An Ontario truck driver should be retried for manslaughter, but not murder, in the case of a woman who bled to death in a motel room’s bathroom, the Supreme Court of Canada ruled Friday.
In a 4-3 decision Friday, the high court said evidence about Cindy Gladue’s sexual history was mishandled at a trial in Edmonton that ended in Bradley Barton’s acquittal on a first-degree murder charge.
Barton acknowledged that he hired Gladue for sex in 2011 and said the severe injury to her vaginal wall that caused her death 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 the very least, manslaughter, because the 36-year-old Metis woman had not consented.
Barton was found not guilty by a jury that repeatedly heard references to Gladue as a “prostitute” and a “native.” The Alberta Court of Appeal set aside the acquittal and ordered a new first-degree murder trial.
A majority of the Supreme Court said Barton’s new trial should be restricted to manslaughter, because procedural errors at the trial did not taint the jury’s finding. The minority said he should be retried with both manslaughter and murder as possible verdicts.
Writing on behalf of the majority, Justice Michael Moldaver said the criminal justice system did not deliver on its promise to provide Gladue with the law’s full protection and “as a result, it let her down – indeed, it let us all down.”
“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.”
The 2015 trial sparked widespread public concern about how alleged victims of sexual assault, particularly Indigenous women, are portrayed in a courtroom.
“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, who was at the Supreme Court for the decision.
It’s not uncommon for cases involving the deaths of Indigenous women to go through multiple appeals and retrials, Omeniho said, as difficult as that is for victims’ families.
Also there for the ruling was Qajaq Robinson, a commissioner for the national inquiry into murdered and missing Indigenous women, which is due to report early next month.
“It’s a step forward that 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.
Julie Kaye, a research adviser with the Institute for the Advancement of Aboriginal Women, said the ruling needed to go 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,” she said in an interview from Saskatoon. “I don’t think the decision accounts for that in the way that it needed to.”
Two experts who testified at the trial for the Crown 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 that resulted from blunt-force trauma.
The Crown showed the jury Gladue’s preserved vaginal tissue as an exhibit in an effort to explain her injury. The extraordinary move raised complaints that it contributed to dehumanizing her.
Barton, who hired Gladue for two nights of sex, testified that he put his fist in her vagina on both occasions, but on the second night she started bleeding.
Barton said he woke up the next morning to find Gladue dead in the bathtub.
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 intention is to avoid an inference that, due to their history, they are more likely to have consented to the sexual activity in question or are less worthy of belief.
The court said those provisions should have been followed before introducing evidence about Gladue’s sexual activity with Barton.
If any of that evidence had been deemed admissible, careful instruction by the trial judge was needed to ensure the jury understood that evidence, the Supreme Court added.
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 retrial is set for next 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.”