Bradley David Barton Appellant v. Her Majesty The Queen, 2019 SCC 33

SUPREME COURT OF CANADA Citation: R. v.

Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 Appeal Heard: October 11, 2018 Judgment Rendered: May 24, 2019 Docket: 37769 Between: Bradley David Barton Appellant and Her Majesty The Queen Respondent - and - Attorney General of Canada, Attorney General of Ontario, Director of Criminal and Penal Prosecutions, Attorney General of Manitoba, Vancouver Rape Relief Society, La Concertation des luttes contre l’exploitation sexuelle, AWCEP Asian Women for Equality Society, Aboriginal Women’s Action Network, Formerly Exploited Voices Now Educating, Centre to End All Sexual Exploitation, Assembly of First Nations, Ad Idem / Canadian Media Lawyers Association, Women of the Métis Nation / Les Femmes Michif Otipemisiwak, National Inquiry into Missing and Murdered Indigenous Women and Girls, Independent Criminal Defence Advocacy Society, Criminal Lawyers’ Association of Ontario, Institute for the Advancement of Aboriginal Women, Women’s Legal Education and Action Fund Inc., David Asper Centre for Constitutional Rights, Aboriginal Legal Services and Criminal Trial Lawyers’ Association (Alberta) Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ.

Reasons for Judgment: (paras. 1 to 211) Moldaver J. (Côté, Brown and Rowe JJ. concurring) Joint Reasons Dissenting in Part: (paras. 212 to 262) Abella and Karakatsanis JJ. (Wagner C.J. concurring)

R. v . Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 Bradley David Barton Appellant v.

Her Majesty The Queen Respondent and Attorney General of Canada, Attorney General of Ontario, Director of Criminal and Penal Prosecutions, Attorney General of Manitoba, Vancouver Rape Relief Society, La Concertation des luttes contre l’exploitation sexuelle, AWCEP Asian Women for Equality Society, Aboriginal Women’s Action Network, Formerly Exploited Voices Now Educating, Centre to End All Sexual Exploitation, Assembly of First Nations, Ad Idem / Canadian Media Lawyers Association, Women of the Métis Nation / Les Femmes Michif Otipemisiwak, National Inquiry into Missing and Murdered Indigenous Women and Girls, Independent Criminal Defence Advocacy Society, Criminal Lawyers’ Association of Ontario, Institute for the Advancement of Aboriginal Women, Women’s Legal Education and Action Fund Inc., David Asper Centre for Constitutional Rights, Aboriginal Legal Services and Criminal Trial Lawyers’ Association (Alberta) Interveners Indexed as: R. v.

Barton 2019 SCC 33 File No.: 37769. 2018: October 11; 2019: May 24.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe JJ. on appeal from the court of appeal for alberta Criminal law — Evidence — Admissibility — Complainant’s sexual activity — Accused charged with first degree murder in death of Indigenous sex worker — Accused testifying at trial about previous sexual activity with deceased without having applied to adduce such evidence — Evidence going to jury without detailed limiting instruction — Accused acquitted — Whether trial judge erred in failing to determine whether evidence of prior sexual activity was admissible — If so, whether new trial warranted — Criminal Code, R.S.C. 1985, c.

C-46, s. 276 . Criminal law — Charge to jury — Mistaken belief in communicated consent — Accused charged with first degree murder in death of Indigenous sex worker — Crown alternatively submitting that accused committed unlawful act manslaughter by causing deceased’s death in course of sexual assault — Accused relying on defence of honest but mistaken belief in communicated consent — Trial judge submitting defence to jury — Accused acquitted — Whether trial judge erred in his charge to jury in failing to caution jury

on mistakes of law related to defence — If so, whether new trial warranted. The accused was charged with first degree murder in the death of an Indigenous woman and sex worker, who was founddead in the bathroom of the accused’s hotel room. The cause of death was determined to be loss of blood due to an 11 cm wound in hervaginal wall. The Crown’s theory was that during the course of commercial sexual activities while the deceased was incapacitated byalcohol, the accused cut the inside of her vagina with a sharp object with intent to seriously harm or kill her.

Alternatively, the Crowntook the position that if the accused did not murder the deceased, he committed the lesser and included offence of unlawful actmanslaughter, by causing her death in the course of a sexual assault. The accused, however, maintained his innocence. He testified thathe and the deceased engaged in similar consensual sexual activity on both the night leading up to her death and the previous night, andthat on both occasions, he penetrated her vagina with his fingers and thrusted repeatedly.

He claimed that she started to bleedunexpectedly on the second night, bringing the sexual activity to a halt, and he awoke the next morning to find her dead in the bathtub.He then left the hotel in a panic, returned, called 911, and fabricated different versions of a false story. Although he admitted that hecaused her death, he claimed that it was a non-culpable accident. He denied using a sharp object and asserted that the deceased consentedto the sexual activities in question — or at least he honestly believed that she did.

In its opening address to the jury, the Crown referred to the deceased as a prostitute and explained that she and the accusedstruck up a working relationship on the night before her death. In addition, without having submitted an application under ss. 276.1(1)and 276.1(2) of the Criminal Code to adduce evidence of the deceased’s prior sexual activity, the accused testified at length about hisprevious sexual activity with the deceased. The Crown did not object, nor did the trial judge order a separate hearing to consider theadmissibility and permissible uses of this evidence. The jury acquitted the accused.

The Court of Appeal allowed the Crown’s appeal, setaside the accused’s acquittal, and ordered a new trial on first degree murder. Held (Wagner C.J. and Abella and Karakatsanis JJ. dissenting in part): The appeal should be allowed in part and a new trialon unlawful act manslaughter ordered. Per Moldaver, Côté, Brown and Rowe JJ.: The trial judge erred in failing to comply with the mandatory requirements set outin s. 276 of the Criminal Code. That error had ripple effects, most acutely in the instructions on the defence of honest but mistaken beliefin communicated consent, upon which the accused relied.

In particular, non-compliance with the s. 276 regime translated into a failure toexpose and properly address misleading evidence and mistakes of law arising from the accused’s defence. This resulted in a reversibleerror warranting a new trial. However, the new trial should be restricted to the offence of unlawful act manslaughter, as it has not beendemonstrated that the acquittal on murder was tainted by reversible error. A.

Section 276 and Prior Sexual Activity Evidence

Section 276 of the Criminal Code governs the admissibility of evidence about a complainant’s prior sexual activities and theuses to which that evidence may be put. The animating purposes behind the s. 276 regime are to protect the integrity of the trial byexcluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences byprotecting the security and privacy of complainants.

Section 276(1) provides that in proceedings in respect of certain listed offences,evidence of a complainant’s prior sexual activity is not admissible to support an inference that, by reason of the sexual nature of thatactivity, the complainant is more likely to have consented to the sexual activity in question or is less worthy of belief. This

section iscategorical in nature and applies irrespective of which party led the evidence. Section 276(2) provides that evidence of the complainant’sprior sexual activity adduced by or on behalf of the accused is presumptively inadmissible unless, after certain procedures have beenfollowed, the trial judge rules to the contrary. The s. 276 regime applies to any proceeding in which an offence listed in s. 276(1) hassome connection to the offence charged, even if no listed offence was particularized in the charging document.

Crown-led prior sexualactivity evidence is subject to the common law principles articulated in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577. B. Defence of Honest but Mistaken Belief in Communicated Consent An accused may respond to a charge of sexual assault by relying on the defence of honest but mistaken belief incommunicated consent. Consent is defined in s. 273.1(1) of the Criminal Code as the voluntary agreement of the complainant to engagein the sexual activity in question. For purposes of the actus reus, consent means that the complainant in her mind wanted the sexualtouching to take place.

At this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of thatstate of mind is irrelevant. For purposes of the mens rea, and specifically for the purposes of the defence of honest but mistaken belief incommunicated consent, consent means that the complainant had affirmatively communicated by words or conduct her agreement toengage in the sexual activity with the accused.

Hence, the focus at this stage shifts to the mental state of the accused, and the questionbecomes whether the accused honestly believed the complainant effectively said “yes” through her words and actions. While the jurisprudence has consistently referred to the relevant defence as being premised on an honest but mistaken beliefin consent, it is clear that in order to make out this defence, the accused must have an honest but mistaken belief that the complainantactually communicated consent, whether by words or conduct.

