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The Supreme Court of Canada says the criminal-justice system failed an Indigenous woman who died during sex work, citing a judge’s “devastating” errors on the law of sexual assault, which it said “haunted the courtroom” in the murder trial of the man who admits to causing her death.​ A jury acquitted the man.

But in ordering a new trial for Bradley Barton, a slim majority of the court ruled that he can be retried only for manslaughter, not murder, in the 2011 death of Cindy Gladue. The other three of the court’s seven judges would have allowed a retrial on a first-degree murder charge, as well as manslaughter.

All seven agreed, however, that the judge who presided over the murder trial made a crucial error in failing to hold a “rape-shield” hearing, in the jury’s absence, to determine whether sexual activity between Mr. Barton and Ms. Gladue a night earlier could be introduced as evidence that she consented to similar activity on the night that led to her death. (The Alberta prosecutor failed to ask for such a hearing.) And the judge compounded that error, all the judges said, by failing to instruct the jurors that evidence of the previous night did not prove that Ms. Gladue consented to the sexual activity in question on the night of her death.

“The jury was left adrift in a sea of dangerous and impermissible inferences,” Justice Michael Moldaver wrote for the majority group, which included Justice Russell Brown, Justice Suzanne Côté and Justice Malcolm Rowe.

Ms. Gladue’s mother said she was emotional over the prospect of a new trial. “There were happy tears,” Donna McLeod of Edmonton said in an interview. “I’m happy – even if it’s manslaughter, it’s something.”

The case raised a myriad of issues: the definition of consent; the proper use of the rape-shield law limiting the use of past sexual conduct in a trial; the legality of dangerous force in a sexual act; and the extent to which judges should warn juries to avoid myths about Indigenous sex workers as always consenting.

Ms. Gladue, a 36-year-old mother of three from northeastern Alberta, was referred to in the murder trial as a “native” or prostitute more than 50 times by the Crown and defence. And, in an act the legal community says is without precedent in Canada, the Crown brought her preserved pelvic tissue into the courtroom as evidence of the fatal wound she suffered.

She bled to death from an 11-centimetre tear to her vagina. Her body was found in Mr. Barton’s hotel room bathtub in Edmonton. The Crown’s theory was that Mr. Barton, a trucker from Ontario, had either used a knife, intending to kill her, while she lay drunk on the bed (her blood-alcohol level was more than four times the legal limit for driving) or that he had killed her inadvertently, using his hand in a sexual act. That would amount to “unlawful act manslaughter” if the Crown could show that she did not consent to the sexual activity in question. Mr. Barton testified that he had used his hand in a sexual act to which Ms. Gladue consented and had killed her by “accident.”

None of the Supreme Court judges said anything about the victim’s pelvic tissue being brought into the courtroom as evidence. Legal observers in the Indigenous and feminist communities were highly critical of their silence. “It’s a green light for Crowns all over the country,” said Vancouver lawyer Jean Teillet, who represented Women of the Métis Nation, which intervened in the case, in an interview. “I would not be surprised to see more of it now.”

Both groups of judges were critical of the frequent references to Ms. Gladue’s race and sex work. “Her name was ‘Ms. Gladue,' not ‘native woman,’ and there was no reason why the former could not have been used consistently as a simple matter of respect,” Justice Moldaver wrote.

The majority said the jury, by acquitting Mr. Barton, had rejected the Crown’s theory about the use of a weapon. The dissenting judges (Justice Rosalie Abella and Justice Andromache co-writing, with Chief Justice Richard Wagner in support) said the whole trial had been “infected” by devastating errors, potentially affecting the jury’s reasoning on the murder charge.

On the definition of consent, the court appeared not to break new ground, but it strongly emphasized that to claim a defence of honest but mistaken belief in consent the accused must be able to show that he took steps to ascertain consent. (Justice Moldaver renamed the defence “honest but mistaken belief in communicated consent.”)

“The law hasn’t changed,” said Megan Savard, a Toronto lawyer who represented the Criminal Lawyers’ Association, which also intervened in the case to argue against expanding the definition. “It’s just an evolution in the way we’re talking about it.” She saw the decision as positive.

Lise Gotell, a former chair of the Women’s Legal Education and Action Fund, also saw it as largely positive, though for a different reason.

“There are so many ways in which this is going to have a very positive impact on the law of Canada,” she said, mentioning the strong direction given to lower-court judges on implementing the rape-shield law and the importance of “communicated” consent rather than relying on previous sexual activity.

But she was disappointed that the court did not discuss the use of force and how it relates to consent. "There is still the question of whether the scope of consent includes the level of force. It sidesteps that.”

The court said Ms. Gladue’s “life mattered” and that the justice system failed to give her “the law’s full protection.” It encouraged judges when intructing jurors to try to dispel stereotypical assumptions about Indigenous women who do sex work, such as that they are sexual objects for male gratification or that they assume the risk of harm that befalls them.

Mr. Barton’s lawyers, Dino Bottos and Peter Sankoff, did not respond to a request for comment.

With a report from Kathryn Blaze Baum

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