Tansi Nîtôtemtik,
*Content Warning*- This post discusses sensitive and upsetting topics. Every effort has been made to provide only the details necessary to tell the story. If you need support after reading this post, you may contact Hope for Wellness Helpline at 1-855-242-3310.
As discussed yesterday, Cindy Gladue’s killer was set to appeal his conviction this month, but it has been postponed until March 23, 2023. [1] This case has had several iterations as it moves through different levels of Canadian courts, and has had an extensive impact on both the Canadian legal system and society at large.
Cindy Gladue was killed by Bradley Barton on June 21, 2011. In the decade since her death, Cindy’s family and friends have yet to have closure from the Canadian colonial justice system. Today’s article will highlight some of the judicial missteps taken that perpetuated racism and gender stereotypes. It will also highlight steps that have been taken to prevent the same from happening in future cases.
Court of Queen’s Bench- Initial Trial, 2015
In 2015, a jury of 11 members, 9 male and 2 female, acquitted Mr. Barton of both first degree murder and the lesser charge of manslaughter. [2] Prior to the trial, a voir dire, or private trial within the trial, was held to determine whether the Crown could use physical evidence of Ms. Gladue’s preserved vaginal tissue. [3] Trial Judge Graesser decided that the tissue could be admitted, and critics cried out that had Ms. Gladue been a white woman, it would never have been allowed.
The decision sparked outrage and protests across the country, calling for justice for Cindy. [4]
There is no record of the original trial, other than the voir dire previously referenced. The Crown appealed the acquittal, and the decision from the Alberta Court of Appeal provided insight into the numerous issues surrounding race, gender, and occupation that arose in the original trial.
Alberta Court of Appeal- Acquittal Appeal, 2017
The 2017 decision from the Alberta Court of Appeal focused on the inadequate instructions provided by the trial judge to the jury. [5] The Court highlighted several issues in the trial judge’s charge to the jury including:
How referring to Ms. Gladue as a “prostitute” violated s. 276 of the Criminal Code by admitting past sexual history.
How repeated references by defence counsel, Crown counsel, and witnesses to Ms. Gladue as a “Native girl” or “native” presented the possibility of racial prejudice from the jury.
How additional procedural issues resulted from the trial judge’s charge on mens rea, actus reus, and motive.
In the original trial, the Crown prosecutor, defence counsel, and trial judge all referred to Cindy as a “prostitute”. [6] Within the Criminal Code, a complainant’s past sexual history cannot be presented in court to suggest a likelihood of consent. In the lower court, all parties were guilty of inadvertently (or intentionally) alluding to Ms. Gladue’s past sexual history.
Under s. 276, if a complainant’s past sexual history will be used in a trial, a separate voir dire must be held to determine whether it is admissible. This did not happen.
Throughout the original trial, Ms. Gladue was also referred to by all parties as a “Native girl” or “Native woman”. [7] Such an identifier was not necessary in this case. Furthermore, the trial judge failed to provide instructions to the jury to ensure they were not prejudiced in their deliberations.
The Court of Appeal decision was especially powerful by suggesting that trial judges must work harder to ensure juries are aware that prejudices towards sex workers and Indigenous women cannot contribute to deliberations. The Court provided a draft charge to juries with a caution to the jury when the case involves “not only gender (a woman) but also race (Aboriginal) and class (sex trade worker)”, to ensure that any assumptions about the above are set aside in deliberations. [8]
Ultimately, the Alberta Court of Appeal overturned the decision and ordered a new murder trial.
Supreme Court of Canada, 2019
Following the Court of Appeal decision to order a new trial for first degree murder, Mr. Barton appealed the decision to the Supreme Court, asking for the original acquittal to be restored.
In 2019, the Supreme Court of Canada issued its decision. Writing on behalf of the majority, Justice Moldaver opened his decision with a strong statement:
We live in a time where myths, stereotypes, and sexual violence against women — particularly Indigenous women and sex workers — are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can — and must — do better. [9]
Both the majority’s decision, from Justice Moldaver, and the dissenting opinion highlighted the important role that trial judges must play to keep biases, prejudices, and stereotypes from influencing jury decisions. The Court specifically addressed the prejudice and racism experienced by Indigenous persons, particularly the high rate of sexual violence against Indigenous women, girls, and sex workers. [10]
The Supreme Court’s decision was a powerful statement on how the Courts, and society at large, must address bias and prejudice- especially towards Indigenous women, girls, and sex workers. The decision has been cited over seven hundred times since it was issued. It was a turning point for judicial direction to combat racism.
The majority and dissenting decisions differed on whether the appeal should be allowed. The majority allowed the appeal and ordered a new trial, on manslaughter alone. The dissenting justices would not have allowed the appeal, and would have upheld the Court of Appeal’s decision to retrial on first degree murder.
Re-trial in the Court of King’s Bench, 2021
Following the Supreme Court decision in May 2019, a new trial was held, with the jury finding Mr. Barton guilty of manslaughter on February 19, 2021.
In his sentencing decision, Justice Hillier took time to acknowledge Cindy as a person, and to acknowledge the toll that the journey to justice has inevitably had on her family and friends. He intentionally chose to refer to Cindy in ways other than a victim, following the example from the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. [11]
Justice Hillier’s decision demonstrates that change and reconciliation are possible through the courts. While the colonial justice system of Canada continues to fall short, cognizant efforts to avoid decisions that perpetuate prejudice are beneficial.
The upcoming appeals
The conviction appeal that was set to be heard in early January 2023 has been postponed to March, 2023. In this appeal, the killer will be arguing that his Charter rights were violated, and his conviction will not stand. The issue of whether the evidence was obtained outside of what is permitted was previously decided upon.
The Crown also indicated that it would be seeking an appeal for the twelve year sentence handed down by the Court of Kings Bench, on the basis that it was unfit for the severity of the crime.
Appeals are an important part of the Canadian criminal justice system. However, for Cindy Gladue’s loved ones, the road to justice has been frustratingly long. A further adjournment and the potential for more appeals are heartbreaking. Our thoughts go out to all of Cindy’s family and friends.
Until next time,
Team Reconcili-ACTION YEG
[1] Madeline Smith, "Cindy Gladue's family reaffirms her dignity as killer's appeal rescheduled" (6 Jan 2023), Edmonton Journal, online: <https://edmontonjournal.com/news/local-news/cindy-gladues-family-reaffirms-her-dignity-as-killers-appeal-rescheduled>.
[2] Kathryn Blaze Carlson, "More than a tragic headline: Cindy Gladue dreamt of a happy life" (15 May 2015), The Globe and Mail, online: <https://www.theglobeandmail.com/news/national/the-death-and-life-of-cindy-gladue/article24455472/>.
[3] R v Barton, 2015 ABQB 159.
[4] Janice Johnston, "Convicted killer Bradley Barton seeks third trial for 2011 death of Cindy Gladue" (14 Jun 2022), CBC News, online: <https://www.cbc.ca/news/canada/edmonton/convicted-killer-bradley-barton-seeks-third-trial-for-2011-death-of-cindy-gladue-1.6487450>.
[5] R v Barton, 2017 ABCA 216 at para 53.
[6] Ibid at para 116.
[7] Ibid at para 118.
[8] Ibid at para 162.
[9] R v Barton, 2019 SCC 33 at para 1.
[10] Ibid at para 198.
[11] R v Barton, 2021 ABQB 603 at fn 1.
[12] Supra note 2.