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Author’s Note:? This article and the linked case discuss sexual violence and violence against women that may be upsetting to readers.??
Myths and stereotypes about consent, women’s sexuality, and sexual assault are very much alive and well within criminal proceedings. In an attempt to mitigate the ill effects of these stereotypes, Parliament has enacted laws that prevent a jury from hearing evidence about the prior sexual history of a complainant in a sexual assault case without that evidence being first heard by the trial judge. The trial judge must then rule on the admissibility of the evidence at trial.? But what happens when the complainant is killed as a result of an alleged sexual offence?? Canada’s rape shield laws do not include cases where first degree murder is elevated from an act of sexual assault. Did the court apply the rape shield laws appropriately in this case?
The Alberta Court of Appeal (the “ABCA” or the “Court”) decided in the 2017 case R v Barton, 2017 ABCA 216 [Barton] that s.276 of the Criminal Code, RSC 1985, c C-46 [Criminal Code] prohibits the tendering of evidence of previous sexual history of a complainant without a hearing and ruling from a judge when the accused is charged with first degree murder.? S. 276 of the Criminal Code, otherwise known as the “rape shield” provision, prevents the admission of prior sexual history of a complainant in a matter dealing with sexual offences without prior judicial approval. ?Parliament created these laws to deal with the improper inferences drawn from myths and stereotypes about women who consent to sexual activity.
Barton deals not only with statutory interpretation of s.276 of the Criminal Code, but also with jury instruction on sexual assault and manslaughter. Underpinning the legal analyses is an understanding from the ABCA that myths, stereotypes, and assumptions about consent, sex work, and Indigenous women are at play and require procedural safeguards to mitigate. These safeguards include limiting evidence that can be brought without a ruling from the trial judge, and providing robust instructions to juries about the myths and stereotypes potentially engaged in the case and the kinds of inferences that are impermissible.? Later this year, the Supreme Court of Canada (“SCC”) will also weigh in on the issue of statutory interpretation and jury instructions regarding Canada’s “rape shield” laws and the concerns animated by them.
Barton is an unusual case in that it overturns an acquittal delivered by a jury. The decision wrestles with several issues, including inadequacy of jury instruction regarding the defence of mistaken belief in consent, manslaughter, and whether “accident” is an applicable defence for manslaughter. This article focuses on the issue of admissibility of evidence of prior sexual history of the victim per s.276 of the Criminal Code.
The case arises from the death of Cindy Gladue, an Indigenous woman who was found deceased in a hotel bathtub from blood loss. She had suffered from a severe vaginal perforation that was caused by sexual activity with Mr. Barton. For a determination of whether a charge of first-degree murder could be levied, an issue was whether the activity in question was consensual.? The Crown’s theory of the case was that Mr. Barton used a sharp object to cause the perforation to Ms. Gladue’s vaginal wall while she was incapacitated due to alcohol.? Mr. Barton contended that the perforation occurred as a result of forceful digital penetration that Ms. Gladue consented to.
Consent is the key to understanding the statutory complexities that escalate an alleged sexual assault and manslaughter charge into a charge of first-degree murder.? Per s.231(5) of the Criminal Code, unlawful acts that result in death that might otherwise constitute manslaughter are escalated to charges of first degree murder in a limited number of circumstances. Among these circumstances are circumstances of sexual assault, sexual assault with a weapon, and aggravated sexual assault.? Under the Crown’s theory, Mr. Barton was guilty of first-degree murder by way of causing the death of Mr. Gladue while attempting to sexually assault her. The defence presented a contrasting theory that the sexual contact between Mr. Barton and Ms. Gladue was consensual. The Crown brought evidence that Ms. Gladue was a sex worker and that the night prior, she and Mr. Barton had engaged in consensual sex for money with an agreement that the following night they would do the same. As per the defence’s argument, were Ms. Gladue to have consented to the activity, or were Mr. Barton to successfully advance a defence of mistaken belief of consent, then he would not have been guilty of first-degree murder.? However, if the sexual activity was not consented to and there was no defence of mistaken belief of consent available on the evidence, then he would have likely been found guilty.
At trial, it was repeatedly emphasized by both parties that Ms. Gladue was an Aboriginal (or “Native”) woman and a “prostitute” (sex worker).? Much of the theory of the defence relied on the notion that Ms. Gladue had previously consented to sexual activity for money with Mr. Barton, and that she was therefore also consenting to the activity that lead to her death.? Intervenors at the Court of Appeal, including the Women’s Legal Education and Action Fund (LEAF), raised the issue that even mentioning that Ms. Gladue was engaged in sex work was evidence of her prior sexual history that must only be admitted after judicial scrutiny. LEAF brought this argument out of concern that damaging stereotypes were at play, in particular the stereotypes that sex workers consent to anything a client has paid them for, or that there is “implied consent” when working with a client.
On appeal, it is contended that much of the evidence about Ms. Gladue’s sexual history should not have been adduced as evidence, or at the very least that it was not adduced through the proper procedures under s. 276 of the Criminal Code. As discussed, ordinarily in sexual assault cases, prior history of the complainant’s sexual conduct is inadmissible under s. 276 of the Criminal Code?until there has been a ruling from a judge on its admissibility.
