Daniel Song and Matthew Nathanson (photographed below) recently represented CDAS in the Supreme Court of Canada in R. v. Barton, 2019 SCC 33, a precedent-setting case dealing with myriad important issues. Barton addressed a number of issues related to sex assault prosecutions, such as when applications are required in order to lead evidence of prior sexual history under s. 276 of the Code. However, Barton’s significance extends well beyond the sexual assault context. On behalf of CDAS, Mr. Song and Mr. Nathanson argued that the Crown should not be permitted to take inconsistent positions at trial and on appeal, raise new issues, or advance new theories of liability. This argument was based on fundamental notions of fairness and the double jeopardy rule. We are pleased to advise CDAS’ members that these arguments were accepted by the Supreme Court of Canada. This decision will be helpful in situations where the Crown seeks to shift away from the position it advanced at trial in order to gain a tactical (and potentially substantive) advantage on appeal. While such Crown behaviour will likely be rare, Barton provides significant ammunition against it when the need arises. Mr. Song and Mr. Nathanson are pleased to have successfully advanced CDAS’ position. This achievement will hopefully be one of a series of successful interventions at the Supreme Court of Canada that solidify CDAS as a significant force in the advancement of the criminal law.
