Responsibility of enforcing s. 276 regime was with trial judge

Prior sexual conduct in first degree murder trial. Deceased sex trade worker died from large perforation in her vaginal wall after accused stuck his hand in her vagina while she was intoxicated on second night they had sexual relations. Accused testified about sexual activity with deceased on both nights although he did not apply under Criminal Code s. 276 to adduce such evidence of deceased’s prior sexual history and no voir dire was held to determine admissibility of such evidence. Trial judge did not give limiting instruction to jury on permissible and impermissible uses of deceased’s prior sexual activity evidence. Jury acquitted accused of first degree murder and manslaughter and Crown appealed. Court of Appeal allowed appeal and ordered new trial on charge of first degree murder. Accused appealed. Appeal allowed in part; new trial ordered on charge of manslaughter. Crown’s failure to object to accused’s testimony regarding deceased’s prior sexual activity was not fatal to its appeal as responsibility of enforcing s. 276 regime was with trial judge. Section 276 regime applied as first degree murder charge was premised on sexual assault with weapon, which was one of offences listed in s. 276(1). Crown’s reference to deceased as “prostitute” in its opening address did not exclude application of s. 276(2) to accused’s evidence. Trial judge’s failure to comply with s. 276 impaired dignity and privacy of deceased, truth-seeking process, trial fairness and impacted instructions to jury on defence of honest but mistaken belief in communicated consent.

R. v. Barton (2019), 2019 CarswellAlta 985, 2019 CarswellAlta 986, 2019 SCC 33, 2019 CSC 33, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2017), 2017 CarswellAlta 1167, 2017 ABCA 216, Catherine Fraser C.J.A., Jack Watson J.A., and Sheilah Martin J.A. (Alta. C.A.).

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