The Supreme Court of Canada today released the groundbreaking decision in R v Barton. This important decision clarifies the law in a number of areas, including: regarding the s. 276 “rape shield” provisions, when the Crown can change their position on appeal, issues regarding consent and the mistaken belief in consent, and the importance of protecting the dignity of indigenous women. Also importantly, the Supreme Court declined to rule on whether an objective foreseeability of harm negates consent, a complex issue not fully addressed at trial.
Bradley Barton was represented at trial and on appeal by Dino Bottos. Peter Sankoff, who also represented him on appeal along with Jacqueline Petrie and Austin Corbett, said on Twitter that: “From defence perspective, most important ruling is to reinforce that Crown cannot take a new position on appeal. The dissenting opinion would have drastically altered the long-held approach to this issue.”
“An Ontario trucker accused of killing Cindy Gladue during a night of rough sex will face a new trial for manslaughter in a case that unleashed public outrage over how the Indigenous victim was treated by Canada’s criminal justice system.
The Supreme Court of Canada was unanimous on Friday in ordering a new trial for Bradley Barton, but justices were split 4-3 in whether he should face trial for manslaughter or first degree murder.
Barton’s lawyer Dino Bottos told CBC News the defence only presented previous sexual history because the Crown mentioned it in the opening minutes of the trial. He said the evidence also was germane to the case.
“If she consented to the sexual activity on the first night, the same as the second night, Mr. Barton would have a more reasonable belief that she was consenting to the same sexual activity on the second night,” he said.
Bottos concedes the case is “tragic” and highlights important social issues.
He said it also presented fundamental questions about the appeals process that overturned Barton’s acquittal. Bottos argued the court of appeal erred in allowing the Crown to use its right of appeal to secure a re-trial based on new theories and legal arguments that were contrary to positions the Crown took at trial.
“It’s very concerning with broad implications. There’s a very serious concern that the court of appeal acted unfairly in allowing the Crown to reverse its position on the law between the trial and the appeal,” he said.”