This case concerned the use of racist and sexist stereotypes about Indigenous women in criminal trials, and the meaning of consent in sexual assault law.
Led by the Institute for the Advancement of Aboriginal Women (IAAW), LEAF and IAAW intervened before the Alberta Court of Appeal and the Supreme Court of Canada.
Cindy Gladue bled to death in a hotel room rented by Bradley Barton, from a wound he inflicted upon her. Mr. Barton was charged with first degree murder. He defended himself by arguing that Ms. Gladue had consented to “rough sex”, or at least that he had honestly believed she did. Throughout the trial, Ms. Gladue was dehumanized and her dignity disrespected, including through the introduction into evidence of her preserved pelvis.
In addition, without having submitted an application under the Criminal Code to present evidence of Ms. Gladue’s prior sexual activity, Mr. Barton testified at length about his previous sexual activity with Ms. Gladue. The Crown did not object, nor did the trial judge order a separate hearing to consider the admissibility and permissible uses of this evidence. At trial, the jury acquitted the accused. The Crown appealed to the Alberta Court of Appeal. The case was then appealed to the Supreme Court of Canada.
IAAW and LEAF argued that the trial judge should not have admitted evidence of Ms. Gladue’s sexual history into the trial, and that the judge failed to properly instruct the jury on the law of consent. These judicial errors allowed prejudice to infect the trial proceedings, raising discriminatory myths about Indigenous women and consent based on sexual history. In addition, the judge failed to adequately inform the jury that consent to a given form of sexual touching does not extend to the use of any conceivable degree of force by one’s sexual partner. The dehumanization of Ms. Gladue epitomized by this trial is unavoidably connected to the fact that Indigenous women are disproportionately targeted for violence in Canada.
The Alberta Court of Appeal allowed the Crown’s appeal, and ordered a new trial for Mr. Barton on the charge of first degree murder. The Court determined that the acquittal had resulted from judicial error and discrimination in the trial process.
Following Mr. Barton’s appeal of the Alberta Court of Appeal’s decision, the Supreme Court of Canada ordered a new trial on manslaughter alone. Three judges would have ordered a new trial on murder.
The Supreme Court’s decision strongly condemns the use of racist and sexist stereotypes about Indigenous women and encourages trial judges to explicitly counter prejudice against Indigenous women and girls in their instructions to juries. The Court provided clear and conclusive direction on consent – including that there is no defence of implied consent, the accused cannot rely on past sexual history evidence to ground a belief in consent, and that expressed consent to every sexual activity is necessary.
However, while claiming to uphold the importance of Ms. Gladue’s dignity, the decision failed to go far enough to address the level of dehumanization the trial perpetrated against Indigenous women and to ensure that no Indigenous woman ever has to face such treatment again.
LEAF is grateful to Lisa Weber, counsel before the Alberta Court of Appeal, as well as to Beverly Jacobs and Shaun O’Brien, counsel before the Supreme Court of Canada.
LEAF extends a special thank you to the members of the Case Committees, whose expertise and hard work on this difficult and devastating case have had a significant and lasting impact on the law of sexual assault and the courts’ treatment of Indigenous women and girls.
Download IAAW and LEAF’s Alberta Court of Appeal factum here.
Download IAAW and LEAF’s Supreme Court of Canada factum here.
Read the Alberta Court of Appeal’s decision here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].