OTTAWA — The case of an Ontario trucker acquitted in the death of an Alberta woman referred to at trial as a "native" and a "prostitute" is to go before the Supreme Court this week in what could set a precedent in Canada's sexual assault laws.
Bradley Barton says Cindy Gladue died after a night of consensual, rough sex in an Edmonton motel in June 2011. Her body was found in the bathtub after Barton called 911. She had an 11-centimetre cut in her vagina and had bled to death.
A jury found Barton not guilty of first-degree murder and manslaughter. The Crown appealed following nationwide protests and the Alberta Court of Appeal ordered a new trial.
The Appeal Court ruled serious errors were made in the original trial and in the judge's charge to the jury about Barton's conduct and on sexual assault legislation as it pertains to consent.
The Supreme Court is to hear arguments Thursday on several procedural matters, including the role of interveners, but may also decide for the first time whether an "objective likelihood of harm" cancels out sexual consent.
The Alberta Crown, as well as attorney generals in other provinces, including Ontario, is arguing for such an addition to the law.
Barton's lawyer, Dino Bottos, says it would be a big deal if the top court agrees. He plans to argue that the Crown brought up the consent versus harm argument on appeal — not at trial — and it shouldn't affect his client's case.
It would be akin to double jeopardy, Bottos says. "We're just trying to hold the line."
Lise Gotell is a gender studies professor at the University of Alberta and chairwoman of the Women's Legal Education and Action Fund, or LEAF, one of 16 groups intervening in the Barton case. She points out the court has previously ruled that a person killed in a fist fight couldn't have consented to bodily harm.
"But the court has never made a ruling on whether or not this rule applies in a sexual context."
The Barton case is complicated, says Gotell, who adds that LEAF won't argue for the new consent provision because it believes Gladue didn't agree at all.
Barton has testified that he hired Gladue for two nights of sex that included putting his fist in her vagina. When he woke up after the second night, he said, he found her dead in the tub.
A medical examiner testified that the wound to Gladue's vaginal wall was likely to have been caused by a sharp object and, in a rare move, he used Gladue's preserved vaginal tissue as an exhibit.
That was disrespectful and dehumanizing, says Gotell, as were the comments from lawyers who referred to Gladue more than two dozen times before the jury as a native prostitute.
The 36-year-old Metis woman was a mother of three girls. She struggled with addiction and poverty and deserved better, says a factum filed by lawyers with another intervener — the National Inquiry into Missing and Murdered Indigenous Women and Girls.
"We recall her strength and dignity now, because the trial in relation to her death failed to do so," it says.
Muriel Stanley Venne, founder of the Institute for the Advancement of Aboriginal Women, a co-intervener with LEAF, says there's never been a better time, in light of the #MeToo movement, for a case like this to be heard.
"I believe this is the most important case in my lifetime," says Venne, who is 80. "Our Cindy Gladue is the embodiment and the hero that we are looking for to change the conduct of the court."
