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People protest in Edmonton on April 2, 2015 after Brad Barton was found not guilty in Cindy Gladue’s death.
Cindy Gladue, in a photo from her sister’s Facebook page.
Her name was Cindy Gladue, “not ‘native woman’,” and the Supreme Court of Canada says that in future, trial judges “would be well advised to provide an express instruction (for juries) aimed at countering prejudice against Indigenous women and girls” like her.
The majority on the court – Justices Michael Moldaver, Suzanne Cote, Russell Brown and Malcolm Rowe – endorsed a specific instruction in sexual assault cases where the complainant is an Indigenous female.
The slight 36-year-old sex worker of Metis and Cree ancestry was found dead June 22, 2011 in the bathtub of Bradley Barton’s Edmonton hotel room. She had bled to death from an 11-centimetre gash that ran through and almost the length of her vaginal wall.
The burly Barton was in the city for a moving job, met Gladue on his first night in Edmonton, paid her $60 for “everything” which he defined as “intercourse, sex.”
"The criminal justice system did not deliver on its promise to afford her the law’s full protection."
On the second night, they met again, and this time, Gladue ended up with the terrible and lethal injury.
Barton was acquitted by a jury of first-degree murder and the lesser but included offence of manslaughter.
“At the end of the day,” Moldaver wrote, “her name was ‘Ms. Gladue’, not ‘Native woman’, and there was no reason why the former could not have been used consistently as a simple matter of respect.”
It was an understated shot across the bow aimed at three judges on the court – Rosalie Abella, Andromache Karakatsanis and Richard Wagner. The three judges took such umbrage at the language used at trial, where Gladue was referred to multiple times as a prostitute and native woman, that they concluded it may have led the jury to acquit Barton on the basis of racial prejudice.
The minority would have ordered a new trial on both murder and manslaughter; the majority ordered only a new trial on the latter charge, finding that on murder, the Crown, whose theory of the crime was that Barton had used a knife on Gladue, simply lost on a battle of expert witnesses, the defence expert having testified that the injury could have been caused by the thrusting of Barton’s huge hand.
It’s a judgment as convoluted as Canadian law itself, but Moldaver rejected the reasoning of his colleagues, saying that it was dangerous to wonder “how 12 independent jurors could have acquitted Mr. Barton of murder without resort to reasoning based on conscious or unconscious bias….the Crown’s theory simply did not hold up under scrutiny.”
He noted that all jurors had sworn the usual oath to perform their duties fairly and impartially, and that the trial judge had reminded them in his final instructions of this duty.
Such safeguards “are not a panacea” against prejudice, Moldaver said, but to conclude they don’t help “would be to assume that such instructions, which have been repeated to juries through the ages, were of no value and amounted to little more than lip service.
“I refuse to go there,” he said, adding that the “firmly held belief that juries perform their duties according to law and the instructions they are given” is “not a form of blind faith…
“It is a reflection of the well-earned trust and confidence that has been built up over centuries of experience in courtrooms throughout the Commonwealth…We erode our confidence in this bedrock institution at our own peril,” he said.
And he was quick to urge that in future, trial judges should confront hard truths – among them, that “Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt” and that Indigenous women in particular “have endured serious injustices, including high rates of sexual violence” – head on.
In a case like this one, Moldaver said, judges should tell jurors that Indigenous sex workers are entitled to the same protections the justice system promises other Canadians, are deserving of respect, humanity and dignity and that they don’t cheerfully assume the risk of harm because they do dangerous work.
Moldaver said that while several mistakes made by the trial judge “were devastating” and irreparably tainted “the truth-seeking process”, it was the judge’s failure to hold a special admissibility hearing about Gladue’s sexual history which was most damaging.
Section .276 of the Criminal Code, the so-called “rape shield” section, calls for a mandatory application from defence lawyers who want to call evidence about a complainant’s prior sexual activity.
The purpose of the .276 regime is to protect trial integrity by excluding irrelevant or misleading evidence that would support impermissible “twin myth” reasoning – the suggestion that an unchaste woman is more likely to have consented or is less worthy of belief – by the jury.
Yet the Barton trial judge didn’t have such a hearing – nor did the Crown ask for one – and as a result, his lengthy testimony about his sexual activity with Gladue was heard unfiltered by the jury.
“…it came at the expense of Ms. Gladue’s dignity and privacy (which continued despite her death), the truth-seeking process and trial fairness…,” Moldaver said.
"We erode our confidence in this bedrock institution at our own peril."
He also urged judges to refine how they describe the sort of defence Barton used – who claimed Gladue never objected and appeared to be enjoying herself. That’s usually called “honest but mistaken belief in consent”, but Moldaver said a better phrase is “honest but mistaken belief in communicated consent.”
“It is an error of law – not fact – to assume that unless and until a woman says ‘no”, she has implicitly given her consent to any and all sexual activity.”
Such legally wrong notions – of implied consent and propensity to consent – “haunted the (trial) courtroom,” Moldaver said.
“…the criminal justice system did not deliver on its promise to afford her (Gladue) the law’s full protection,” he concluded, “and as a result, it let her down – indeed, it let us all down.”
Copyright Postmedia Network Inc., 2019