{"id":11730,"date":"2019-06-28T13:53:09","date_gmt":"2019-06-28T18:53:09","guid":{"rendered":"https:\/\/www.nrlawyers.com\/chinese\/?p=11730"},"modified":"2019-06-28T13:53:09","modified_gmt":"2019-06-28T18:53:09","slug":"supreme-court-of-canada-clarifies-use-of-prior-sexual-activity-and-re-defines-consent-in-honest-but-mistaken-belief-in-consent-defences-in-sexual-assault-cases","status":"publish","type":"post","link":"https:\/\/www.nrlawyers.com\/chinese\/supreme-court-of-canada-clarifies-use-of-prior-sexual-activity-and-re-defines-consent-in-honest-but-mistaken-belief-in-consent-defences-in-sexual-assault-cases\/","title":{"rendered":"Supreme Court of Canada Clarifies Use of Prior Sexual Activity and Re-defines Consent in Honest but Mistaken Belief in Consent Defences in Sexual Assault Cases"},"content":{"rendered":"

Joseph A. Neuberger, LL.B., LL.M., C.S.
\nNeuberger & Partners LLP
\nwww.nrlawyers.com<\/a><\/h3>\n

In a recent precedent setting case out of Alberta, the Supreme Court of Canada
\noverturned Bradley Barton\u2019s manslaughter acquittal and ordered a new trial due to the
\nCrown\u2019s failure to be alert to the issue of the victim\u2019s privacy regarding her sexual
\nhistory.<\/p>\n

Mr. Barton was on trial for first degree murder in the death of an Indigenous woman and
\nsex worker, who was found dead in the bathroom of the accused hotel room. The
\ncause of death was determined to be an 11cm wound in the vaginal wall. The Crown
\nargued two theories for conviction on first degree murder and then alternatively unlawful
\nact manslaughter that would have occurred during the course of a sexual assault. The
\naccused testified and during testimony extensive reference was made to previous
\nsexual activity with the deceased. The evidence was not left to the jury with a limiting
\ninstruction. The accused was acquitted by of first degree murder, and of the alternative
\nCrown theory on the charge of manslaughter however the acquittals were overturned on
\nappeal by the Crown to the Supreme Court. The accused was ordered back to trial but
\nonly on the manslaughter allegation.<\/p>\n

The accused Barton maintained at trial that the death was accidental and relied upon
\nhonest but mistaken belief in consent. The evidence of prior sexual activity was used
\nby the defence throughout the trial and no warnings were given to the jury about how
\nthey could or could not use such evidence. In addition, the Crown introduced the fact
\nthat the deceased, Ms. Gladue, was a sex worker and her and the accused had struck
\nup a working relationship on the night before her death. There was no application by
\nthe accused under ss. 276.1(1) and 276.1(2) of the Criminal Code to adduce evidence
\nof the deceased\u2019s prior sexual activity.<\/p>\n

Although the accused was not charged specifically with a count of sexual assault prior
\nsexual history was a central issue at trial. As such, the Supreme Court dealt with the
\nissue of whether an application under section 276 is required even when it is the
\nprosecution and, not defence that introduces the issue of prior sexual history as part of
\ntheir case. The Supreme Court emphasized that regardless of whether there is a count
\nof sexual assault, prior sexual history, including statements about the particular
\ndeceased being a sex worker, cannot be used by either side to argue what are called
\nthe \u201ctwin myths\u201d; that a person is more likely to have consented or less worthy of belief
\nbecause of previous sexual encounters.<\/p>\n

The Supreme Court ruled that \u201cthis section is categorical in nature and applies
\nirrespective of which party led the evidence.\u201d In the trial the prosecutor repeatedly
\nreferred to Ms. Gladue as an Indigenous \u201cprostitute\u201d which, the defence argued, opened
\nthe door for him to use that evidence in court. Regardless decision clarified that since
\nthe defence was using prior sexual history, a section 276 application was a must.
\nHowever, the Court noted that the prosecutor should only make reference to prior
\nsexual history when \u201cnecessary\u201d and the Court did not bar the Crown from making such
\nreferences without first making an application to do so. The Court noted that a delay in
\nthe midst of a trial is disadvantageous to everyone. Thus the defence must be on guard
\nthat when the Crown introduces such evidence, the defence cannot rely on such
\nevidence without an application.<\/p>\n

