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Canada Supreme Court could overhaul consent law as Cindy Gladue case raises questions about treatment of Indigenous women

Protesters hold signs in support of Cindy Gladue outside Edmonton's City Hall in April, 2015.

Topher Seguin/The Canadian Press

The Supreme Court of Canada could revamp the law of consent in a ruling this Friday and order new warnings to juries about the stereotyping of Indigenous sex-trade workers.

But the court’s judgment in a case that drew protests around the country for its treatment of a dead Métis woman could prove just as important for the tone it sets for the Canadian criminal-justice system as for its legal directives to lower courts.

Bradley Barton, an Ontario trucker, was charged with first-degree murder in the death of Cindy Gladue in 2011 and went to trial in 2015. A jury acquitted him of murder and the lesser offence of manslaughter. If a victim is dehumanized in a courtroom, ask Indigenous and feminist critics, can a trial be fair?

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“The actions of the court and the actions of everyone in the courtroom, were just so abhorrent that they need to be disclosed to the Canadian public,” said Muriel Stanley Venne, president and founder of the Institute for the Advancement of Aboriginal Women, which intervened at the Supreme Court.

From the archive: More than a tragic headline: Cindy Gladue dreamt of a happy life

It comes just days before the National Inquiry into Missing and Murdered Indigenous Women and Girls is to release its report into the causes of violence after nearly three years of study and hearings.

Ms. Gladue, a 36-year-old mother of three from northeastern Alberta, agreed to a paid sexual encounter for $60 on a second consecutive night with Mr. Barton. Her body was found in his Edmonton hotel room bathtub the following morning. She was dead from blood loss caused by an 11 cm wound in her vagina. The prosecution’s theory was that he caused the tear with a knife or his hand. Mr. Barton, who is 6-foot-1-inch and 220 pounds, next to Ms. Gladue’s 110 pounds, said he had used his hand during rough, consensual sex.

During the trial, the Crown and defence referred to her more than 50 times as a “native,” “native girl” or “native woman” or as a prostitute. And at the Crown’s request, her preserved pelvic tissue was brought into the courtroom as evidence and shown to the jury, in what is believed to be a Canadian first.

A jury acquitted Mr. Barton of murder and the lesser offence of manslaughter. But the Alberta Court of Appeal threw out the acquittal two years ago and ordered a new trial. It said that all those repetitions of “native” and “prostitution” invited the jury to fall back on biases about the “sexual availability of Indigenous women and especially those who engage in sexual activity for payment.”

“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,” the court wrote in a 3-0 ruling. (One of the three, Justice Sheilah Martin, is now a member of the Supreme Court, where she is not taking part in the ruling.)

But lawyers representing Mr. Barton questioned the impartiality of the court, saying it weighed in on issues that the prosecution had not raised. “Lost in the public discourse of this case, however, is what can go wrong when appellate courts ignore critical due process norms,” Dino Bottos and Peter Sankoff argued in a court filing.

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The case raises myriad legal questions around the use of a victim’s past sexual history. Canada’s rape-shield law is meant to protect against any suggestion that previous sexual activity implies less credibility or a greater likelihood of consent. Should Justice Robert Graesser of the Alberta Court of Queen’s Bench, who presided over the trial, have removed the jury for a hearing on whether jurors could be told that she was a paid sex worker? Should there have been a hearing on whether jurors could be told that Mr. Barton and Ms. Gladue had engaged in a similar act the evening before?

Consent is at issue because Mr. Barton faced a charge of “unlawful act manslaughter;” if the Crown could prove he committed a sexual assault, and that he should have foreseen the risk of harm, he would be found guilty. Hence, the burden is on the judge to ensure the jury didn’t stereotype the victim as more likely to consent because she was Indigenous or a sex-trade worker.

Criminal lawyers’ groups in Alberta and Ontario intervened to urge the Supreme Court not to broaden the reach of sexual-assault laws.

Nathan Whitling, representing Alberta’s Criminal Trial Lawyers’ Association, said a key issue is the extent to which evidence of a past sexual relationship – “perhaps as recently as the previous night” – may be relied on to show consent. “In the CTLA’s view, such evidence may be admissible and important.”

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