It is therefore appropriate to refine the judicial lexicon and refer to thedefence more accurately as an “honest but mistaken belief in communicated consent”. This refinement is intended to focus all justicesystem participants on the crucial question of communication of consent and avoid inadvertently straying into the forbidden territory ofassumed or implied consent.

In seeking to rely on the complainant’s prior sexual activities in support of a defence of honest but mistakenbelief in communicated consent, the accused must be able to explain how and why that evidence informed his honest but mistaken beliefthat the complainant communicated consent to the sexual activity in question at the time it occurred. The accused cannot rest his defenceon the false logic that the complainant’s prior sexual activities, by reason of their sexual nature, made her more likely to have consentedto the sexual activity in question, and on this basis he believed that she consented.

Honest but mistaken belief in communicated consent is a mistake of fact defence, which operates where the accusedmistakenly perceived facts that negate, or raise a reasonable doubt about, the fault element of the offence. By contrast, as a general rule,mistakes of law offer no excuse. Therefore, to the extent an accused’s defence of honest but mistaken belief in communicated consentrests on a mistake of law — including what counts as consent from a legal perspective — rather than a mistake of fact, the defence is ofno avail.

For example, it is an error of law — not fact — to assume that unless and until a woman says “no”, she has implicitly given her

consent to any and all sexual activity. Implied consent, which rests on the assumption that unless a woman protests or resists, she should be deemed to consent, has no place in Canadian law. In addition, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is also premised on a mistake of law, not fact.

As a further example, an accused’s belief that the complainant’s prior sexual activities, by reason of their sexual nature, made it more likely that she was consenting to the sexual activity in question is again a mistake of law. The availability of the defence of honest but mistaken belief in communicated consent is not unlimited. The reasonable steps requirement under s. 273.2 (

b) of the Criminal Code imposes a precondition to this defence. This requirement, which rejects the outmoded idea that women can be taken to be consenting unless they say “no”, has both objective and subjective dimensions: the accused must take steps to ascertain consent that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. The reasonable steps inquiry is highly fact-specific.

Trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Trial judges and juries should also be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity. Steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. The concept of reasonable steps to ascertain consent under s. 273.2 (

b) of the Criminal Code must be distinguished from the concept of reasonable grounds to support an honest belief in consent under s. 265(4) . Where the accused is charged with some form of assault, the presence or absence of reasonable grounds is simply a factor to be considered in assessing the honesty of the accused’s asserted belief in consent in accordance with s. 265(4). By contrast, where the accused is charged with a sexual offence under ss. 271, 272, or 273, a failure to take reasonable steps is fatal to the defence of honest but mistaken belief in communicated consent by virtue of s. 273.2 (b).

In the context of a charge under ss. 271, 272, or 273 where the accused asserts an honest but mistaken belief in communicated consent, if either there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent or the Crown proves beyond a reasonable doubt that the accused failed to take reasonable steps to ascertain consent, then there would be no reason to consider the presence or absence of reasonable grounds to support an honest belief in consent under s. 265(4), since the accused would be legally barred from raising the defence due to the operation of s. 273.2 (b).

An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to the defence. If there is no evidence upon which the trier of fact could find that the accused took reasonable steps to ascertain consent, then the defence of honest but mistaken belief in communicated consent has no air of reality and must not be left with the jury.

By contrast, if there is an air of reality to the defence of honest but mistaken belief in communicated consent, including the reasonable steps requirement, then the defence should be left with the jury. The onus would then shift to the Crown to negative the defence, which could be achieved by proving beyond a reasonable doubt that the accused failed to take reasonable steps. Where the Crown does not prove beyond a reasonable doubt that the accused failed to take reasonable steps, that does not lead automatically to an acquittal.

In those circumstances, the trial judge should instruct the jury that they are required, as a matter of law, to go on to consider whether the Crown has nonetheless proven beyond a reasonable doubt that the accused did not have an honest but mistaken belief in communicated consent. This requirement flows from the fact that the defence is ultimately one of an honest but mistaken belief in communicated consent, not one of reasonable steps. Ultimately, if the Crown fails to disprove the defence beyond a reasonable doubt, then the accused would be entitled to an acquittal. C. Application

(1) Applicability of the

Section 276 Regime In this case, while the Crown did not object to the accused’s testimony about the deceased’s prior sexual activity, its failure to do so was not fatal. The ultimate responsibility for enforcing compliance with the mandatory s. 276 regime lies squarely with the trial judge, not with the Crown. It is also plain that the proceeding implicated an offence listed in s. 276(1) because the offence charged in this case, first degree murder, was premised on sexual assault with a weapon, which is an offence listed in s. 276(1). It follows that the s. 276 regime was engaged.

Furthermore, the limited information conveyed in the Crown’s opening address did not exclude the application of s. 276(2) to the accused’s detailed testimony about the deceased’s sexual activity on the night before her death, which went well beyond the basic narrative recounted by the Crown.

Therefore, before adducing evidence of the deceased’s sexual activity on the night before her death, the procedural requirements under s. 276 should have been observed, and if any of the evidence was deemed admissible, a careful limiting instruction by the trial judge was essential to instruct the jury on the permissible and impermissible uses of that evidence.

(2) Instructions on the Defence of Honest but Mistaken Belief in Communicated Consent At trial, the accused relied on the defence of honest but mistaken belief in communicated consent, and his testimony about the deceased’s prior sexual activities featured prominently in his defence.

The trial judge erred by failing to inoculate the jury against mistakes of law masquerading as mistakes of fact, as the accused’s defence raised the spectre of several mistakes of law: a belief that the absence of signs of disagreement could be substituted for affirmative communication of consent; a belief that prior similar sexual activities between the accused and the deceased, the deceased’s status as a sex worker, or the accused’s own speculation about what was going through the deceased’s mind could be substituted for communicated consent to the sexual activity in question at the time; a belief that the deceased could give broad advance consent to whatever the accused wanted to do to her; and the inference that the deceased’s past sexual activities, by reason of their sexual nature, may make it more likely that she consented to the sexual activity in question.

It was incumbent on the trial judge to caution the jury against acting on these mistakes of law. The absence of such an instruction had an immediate impact on the defence of honest but mistaken belief in communicated consent, as it allowed the defence to proceed while these mistakes of law were left unaddressed, thereby leaving the jurors without the necessary tools to engage in a proper analysis.

This error was inextricably linked to the failure to hold a s. 276 hearing, which would have subjected the admissibility and permissible uses of the evidence of the deceased’s prior sexual history to rigorous scrutiny and assisted in filtering out the mistakes of law raised by the accused’s defence.

(3) Instructions on Motive

Where motive does not form an essential element of the offence, the necessity of charging a jury on the subject depends upon the course of the trial and the nature and probative value of the evidence adduced . In this case, motive was a relevant consideration bearing upon whether the accused intended to seriously harm or kill the deceased, which would go to the fault element for murder. However, the Crown led no evidence of motive. Since there was neither a proven motive nor a proven absence of motive, it fell within the trial judge’s substantial discretion to charge on motive. Further, the charge was not so unbalanced as to amount to misdirection.

(4) Instructions on the Objective Fault Element of Unlawful Act Manslaughter The fault element of unlawful act manslaughter consists of objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. At trial, the defence conceded that the act in question was dangerous, and the Crown accepted that it would be appropriate to instruct the jury that if they were satisfied that the accused committed an unlawful act, then it was implicit that the act was dangerous.

In addition, the Crown agreed to the request of the defence that the language of objectively foreseeable bodily harm be removed from the charge. On appeal, the Crown reversed its position, arguing that the instructions on dangerousness were deficient and the trial judge’s failure to refer to the objective fault element of unlawful act manslaughter unfairly minimized its expert evidence. The Court of Appeal accepted the Crown’s position on appeal. However, it should not have done so, as the Crown had to live with the decision it made at trial.

(5) Instructions on After-the-Fact Conduct In light of procedural fairness concerns — namely, the Crown’s limited right to appeal an acquittal and the requirements that must be observed by appellate courts when raising new issues — the Court of Appeal should not have ordered a new trial on the issue of after-the-fact conduct evidence. The Crown was actively involved in drafting the jury charge, and at no point did it request a specific instruction directing the jury to consider the accused’s after-the-fact conduct in assessing his credibility.

