Grisly court case heard at the Supreme Court could redefine sexual consent

Grisly court case heard at the Supreme Court could redefine sexual consent

Warning: This story contains graphic descriptions of violence.

EDMONTON—A case that shocked the country with grisly details of an Indigenous woman found mutilated in an Edmonton motel is headed to the highest court in Canada on Thursday.

Cindy Gladue was found dead at the Yellowhead Inn after bleeding out in a bathtub from an 11-centimetre wound to her vaginal wall in 2011. Her accused killer, Bradley Barton, said the wound was inflicted from “consensual rough sex.”

He was found not guilty in a stunning acquittal. The Alberta Court of Appeal ordered a retrial in 2015, a decision Barton is now appealing.

Indigenous women, activists and community members from across the country will be watching the hearing closely.

Muriel Stanley Venne, president and founder of the Institute for the Advancement of Aboriginal Women, is in Ottawa to speak as an intervener at the Supreme Court of Canada hearing. She says the hearing has “huge implications” for the justice system, for Indigenous Peoples and for women in Canada.

“We’ve been struggling for decades to get attention paid to the death of our women,” she said. “In this case, there’s all the elements of prejudice and discrimination and a cavalier way of dealing with things, with no thought given to the feelings of the community. All of that is in this case and it’s brought out in clear form.”

“She was utterly dehumanized both in the treatment she received from Barton and in the treatment she received from the criminal justice system, the violence the criminal justice system enacted upon her,” said Julie Kaye, adviser for the Institute for the Advancement of Aboriginal Women.

Barton, an Ontario trucker who made his living moving furniture across Canada, was first charged with first-degree murder in connection to Gladue’s death on June 23, 2011. He stands six feet one inch tall and weighed 220 pounds.

Gladue, 36, a petite woman at five foot five, weighing half as much as Barton, was found dead in a blood-smeared bathtub in Barton’s hotel room one day earlier. Court heard Gladue had a potentially incapacitating level of alcohol in her system.

In a rare move, a judge allowed the Crown to bring Gladue’s preserved pelvic tissue into the courtroom as evidence, causing national outrage.

At trial, Barton admitted to causing Gladue’s death but argued it was an accident resulting from consensual sex when he thrust his fist into her vagina.

The Crown suggested a sharp object may have caused the cut.

In either case, Crown prosecutors suggested Barton would still be guilty of manslaughter because he caused Gladue’s death in the course of a sexual assault.

However, a jury found Barton not guilty of first-degree murder and acquitted him of manslaughter.

A new trial was ordered after Alberta’s Court of Appeal agreed that the trial judge erred in instructing the jury and allowed evidence to be heard about Gladue’s sexual history that opened the door for racist and sexist myths and stereotypes that could have clouded the judgment of the jurors.

“This case has revealed the inescapable need in sexual offences to properly warn jurors to disregard unfair assumptions and to ensure that jury instructions adequately and accurately reflect the current law in Canada,” wrote Chief Justice Catherine Fraser, Justice Jack Watson and Justice Sheila Martin in a decision giving reasons for their call for Barton’s retrial.

“The courts cannot permit this to go on,” the decision concluded. “We must correct this. And we will.”

During her trial, Gladue was referred to as a “prostitute” 25 times and as a “native” 26 times.

“Rather than referring to her by name, she was referred to as ‘native girl,’ ‘native woman,’ as a ‘prostitute.’ These are very dehumanizing ways to refer to somebody, a person,” said Kaye.

To protect women in court proceedings from two stereotypes called the “twin myths” — the misconceptions that a victim of sexual assault who consented to sexual activity in the past is likely to have consented to the sexual activity at issue, and that a woman is less worthy of being believed because of her past sexual history — Section 276 of the Criminal Code outlines that allegations about a person’s sexual past are largely inadmissible in court and otherwise have to be preapproved by a judge out of earshot of the jury.

Alberta’s Court of Appeal found this did not happen in Gladue’s case, as all sides repeatedly referred to Gladue as a prostitute said to have agreed to having sex with Barton for $60 and the judge made no effort to explain to the jury that her sexual past should have no bearing on her likelihood of consenting to the sexual acts that killed her.

“We do have legal principles to suggest any sexual activity has to involve consent specifically to the degree of force that’s used within the grounds of that activity,” said Kaye, adding they are looking to the Supreme Court of Canada to ensure those legal standards are upheld.

The Supreme Court is expected to hear arguments on multiple procedural issues as they decide whether Barton will face a new trial, but some hope this case will see the top court decide whether a person can consent to sexual activity when there is an objective likelihood of serious harm.

Alberta’s Court of Appeal brought up case law out of Ontario looking at incidents in which a person died during a consensual fist fight. It was determined consent couldn’t be given for acts in which that kind of harm was intended and caused, but there was little legal direction as to how issues of consent may apply to cases of sexual assault where harm or death is caused.

In 1998, Venne received an Alberta Human Rights Award at Edmonton City Hall where she made a point to utter the names of 110 Indigenous women who were murdered without a single person charged. She remembers speaking with a newspaper columnist who covered the awards ceremony and asked how many phone calls they had received about the missing and murdered women.

No one called. As Venne sees it, no one cared.

Now 20 years later, she says not much has changed.

“In many cases it’s changed for the worse. It hasn’t gotten better. But as I say that … we always take the attitude that there has to be some good out of even the worst situation,” Venne said from Ottawa.

Venne, who has been a human-rights activist for some 40 years, called the Cindy Gladue case a “pinnacle” in her quest for justice.

Especially in light of a renewed focus on missing and murdered Indigenous women in Canada and the global #MeToo movement, Venne believes the hearing will be precedent setting and a test of how the justice system treats Indigenous women.

“It’s an opportunity for Canada and the provinces, and every citizen and every woman in this country, to realize that if the Bradley Barton acquittal stands, they are in jeopardy,” she said. “This is an opportunity that was never before given to us, as a country, as the citizens of Canada, to do the right thing.”

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