Protesters hold signs in support of Cindy Gladue outside Edmonton's city hall on April 2, 2015.Topher Seguin/The Canadian Press
A great-grand-niece of Louis Riel electrified a Supreme Court hearing on Thursday, saying that the justice system’s “dehumanizing” of an Indigenous woman at a trial in Alberta made it impossible to get a just result for the victim.
Cindy Gladue, a 36-year-old mother of three from northeastern Alberta, bled to death from a wound in a bathtub in 2011 after a paid sexual encounter with Bradley Barton, a trucker from Ontario. In what was believed to be a Canadian first, the Crown introduced as evidence – with a judge’s permission – Ms. Gladue’s preserved pelvic tissue at Mr. Barton’s 2015 trial.
A jury acquitted Mr. Barton of first-degree murder and a lesser charge of manslaughter. The Crown’s theory was that Mr. Barton killed her, either intentionally with a knife or with his hand in a way he should have foreseen, during a sexual act. Mr. Barton said it was an accident, caused by his hand, but that Ms. Gladue consented to the act that led to the injury. The Alberta Court of Appeal unanimously threw out the acquittal and ordered a new trial. Mr. Barton appealed that ruling to the Supreme Court.
“She was objectified and dehumanized, called a ‘specimen’ and ‘tissue,'” Jean Teillet, a lawyer representing Women of the Métis, an intervenor group, told the judges. (Louis Riel, the Métis leader executed for high treason in 1885, was her great-grand-uncle. Whether his trial produced a just result continues to be questioned today.)
“Sexual violence? That didn’t happen to a woman. It happened to tissue, to a body,” Ms. Teillet told a packed courtroom that listened in rapt silence as she spoke.
That was so dehumanizing, she said, that Ms. Gladue could not be seen as an individual capable of withholding consent.
Then she pleaded with the judges to speak up for Indigenous women. “We are asking you today to raise your voice on how the criminal justice system treats Indigenous women. We ask you to make sure no other Indigenous woman is dismembered.” She added: “I would never have thought we even had to talk about this.”
The stated purpose of bringing the pelvic tissue into court was to allow a medical examiner to show jurors the fatal 11 centimetre wound, which ran the length of Ms. Gladue’s vagina.
The pelvic tissue was not directly in question in Thursday’s hearing. The issues included whether a new definition of consent is required in cases involving sex workers, and whether the trial judge failed to warn the jury of the danger of letting myths and stereotypes about women, Indigenous people and sex workers influence their view of the case.
The judges did not ask about how the introduction of the pelvic tissue, and more than 50 references to the victim as “native” or a “prostitute,” might have encouraged jurors to view her according to negative stereotypes. (As the Crown and defence, mostly, had used the terms, and the Crown brought in the pelvic tissue, neither side raised those issues.)
Still, several judges offered forceful comments and questions in a key legal area – Canada’s rape-shield law – offering a clear view that a majority, and perhaps the entire court, felt the trial judge had made a major error.
Ms. Gladue had a paid sexual encounter with Mr. Barton the night before she died, and the judge had not held a special hearing in the absence of the jurors, as the rape-shield law sets out, on whether this evidence could be heard. At least four judges said clearly that this was wrong.
The result, Justice Andromache Karakatsanis said, is that evidence of the previous night’s sexual encounter would have made jurors more likely to accept one of the myths the rape-shield law was designed to counter – that is, that her past sexual behaviour made her more likely to consent.
That view ties together, potentially, with the views of Indigenous and feminist groups that said jurors needed to be warned about stereotypes.
Representing Mr. Barton, University of Alberta law professor Peter Sankoff told the court the prevailing narrative about the case – presumably a reference to the stereotyping of Ms. Gladue – is wrong.
The case, he said, is really about an appeal court that overstepped its bounds by looking beyond the prosecution’s grounds of appeal and raising its own objections to the judge’s handling of the trial.
The court reserved its decision. The ruling is probably several months away.