“Noticing” intersectionality in sexual assault trials: the influence of feminist organisations on the Barton decision

Abstract

In what some might consider to be a ground-breaking decision, the Supreme Court of Canada (SCC), in the case of R v Barton, took judicial notice of the fact that myths, stereotypes and discriminatory practices which operate against sexually assaulted women within the Canadian criminal justice system become compounded when the woman in question is Indigenous and more so, when the Indigenous woman is a sex worker. Given the circumstances of the case, several feminist organisations filed factums on appeal as interveners prior to the SCC’s decision.

This thesis aims to explore the intersectional arguments of the feminist interveners vis-a-vis their influence on the decision in Barton, as well as possible impact(s) the reasoning of the SCC could have within the justice system, going forward. In achieving this aim, I engage the methodology of doctrinal research. I also interview some lawyers who acted as counsel for intervening organisations at the SCC and experienced the dynamics of the case from a close vantage point. The theoretical approach adopted is Indigenous feminism, given the intersectional nature of the Barton dynamics.

The conclusions drawn and recommendations made following the results of the research are crucial in critical assessments of the Barton decision, for lawyers, sexual assault complainants, and the criminal justice system. Most importantly, they are crucial for Indigenous women, who have for too long, had to deal with multiple layers of discrimination within the Canadian society and the criminal justice system as a consequence of the intersection between their race and their gender.