Further, although the Court of Appeal notified the parties at the outset of the hearing that it would raise new issues, it did not specify the precise nature of those issues or indicate whether one or more could result in the accused’s acquittal being set aside. It also allowed the Crown to advance certain arguments on after-the-fact conduct for the first time in reply submissions, and at the end of the hearing the court indicated that there was no need for further written argument.

Lastly, though it is not necessary to finally decide the issue, there is reason to be skeptical of the Crown’s argument that the trial judge’s instructions on after-the-fact conduct were so defective as to amount to reversible error. When read fairly and as a whole, the trial judge’s charge on after-the-fact conduct adequately, albeit imperfectly, conveyed to the jury that they could consider the accused’s after-the-fact conduct in assessing guilt and equipped them to do so.

(6) Instructions on the Defence of Accident The term “ accident ” is used to signal one or both of the following: (1) that the act in question was involuntary (i.e., non-volitional), thereby negating the actus reus of the offence; or (2) that the accused did not have the requisite mens rea . In assessing whether a claim of “accident” may negate mens rea in any particular case, it is obviously essential to consider what the relevant mens rea requirement is in the first place.

In carrying out this inquiry, it must be kept in mind that mens rea requirements vary and include, for example: (1) a subjective intention to bring about a prohibited consequence; (2) a subjective awareness of prohibited circumstances; and (3) objective fault. Where the offence charged requires proof of subjective intent to bring about a particular consequence, the claim that the accused did not intend to bring about that consequence, making it a mere accident, is legally relevant, as it could negate the mens rea required for a conviction.

By contrast, where the offence only requires a subjective awareness of particular circumstances, an accused’s claim that the consequences of his act were unintentional and unexpected, making those consequences a mere accident, is naturally of no assistance. Finally, if the offence requires proof of objective fault — for instance, that the prohibited consequence was objectively foreseeable — then a claim of accident could negate that fault element if the prohibited consequence was such a chance occurrence that the trier of fact is left in a state of reasonable doubt as to whether, objectively, it was foreseeable.

To avoid confusion in future cases, trial judges should focus on the questions of voluntariness and/or negation of mens rea , as appropriate, when instructing jurors on the so-called “defence” of “accident”.

(7) Instructions Addressing Prejudice Against Indigenous Women and Girls in Sexual Assault Cases There is no denying that Indigenous people — in particular Indigenous women, girls, and sex workers — have endured serious injustices, including high rates of sexual violence. Furthermore, the Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system.

With this in mind, our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous women and sex workers. As an additional safeguard going forward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls. However, any such instruction must not privilege the rights of the complainant over those of the accused.

The objective would be to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in the particular case and attempt to remove them from the jury’s deliberative process in a fair, balanced way, without prejudicing the accused.

(8) New Trial Applying the test set out in R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609, a new trial on unlawful act manslaughter is warranted. The failure to implement the s. 276 regime carried a significant risk that the jury would, whether consciously or unconsciously, engage in impermissible forms of reasoning on the central questions of whether the deceased subjectively consented to the sexual activity in question and, if not, whether the accused honestly but mistakenly believed she communicated her consent to that sexual activity at the time it occurred.

The trial judge’s failure to implement the s. 276 regime was exacerbated by, and was inseparable from, the failure to caution the jury against mistakes of law masquerading as mistakes of fact when considering the defence of honest but mistaken belief in communicated consent. It can reasonably be thought that the trial judge’s errors had a material bearing on the accused’s acquittal for unlawful act manslaughter, and therefore a new trial should be ordered on that offence. However, a new trial on first degree murder is not warranted.

The Crown’s case on first degree murder turned primarily on its expert evidence that the deceased’s fatal wound was a cut. Evidently, the jury was not persuaded. Moreover, the Crown provided no

plausible explanation for how the jury could have used prior sexual activity evidence to improperly reason its way through the firstdegree murder charge. Furthermore, the Crown acknowledged in the court below that the only ground of appeal implicating the murdercharge was the motive issue. However, the motive instructions were not tainted by reversible error.

Finally, there was a simple andobvious explanation for why the jury unanimously acquitted the accused of murder that does not require the Court to speculate about thepotential influence of conscious or unconscious bias: the Crown’s theory simply did not hold up under scrutiny. Per Wagner C.J. and Abella and Karakatsanis JJ. (dissenting in part):

Section 276 makes evidence of a complainant’s priorsexual activity inadmissible unless the accused complies with the criteria and procedures set out in ss. 276, 276.1 and 276.2. In this case,the trial judge permitted the accused to lead such evidence without following the procedure required by s. 276, thereby allowing him tomake unrestricted reference to the victim’s sexual history. He also failed to give the jurors any kind of limiting instruction to advise themthat such evidence could not be used to show that the victim was more likely to have consented.

All of this was compounded by the factthat the trial judge permitted, on dozens of occasions, the deceased to be referred to as a Native prostitute without providing anyinstruction to guard against potential prejudicial reasoning based on these descriptions. There was thus no filter for the victim’s priorsexual history and no specific warning to the jury to avoid drawing prejudicial and stereotypical assumptions about Indigenous womenworking in the sex trade. This left the jury with an essentially unchallenged version of the accused’s interactions with the victim.

Thetrial judge failed to appreciate that the victim’s prior sexual conduct, occupation and race required the jury to be specifically alerted tothe dangers of discriminatory attitudes toward Indigenous women, particularly those working in the sex trade. He provided no specificinstructions crafted to confront the operative social and racial bias potentially at work. This rendered the whole trial unfair.

The devastatingly prejudicial effects of this error cannot be said to be confined to the included offence of manslaughter, butmay also have had a material bearing on the jury’s reasoning on the charge of first degree murder. The prejudicial impact of theaccused’s detailed testimony — without either the screening required by s. 276 or any limiting instructions — necessarily infected thewhole trial and the entirety of the jury’s fact-finding process.

Indeed, the jury’s portrait of the victim was painted almost exclusivelythrough the accused’s testimony, which meant that there was a significant possibility that the jury’s entire deliberations would have beenbased on fundamentally flawed — and prohibited — legal premises. The potential for prejudicial reasoning was further exacerbated by the repeated description of the victim as a “prostitute”,and as a “Native”, without any limiting instruction from the trial judge. Specific safeguards are required in jury trials to prevent thesystemic biases that can affect jury deliberations.

Trial judges have an important role to play in instructing juries so that they canrecognize and set aside racial and other biases, including those against Indigenous peoples and sex trade workers. Acknowledging, as thisCourt has for the last two decades, that racial prejudice is a social fact not capable of reasonable dispute, is not an insult to the jurysystem, it is a wake-up call to trial judges to be acutely attentive to the undisputed reality of pervasive prejudice and to provide the juryinstructions required by law.

Not only did that not happen here, the opposite occurred: inflammatory terminology was frequent, and wasgratuitously used without any corrective intervention by the trial judge. In

summary, the trial judge’s failure to apply the requirements in s. 276 created a significant risk that the evidence of thevictim’s prior sexual conduct not only tainted the jury’s perception of her character and conduct, but also fundamentally affected thefactual foundation upon which their deliberations were based. This error permeated the entire trial and may have had a material bearingon the jury’s deliberations, affecting their verdicts for both murder and manslaughter.

Given the prejudicial impact of these references,and the risk that they would affect the jury’s assessment of the victim and the accused’s credibility, it is difficult to see how it isrealistically possible to conclude that their effect was confined to the jury’s verdict on manslaughter. The risk of harmful effects on thejury’s deliberations on murder would have been no less profound. When a trial with intimately connected issues, such as this one, isriddled with highly prejudicial testimony, it affects the very foundations of a jury’s fact-finding function and decision making.

In addition, the trial judge’s error in the instruction on after-the-fact-conduct is significant. In his own testimony, the accusedadmitted to lying, disposing of evidence and providing contradictory exculpatory explanations to numerous people after the victim’sdeath. It was open to the jury to conclude that additional incriminating after-the-fact conduct evidence came from the hotel video camerafootage, physical evidence found by the police, and the testimony of numerous individuals. The accused did not call 911 immediatelyafter finding the victim in the bathtub.

Instead there was evidence that he attempted to erase his link to the scene by attempting to cleanthe bathroom, re-arranging the bedding, putting his belongings in his van, checking out of the hotel room, and that he attempted toconceal and destroy evidence by throwing the bloody towel he had used to wipe the victim’s blood from his feet and the bathroom floorinto a garbage can in the parking lot of the hotel. He also concocted and fabricated multiple stories and excuses.