As a complicating factor, the recent amendments to the former section 276, introduced
\nan additional layer of delay. Under the current regime a complainant is entitled to
\nindividual counsel with standing to participate in the application process. While the logic
\nof the Supreme Court decision is sound, how to address this particular change in a
\nmurder case and prevent undue delay in cases of sexual assault is yet to be resolved.
\nOn another significant issue, the Barton decision included a clarification by the Supreme
\nCourt of Canada on the issue of the defence of honest but mistaken belief in consent.
\nTo make out this defence, traditionally the accused must adduce evidence that the
\ncomplainant actually communicated consent either by words or conduct. The actus
\nreus means that the complainant in her mind wanted the sexual touching to take place.
\nAt this stage, the focus is placed on the complainant\u2019s state of mind and the accused\u2019s
\nperception of that state of mind is irrelevant. For the purposes of mens rea, and
\nspecifically to make out the defence of honest mistaken belief in consent, consent
\nmeans that the complainant affirmatively communicated by words or conduct her
\nagreement to engage in sexual activity with the accused. The focus thus shifts at this
\nstage to the mental state of the accused, and the question becomes whether the
\naccused honestly believed the complainant effectively said \u201cyes\u201d through her words and
\nactions. The fallacious idea that a failure to say \u201cno\u201d indicates consent is one of the
\nforbidden lines of reasoning in sexual assault cases. At the same time, signs of consent
\nare not always verbal and continue to include actions that indicate receptivity. Thus to
\nhelp clarify the language in articulating this defence, the Supreme Court added
\n\u201ccommunicated\u201d to the judicial lexicon. The decision gave guidelines on a number of
\nissues regarding the duty of care expected from an accused who is claiming honest but
\nmistaken belief in consent. Justice Moldaver added the word \u201ccommunicated\u201d to
\nemphasize that the myth that consent is implied when there is no verbal protest to an
\nact is entirely wrong. The refinement is intended to focus all justice participants on the
\ncrucial question of communication of consent to avoid inadvertently straying into
\nforbidden territory of implied consent. Thus, an accused must be able to explain how
\nand why that evidence informed his honest but mistaken belief that the complainant
\ncommunicated consent at the time it occurred.<\/p>\n

The argument that an accused took reasonable steps to obtain consent was also
\naddressed in this decision. Guidance was provided on what was deemed an
\n\u201cunderdeveloped\u201d area of law. The Supreme Court stated that \u201can accused\u2019s attempt to
\n\u2018test the waters\u2019 by recklessly or knowingly engaging in non-consensual sexual touching
\ncannot be considered a reasonable step.\u201d While there are no specific words deemed to
\nbe required before changing or advancing a sexual activity, it is important for people to
\nrecognize that affirmative consent is now becoming the standard if a sexual partner
\nlater claims they felt pressured into a sexual act.<\/p>\n

Every trial must be adjudicated on the specific facts of the case and charges that
\nengage questions about the subjective thoughts of an alleged victim are difficult to
\nprove. One point is made clear by this decision – that with the growing complexities in
\nsexual related charges<\/a>, there is a mounting challenge faced by any defendant to
\nestablish consent, especially in a case of honest but mistaken belief in \u201ccommunicated
\nconsent\u201d. A defence cannot be premised on equivocal or ambiguous conduct of the
\ncomplainant but rather affirmative words or conduct that in essence amount to actual
\ncommunicated consent.<\/p>\n

Time will tell what other developments will come in sexual assault related cases and for
\nany accused facing such charges careful choice has to be made about which lawyer to
\nretain to effectively navigate the myriad of issues and need to develop compelling
\nevidence for a defence.<\/p>\n","protected":false},"excerpt":{"rendered":"

Joseph A. Neuberger, LL.B., LL.M., C.S. Neuberger & Partners LLP www.nrlawyers.com In a recent precedent setting case out of Alberta, the Supreme Court of Canada overturned Bradley Barton\u2019s manslaughter acquittal and ordered a new trial due to the Crown\u2019s failure to be alert to the issue of the victim\u2019s privacy regarding her sexual history. Mr. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2,5],"tags":[],"class_list":["post-11730","post","type-post","status-publish","format-standard","hentry","category-criminal-defence","category-sexual-assault"],"_links":{"self":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts\/11730","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/comments?post=11730"}],"version-history":[{"count":0,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/posts\/11730\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/media?parent=11730"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/categories?post=11730"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.nrlawyers.com\/chinese\/wp-json\/wp\/v2\/tags?post=11730"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}