“The Court of Appeal evidently did not think the Crown’s grounds of appeal were adequate, so it decided to make up some of its own. In a rambling decision, the court excoriated the trial judge for (among many other things) not intervening to prevent counsel from referring to Gladue as a “prostitute.” In its view, this required a defence application under s. 276, the rape shield law. Never mind that it was the Crown that first made such reference, in its opening statement, and that s. 276 only purports to limit evidence led “by or on behalf of the accused.” Never mind that a full narrative of the relationship between Barton and Gladue appeared necessary for the jury to understand how it culminated in her death.
And never mind that the Crown, which was complicit in any impropriety, made no objection whatsoever along these lines. Presumably, the trial Crown took the view that misrepresenting Barton and Gladue’s relationship to the jury was not necessary to a fair trial. The Court of Appeal disagreed, allowing the Crown to reverse its position on appeal and obtain a new trial based in part on its own alleged misconduct.
In any event, the idea that the jury somehow failed to grasp that it could use the accused’s lies and obfuscation to evaluate his credibility defies logic. When raised by the defence, these types of arguments are commonly dismissed by appeal courts as fanciful, in that they deny the jury’s ability to apply common sense. That’s not the case here.
Other arguments, too numerous to detail here, were also raised in opposition to the acquittal. All found favour with the Court of Appeal. The court’s real grievance, I think, was that it disagreed with the jury verdict. But that, in Canada, is not a valid basis upon which to overturn an acquittal. If it were, why have a constitutional right to a jury trial in the first place?
In fact, Canada is an outlier in giving the prosecution a relatively generous right of appeal from acquittals. Some people believe it goes too far. The Alberta Court of Appeal, a court notoriously hospitable to Crown appeals, appears to think it does not go far enough. And the Court of Appeal’s decision found a receptive audience, as witnessed by the many interveners who lined up on the side of the Crown in the Supreme Court. For people of a progressive mindset, however, giving the Crown a broad right to an appellate “do-over” should be fundamentally anathema. For one thing, its impact would be felt most acutely by vulnerable populations that are already represented disproportionately among the ranks of the criminally accused.
Overturning the Court of Appeal and reinstating Barton’s acquittal would be politically unpopular. This will be a crucial test of the Supreme Court’s institutional integrity — one that we should all hope it does not fail to meet.”