There is a strongpossibility that, properly instructed, it would have had a material bearing on the jury’s assessment of the accused’s testimony and,ultimately, its verdict. Instead, the jury was given contradictory and confusing directions. In effect, the trial judge did not leave it open to the juryto consider the impact of the after-the-fact conduct evidence, such as the admitted exculpatory lies the accused told after the victim’sdeath, except when such evidence favoured an acquittal.

Juries, although expected to apply common sense, are above all expected to follow the instructions given by the trial judge.Where those instructions are confusing and contradictory, there is no roadmap for common sense to follow. Cases Cited By Moldaver J. Referred to: R. v. Creighton, (SCC), [1993] 3 S.C.R. 3; R. v. Evans, (SCC), [1993] 2S.C.R. 629; R. v. Varga (1994), 180 O.R. (3d) 784; Wexler v. The King, (SCC), [1939] S.C.R. 350; Savard v. The King, (SCC), [1946] S.C.R. 20; R. v. Penno, (SCC), [1990] 2 S.C.R. 865; R. v. Egger, (SCC),[1993] 2 S.C.R. 451; Cullen v. The King, (SCC), [1949] S.C.R. 658; R. v.

George, (SCC), [1960] S.C.R.871; R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314; Thériault v. The Queen, (SCC), [1981] 1 S.C.R.336; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187; R. v. Mian, 2014 SCC 54,[2014] 2 S.C.R. 689; R. v. Morgentaler, (SCC), [1993] 1 S.C.R. 462; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v.

Mack, 2014 SCC 58, [2014] 3 S.C.R. 3; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351; R. v. Seaboyer, (SCC), [1991] 2S.C.R. 577; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Boone, 2016 ONCA 227, 347 O.A.C. 250; R. v. W.H., 2015 ONSC3087; R. v. Crosby, (SCC), [1995] 2 S.C.R. 912; R. v. Harris (1997), (ON CA), 118 C.C.C. (3d)498; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; Nowegijick v. The Queen, (SCC),[1983] 1 S.C.R. 29; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v.J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. Hutchinson, 2014 SCC 19,[2014] 1 S.C.R. 346; R. v. Esau, (SCC), [1997] 2 S.C.R. 777; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3; R. v.Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627; R. v. Park, (SCC), [1995] 2 S.C.R. 836; Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120; R. v. Forster, (SCC), [1992] 1 S.C.R. 339; R. v. MacDonald, 2014 SCC 3,[2014] 1 S.C.R. 37; R. v. M. (M.L.), (SCC), [1994] 2 S.C.R. 3; R. v. Cornejo (2003), (ON CA), 68O.R. (3d) 117; R. v.

Darrach (1998), (ON CA), 38 O.R. (3d) 1, aff’d 2000 SCC 46, [2000] 2 S.C.R. 443; R. v.Gagnon, 2018 SCC 41, [2018] 3 S.C.R. 3; R. v. Despins, 2007 SKCA 119, 228 C.C.C. (3d) 475; R. v. Dippel, 2011 ABCA 129, 281C.C.C. (3d) 33; R. v. Flaviano, 2013 ABCA 219, 368 D.L.R. (4th) 393, aff’d 2014 SCC 14, [2014] 1 S.C.R. 270; Lewis v. The Queen, (SCC), [1979] 2 S.C.R. 821; R. v. McMaster (1998), (ON CA), 37 O.R. (3d) 543; R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944; R. v. Bouchard, 2013 ONCA 791, 314 O.A.C. 113, aff’d 2014 SCC 64, [2014] 3 S.C.R.283; R. v. White, (SCC), [1998] 2 S.C.R. 72; R. v.

Cooper, (SCC), [1993] 1 S.C.R. 146; R. v. Sutton,2000 SCC 50, [2000] 2 S.C.R. 595; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438;R. v. Corbett, (SCC), [1988] 1 S.C.R. 670; R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; R. v. Zhao, 2013 ONCA 293,305 O.A.C. 290; R. v. Quashie (2005), (ON CA), 198 C.C.C. (3d) 337; R. v. Nelson, 2014 ONCA 853, 318 C.C.C.(3d) 476; R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760; R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63; R. v. Parris, 2013ONCA 515, 300 C.C.C. (3d) 41; R. v. Primeau, 2017 QCCA 1394, 41 C.R. (7th) 22; R. v.

Williams, (SCC), [1998] 1S.C.R. 1128; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Ewert v.Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396. By Abella and Karakatsanis JJ. (dissenting in part) R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v.Williams, (SCC), [1998] 1 S.C.R. 1128; R. v. Parks (1993), (ON CA), 84 C.C.C. (3d) 353; R. v.Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; R. v. White, (SCC), [1998] 2 S.C.R. 72; R. v.

Hebert, (SCC), [1996] 2 S.C.R. 272; R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; R. v. Suter,2018 SCC 34, [2018] 2 S.C.R. 496. Statutes and Regulations Cited Act to Amend the Criminal Code (sexual assault), S.C. 1992, c. 38. Bill C-51,

An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act,1st Sess., 42nd Parl., 2018. Canadian Charter of Rights and Freedoms, ss. 7, 11(d), (h), 15. Criminal Code, R.S.C. 1985, c. C-46, ss. 19, 150.1(4), 222(5)(a), 231(5)(c), 234, 235, 265(2), (4), 271, 272, 273, 273.1(1), (2), (3),273.2 [ad. 1992, c. 38, s. 1], 276, 276.1 to 276.4. Authors Cited Anderson, Michelle J. “Time to Reform Rape Shields Laws: Kobe Bryant Case Highlights Holes in the Armour” (2004), 19 Crim. Just.14.

Benedet, Janine. “Marital Rape, Polygamy, and Prostitution: Trading Sex Equality for Agency and Choice?” (2013), 18 Rev. Const. Stud.161. Benedet, Janine. “Sexual Assault Cases at the Alberta Court of Appeal: The Roots of Ewanchuk and the Unfinished Revolution” (2014),52 Alta. L. Rev. 127. Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, No. 77, 1st Sess.,32nd Parl., April 22, 1982, at p. 77:29. Canada. National Inquiry into Missing and Murdered Indigenous Women and Girls. Interim Report. Our Women and Girls Are Sacred.Vancouver: Privy Council, 2017.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 2nd ed. Toronto: Canada Law Book, 1987 (loose-leaf updated December2018, release 150). Jiwani, Yasmin, and Mary Lynn Young. “Missing and Murdered Women: Reproducing Marginality in News Discourse” (2006), 31 Can.J. Commun. 895. Manning, Mewett & Sankoff: Criminal Law, 5th ed., by Morris Manning and Peter Sankoff. Markham, Ont.: LexisNexis, 2015. McWilliams’ Canadian Criminal Evidence, 5th ed., by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds.

Toronto: CanadaLaw Book, 2017 (loose-leaf updated 2018, release 5).

Sheehy, Elizabeth A. “Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women”, in Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’s Activism . Ottawa: University of Ottawa Press, 2012. Stewart , Hamish C . Sexual Offences in Canadian Law . Aurora, Ont.: Canada Law Book, 2004 (loose-leaf updated December 2018, release 32). Vandervort, Lucinda. “The Prejudicial Effects of ‘Reasonable Steps’ in Analysis of Mens Rea and Sexual Consent: Two Solutions” (2018), 55 Alta. L. Rev. 933.

APPEAL from a judgment of the Alberta Court of Appeal (Fraser C.J. and Watson and Martin JJ.A.), 2017 ABCA 216 , 55 Alta. L.R. (6th) 1, 38 C.R. (7th) 316, 386 C.R.R. (2d) 104, 354 C.C.C. (3d) 245, [2017] A.J. No. 681 (QL), 2017 CarswellAlta 1167 (WL Can.), setting aside the acquittal of the accused and ordering a new trial. Appeal allowed in part, Wagner C.J. and Abella and Karakatsanis JJ. dissenting in part. Peter Sankoff, Dino Bottos, Jacqueline Petrie and Austin Corbett , for the appellant. Joanne B. Dartana and Christine Rideout , for the respondent. Jeffrey G.

Johnston , for the intervener the Attorney General of Canada. Christine Bartlett-Hughes , Benita Wassenaar and Kate Forget , for the intervener the Attorney General of Ontario. Andrej Skoko and Isabelle Doray , for the intervener the Director of Criminal and Penal Prosecutions. Jennifer Mann and Renée Lagimodière , for the intervener the Attorney General of Manitoba.

