Canada SC | Prior sexual conduct of complainant must not be admitted as evidence, as it may affect jury’s ability to assess other evidence correctly

Supreme Court of Canada: A Full Bench of Wagner, CJ. and Abella, Moldaver, Karakatsanis, Côté, Brown and Rowe, JJ. dismissed an appeal filed by accused to restore his acquittal.

In the present case, the deceased woman was found dead in the hotel bathroom of the appellant. She had bled to death from an 11 cm gash inside her vagina. Appellant was arrested and charged with first degree murder. He denied using a sharp object and asserted that the deceased consented to the sexual activities in question or at least he honestly believed that she did. The jury acquitted the appellant of first degree murder and the included offence of manslaughter. On appeal by the Crown, the Alberta Court of appeal concluded that the trial judge had made several serious errors that had affected the jury’s ability to assess the evidence and correctly apply the law to the facts of the case. It allowed the Crown’s appeal and ordered a re-trial on both first degree murder and manslaughter. The accused then appealed to restore his acquittal.

The appellant contended that the issues raised by the Crown, in appeal to the Court of appeal, of after-the-fact conduct were different from the issues he was originally tried on. He argued that the Crown’s failure to object to this portion of the charge should have prevented the Court from dealing with these issues.

It was observed by the Court that the Appellate Court could raise new issues to avert the risk of injustice. It was not doubtful that adequate procedural fairness was afforded to the parties as they were given sufficient notice and an adequate opportunity to make submissions. It was also observed that Section 276 of the Criminal Code, RSC 1985, prohibited the evidence of prior sexual activity, which could lead to reason, based on sexual history, that the complainant would have been more likely to consent to the sexual activity in question, or is less worthy of belief in general.  The Alberta Court of Appeal in this case, labelled the deceased as “Native prostitute”, this was in violation of Section 276 regime. This error had effects on the defence of honest but mistaken belief in communicated consent, upon which accused relied.

It was opined that the trial judge’s instruction relating to after the fact conduct were confusing and misleading. In his own testimony, the appellant had admitted to lying, disposing of evidence and providing contradictory explanations to numerous people after the commission of offence. He also concocted and fabricated multiple stories and excuses. Trial Judge stated that it was up to the jury to decide upon the usage of the said circumstantial evidence, and that they were entitled to consider the evidence of the admitted lies and discarding of evidence as after-the-fact conduct but it was also instructed to the jury that it could not use the evidence for those very purposes. Therefore, the trial judge did not leave it open to the jury to consider the impact of the after-the-fact conduct evidence to properly decide whether appellant’s narrative was credible or not.

It was held that the trial judge’s error in permitting evidence of prior sexual activity to be admitted was in clear contravention of Section 276 of the Act and it could reasonably have had a material bearing on the jury’s deliberations as a whole due to which a new trial on both murder and manslaughter was directed. The appeal was hence, dismissed.[R. v. Barton, 2019 SCC OnLine Can SC 15, decided on 24-05-2019]

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