Jean Teillet is an Indigenous rights lawyer and the great grand niece of Louis Riel. She represented Women of the Métis Nation, which was an intervenor group at the Supreme Court of Canada
Is there justice for Indigenous women who have been sexually assaulted in Canada? This is the fundamental issue in the Supreme Court of Canada’s recent reasons for ordering a new trial in R. v. Barton. The case is about Cindy Gladue, a victim of sexual violence who bled to death in a hotel bathtub. In its decision, the court found that Bradley Barton, the accused, had lied, destroyed evidence and admitted that he caused Ms. Gladue’s death. He was acquitted at trial. The Alberta Court of Appeal overturned the acquittal and ordered a new trial for murder and manslaughter. The SCC also ordered a new trial, but only for manslaughter.
Ms. Gladue was an Indigenous woman and a sex worker. She paid for both of these facts with her privacy, her dignity and her life. The case is known by her name, as if she was the one on trial. And naming is important. It reveals how we understand what we are viewing. In this case, the naming is, sadly, accurate. It was Ms. Gladue’s life and body that were on trial.
Ms. Gladue’s case is not an isolated incident. The numbers are damning: According to Statistics Canada, 600,000 sexual assaults against women occurred in just one year in Canada. Indigenous women are, according to data from 2014, nearly six times more likely to be murdered than non-Indigenous women. They are three times more likely to be the victims of violence. These numbers are not going down.
Why? The answer is quite simple. Our society permits women to be sexually assaulted and women fear our criminal-justice system. They fear they will be revictimized, discredited and humiliated by the trial.
This is not paranoia. These are facts. Women pay a steep price if they seek justice for the sexual violence they encounter.
Women pay for justice with their credibility. A recently released video of an RCMP officer questioning an Indigenous woman, who was reporting sexual violence, should underscore this: He asks if she was “at all turned on … even a little bit,” during the abuse she is reporting. This reinforces the current attitudes among women that going to the police is useless.
They also pay for justice with their liberty. Another recent case in which a victim of a sexual assault in Alberta was handcuffed and detained in the same jail as her attacker reinforced the costs to women who report sexual assaults. Yet, our justice system claims that the golden rule of the presumption of innocence cannot be relaxed. That rule rests firmly on the potential for the accused to lose his liberty. But if our courts throw the victims into jail, where is their loss of liberty taken into account? How are the scales balanced? They aren’t.
There is simply no safety for women in Canada if they cannot go to the police and they cannot go to the courts.
Ms. Gladue paid another new and shocking price in this trial: The Crown brought part of her preserved pelvic tissue into the courtroom, as evidence of the wound she suffered. She was literally made an object, called a specimen and tissue. Further, there were more than 50 references to her in the trial as “native” and “prostitute.” She was robbed of her humanity.
The Supreme Court of Canada’s deafening silence on this issue of her dismemberment for evidence sends a terrible message to the women of this country. The court’s silence will be taken as a green light. Crown counsel could now freely indulge this barbaric practice.
Ms. Gladue’s case has been sent back for trial. The majority of the judges said the prejudices and errors so infected the trial that it must be redone.
But curiously, the infection did not contaminate the murder charge. Put together with other recent cases, the message to Indigenous people is this: No white man in Canada will be found guilty of murdering an Indigenous person.
The federal government needs to step up and do more than timorous tinkering with the Criminal Code. We have recognized inherent injustice for women: In family law, we created specific laws and systems that recognized the uneven playing field women faced.
A similar institutional response is needed with respect to sexual assault. No matter what imperfect system is established, we could hardly do worse than we are doing now.