A Calgary law professor says the case of Cindy Gladue could change the way sex crimes are prosecuted in Canada.
Jennifer Koshan says that while Canada has some of the strongest laws in the world to deal with sex crimes, what happens in too many courtrooms undermines them.
Case in point is an Alberta Appeal Court ruling that will see Ontario trucker Bradley Barton, 49, re-tried for first-degree murder in the June 2011 death of Cindy Gladue, a 36-year-old Cree mother of three who died having sex with him in an Edmonton hotel room.
“The Barton case really does have the potential to change the way sex assaults are handled in jury trials,” said Koshan, who has spent much of her career advocating for fair treatment of sex crime victims in court.
An 88-page decision contained scathing words for how the trial was conducted.
“This case has exposed the flaws in the legal infrastructure used for instructing juries on sexual offenses in Canada,” reads the ruling from the three-judge panel.
Full episode of APTN Investigates: Cindy’s Story
Gladue’s sexual history was bantered around the courtroom without following a procedure to have that history introduced.
She was frequently referred to as “the prostitute” and “the Native girl” by lawyers in the case.
And the appellate court took issue with Judge Robert Graesser’s charge to the jury as they prepared to deliberate, saying they weren’t properly instructed on their options.
In March 2015, a jury acquitted Barton of first-degree murder and manslaughter.
He was a free man.
“We have determined that the errors of law in the trial and the jury charge were several in number, serious in scope and significant in impact,” said the appeals court ruling. “The time has come to push the reset button for jury charges in this country for cases involving an alleged sexual assault.”
During the month-long trial, the defence had argued Gladue died as a result of consensual rough sex with Barton in an Edmonton hotel room.
An autopsy revealed she died of an 11-centimeter slice inside her vagina. That portion of her anatomy was presented to the court as evidence.
“If she wasn’t Aboriginal they’d have never her done that to her,” said Muriel Venne, president of the Institute for the Advancement of Aboriginal Women.
She bled to death in his bathtub. He called the police the next morning.
Because the Crown contended Gladue died during a sexual assault, a first–degree murder charge was laid.
“I think Barton is a very important decision as it gave the Alberta court of appeal the opportunity to talk about some of the problems that have existed over time in jury trials in the sexual assault context and also reinforce how important it is for judges and lawyers who are involved in those sorts of cases to make sure they’re not speaking in a way that reinforces stereotypes of Indigenous women and about sex workers who are victims of sexual assault,” said Koshan, whose advocacy work was cited in the appeal ruling.
Barton has been released on $5,000 bail while awaiting a re-trial in 2019.
(Surveillance video of Bradley Barton, left, and Cindy Gladue in an Edmonton hotel where the mother of three was found dead)
He is to remain at a home in Mississauga, Ont. on weekends and at his mother’s in Aurora, Ont. during the week.
He’s bound by an 11 a.m. to 5 p.m. curfew seven days a week but can go to work.
Barton is to have no contact with sex workers as well as a list of people who may be witnesses in the trial. He’s also prohibited from using alcohol or drugs.
Last month his lawyer Dino Bottos filed an application for leave to appeal to the Supreme Court of Canada.
In a news release, he said the appeal court made several mistakes of its own and given the media attention, the matter deserves to go to the higher court.
In a statement on his law firm’s website, Bottos said the appeal court went too far in its ruling.
“I think the Court of Appeal is making a political statement as much as a legal one. It’s trying to correct every perceived inequity in sexual assault law in Canada in this judgment and it went far beyond what the Crown, on appeal, was arguing and that’s not fair to Mr. Barton.”
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