The country’s highest court has ruled an Ontario truck driver should be retried for manslaughter, but not murder, in the case of an Indigenous woman who bled to death in an Edmonton motel after he hired her for sex.
In a 4-3 decision Friday, the Supreme Court said evidence about Cindy Gladue’s sexual history was mishandled in a 2015 trial that ended in Bradley Barton’s acquittal on a first-degree murder charge.
“Our criminal justice system holds out a promise to all Canadians: everyone is equally entitled to the law’s full protection and to be treated with dignity, humanity and respect,” wrote Justice Michael Moldaver. “Ms. Gladue is no exception.
“She was a mother, a daughter, a friend, and a member of her community. Her life mattered. She was valued. She was important. She was loved. Her status as an Indigenous woman who performed sex work did not change any of that in the slightest.”
Barton had told a jury that he hired Gladue for two nights of sex in 2011 and claimed the fatal injury to her vagina was an accident during rough but consensual activity.
The Crown argued that Barton intentionally wounded Gladue and was guilty of first-degree murder or, at least, manslaughter, because the 36-year-old Metis woman had not consented to what happened.
The jury, which repeatedly heard references to Gladue as a “prostitute” and a “native,” found Barton not guilty on either charge.
When the Crown appealed, the Alberta Court of Appeal set aside the acquittal and ordered a new first-degree murder trial.
GRAPHIC WARNING: The following details may disturb some readers.
Two experts who testified for the Crown at trial said an 11-centimetre cut in Gladue’s vaginal wall was caused by a sharp instrument. A defence expert said the injury was a laceration from blunt-force trauma.
Barton testified that he put his fist in her vagina on both nights, but on the second night she started bleeding. He woke up the next morning to find her dead in the bathtub, he said.
The Crown also showed the jury Gladue’s preserved vaginal tissue as an exhibit in an effort to explain her injury.
The case sparked nationwide protests about how alleged victims of sexual assault, particularly Indigenous women, are portrayed in a courtroom.
The Supreme Court said the trial judge failed to apply provisions in the law that limit the extent to which alleged victims’ sexual histories can be discussed.
The court said those provisions should have been followed before introducing evidence about Gladue’s sexual activity with Barton on the first night.
If any of that evidence had been deemed admissible, careful instruction by the trial judge was needed to ensure the jury understood it, said the decision.
The majority said Barton’s new trial should be restricted to manslaughter, because procedural errors at the first trial did not taint the jury’s finding on whether Barton was guilty of murder. The minority said he should be retried with both manslaughter and murder as possible verdicts.
Indigenous-Crown Relations Minister Carolyn Bennett said the high court has issued an important caution to the judicial system.
“In order to seek justice … the court is saying that you should express instruction aimed at countering prejudice against Indigenous women and girls,” she said in an interview.
Several women’s groups raised similar concerns outside the Supreme Court on Friday.
“When Indigenous women are brought in as victims … they’re often perceived almost like they’re the criminal and that they have to defend themselves. And Cindy, in her death, couldn’t defend herself,” said Melanie Omeniho, president of Women of the Metis Nation.
Qajaq Robinson, a commissioner for the national inquiry into murdered and missing Indigenous women, called the decision a step forward.
“The court has recognized that in cases of sexual assaults involving Indigenous women and girls, that there’s an obligation on courts, on judges, to be gatekeepers — to ensure that bias, prejudice, racism and sexism do not form part of the evidence,” she said.
A research advisor for the Institute for the Advancement of Aboriginal Women added that the court could have gone further.
“The level of dehumanization that was experienced and the level of humiliation that Indigenous women throughout the country felt as a result of the way the court treated Cindy Gladue — I don’t think the decision accounts for that in the way that it needed to,” said Julie Kaye in Saskatoon.
Barton’s lawyer, Dino Bottos, said it’s disappointing his client must return to court on a manslaughter charge, ”but it’s a far, far better result than having to go back to trial on first-degree murder.”
He said the new trial is set for February.
“I intend to simply have Mr. Barton tell his story once again,” Bottos said. “The jury believed him the first time. There should be no reason why a jury wouldn’t believe him a second time.”
Jim Bronskill and Colette Derworiz, The Canadian Press