Alberta Court of Appeal demands a new standard for sexual assault
Editor’s note: This column contains graphic content.
It is unusual for an appeal court to set aside a jury verdict.
But late last week, Alberta’s Court of Appeal did exactly that in the case of Bradley Barton, the Ontario trucker acquitted in 2015 on all charges in the death of Cindy Gladue.
But Alberta’s highest court didn’t just set aside the verdict. They shoved it aside fiercely, in a denunciation not just of the trial judge, but of the way jury trials work in this country.
The three judges used the case as a national call-to-arms.
“We have also concluded the time has come to push the reset button for jury charges in this country for cases involving an alleged sexual assault,” the appeal court panel wrote in a unanimous ruling.
“(D)espite efforts to thwart them, myths and stereotypes continue to stalk the halls of justice in cases involving sexual offences, enabled sometimes by inadequate jury charges.”
The panel, headed by Alberta Chief Justice Catherine Fraser, ended its judgment with these extraordinary words: “This undermines equal justice under law. The courts cannot permit this to go on. We must correct this. And we will.” The facts were shocking. In June 2011, Gladue’s body was found in the bathtub of Barton’s hotel room. She had bled to death. The autopsy discovered what the judgment described as a “gaping hole” over 11 centimetres long in her vaginal way, which passed completely through her vaginal wall and almost the full length of her vagina.
Two Crown experts testified such a long, deep cut could only have been made by a sharp instrument. The defence expert attributed the injury to blunt force trauma. And Barton himself testified he’d thrust his hand, which was unusually large and strong, inside Gladue.
The defence argued her death was an accident, that Barton never intended to kill or seriously injure her. The Crown’s theory was the cut was deliberate, but they were never able to find the murder weapon. Adding to the gruesome surreality of the whole case, the Crown had Gladue’s preserved vagina brought into court so the jury could see the tear.
The Crown sought a firstdegree murder conviction. The jury didn’t even convict Barton of the lesser included offence of manslaughter.
The outrage was nation-wide, with protests across the country, as Gladue became the symbol of a culture of violence directed at indigenous women. But you can’t overturn an acquittal based on moral outrage or public pressure.
The appeal court based its decision on a long list of mistakes it felt Judge Robert Graesser made in his charge to the jury.
Graesser, the appeal court said, erred when he told jurors they shouldn’t let Barton’s behaviour after Gladue’s death, his lies about what happened, influence their deliberations. He made another mistake, they said, when he told them they should consider whether Barton had a motive to kill Gladue. He erred again, the court said, by repeatedly calling Gladue a prostitute, and by describing the 36-yearold as a “native girl” and a “native woman” — which, the court said, could provoke jury prejudice.
The court argued Graesser made a serious mistake in the way he defined an accident, and more crucially, in the way he described the law of sexual consent to the jury. Even if Barton hadn’t intended to kill Gladue, the appeal court said, he shouldn’t have assumed that she’d consented to having him thrust his huge hand forcefully inside her.
Graesser’s argument, the court said, “assumes that all women in Canada, single, married or in an intimate relationship, are walking around this country — whether in their home, on a date, at work, at a restaurant or wherever — in a state of continuous consent to sexual activity unless and until they say ‘No.’ This is not the law. As for those who question, as defence counsel did here, ‘What’s a man to do?’ the answer can be summed up in one word: ask.”
It’s a powerful, provocative, ruling — one that might redefine the way Canadian courts determine sexual consent. But it should also give us pause. The court has ordered Barton to be tried again for first-degree murder, even though a jury acquitted him of that charge. As the legal adage goes, hard cases make bad law. There’s always a danger in turning one specific case into a symbol, a national cause celebre. We need to ensure Barton stands trial for his own sins, not for the sins of every man, and every judge, before him.