Janine Benedet and Gwendoline Allison , for the intervener the Vancouver Rape Relief Society, La Concertation des luttes contre l’exploitation sexuelle, the AWCEP Asian Women for Equality Society, the Aboriginal Women’s Action Network, the Formerly Exploited Voices Now Educating and the Centre to End All Sexual Exploitation. Julie McGregor and Stuart Wuttke , for the intervener the Assembly of First Nations. Christian Leblanc and Tess Layton , for the intervener the Ad Idem / Canadian Media Lawyers Association. Jean Teillet , for the intervener the Women of the Métis Nation / Les Femmes Michif Otipemisiwak.

Christa Big Canoe and Fanny Wylde , for the intervener the National Inquiry into Missing and Murdered Indigenous Women and Girls. Daniel J. Song and Matthew A. Nathanson , for the intervener the Independent Criminal Defence Advocacy Society. Megan Savard , for the intervener the Criminal Lawyers’ Association of Ontario. Shaun O’Brien and Beverly Jacobs , for the interveners the Institute for the Advancement of Aboriginal Women and the Women’s Legal Education and Action Fund Inc. Cheryl Milne , for the intervener the David Asper Centre for Constitutional Rights. Jonathan Rudin and Emily R.

Hill , for the intervener the Aboriginal Legal Services. Nathan J. Whitling , for the intervener the Criminal Trial Lawyers’ Association (Alberta). The judgment of Moldaver, Côté, Brown and Rowe JJ. was delivered by Moldaver J. — TABLE OF CONTENTS Paragraph I. Overview 1 II. Background 12 A. Sexual Activities and Ms. Gladue’s Death 12

(1) First Night 13

(2) Second Night 14 B. Mr. Barton’s After-the-Fact Conduct 19 C. Position of the Crown 26 D. Position of the Defence 32 III. Decisions Below 36 A. Alberta Court of Queen’s Bench (Graesser J., Sitting with a Jury) 36 B. Alberta Court of Appeal (Fraser C.J.A., Watson and Martin JJ.A.) 37

IV. Issues 43 V. Analysis 45 A. Procedural Fairness Principles 45

(1) The Crown’s Limited Right to Appeal an Acquittal 46

(2) New Issues Raised by Appellate Courts 50

(3) The Proper Scope of Intervener Submissions in Criminal Appeals 52 B. Standard of Review for Reversible Error 54 C.

Section 276 and Prior Sexual Activity Evidence 55

(1) A Brief History of the

Section 276 Regime 55

(2) The

Section 276 Regime 59

(3) Proceedings Below 66

(4) Procedural Fairness Argument 68

(5) The Applicability of the

Section 276 Regime 70 D. Instructions on the Defence of Honest but Mistaken Belief in Communicated Consent 86

(1) Legal Principles 86

(2) Instructions on the Defence of Honest but Mistaken Belief in Communicated Consent 114

(3) Mistakes of Law in Mr. Barton’s Defence 116

(4) Additional Guidance on Air of Reality Test and Reasonable Steps 120

(5) Determination of the “Sexual Activity in Question” 124 E. Instructions on Motive 130

(1) Motive 130

(2) Proceedings Below 133

(3) Discussion 136 F. Instructions on the Objective Fault Element of Unlawful Act Manslaughter 140

(1) Proceedings Below 140

(2) Discussion 143 G. Instructions on After-the-Fact Conduct 144

(1) Proceedings Below 144

(2) Discussion 149 H. New Trial 159

(1) A New Trial on Unlawful Act Manslaughter Is Warranted 161

(2) A New Trial on First Degree Murder Is Not Warranted 165 I. Other Issues 179

(1) Vitiation of Consent to Sexual Activity for Public Policy Reasons 180

(2) Instructions on the “Defence” of “Accident” 183

(3) Instructions Addressing Prejudice Against Indigenous Women and Girls in Sexual Assault Cases 195

(4) Language Used to Address Ms. Gladue at Trial 205

(5) Intervener Submissions Before the Court of Appeal 208

(6) Other Issues Considered by the Court of Appeal 209 VI. Conclusion 210 I. Overview [ 1 ] We live in a time where myths, stereotypes, and sexual violence against women [1] — particularly Indigenous women and sex workers — are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society.

While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can — and must — do better. [ 2 ] This appeal centres on the death of Cindy Gladue and Bradley Barton’s role in that death. Ms. Gladue, an Indigenous woman and a sex worker, was found dead in the bathroom of Mr. Barton’s Edmonton hotel room with an 11 cm wound in her vaginal wall. Mr.

Barton, who was in town for a moving job, was charged with first degree murder. [ 3 ] At trial before a judge and jury, the Crown’s theory was that on the night of Ms. Gladue’s death, during the course of commercial sexual activities while she was incapacitated by alcohol, Mr. Barton cut the inside of her vagina with a sharp object with intent to seriously harm or kill her. He then carried her to the bathroom where she bled to death. This was, in the Crown’s submission, murder while committing sexual assault with a weapon. As such, it constituted first degree murder.

Alternatively, the Crown took the position that if Mr. Barton did not murder Ms. Gladue, he committed unlawful act manslaughter by causing her death in the course of a sexual assault. [ 4 ] Mr. Barton told a different story. He testified that he and Ms. Gladue engaged in “similar” consensual sexual activity on both the night leading up to her death and the previous night. On both occasions, he said, he formed his fingers into a cone and penetrated her vagina, thrusting repeatedly.

He claimed that on the second night, after thrusting deeper, more forcefully, and for a longer duration, she started to bleed unexpectedly, at which point the sexual activity came to a halt. Ms. Gladue then went into the bathroom and he promptly fell asleep, only to awake the next morning to find her dead in the bathtub. He said that after discovering her lifeless body, he left the hotel in a panic, returned, called 911, and fabricated different versions of a false story. Although he admitted at trial that he tore her vaginal wall and thereby caused her death, he claimed this was a non-culpable “accident”.

He denied ever using a sharp object and asserted that she consented to the sexual activities in question — or at least he honestly believed she did.

[ 5 ] At trial, although Mr. Barton testified at length about his sexual activity with Ms. Gladue on the night before her death, no application was made, and no separate hearing held, to determine the admissibility of that evidence. Nor was the jury given any limiting instruction identifying the purposes for which that evidence could and could not be used — this, despite the regime under s. 276 of the Criminal Code , R.S.C. 1985, c. C-46 , which imposes these and other requirements. [ 6 ] After having received the trial judge’s final charge outlining the legal principles to be applied, the jury acquitted Mr.

Barton of first degree murder and the included offence of unlawful act manslaughter. The Crown appealed, seeking a new trial. [ 7 ] In lengthy and detailed reasons, the Alberta Court of Appeal identified a list of errors that it said warranted a new trial. In addition, the Court of Appeal expressed serious concern that nationally used pattern jury charges on sexual offences contribute to stereotypes, cause persistent analytical problems in applying the law, and exacerbate inequality, leading it to recommend new pattern jury instructions. In the result, the Court of Appeal allowed the Crown’s appeal, set aside Mr.

Barton’s acquittal, and ordered a new trial on first degree murder. [ 8 ] Mr. Barton now appeals to this Court. He maintains that he was denied procedural fairness at the Court of Appeal and that the legal errors identified by that court were either non-existent or of no moment. On this basis, he asks that his acquittal be restored. The Crown, for its part, maintains that the Court of Appeal observed the requirements of procedural fairness and its decision to order a new trial on first degree murder was sound. [ 9 ] For reasons that follow, I am of the view that a new trial is warranted.

The central error committed by the trial judge was his failure to comply with the mandatory requirements set out under the s. 276 regime. That error had ripple effects, most acutely in the instructions on the defence of honest but mistaken belief in communicated consent, upon which Mr. Barton relied. [2] In particular, non-compliance with the s. 276 regime, which serves a crucial screening function where an accused relies on the complainant’s prior sexual activities in support of his defence, translated into a failure to expose and properly address misleading evidence and mistakes of law arising from Mr.

