Canadian Lawyer

August 2019

The most widely read magazine for Canadian lawyers

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UPFRONT 12 www.canadianlawyermag.com On May 24, the Supreme Court of Canada ordered a new trial on unlawful act manslaughter for an Ontario man charged in Alberta in the death of a woman who bled to death in a hotel bathtub. The deci- sion provided clarification regarding consent to sexual activity, disclosure of prior sexual activity and allowable defences. In R. v. Barton, the Supreme Court found that the trial judge had made several errors that resulted in the jury acquittal of trucker Bradley David Barton in the death of Cindy Gladue. "The central error committed by the trial judge was his failure to comply with the mandatory requirements set out under the s. Judge didn't comply with rape shield provision: SCC murder charge would rest on one fact — that Barton had cut Gladue with a sharp object rather than using his hand to cause fatal lacer- ations to her vagina during sexual activity, as he claimed. Dissenting justices Richard Wagner, Rosalie Abella and Andromache Karakatsanis would have ordered a new trial on murder and manslaughter charges. They found that prejudice was created toward the 36-year-old victim, a Métis mother of three from Alberta who was a sex worker and whose vaginal wall was exhibited as evidence at trial. The trial had heard that Gladue had engaged in sexual activity with Barton over the course of two nights, and she was repeatedly referred to as a "native," a "native woman" and a "prostitute." All seven judges agreed that the procedure of the rape shield law should have applied in this case, irrespective of which party had led the evidence regarding prior sexual history (in this case, the Crown had led it by referring to Gladue as a prostitute at the beginning of the trial). The trial judge made a mistake in not following the procedures outlined in s. 276 for allowing admission into evidence of prior sexual history; these provisions applied in murder cases as well, the court found. SCC orders new trial for man charged in death of woman who died in hotel bathtub 276 regime" of the Criminal Code, the rape shield provision in Canadian law that estab- lishes guidelines for admitting an alleged victim's prior sexual conduct into evidence in sexual assault cases. "That error had ripple effects, most acutely in the instructions on the defence of honest but mistaken belief in communicated consent, upon which Mr. Barton relied," Justice Michael Moldaver wrote for the majority, with justices Suzanne Côté, Russell Brown and Malcolm Rowe concurring. However, the majority found that "the new trial should be restricted to the offence of unlawful act manslaughter, not murder." A NEWS BRIEFS Quebec tax authority can demand bank records in Calgary: SCC Quebec tax officials are entitled to demand information from the Calgary branch of a national bank where a trust established in Alberta by a Quebec family holds an account, the SCC ruled on June 27. The demand by the Agence du revenu du Québec for the trust's banking records had been made of the National Bank of Canada, headquartered in Montreal. The SCC held that the demand for documents was a seizure but that the demand did not have extraterritorial effect under the applicable provision of the Bank Act. Canada's trademark changes mean higher fees, more complexities in filing Changes to the Trade-marks Act and new trademarks regulations mean brand owners filing trademark applications will pay more. Before the June changes came into force to file a trademark application, "regardless of the number of goods and services, regardless of the number of classes," the fee was $250, says Janet Fuhrer of Ridout & Maybee LLP in Ottawa. As of June 17, she said, the base fee is $330 for one class of goods and services and $100 for each additional class of services. "One of the key things is the recognition of the rape shield law." Beverley Jacobs, University of Windsor Law OTTAWA UPDATE

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