Case commentaries

Abstract

Real evidence; sexual history; post-offence conduct—Alberta, Canada

Bradley Barton killed Cindy Gladue—that much was agreed upon by the Crown and the defence. The cause of death was summarised in these terms by the Alberta Court of Appeal: ‘[Ms Gladue] died from blood loss from a perforation more than 11 centimeters long that went completely through, and ran almost the full length of, her vaginal wall.’

The question was whether death was caused by an unlawful act. Barton paid Ms Gladue 60 dollars to provide sexual services. He claimed that the horrific injuries sustained by Ms Gladue were unintentionally inflicted in the course of a consensual sexual act (colloquially described as ‘fisting’). The Crown adduced expert evidence that the injuries were caused by a sharp instrument, but argued that, in any event, they were the result of a non-consensual sexual act.

At trial, the Crown took the extraordinary step of adducing, as ‘real evidence’, the ‘preserved pelvic region’ of Ms Gladue, so that the jury would better appreciate the testimony of its expert. Unsurprisingly, the defence objected on the basis that its prejudicial effect would inevitably exceed its probative value. The trial judge admitted the tissue, concluding that photographs of the victim’s pelvic region would not have been equally useful as an illustrative aid. He stated: ‘[Dr Dowling’s] evidence using the tissue was more understandable than his evidence using the photos. I do not mean to criticize his evidence using the photos; but his evidence using the tissue was an improvement.’ Given the significance of the issue, the trial judge was not inclined to require the Crown to use something other than the best evidence available, or (implicitly) to require the Crown to produce an alternative kind of demonstrative aid, such as a three-dimensional model. This aspect of the Barton case was not discussed by the Court of Appeal, but it gives some sense of the extraordinary, and deeply troubling, nature of the trial. (On this point, see R v Barton, 2015 ABQB 159.)

Ultimately, the defendant was acquitted by the jury. In Canada, however, the Crown may appeal an acquittal on a question of law. In R v Barton, 2017 ABCA 216, the Alberta Court of Appeal found a number of legal errors and ordered a new trial. In particular, the Court found aspects of the way in which the case was presented to the jury as highly problematic.

The Court took issue with the repeated references—by the Crown, defence, and trial judge—to Ms Gladue as a ‘prostitute’. Doing so, it held, ‘conveyed that she was a female sex trade worker who made her living by routinely and habitually performing sexual activities for money.’ Its practical effect was to bring into evidence her sexual history, and sexual reputation in the community. Since it was not evidence of any specific instance of sexual activity, it was wholly inadmissible under s. 276 of the Criminal Code. As the Supreme Court of Canada observed in Seaboyer and Darrach, sexual history evidence is problematic because it invites the trier of fact to infer, merely from the fact that the complainant engaged in sexual conduct on earlier occasions, either that the complainant (or, in this case, deceased) consented to the sexual conduct in issue, or is less worthy of belief. These concerns, as well as others, arose here:

This one word—prostitute—had the effect of ushering in Gladue’s prior sexual conduct with all the others, real or imaginary, who may have paid her for sex. Gladue was referred to as a prostitute at least 25 times during the trial. Where a participant in sexual activity is a prostitute, a litany of unjust stereotypes about autonomy and consent persist in our society. That is so regardless of the label used to describe the person who sells sex for money. At the top of the list is that a prostitute will consent to anything for money. Linked to this is another improper belief, namely that once a prostitute has agreed to sell sex for money, the prostitute has given ‘implied consent’ to any and all sexual acts to which the prostitute is then subjected. And perhaps worse yet, labelling someone a prostitute signals to the jurors that the prostitute is ‘deserving’ of harm sustained on the job because prostitutes ‘choose’ to engage in a risky profession…

The problem was ‘compounded’ by the repeated references to Ms Gladue as a ‘Native woman’, a term that again invited the jury to draw upon stereotypes about Indigenous women:

This standard caution in the final instructions was not wrong in itself. But it was inadequate to counter the stigma and potential bias and prejudice that arose from the repeated references to Gladue as a ‘prostitute’, ‘Native girl’ and ‘Native woman’. Those references implicitly invited the jury to bring to the fact-finding process discriminatory beliefs or biases about the sexual availability of Indigenous women and especially those who engage in sexual activity for payment. What was at play here, given the way in which the evidence unfolded, was the intersection of assumptions based on gender (woman), race (Aboriginal) and class (sex trade worker). We emphasize that we are not suggesting that counsel or the trial judge sought to insinuate improper thinking into the minds of this jury. Nevertheless, without a sufficient direction to the jury, the risk that this jury might simply have assumed that Barton’s money bought Gladue’s consent to whatever he wanted to do was very real, indeed inescapable. Add to this the likely risk that because Gladue was labelled a ‘Native’ prostitute—who was significantly intoxicated—the jury would believe she was even more likely to have consented to whatever Barton did and was even less worthy of the law’s protection. This is the very type of thinking that s 276 was introduced to eradicate.