Barton’s defence. This in turn resulted in reversible error warranting a new trial. [ 10 ] That said, I am respectfully of the view that the new trial should be restricted to the offence of unlawful act manslaughter, not murder. As I will develop, in view of the position taken by the Crown at trial, the charge of murder against Mr. Barton hinged on a relatively straightforward factual question: In causing Ms. Gladue’s death, did Mr. Barton use a sharp object?

If he did, then all that was left to prove was that he had the requisite intent for murder, a proposition which would follow readily from evidence that he used a sharp object. If he did not, then in view of the position taken by the Crown, the charge of murder could not be sustained. Evidently, the jury rejected the Crown’s sharp object theory, and as I will demonstrate, none of the legal errors committed in the course of the trial had a material bearing on the murder charge. In the circumstances, I am of the view that it would be inappropriate to require Mr.

Barton to face a new trial on first degree murder. [ 11 ] Accordingly, I would allow the appeal in part and order a new trial on unlawful act manslaughter. II. Background A. Sexual Activities and Ms. Gladue’s Death [ 12 ] In June 2011, Mr. Barton, a large and strong man who works as a mover, rented an Edmonton hotel room for two nights while on a long-haul moving job with two colleagues. On both nights, he engaged in commercial sexual activities with Ms. Gladue, a 36-year-old Indigenous woman of Métis and Cree ancestry and a sex worker. What happened on those two nights was largely contested at trial.

(1) First Night [ 13 ] Mr. Barton testified that on the first night, he agreed to pay Ms. Gladue $60 for “everything”, which he defined as “intercourse, sex”. He said that in his hotel room, she performed oral sex on him, and at the same time he formed his fingers into a cone and inserted his hand into her vagina, thrusting repeatedly “just past the knuckle” for 5 to 10 minutes . He described her body language as being “good” throughout, and he did not notice any “problems or difficulties or disagreement on her part” (A.R., vol. IV, at p. 237). They then had vaginal intercourse, after which they exchanged phone numbers and she left for the night.

(2) Second Night [ 14 ] On the second night, Mr. Barton called Ms. Gladue and they agreed to meet at the hotel bar, where Mr. Barton was having drinks with one of his work colleagues. At the bar, Ms. Gladue placed her leg over Mr. Barton’s lap and they were acting friendly towards one another, with Mr. Barton touching and stroking Ms. Gladue’s leg. She had a couple of drinks while at the bar. [ 15 ] After last call, Mr. Barton, Ms. Gladue, and Mr. Barton’s work colleague got up and left. On the way back to his room, Mr. Barton asked his colleague if he wanted “a piece” of Ms. Gladue.

His colleague declined, so Mr. Barton and Ms. Gladue proceeded to Mr. Barton’s room alone. [ 16 ] Mr. Barton testified that while he and Ms. Gladue did not discuss what sexual activities would be performed that night in his hotel room, they agreed to the same price as the night before and Ms. Gladue “[knew] what she was coming for” (A.R., vol. IV, at p. 253). He said that after the two each had a beer in his room, he said, “Cindy, let’s get at this”, to which she replied, “okay”. She then went into the bathroom and came out nude, then sat on the corner of the bed.

He said he asked her if she was “all good to go and ready” and she replied, “yeah”. [ 17 ] Mr. Barton testified that Ms. Gladue, while seated at the corner of the bed, “pulled [him] in” and performed oral sex on him while he was standing, and he then began thrusting his fingers into her vagina (A.R., vol. IV, at p. 255). He admitted that the thrusting on the second night, which he said lasted about 10 minutes, was “[a] little harder than the night before. And maybe . . . a little farther” — 1 or 2 centimetres past his knuckles ( ibid ., at p. 256) . He said that as he was thrusting, “[c]ommunication was good” and

“[t]here was moaning and groaning going on, all good signs, working it really good, thrusting. It was good. All signs were go”. Heagreed in chief that she never “express[ed] any disagreement”. He also said that she was expressing pleasure through “moans andgroans” and that she was making “good moans”. [18] Mr. Barton testified that he stopped thrusting and noticed blood on his fingers. He said he asked Ms. Gladue whethershe was on her period and she replied, “Maybe I am”.

He said he was no longer interested in having sex with her and refused to pay her.He then cleaned up in the bathroom, came back, and told her to wash up and leave. He said she then went into the bathroom, after whichhe promptly fell asleep. B. Mr. Barton’s After-the-Fact Conduct [19] Mr. Barton testified that he awoke to find Ms. Gladue dead in a pool of blood in the bathtub and panicked. He steppedin the blood, grabbed a towel, cleaned his feet and part of the floor, got dressed, and left the room. He threw the bloody towel in agarbage bin outside, where it was later recovered by the police.

He put his bag in his van, went back to the hotel, and checked out. [20] Mr. Barton then went back to his van, where he was joined by one of his work colleagues. The colleague told Mr.Barton they were going to have a good day, to which Mr. Barton replied: “Not until the police come”. He then told his colleague thatthere was a girl in his room bleeding. He claimed he did not know her; she had just showed up at his hotel door the night before andasked to take a shower and he let her in. His colleague told him to go back to the hotel and call 911. [21] Mr.

Barton returned to the hotel and asked the clerk for a new key card, claiming he had forgotten some papers. Hethen dialed 911 using the hotel room phone and asked for the police. He told the operator that a girl he did not know knocked on his doorthe night before and wanted to use his shower, and he went to bed and woke up the next morning to find her dead in his bathtub. He toldthe operator he was “shaking like crazy” and “scared shitless” (R.R., at pp. 39-40). [22] When the police arrived, Mr. Barton told an officer that “I didn’t do anything. I’m married, and I don’t do this stuff”(R.R., at p. 35).

Later that day, Mr. Barton met up with one of his colleagues at the truck stop and explained that he was “fingering” Ms.Gladue when she started to bleed, at which point he said “that was enough of that” and “passed out” (A.R., vol. III, at p. 125). [23] An autopsy, performed on Ms. Gladue the day after her death, revealed an 11 cm wound that went completelythrough, and ran almost the full length of, her vaginal wall. Cause of death was determined to be loss of blood due to her injury. [24] The following day, the police arrested Mr. Barton in Calgary and transported him back to Edmonton in a van.

Whilein the van, Mr. Barton initiated a conversation with an undercover officer posing as a fellow prisoner. Mr. Barton said he rented the hotelroom but let two guys who were working with him sleep in it while he slept in his truck. He said that he entered the room in the morningto find the room trashed and a girl sitting in the bathtub covered in blood, prompting him to call the police immediately. He denied anywrongdoing. [25] Mr. Barton was charged with first degree murder. C. Position of the Crown [26] The Crown’s case on first degree murder hinged on its submission that Mr. Barton cut Ms.

Gladue’s vaginal wallusing a sharp object, intending to seriously harm or kill her. The Crown maintained that after he cut her, he carried her to the bathroomand placed her in the bathtub where she bled to death. This was, in the Crown’s submission, murder while committing sexual assaultwith a weapon. As such, it constituted first degree murder under ss. 231(5)(

c) and 235 of the Code. While no “murder weapon” wasfound, the Crown hypothesized that Mr. Barton might have disposed of it in a grassy area near the hotel. [27] Alternatively, the Crown took the position that if Mr. Barton did not murder Ms. Gladue, he committed unlawful actmanslaughter contrary to ss. 222(5)(

a) and 234 of the Code by causing her death in the course of a sexual assault (see R. v. Creighton, (SCC), [1993] 3 S.C.R. 3). While the Crown spent relatively little time developing this alternative theory at trial, itidentified three independent routes to a manslaughter conviction, all of which rested on a finding of sexual assault against Ms. Gladue,which in turn hinged on proof of one of the following: lack of capacity to consent on Ms. Gladue’s part due to intoxication; lack of actualconsent on her part; or vitiation of consent due to public policy reasons — namely, because Mr.

Barton intentionally caused bodily harmto her in the course of otherwise consensual sexual activities. [28] Two Crown experts testified that the wound which led to Ms. Gladue’s death was caused by a sharp object. Theseexperts considered that there was an absence of “bridging” — that is, small tissue fibres across the mouth of the wound — that wouldcharacterize a laceration (the tearing of soft body tissue) caused by blunt force trauma. The Crown also adduced an opinion from one ofits experts that in order to cause Ms.

