R. v. BARTON, 2019 SCC 33

Section 276 Regime is to be complied with by the Trial Court for admitting an evidence for “Prior Sexual Activity”.

In this case, Bradley David Barton is the Appellant who committed the murder of a woman who belonged to an indigenous community and was a sex worker. In the court of Appeal, emphasis was laid to the concept of unlawful act manslaughter. The provisions under Section 276 of the Criminal Code and “prior sexual activity evidence” were discussed in detail.

The facts of this case are that Mr. Barton has been accused of committing murder of a woman named Ms. Gladue by creating a 11 cm long wound in her vaginal wall with some sharp object. However, Mr. Barton’s side was different and he said that she had agreed to Mr. Barton was “sexual intercourse” in $60 for 2 nights. On the first night he had formed a cone with his hand and inserted it into her vagina thrusting again and again. He did this on second night as well but for more than 10 minutes and a little harder. When he noticed blood on his fingers, he stopped this activity after which the woman went into the bathroom and he fell asleep. When he woke up, he found Ms. Gladue dead in the bathtub with a pool of blood. He was charged with a first degree murder.

Section 276(2) talks about the “prior sexual activity evidence” it says about the admissibility of evidence of complainant’s prior sexual activities. Further, for the admissibility of evidence, factors laid under Section 276(3) are to be considered. The purpose of Section 276 is to protect the integrity of trial and deciding the admissibility of evidence and encouraging the reporting of sexual crimes. The court stated that it is not essential that application of laws in “prior sexual activity evidence” is to be set in stone and a trial judge can conduct a new hearing in order to reconsider the admission of “prior sexual activity evidence” under Section 276. The court observed that the Trial Court made a serious error by not showing any objection when Mr. Barton testified about the incident of his sexual activity on the night prior to the incident which led to Ms. Gladue’s death as he had not submitted any application under Section 276.1(1) and (2) of the Criminal Code which was a mandatory requirement and therefore, represents the failure to move in consonance with “Section 276 regime”. The Court believed that the responsibility to follow “Section 276 regime” was of the Trial judge. The non-compliance of Section “276 regime” may have been a benefit to Mr. Barton and it was surely a violation of Ms. Gladue’s right to privacy and dignity. Mr. Barton’s defense regarding consent was on the foundation that he engaged in sexual activity on the night prior to the deceased’s death and therefore, he was of the view that the second night was also a part of “continuing commercial transaction” of similar nature. The court opined that this defense contains various mistake of law and it was the duty of the Trial court to caution the jury against taking any action on the basis of these mistakes of law. Consequently, the appeal was allowed in part and the court ordered a new trial on Unlawful Act of Manslaughter.