The Court observed that the trial judge had, if anything, aggravated the risk that the jury would draw on biases and stereotypes. He had done so by instructing the jury not to infer that the defendant was a person of bad character merely because he associated with a prostitute. In giving this sort of instruction, the judge arguably confirmed, in the mind of the jury, that Ms Gladue was a person of bad character:

To caution the jury on the stigma and potential prejudice only from the perspective of Barton’s character and reputation did not counter the stigma and potential prejudice to Gladue’s rights to equality and privacy and the state’s interests in a fair trial from Gladue’s being labelled a prostitute.

At the very least, the jury should have been instructed not to infer that Ms Gladue was more likely to have consented to the sexual activity in issue merely because she had sold sexual services on other occasions, whether to the defendant or not.

This was an unusual case in which to invoke the sexual history provisions in the Criminal Code. It was not obvious that those sections were operative in a case where the defendant was charged with murder, and where sexual assault was merely the underlying unlawful act. Section 276 states that sexual history evidence is presumptively inadmissible only ‘[i]n proceedings in respect of’ one of several listed sexual offences, including sexual assault. But the Court found, on a purposive interpretation of s. 276, that there was no reason to construe that language narrowly. Had Parliament wanted to limit the ambit of the section to cases in which the defendant was prosecuted for a listed offence, it could have done so. Moreover, the point of the section was to stop triers of fact from drawing flawed and pernicious inferences about the significance of prior sexual activity. That being the case, the provision should be read in such a way that it covers cases in which a sexual offence is alleged to be the underlying unlawful act.

At trial, the Crown did not object to the admission of the sexual history evidence—indeed, the Crown itself referred to the victim as ‘a prostitute’. Nonetheless, the Court of Appeal took the view that, insofar as the sexual history provisions were designed to protect the equality and privacy rights of complainants, the Crown could not unilaterally waive them:

The procedures and considerations under s 276 are mandatory and place obligations on the Crown, the defence and the trial judge. The vital interests served by s 276 in protecting the equality and privacy rights of complainants are not within the gift of counsel or the Court. They are not to be sacrificed or waived by any of the participants in the trial.

The Court found further errors of law. At trial, the Crown adduced evidence that the defendant had engaged in post-offence conduct indicating ‘consciousness of guilt’. The defence argued that this behaviour was equally consistent with innocence—that it showed only that the defendant was scared, having found a dead woman in his bathtub. The trial judge accepted the defence argument, and instructed the jury that it could only use the post-offence conduct to infer that the killing was not accidental—suggesting that it could not be used to infer ‘guilt’.

The Court of Appeal found that this instruction was in error, and would have been quite confusing for the jury. The jury could reasonably infer, from the post-offence conduct, that the defendant was at least aware that he had committed a culpable act. The judge’s instruction effectively took that option away from the jury. Furthermore, the post-offence conduct clearly was significant when assessing the defendant’s overall credibility, and yet the jury was not instructed to this effect:

The trial judge properly instructed the jurors that they may believe all, none or part of Barton’s evidence. The trial judge also provided the jury with Barton’s justifications for acting and speaking as he did. However, the jurors were never instructed—as they should have been—that Barton’s after the fact conduct could bear on his credibility, whether or not they also found it showed a consciousness of guilt. The jurors were also not instructed—as they should have been—that they could take Barton’s admitted lies into account when determining whether they believed any part of Barton’s testimony. Further, the jury instructions never mentioned—as they should have done—that Barton admitted to making various statements, then admitted they were false and that he had lied in them. These key omissions were not remedied in any other part of the charge. Indeed, the jury instructions referred repeatedly—and wrongly—to Barton’s testimony as given, implying that the jury should evaluate critical legal issues based solely on what Barton testified happened. This too was an error of law. The jurors should have been instructed that they were entitled to decide what inferences were likely based on evidence they found as fact.

This note has not addressed all of the evidentiary and substantive issues that arose in Barton. It is an important decision, worthy of study. The Supreme Court of Canada has now granted leave to appeal.