Top court hears grim details of Cindy Gladue's last hours as it considers new murder trial

Details of a murder trial that saw the sexual history of the victim, Cindy Gladue, presented to the jury — and her torn vaginal tissue entered as evidence — played out before the Supreme Court of Canada today as the justices heard arguments on whether her accused killer should face a new trial.

Bradley Barton, an Ontario trucker, was acquitted of murdering Gladue, a 36-year-old Indigenous sex trade worker who bled to death in the bathtub of Barton's Edmonton motel room on June 21, 2011. The case sparked country-wide protests and emotional debate around Canada's sexual assault laws and the lack of protection they afford Indigenous women.

Today, a series of lawyers intervening in the case presented their arguments to the Supreme Court of Canada. Gladue's death, they said, is a symbol of the poverty, abuse and lack of dignity suffered by Indigenous women.

Julie McGregor, representing the Assembly of First Nations, called on the justices to send a message to lower courts across the land.

"This case demonstrates, with shocking and disturbing detail, that these women and girls don't receive the same protections under the law," she said. "Rather, their privacy and equality rights get blatantly violated by the same individuals charged with ensuring the laws of this country are upheld."

Gladue bled out from an 11 cm wound to her vaginal wall. Her vaginal tissue was admitted as evidence at trial, sparking outrage about the indignity to her body.

Graphic details of the sexual act with Barton the night before the fatal encounter were also presented to the jury, without first holding a separate hearing to determine their admissibility in court.

Section 276 of the Criminal Code, known as the "rape shield law," prohibits the admission of evidence about a victim's sexual activity that could infer the victim is more likely to have given consent, or is less worthy of being believed.

Supreme Court justices posed tough questions about why those intricate details of Gladue's sexual past were both openly disclosed and deemed relevant in Barton's trial.

Concerns around 'consent'

Justice Andromache Karakatsanis suggested past activity should not be a factor.

"The fact that someone is a prostitute, and may have engaged in sexual activity in a commercially based transaction on a previous occasion, how is that possibly relevant to the issues this jury had to decide?" she asked.

Justice Michael Moldaver said facts of past sexual history are permitted as evidence in narrowly limited circumstances because of their potential for prejudice. In this case, he said, that prudence got "all skipped over."

Moldaver also noted that consent on one occasion does not extend to another, and that in the second encounter, Barton admitted the act of inserting his hand into Gladue's vagina was "more extreme and forceful."

"It would be a mistake of law to say she consented the night before, therefore I can assume she's going to consent tonight. That is classic error of law. That is rape mythology," Moldaver said.

Peter Sankoff, one of two lawyers representing Barton, said the defence only elaborated on details of the sexual activity after the Crown told the court Gladue was a prostitute and that it was the second of two sexual encounters between the two that ended in her death.

He said the appeals process, which overturned Barton's acquittal and ordered a new trial, was flawed because it accepted "alternative theories" from the Crown that hadn't been raised at trial. Ordering Barton to be tried again amounts to "double jeopardy," Sankoff said.

'Erroneous narrative'

Sankoff said an "erroneous narrative" has developed around the case.

"In spite of the many important social issues raised by these parties in their submissions, I would suggest to you this appeal is actually what can go wrong when appellate courts go forget their role in the adversarial system and ignore due process standards in an effort to reach outcomes they regard as more desirable," he said.

Lawyers for the Alberta government said the trial judge made several errors and omissions in his charge to the jury regarding absence of motive, the accused's conduct after the act and what constitutes consent.

Jean Teillet, representing the Women of the Metis Nation, called the act of presenting Gladue's body tissue in court "horrific."

"The dismemberment of an Indigenous woman's body and the use of it as evidence in a trial was an assault by the state on an Indigenous woman," she said. "It has shocked the conscience of the country and I say it has brought this system of justice into disrepute."

The Supreme Court will weigh the arguments — which included submissions from 15 intervenors — before issuing a judgment. Justice Sheilah Martin did not sit on the bench because she served on the three-member Alberta appeal court that overturned Barton's acquittal.