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R v Barton and the Role of Interveners in Criminal Litigation

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By Keely Kinley

The Supreme Court released its highly anticipated decision in R v Barton on May 24, 2019.

In 2011, Cindy Gladue was found deceased in the bathtub of Bradley Barton’s hotel room with a fatal 11-cm gash in her vaginal wall. Barton admitted to accidentally causing Ms. Gladue’s death during what he characterized as rough but consensual sex and was acquitted by a jury on charges of first-degree murder and manslaughter. The trial was subject to much public criticism for the frequent reference to Ms. Gladue as a native girl and prostitute by counsel and the trial judge, and for the Crown’s introduction of a piece of Ms. Gladue’s preserved pelvic tissue as evidence. Feminist and indigenous groups, in particular, decried the discriminatory and dehumanizing manner in which Ms. Gladue was treated throughout the process.

On appeal (R v Barton, 2017 ABCA 216), the Alberta Court of Appeal found that the trial judge should have heard a section 276 application to determine whether evidence about Ms. Gladue’s sexual history was admissible and overturned Mr. Barton’s acquittal. Barton had paid Ms. Gladue $60 for sex the night before her death and testified that Gladue “knew what she was coming for” when she met him for sex again the following night. Section 276 of the Criminal Code, otherwise known as the “rape shield” law, prevents evidence of a complainant’s sexual history from being presented unless it is deemed relevant in a separate hearing without the jury present. Barton appealed to the Supreme Court.

Writing for the majority, Justice Moldaver found that a new trial was necessary because a section 276 hearing was never conducted. Such a hearing may have helped prevent Ms. Gladue’s previous sexual relations with Mr. Barton and history of sex work from being used to make her seem less credible or making Barton’s belief in consent seem more reasonable.

Moldaver J also emphasized that if an accused did not take reasonable steps to ascertain communicated consent to a particular sexual activity, “the defence of honest but mistaken belief [will] afford him no shelter” and should not be put to the jury. The Barton decision affirms that there is no defence of implied consent, an accused cannot point to a complainant’s sexual history to bolster a claim of belief in consent, an individual cannot consent to sexual activity in advance, and express consent must be given for each and every sexual act.

Ultimately, the court ordered a new trial on the charge of manslaughter. The majority was not convinced that the jury would have come to a different conclusion on the first degree murder charge even if the trial had been conducted properly. The dissent would have ordered a new trial on both charges.

In addition to questions about the meaning of consent and the proper application of s. 276, one of the issues raised at the Supreme Court concerned the role of interveners in criminal justice proceedings. In its decision to overturn Barton’s acquittal, the Alberta Court of Appeal drew extensively from an intervener factum submitted jointly by LEAF and IAAW. Barton objected to the weight that ABCA gave to the joint-interveners’ submissions. The Asper Centre intervened at the Supreme Court to comment on the role of interveners in public interest litigation.

In its factum, the Asper Centre pointed out that the Crown has a distinct obligation to represent and safeguard the general public interest in criminal cases,which sometimes overrides the interests of disadvantaged and marginalized members of society. Criminal proceedings should be open to the arguments of intervener groups to the extent that a case involves the interpretation of the Criminal Code or potential changes to the common law. The Barton proceedings themselves are evidence of the diverse array of interests that can be implicated in criminal litigation;  fifteen advocacy and special interest groups were granted leave to intervene at the Supreme Court. While Justice Moldaver devoted few words to the role of interveners in criminal appeals in his reasons (see paras 52-53), the critical role that interveners can – and do – play in such appeals is apparent in his decision.

Justice Moldaver took a feminist, Indigenous position on several key issues, urging judges to acknowledge and discourage prejudice against Indigenous women and girls in their instructions to juries, and emphasized that “everyone is equally entitled to the law’s full protection and to be treated with dignity, humanity, and respect.” Explicit recognition of the discrimination experienced by Indigenous women in the Canadian justice system may not have occurred without the submissions of Indigenous and feminist interveners highlighting the extent to which racist and sexist stereotypes about Indigenous women, particularly those involved in the sex trade, were at play in Barton’s original trial.

