Twenty-six times, at the trial of the man who acknowledges causing her death, Cindy Gladue was referred to as a “native,” “a native girl,” or “native woman.” Witnesses, a defence lawyer and the prosecution described her in these race-based terms. And 36 times, she was referred to as a “prostitute” − the trial judge did it, too.
As the Supreme Court of Canada begins its fall session this week, the treatment of Ms. Gladue by the criminal justice system, including the words used to describe her, will be front and centre.
Ms. Gladue bled to death in 2011 after an encounter with Bradley Barton, an Ontario trucker. At his 2015 trial in Alberta, the prosecution sent shock waves through Indigenous communities when it brought Ms. Gladue’s preserved pelvic tissue into the courtroom (with the judge’s permission) to show jurors the wound that killed her. The jury acquitted Mr. Barton of first-degree murder and of the lesser charge of manslaughter, sparking public protests across the country.
More than any Supreme Court case in recent memory, the criminal-justice system itself will be put on trial over its treatment of Indigenous peoples, at a hearing on Thursday.
“This is to me the most important case in my lifetime,” Muriel Stanley Venne, the 80-year-old founder and president of the Institute for the Advancement of Aboriginal Women, which is intervening in the case, said in an interview. “It encompasses all the issues that have been so visible to so many people.”
The court will determine whether Mr. Barton will face another trial. He said Ms. Gladue’s death from an 11-centimetre wound that ran the length of her vagina was an accident caused by thrusting his fingers inside her. The prosecution said he either used a knife to kill her deliberately or that he used his hand to sexually assault her and should have foreseen the risk of harm.
After a jury acquitted him, the Alberta Court of Appeal threw out the decision, partly on the basis that the trial judge failed to understand that the words “native” and “prostitution” invited the jury to “bring to the fact-finding process discriminatory beliefs or biases about the sexual availability of Indigenous women and especially those who engage in sexual activity for payment.”
Even the model jury instructions that provide a script for judges are outdated and discriminatory, the appeal court wrote.
“The time has come to push the reset button for jury charges in this country for cases involving an alleged sexual assault.” (Supreme Court Justice Sheilah Martin was part of that appeal panel of judges, and will not be part of the hearing Thursday.)
The National Inquiry into Missing and Murdered Indigenous Women and Girls is one of 16 intervenors in the case, and argues that the trial judge, Justice Robert Graesser of the Alberta Court of Queen’s Bench, allowed “systemic racism” to pollute the trial. The Assembly of First Nations, a national advocacy group, also argues that Ms. Gladue was denied justice because of her race.
“The labelling of Cindy Gladue as a ‘Native’ gave the jury implicit permission to determine that she was less worthy of protection under the law,’ ” it says in a legal filing. “It is a striking acknowledgement of long-held racist and dangerous stereotypes that Indigenous women and girls are sexually ‘available for the taking.’ ”
Ms. Venne, who received the Order of Canada in 2005 for her advocacy work on human rights, said the introduction of the personal tissue in court was a vicious and demeaning act. (Justice Graesser, in a written ruling, said the tissue was important evidence that did not put a fair trial at risk. He did not address the dignity of the victim, family or community.)
“We were appalled and indeed frightened and just so hurt that they would dare do that," Ms. Venne said. "A man said to me if she hadn’t been aboriginal they wouldn’t have dared do that. Her mother was in the courtroom at the time.”
One focus of Mr. Barton’s appeal hearing is the question of whether new ground rules are needed for sexual-assault trials. When a sex-trade worker dies from an encounter with a customer, how should courts treat the question of consent? Does consent to sex for payment mean consent to any and all sexual acts? Is the fact of being a sex-trade worker a kind of past sexual history that should be subject to the federal rape-shield law, meaning it could be introduced as evidence only with a judge’s permission?
(Consent matters in the case because if it was a sexual assault, Mr. Barton could be found guilty of manslaughter if the harm were reasonably foreseeable. By contrast, if Ms. Gladue gave consent, and therefore no assault occurred, Mr. Barton could be found guilty of manslaughter only if he intended harm.)
Dino Bottos, a lawyer representing Mr. Barton, said witnesses described Ms. Gladue as “native,” and he and the prosecutor used that term in response. “It’s just a way of having a dialogue with a witness, on the witness stand,” he said in an interview.
Ms. Gladue’s death was a tragedy, he said, and he agreed that she was, to some extent, dehumanized at the trial; but “we can’t whitewash the circumstances in terms of who she was and what she was doing there.”
Part of the defence argument is procedural: that the Alberta appellate court overstepped by raising grounds of appeal not raised by the prosecution. “I think the Court of Appeal was shocked and appalled that Mr. Barton was acquitted of all charges, and looked very carefully at the entire record, to see if there were errors the judge made,” he said.