‘SYSTEMIC BIASES’

Top court orders retrial in Gladue case

An Ontario trucker will be tried for manslaughter in the death of an Alberta woman, following a Supreme Court of Canada ruling Friday in a case centred on issues of sexual violence and consent, and the criminal justice system’s treatment of Indigenous women.

Cindy Gladue, 36, was found dead in Bradley Barton’s motel room in June 2011.

Barton acknowledged hiring Gladue for sex in 2011 and claimed the severe injury to her vaginal wall that caused her death was an accident that took place during rough but consensual activity during their second night together.

Her body was found in the bathtub after Barton called 911. She had an 11-centimetre cut in her vagina and had bled to death.

In 2015, a jury acquitted Bradley Barton of both first-degree murder and manslaughter.

The acquittal triggered nationwide protests.

During the trial, the jury heard Gladue described as “native” and a “prostitute,” and were presented with evidence about her sexual history.

In an unusual move by the prosecution, her vaginal tissue was brought into court as evidence, prompting outrage from advocates who argued it was an indignity that would not have happened were Gladue not Indigenous.

The Court of Appeal of Alberta overturned the acquittal, and ordered a new manslaughter trial, ruling that serious errors were made in the judge’s charge to the jury about Barton’s conduct, and on sexual assault legislation as it pertains to consent.

In its 4-3 decision Friday, the Supreme Court ruled that the trial judge did err by allowing evidence about Gladue’s sexual history without first holding a hearing to determine if that evidence was admissible.

In the ruling, the court included instructions for addressing prejudice against Indigenous women and girls in sexual assault cases.

“With this in mind, our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous women and sex workers,” the ruling states.

“As an additional safeguard going forward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide an express instruction aimed at countering prejudice against Indigenous women and girls.”

However, the majority opinion concluded that while a new manslaughter trial should be held, a new murder trial should not.

The decision found that the provincial appeal court erred by introducing its own grounds for appeal, and by allowing the Crown to change its position from trial during the appeal.

The issues of systemic racism and consent were taken up by the Women’s Legal Education and Action Fund and the Institute for the Advancement of Aboriginal Women (IAAW), which were both granted intervener status in the case.

“We think it really needed to go further,” IAAW research adviser Julie Kaye said Friday, reacting to the decision.

Kaye said that while there are some important gains in the judg

The way that she was treated — I don’t think that degree of dehumanization was really accounted for in this decision.

ment, it does not fully reckon with the harm caused by the way prejudices played out during the trial.

“The way that she was treated — I don’t think that degree of dehumanization was really accounted for in this decision,” she said.

“It counters some of those stereotypes, but there’s a lot more work to do on the actual systemic violence of the way the court treated Cindy Gladue.”

Kaye said she thinks the opinion of the three dissenting judges, who stated they would have also ordered Barton stand trial for murder, provided a more nuanced understanding of how systemic racism in the legal system affects Indigenous women.

Barton’s lawyer Dino Bottos said Friday that he’s pleased the Supreme Court agreed with their arguments that the Court of Appeal of Alberta’s introduction of its own grounds of appeal was unfair.

“Although we have to go back to trial on manslaughter, it’s a far better result than having to go back to trial on first-degree murder,” Bottos said.

Bottos said that the Court of Appeal of Alberta went “too far” by trying to correct the errors and insensitivities in the trial’s treatment of Gladue, and that he thinks the Supreme Court’s choice to use its judgment to provide a “teaching moment” about prejudice is a better way to address the wrong.

“We should really be more careful. But being more careful doesn’t mean we should upset juries’ verdicts. Not unless it was wholly and clearly unfair, and here it was not,” he said.

Bottos said he spoke to Barton about the ruling, but declined to share what his client’s reaction was to the news.

Bottos said the manslaughter trial is scheduled to begin in Edmonton next February.

Gladue was a caring mother to three daughters, her own mother, Donna Mcleod, told Postmedia after her daughter’s death in 2011. Reached Friday, Mcleod said she is not ready to talk about the latest decision.