The Barton ruling should be considered a victory for interveners. While it would have been encouraging to see interveners’ contributions expressly acknowledged in the decision, as Dr. Emma Cunliffe commented shortly after the decision was released, Justice Moldaver’s “analysis of s. 276, reasonable steps and consent to the activity in question comes straight from LEAF and IAAW’s work;” the decision was “massively enriched and expanded by the work of Indigenous women’s organizations before the SCC, as well as Aboriginal Legal Services, [the Asper Centre], the Assembly of First Nations, the MMIWG Inquiry.”

Keely Kinley is the Asper Centre’s Summer Research Assistant.

Democrats v USSC: The Constitutionality of Court-packing

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By: Jasmit De Saffel

The Asper Centre’s first Constitutional Roundtable of the year transported the room two years ahead into a hypothetical future where the Democrats have won the U.S. 2020 election. In a world where the Democrats control Congress and the White House, how would they navigate a Supreme Court standing in ideological opposition to them?

This is the question explored in a draft chapter of Professor Mark Tushnet’s upcoming book, written for a general audience, which was the focus of this Roundtable presentation. Distinguished visiting Professor Tushnet also gave this year’s Wright lecture at the University of Toronto Faculty of Law and is the William Nelson Cromwell Professor of Law at Harvard Law School. He is a leading scholar of U.S. constitutional law and legal history. Professor Tushnet was joined by Professor Yasmin Dawood as a discussant. Professor Dawood is the Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, and an Associate Professor at the University of Toronto Faculty of Law.

Professor Tushnet’s book posits that 2020 will be a turning point in the American political and constitutional landscape, one that could take either a “Trumpist” path or one more strongly socially democratic than recent Democratic leaders have taken. He discussed the obstacle the US Supreme Court (USSC) will pose to the Democrats if they do manage to win and try to implement socially democratic policies and programs. In particular, Professor Tushnet focused on court-packing as a potential response to this inevitable resistance from the judiciary that the Democrats should seriously consider.

Court-packing refers to increasing the size of the bench, a practice that is not technically unconstitutional in the United States. The two objections elaborated on in the discourse were that there is a constitutional convention against court-packing and that doing so would reduce the legitimacy of the USSC.

The constitutional convention argument is based on President Roosevelt’s failed attempt to court-pack in 1937 and the lack of attempts to do so by any subsequent administration. The thought is that there has thus been a constitutional convention against court-packing in place since the early 20th century. Professor Tushnet contends that there is not enough evidence to call this a convention, as one failed attempt in 1937 is insufficient to ground a constitutional convention. He argues that it is problematic to ascribe decisions made by past administrations to a normative idea like a constitutional norm, as there are a multiplicity of reasons and motivations for an administration to make the decisions they do. He suggests that there has simply been a practice of non-expansion because there has been no need to court-pack, until now.

The legitimacy of the Court argument holds that changing the composition of the Court with the express purpose of altering outcomes will undermine the belief that the court is engaged in legal interpretation, and thereby deprive the judiciary of its legitimacy. If the definition of legitimacy is deference to decisions simply because they emanate from the Court, the question asked was whether the court even has legitimacy. Additionally, Presidential appointments to the judiciary have already blurred the law/politics distinction. So, would a slight further reduction in legitimacy even matter? Professor Tushnet expressed the view that the public observing USSC decisions with a more critical eye would be a good thing for democracy.

The final concern raised by Professor Dawood was the potential “constitutional hardball” that would ensue following a decision by the Democrats to court-pack. As Prof Dawood explained, constitutional hardball (a term which Prof Tushnet already wrote about several years ago) is played when politicians make claims or act in ways that are not technically constitutional but go against established norms and practices. It is seen as unfair for undermining the public’s understanding of the constitutional system. The concern is that if the Democrats do court-pack, the Republicans will retaliate when they have power again, essentially spiraling into a “tit-for-tat” battle. Professor Tushnet pointed out that hardball/tit-for-tat is actually the preferred strategy in game theory. It is how to escape the Prisoner’s Dilemma equilibrium and get back “on course.” This game of hardball is exactly what has been going on in the conflicts over the last few USSC appointments. On a practical note, hardball can only be played when the reigning party controls all of Congress and the White House, which is not likely to happen very fast after the next regime change. Professor Tushnet argues that elected politicians do not make such long-term decisions and will not care about the repercussions for their decisions in 4/8/12 years.