Gladue’s injury by insertion of one’s fingers and hand into her vagina, it would have taken“extreme”, “excessive”, or “considerable” force (A.R., vol. IV, at pp. 78-79). The expert defined “considerable” force to mean “anindependent witness . . . would know . . . you’re going to hurt that person” (ibid., at p. 78). [29] In addition, the Crown led toxicology evidence showing that Ms. Gladue’s blood alcohol concentration at the time ofdeath was 340 mg, over four times the legal limit to drive. Relying on this and other evidence, the Crown theorized that Ms.

Gladue wasincapacitated and lying in the middle of the bed when Mr. Barton used a sharp object to cut her. [30] The Crown also adduced evidence from an expert bloodstain analyst who noted that while bloodstains were found atthe centre of the bed, none were found on the corner of the bed where Mr. Barton said Ms. Gladue was sitting, nor was there any bloodon the carpet across which Ms. Gladue would have had to walk to enter the bathroom on her own. [31] Finally, Crown counsel took the position that Mr.

Barton’s after-the-fact conduct — that is, the things he said and didafter the alleged commission of the offence — betrayed his consciousness of guilt and belied his claim that Ms. Gladue’s death was amere “accident”.

D. Position of the Defence [ 32 ] In his defence, Mr. Barton denied using a sharp object. He also relied on the evidence of an expert who, unlike the Crown experts, noticed significant bridging in Ms. Gladue’s wound and testified that it was a laceration resulting from blunt force trauma, not a cut. When presented with a hypothetical mirroring the sexual activity Mr. Barton said took place on the second night, the defence expert agreed that such activity could have caused the injury.

She further stated that a number of factors might affect the strength of a woman’s vaginal wall (e.g., age, nutrition, alcoholism, frequent sexual activity), and if the kind of sexual activity described by Mr. Barton did in fact occur on the first night, then that too could have weakened Ms. Gladue’s vaginal wall on the second night. [ 33 ] The defence further took the position that Ms. Gladue was only moderately intoxicated on the second night, relying on video evidence of her walking in the hotel hallway, evidence from various witnesses, and Mr. Barton’s own testimony. The defence also maintained that Ms.

Gladue consented to the sexual activity that occurred on both nights. In his closing address to the jury, defence counsel submitted that it was evident she consented on the second night because she left her clothes in the bathroom, came out naked, and “[s]he’s a prostitute, and she’s consenting to the sex” (A.R., vol. V, at p. 205). Counsel maintained that, in any event, “Mr. Barton would have obviously believed that she was consenting to sex” ( ibid. ), and therefore he could rely on the defence of honest but mistaken belief in communicated consent.

Counsel stressed that there were “no groans of disagreement, in fact, only groans of agreement” and “there [were] no signs that she was in disagreement” ( ibid. ). Counsel also emphasized that the sexual activity was essentially the same both nights, the only difference being the depth of thrusting, and “Mr. Barton believes she consented night number one, night number two” ( ibid. ). [ 34 ] The defence conceded several elements of unlawful act manslaughter — in particular, the defence conceded that Mr. Barton caused Ms.

Gladue’s death and the sexual activity in question was inherently dangerous and posed an objectively foreseeable risk that Ms. Gladue would suffer bodily harm. However, the defence maintained that this death was a mere “accident”, which he claimed was antithetical to an intention to cause bodily harm and therefore did not amount to a vitiation of consent. [ 35 ] Mr. Barton also admitted to virtually all of the after-the-fact conduct revealed in the Crown’s case.

He acknowledged that he told a string of lies but said he was in a state of shock, panic, and fear that his wife and employer would find out that he was involved with a sex worker. He also said he lied because he was suspicious of everyone with whom he spoke. III. Decisions Below A. Alberta Court of Queen’s Bench (Graesser J., Sitting with a Jury) [ 36 ] Mr. Barton was tried before a judge and jury. Crown and defence counsel assisted the trial judge in drafting his final charge to the jury outlining the legal principles to be applied. Following deliberation, the jury acquitted Mr.

Barton of first degree murder and the included offence of unlawful act manslaughter. B. Alberta Court of Appeal (Fraser C.J.A., Watson and Martin JJ.A.), 2017 ABCA 216 , 55 Alta. L.R. (6th) 1 [ 37 ] The Crown appealed Mr. Barton’s acquittal and sought a new trial.

It alleged four errors of law in its notice of appeal and factum before the Court of Appeal: (1) erroneous jury instructions on manslaughter; (2) erroneous jury instructions on motive; (3) the failure to hold a s. 276 hearing; and (4) erroneous jury instructions that a complainant’s consent to sexual activity on a previous occasion could support the defence of honest but mistaken belief in communicated consent on a later occasion. [ 38 ] Two interveners were granted leave to make submissions on the definition of “sexual activity” under s. 273.1(1), the procedure required under the s. 276 regime, and the meaning of “consent” from a substantive equality perspective (see 2016 ABCA 68 , 37 Alta.

L.R. (6th) 253, at paras. 12-13 ). [ 39 ] In lengthy and detailed reasons, the Court of Appeal allowed the Crown’s appeal, identifying a list of errors that, in its view, each independently warranted a new trial, including: (1) erroneous jury instructions on after-the-fact conduct; (2) erroneous jury instructions on motive; (3) the failure to conduct a s. 276 hearing; (4) the failure to define the “sexual activity in question”; (5) the failure to accurately define the required elements of sexual assault (in particular, consent, honest but mistaken belief in communicated consent, and the reasonable steps requirement); and (6) the failure to define the elements of unlawful act manslaughter (namely, dangerousness and the mens rea of objectively foreseeable risk of bodily harm). [ 40 ] In addition, the Court of Appeal expressed serious concern that national pattern jury charges on sexual offences contribute to stereotypes, cause persistent analytical problems in applying the law, and exacerbate inequality, leading it to recommend new pattern charges. [ 41 ] In the result, the Court of Appeal allowed the Crown’s appeal, set aside Mr.

Barton’s acquittal, and ordered a new trial on first degree murder. [ 42 ] Mr. Barton now appeals to this Court. IV. Issues [ 43 ] I would state the main issues on appeal as follows:

(1) Was Mr. Barton denied procedural fairness at the Court of Appeal?

(2) Did the trial judge err in failing to apply the s. 276 regime, and if so, what consequences followed?

(3) Did the trial judge err in his instructions on motive?

(4) Did the trial judge err in his instructions on the objective fault element of unlawful act manslaughter?

(5) Did the trial judge err in his instructions on after-the-fact conduct? [44] If one or more error is shown, then the question becomes whether a new trial is warranted, and if so, on what charge. V. Analysis A. Procedural Fairness Principles [45] Procedural fairness issues weave throughout Mr. Barton’s submissions before this Court. Accordingly, I will firstprovide a brief

summary of the relevant law on three sets of procedural fairness principles relied on by Mr. Barton: (1) the Crown’slimited right to appeal an acquittal, (2) the requirements that must be observed by appellate courts when raising new issues, and (3) theproper scope of intervener submissions in criminal appeals. I will then turn to the substantive issues on appeal, considering Mr. Barton’sprocedural arguments as they arise on an issue-by-issue basis.

(1) The Crown’s Limited Right to Appeal an Acquittal [46] In Canada, the Crown’s right to appeal an acquittal is broader than in most other common law jurisdictions (see R. v.Evans, (SCC), [1993] 2 S.C.R. 629, at pp. 645-46; R. v. Varga (1994), 180 O.R. (3d) 784, at p. 792 (C.A.)). However,as I will explain, it is not without limits. [47] Out of concerns over fairness to the accused and in particular the principle against double jeopardy, which isenshrined in s. 11(

h) of the Canadian Charter of Rights and Freedoms, the Crown is barred from securing a new trial by advancing anew theory of liability for the first time on appeal (see Wexler v. The King, (SCC), [1939] S.C.R. 350; Savard v. TheKing, (SCC), [1946] S.C.R. 20, at pp. 33-34, 37 and 49; R. v. Penno, (SCC), [1990] 2 S.C.R. 865, at pp.895-96; R. v. Egger, (SCC), [1993] 2 S.C.R. 451, at p. 481). Moreover, as Doherty J.A. explained in Varga, “[d]oublejeopardy principles suffer even greater harm where the arguments advanced on appeal contradict positions taken by the Crown at trial”(p. 793).