S. 276 of the?Criminal Code and Evidence of Prior Sexual History
Often referred to as part of Canada’s “rape shield” laws, s.276 forces the defence to submit in writing an application to admit the complainant’s sexual history as evidence at trial.? The rape shield laws were designed to combat the myths and stereotypes of women who have consented to sexual activity in the past, or who have substantial sexual histories. By limiting the use of such evidence in sexual assault trials, Parliament attempted to reduce the chance of a jury making an improper inference based on those myths and stereotypes. Judges, when considering evidence of the prior sexual history of the complainant, are tasked with determining whether that evidence is relevant and has substantial probative value.? These concerns must be balanced against concerns enumerated in s.276(3), including whether the evidence would advance the interests of justice more broadly, prevent complainants from disclosing sexual assaults, or prejudice or compromise the privacy interests of the complainant.
However, s.276 is limited in its application. In particular, S. 276(1) limits the application of the section to
“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.”
Notably, the provision at issue for the first degree murder charges Mr. Barton faced under s.231(5) are not included under this provision.
Principles of Statutory Interpretation Applied to S.276
This presented the ABCA with a dilemma – the enumerated sections of the Criminal Code under s.271 do not include s.231(5), which presumably allows for the admission of evidence of prior sexual contact to be allowed without a ruling from the trial judge.? Do the principles of statutory interpretation allow the inclusion of s.231(5) in the list of offences to which s.271 applies to?
The ABCA answers this question in the affirmative. Based on the modern principles of statutory interpretation, the words of s. 271 taken in their plain and ordinary meaning do not preclude prosecutions of offences under s.231(5).? The Court determined that because the text reads that s.271 applies to proceedings “in respect of” the enumerated offences, prosecutions of offences that involve those sections were open in some capacity, even if the accused is not charged with those offences specifically. At paragraph 103 of the decision, the ABCA states that because the text does not mention “prosecution?for sexual assault or sexual assault causing bodily harm as opposed to?proceedings?in respect of a sexual assault or sexual assault causing bodily harm,” the provisions should be read to include cases where sexual assault is a material issue, but the accused need not be charged with sexual assault specifically. Because the wording of the provision is broad, its shows that Parliament did not intend to limit the application of the section unnecessarily.? In the case at hand, although Mr. Barton was not charged with sexual assault (s. 271), sexual assault with a weapon (s. 272) or aggravated sexual assault (s. 273), the procedural rules for adducing evidence of prior sexual history of the complainant still apply because those offences were material to the issues raised at trial.
Furthermore, the Court appealed to Parliament’s intentions to create laws that have a coherent structure for their application.? If s.276 did not apply in cases where a death occurred as a sexual assault, it would have presented a bizarre incongruency with the application of the laws when the complainant in a sexual assault case is alive.? The Court says that the purposes of the act – to protect complainants from improper inferences – should not be diminished if the complainant or victim dies as a result of the sexual activity.
While the logic of including offences under s.231(5) in the list of offences to which s.276 applies is intuitive and supports a coherent framework of admitting evidence in order to prevent juries from making improper inferences based on myths and stereotypes, it is an unusual in the sense that it expands a statutory provision in a penal context against the interest of an accused person.
Potential Grounds for Appealing the ABCA Decision
As a general principle of statutory interpretation, judges are hesitant to expand provisions of legislation, out of respect for Parliament’s ability to set the parameters of legislation.? Here, s.276 begins with a broad statement of application, followed by a specifically enumerated list of sections of the Criminal Code to which it applies. Generally, when Parliament listed things out in such a manner, the list is exhaustive unless inclusive language such as “not limited to” is used.? S.276 had no such limiting language, and therefore could be read as an exhaustive list. Otherwise, had Parliament intended the list to be non-exhaustive, they were free to use language that made that fact clear. That Parliament chose not to do so is relevant.
Furthermore, in cases of legislation with penal consequences, courts are implored to interpret legislation that has conflicting interpretations in the way that favours the accused. By presumably expanding the circumstances under which s.276 applies, Mr. Barton could have been deprived of the ability to present evidence about his prior sexual contact with Ms. Gladue that could have shown there was consensual sexual activity taking place. It is conceivable that for an offence with a stigma as severe as first degree murder, Parliament intended for an accused person to have broader discretion about what evidence they may bring to trial without the procedural requirements of s.276. However it is more likely that Parliament did not anticipate these circumstances when drafting the legislation. Allowing for judicial discretion that potentially expands the application of penal statutes to the detriment of an accused person sets a troubling precedent, as much as it makes sense in this case.? Although it has been done before, the Supreme Court of Canada (“SCC”) has a challenge before it about which principles of statutory interpretation are preferable.
I suspect that given the ongoing process of understanding sexual assault myths and stereotypes about Aboriginal women and sex workers, the SCC will interpret s.276 widely so as to include s.231(5).? By failing to include s.231(5) in the list of provisions covered by s.276, accused persons are permitted to adduce evidence of prior sexual history that invite improper inferences.? Such an interpretation acknowledges the evidentiary difficulties present in cases involving an alleged sexual assault and provide procedural safeguards against improper inferences.? However, they must also acknowledge that by doing so, they are failing to employ principles of statutory interpretation in favour of the accused in a criminal proceeding, raising concerns of whether the accused is able to get a fair trial given the new evidentiary hurdles. I suspect that because the SCC has already weighed in on the constitutionality of “rape shield” laws, s.276 will be interpreted broadly on appeal as well.? What will be interesting about the decision is the SCC’s take on other matters from the decision, including their treatment of Mr. Barton’s alleged mistaken belief in consent and whether the court will comment on the possibility for consent to sexual activities that can lead to an individual’s death.