gladue to the specific activity in question the jury must determine that: • Mr. Barton intended to cause serious bodily harm to Ms. Gladue; or • Mr. Barton was reckless to the risk that the sexual activity could cause serious bodily harm to Ms. Gladue; or • Mr.

Barton was wilfully blind to the risk that the sexual activity could cause serious bodily harm to Ms. Gladue. Heard on the 17 th and 18 th of November, 2020. Dated at the City of Edmonton, Alberta this 11 th day of December, 2020. S.D. Hillier J.C.Q.B.A. Appearances: Lawrence Van Dyke and Julie Snowdon for the Respondent Crown Dino Bottos and Austin Corbett for the Applicant Accused Appendix A Extracts from the Criminal Code

(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.

(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for

an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament. 9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under

section 730 (

a) of an offence at common law, (

b) of an offence under

an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or (

c) of an offence under

an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada, but nothing in this

section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court. 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. 273.1

(1) Subject to subsection (2) and subsection 265(3) , consent means, for the purposes of sections 271 , 272 and 273 , the voluntary agreement of the complainant to engage in the sexual activity in question.

(1.1) Consent must be present at the time the sexual activity in question takes place.

(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.

(2) For the purpose of subsection (1), no consent is obtained if (

a) the agreement is expressed by the words or conduct of a person other than the complainant; ( a.1 ) the complainant is unconscious; (

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph ( a.1 ); (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. 273.2 It is not a defence to a charge under

section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from

(

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.