In short, “[a] Crown appeal cannot be the means whereby the Crown puts forward a different case than the one it chose toadvance at trial” (ibid.). [48] However, the Crown’s failure to object to a misdirection in a jury charge does not necessarily preclude an order for anew trial (see Cullen v. The King, (SCC), [1949] S.C.R. 658, at pp. 664-65; R. v. George, (SCC), [1960]S.C.R. 871, at pp. 875-77 and 890).

In particular, the passive inadvertence of Crown counsel at trial does not waive the public interest ina verdict untainted by materially deficient jury instructions. [49] But even so, when assessing whether an alleged error in a jury charge warrants appellate intervention, the failure toobject “says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection” (R. v.Jacquard, (SCC), [1997] 1 S.C.R. 314, at para. 38; see also Thériault v. The Queen, (SCC), [1981] 1S.C.R. 336, at pp. 343-44; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58; R. v.

Patel, 2017 ONCA 702, 356 C.C.C. (3d)187, at para. 82). This is particularly the case where counsel has specifically endorsed the instruction in question (see Patel, at para. 82).

(2) New Issues Raised by Appellate Courts [50] In R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, this Court established guidelines governing the circumstances andmanner in which appellate courts may raise new issues. “[N]ew issues” are “legally and factually distinct from the grounds of appealraised by the parties” and “cannot reasonably be said to stem from the issues as framed by the parties” (para. 30). While appellate courtsenjoy jurisdiction to raise new issues, they may do so only to avert the risk of an injustice (para. 43).

Where, for example, there is goodreason to believe the result at trial would realistically have differed had the error identified by the appellate court not been made,intervention is warranted (para. 45). [51] When an appellate court decides to raise a new issue, it must give notice to the parties and provide them with anopportunity to respond (para. 54). As a general rule, notice should be given “as soon as is practically possible after the issue crystallizes”(para. 57), and the notice must ensure the parties are sufficiently informed so they may prepare and respond (para. 54).

The form ofresponse required “will depend on the particular issue raised by the court. Counsel may wish to address the issue orally, file furtherwritten argument, or both” (para. 59). At the end of the day, “the underlying concern should be ensuring that the court receives fullsubmissions on the new issue” (ibid.), and the primary considerations are the dictates of natural justice and the rule of audi alterampartem — the duty to hear the other side.

(3) The Proper Scope of Intervener Submissions in Criminal Appeals [52] Finally, there is the role of interveners in criminal appeals. As stated in R. v. Morgentaler, (SCC),[1993] 1 S.C.R. 462, “[t]he purpose of an intervention is to present the court with submissions which are useful and different from theperspective of a non-party who has a special interest or particular expertise in the subject matter of the appeal” (p. 463).

In particular,interveners play a vital role in our justice system by providing unique perspectives and specialized forms of expertise that assist the courtin deciding complex issues that have effects transcending the interests of the particular parties before it. These observations remain as

true in the criminal context as they are in the civil context. [53] However, interveners must not overstep their proper role, particularly in criminal appeals. In fairness to the accused,they must not assume the role of third-party Crown prosecutors, nor can they “widen or add to the points in issue” (Mortgentaler, at p.463), particularly where doing so would widen or add to the Crown’s grounds of appeal from an acquittal. Appellate courts, in turn, havea duty to enforce these principles and protect the accused’s right to a fair trial under ss. 7 and 11(

d) of the Charter by ensuring intervenersdo not stray beyond their proper — and important — role. B. Standard of Review for Reversible Error [54] In Canada, misdirection in a jury charge is an error of law from which the Crown may appeal. When consideringarguments of alleged misdirection, the appellate court must review the charge as a whole from a functional perspective, asking whetherthe jury was properly, not perfectly, equipped to decide the case, keeping in mind that it is the substance of the charge, not adherence toa set formula, that matters (see Jacquard, at para. 62; Daley, at para. 30; R. v.

Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32; R. v.Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 49). Alleged errors must be examined “in the context of the entire charge and of the trialas a whole” (Jaw, at para. 32). C.

Section 276 and Prior Sexual Activity Evidence

(1) A Brief History of the

Section 276 Regime [55] Historically, the Code did not place any specific limits on the admissibility of evidence about a complainant’s priorsexual activities or the uses to which that evidence could be put. Consequently, there was nothing stopping counsel from adducing suchevidence through cross-examination of the complainant and arguing, based on myths and stereotypes that were aided and abetted by thecommon law, that it undermined her credibility or increased the likelihood that she consented to the sexual activity in question becauseshe had a propensity to consent (see H. C.

Stewart, Sexual Offences in Canadian Law (loose-leaf), at § 7:400.10). In this way, evidenceof prior sexual activities was used to “blacken the character of the complainant, distort the trial process, and undermine the ability of thecriminal justice system to effectively and fairly try sexual allegations” (R. v.

L.S., 2017 ONCA 685, 40 C.R. (7th) 351, at para. 79). [56] In 1982, however, as part of a broader legislative package aimed at protecting the integrity of the person, protectingchildren and special groups, safeguarding public decency, and eliminating sexual discrimination, Parliament tabled the first “rape shield”provisions (see Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, No. 77, 1st Sess., 32nd Parl., April 22, 1982, at p. 77:29).[3] These provisions restricted the right of defence counsel in proceedings “in respect of” certain sexualoffences to adduce evidence of a complainant’s sexual conduct on other occasions.

One of the core objectives of these provisions was todebunk the “twin myths”, being the myths that “unchaste women” are (1) more likely to have consented to the sexual activity in questionand (2) less worthy of belief. [57] Almost a decade later, in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, this Court struck down s. 276of the Code, as it then read, which set out a blanket exclusion of sexual activity evidence subject to three exceptions.

The Courtdetermined that although the provision had the laudable goals of abolishing the outmoded, sexist use of sexual activity evidence, it“oversho[t] the mark and render[ed] inadmissible evidence which may be essential to the presentation of legitimate defences and henceto a fair trial” (p. 625). In its stead, the Court articulated common law principles governing the admissibility of sexual activity evidence. [58] In the wake of Seaboyer, Parliament enacted a new s. 276 regime in 1992 through Bill C-49, which ushered in a suiteof major reforms to the law on sexual offences in Canada (see

An Act to Amend the Criminal Code (sexual assault), S.C. 1992, c. 38).The animating purposes behind this new regime, aligned with those of its predecessor, were to protect the integrity of the trial byexcluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences byprotecting the security and privacy of complainants (see Seaboyer, at pp. 605-6; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, atparas. 19 and 25).

It essentially codified the principles set out by this Court in Seaboyer (see Darrach, at para. 20) and establishedsubstantive rules that prevent evidence of a complainant’s sexual activities from being used for improper purposes, backed by proceduralrequirements designed to enforce these rules. This general framework, which survived a constitutional challenge in Darrach, remains inplace today, albeit in amended form.

(2) The

Section 276 Regime[4] [59] Section 276(1) of the Code reads: Evidence of complainant’s sexual activity 276(1) In proceedings in respect of an offence under

section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or

section 170,171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any otherperson, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (

a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or (

b) is less worthy of belief. [60] This

section gives effect to the holding in Seaboyer that the “twin myths”, identified in paras. (

a) and (

b) respectively,

“are simply not relevant at trial” and “can severely distort the trial process” (Darrach, at para. 33). It is “an expression of thefundamental rule that to be admissible, evidence must be relevant to a fact in issue” (L.S., at para. 45), and it confirms that the twin mythssimply “have no place in a rational and just system of law” (Seaboyer, at p. 630). These myths are “prohibited not only as a matter ofsocial policy but also as a matter of ‘false logic’” (R. v. Boone, 2016 ONCA 227, 347 O.A.C. 250, at para. 37, citing R. v.

W.H., 2015ONSC 3087, at para. 10 ; see also Seaboyer, at p. 605). [61] However, under s. 276(2), prior sexual activity evidence[5] adduced by or on behalf of the accused is potentiallyadmissible for other purposes where it meets a three-fold test: Idem 276(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accusedthat the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whetherwith the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with theprocedures set out in sections 276.1 and 276.2, that the evidence (

a) is of specific instances of sexual activity; (

b) is relevant to an issue at trial; and (

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [62] This provision essentially mirrors the common law principles set out in Seaboyer (see Darrach, at para. 38).Importantly, it indicates that evidence of the complainant’s prior sexual activity adduced by or on behalf of the accused is presumptivelyinadmissible unless, after the procedures set out in ss. 276.1 and 276.2 have been followed, the trial judge rules to the contrary, applyingthe

[…]