Overall, the Roundtable discussion involved a lot of speculation, as court-packing is only relevant in the scenario where the Democrats win Congress and the White House in 2020. In these uncertain times that could very well not be the outcome of the election. Nevertheless, Professor Tushnet raises an important point and suggests a potential tactic Democrats could use to combat a bench that is not likely going to be amenable to their policy agenda. The Roundtable presented a fascinating glimpse into the constitutional questions being raised by our neighbours to the south.

Jasmit De Saffel is this year’s Asper Centre’s work-study student and a 1L JD candidate at UTLaw.

Frank v Canada: Contrasting the Section 1 Analyses

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By: Sahil Kesar and Jasmit De Saffel

On January 11, 2019 the Supreme Court issued its decision on the constitutional challenge to provisions of the Canada Elections Act detailing residence requirements for voting in federal elections. The provisions in question denied the right to vote in federal elections to Canadian citizens residing abroad for five consecutive years or more.  The Court sided with the expats and held that the impugned provisions infringe section 3 of the Charter and were not saved under section 1.  Frank v Canada was substantively significant for deepening the constitutional protection of section 3 voting rights for Canadians. The decision was also procedurally note-worthy, particularly in the strongly contrasting section 1 analyses of the majority and dissent decisions.

While both the majority and dissent found a pressing and substantial purpose to the non-resident limitation, they both determined it to be different from each other. Writing for the majority, Wagner CJ found that the purpose of the legislation is to maintain the fairness of the electoral system to resident Canadians. Brown J and Cote J’s dissent found the purpose to be to privilege a relationship of some currency between electors and their communities.

The majority did not come to a conclusion on rational connection but they did reject the Attorney General’s arguments, suggesting that it is likely they did not find a rational connection. The dissent found a rational connection between the 5-year period and the objective of preserving currency between electors and their communities. They found that the majority’s reasoning in dismissing the rational connection, taken to its conclusion, creates inconsistencies in their argument.

The majority determined the appeal on minimal impairment. They held that the 5-year period has no basis and is over-inclusive as it applies even to those to whom it is not intended to apply. The dissent stated that, based on the options available to Parliament, the 5-year period was the least impairing option, especially considering the non-resident cut-offs for other similar democracies and that citizens can vote again once they re-establish residency.

Finally, on proportionality, the majority did not think the salutary effects outweigh the deleterious effects. They asserted that the impugned provisions disenfranchise over one-million non-resident Canadians who have been abroad for 5 years or more and that it is unclear how this advances fairness in the electoral system. It severely limits the ability of non-resident citizens to vote especially considering the laws that might be enacted could affect their citizenship. The dissent took the view that the salutary effects outweigh the deleterious effects mentioned by the majority. Addressing the concerns of reciprocity between exercising the right to vote and bearing the burden of Canadian laws and protecting the integrity of the electoral system outweigh any concerns with the legislation. They also found that the majority overlooks the importance of residence and effective representation in weighing the effects.

The dissent’s deferential section 1 analysis did not decide this case but should be noted for giving the government more leeway in justifying infringements on voting rights. Considering Rowe J’s openness to a limit based on residency in his concurring judgement, one wonders if there is potential for the dissent’s less stringent section 1 analysis to decide future cases about positive rights guaranteed in the Charter?

Sahil Kesar is the current Asper Centre half-time clinic student and a 3L JD candidate at UTLaw.

Jasmit de Saffel is this year’s Asper Centre’s work-study student and a 1L JD candidate at UTLaw.

 

Reflecting on the Sex-Ed Charter Challenge

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By: Leslie Anne St. Amour

Now that the Constitutional challenge to the Ford government’s repeal of the 2015 sex-ed curriculum has been heard by the court, I am reflecting on why I wanted to work on this project as an Asper Centre Clinic student last term. The repeal of the 2015 sex-ed curriculum was terrifying and personal to me. I grew up in rural Ontario and received all of my public-school sexual education based on the 1998 curriculum. In my hometown there is no access to abortion services, mental health services are few and far between and everyone knows each other and their business, making seeking additional information or services difficult, if not impossible.

We learned to be abstinent. And if not, then to use a condom. But not how to use a condom. We learned sexually transmitted infections exist and that they are something to be ashamed of and feared. Not where to go to get tested, how to navigate disclosure or that the stigma is unnecessary. We simply did not learn about consent or gender identity.

Because of this inadequate curriculum, many young people in Ontario have turned to each other and the internet for their sex education in the years since we have left public-school. We turn to the internet, but there is so much information and misinformation that we often struggle to know what is accurate and so we crowdsource it amongst ourselves. We hope one of our friends had a sex-ed teacher who went above and beyond the 1998 curriculum, or that one of us learned something at our universities’ health fairs or maybe that one of us with a parent in healthcare knows the accurate answer.

This Charter challenge focused on: section 2(b) guaranteeing freedom of expression, section 7 guaranteeing life, liberty and security of the person and section 15 guaranteeing equality. While working with the Asper Centre to support this litigation I conducted research on several topics including Constitutional conventions and Charter jurisprudence. The Charter section I primarily focused on was section 7. Under the guidance of Susan Ursel, the Asper Centre’s Constitutional Litigator in Residence last term, I conducted research into potential Charter challenges that could be made. In this case, section 7 was used to address the removal of consent from the curriculum and the impact this has on the security of the person of students, women and LGBTQ+ people in particular.

Society is facing a reckoning in respect to consent and sexual activity. The #MeToo movement has provided an opportunity for discussion about sexual assault, harassment and consent. We are seeing a societal conversation about consent, what it means and how to ensure consent has been given. This makes it so clear to me that so many people do not understand consent and therefore how important it was that it was included in the 2015 sexual education curriculum. The removal of consent from the curriculum puts every child who will not be taught about their right to bodily integrity at risk and puts those children at risk of one day perpetuating sexual violence because they do not understand the required consent and how to gain it.

I hope that regardless of the results of the case, students across Ontario have heard us. There are people here supporting their rights to bodily autonomy and to have all gender identities and sexual orientations included in their curriculum. And I hope that governments across Canada, not just Ontario, have heard us ask for this.

Leslie Anne St. Amour is 2L JD Candidate at the Faculty of Law and a former Asper Centre clinic student.

 

Asper Centre Files Submissions on Administrative Segregation

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by Jasmit de Saffel

On November 19, 2018, the Asper Centre filed submissions to the Standing Committee on Public Safety and National Security in regards to the use of administrative segregation in Canadian correctional facilities and the proposed amendments to the legislation under Bill C-83. The submissions were prepared by the Executive Director, Cheryl Milne, and six Asper Centre clinic students: Joshua Foster, Becky Lockert, Ben Hanff, David Coté, Misha Boutilier, Sara Tatelman.

The brief submitted to the Committee emphasized the “gross disproportionality” of administrative segregation, a measure used to ensure the safety of the inmates and the penitentiary. There is growing social science and professional consensus that administrative segregation has immensely deleterious effects with no rehabilitative function. The negative health effects of segregation on specific individuals cannot be preemptively determined and there is no way to know when the damage becomes irreversible.

The serious deprivation of inmates’ Charter rights to life, liberty and security of the person under administrative segregation has resulted in two recent judgements ruling the practice unconstitutional: Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen 2017 ONSC 7491  and British Columbia Civil Liberties Association v Canada (Attorney General) 2018 BCSC 62. Both decisions are currently under appeal to their respective provincial courts of appeal.

The submissions find that the proposed amendments to administrative segregation under Bill C-83 are substantively and procedurally deficient. Substantively, it permits more than 15 consecutive days in segregation, contrary to the Nelson Mandela Rules (the United Nations Standard Minimum Rules for the Treatment of Prisoners), and therefore contrary to Canada’s international obligations to not engage in torture or cruel, inhuman, or degrading treatment or punishment. Procedurally, Bill C-83’s’ remedial framework is also not compliant with international standards. Instead of implementing an external review process for uses of administrative segregation,  it allows the possibility of a non-binding recommendation by a health care professional and review by the Commissioner, only after a period of 30 days in segregation.

The submitted brief makes 10 recommendations to the Committee to ensure a Charter-compliant system of administrative segregation. These recommendations include:

  • Canada taking immediate steps to eliminate the practice of administrative segregation, except in the rarest cases.
  • Correctional Services Canada justifying any uses of administrative segregation before an impartial decision-maker within 48 hours. The onus to justify being on the state.
  • An inmate not being placed in administrative segregation for more than 72 hours.

For more details and the rest of the recommendations, please find the FULL SUBMISSIONS HERE.

Jasmit de Saffel  is a JD Candidate at the Faculty of Law and is the current Asper Centre work-study student