Content warning: this podcast contains graphic details that may be disturbing to listeners.

Professor Lisa Kerr discusses a unanimous Supreme Court of Canada decision in May ordering a new trial for Bradley Barton, the Ontario trucker accused of killing Indigenous woman Cindy Gladue, including details of the split Court decision, the Court's decision as a state of the nation for sexual assault in Canada, and the importance of external parties in these kinds of cases. Lisa Kerr is the creator and instructor of the Criminal Law module of Law 201/701, Introduction to Canadian Law.

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Transcript:

Welcome to Fundamentals of Canadian Law

I'm Matt Shepherd. I'm joined this week by professor Lisa Kerr, the creator of our Criminal Law module in Law 201/701, Introduction to Canadian Law. We're going to be talking about a difficult subject:  a unanimous Supreme Court of Canada decision in May ordering a new trial for Bradley Barton, the Ontario trucker accused of killing Indigenous woman Cindy Gladue. We'll be talking about that decision, and a split between the justices on whether Barton should face trial for manslaughter or first degree murder. As Lisa describes it, this decision is also an opportunity to explore and explain the current state of sexual assault law in Canada as well.

This podcast contains graphic details that may be disturbing to listeners.

This podcast is also not legal advice and is being presented for informational purposes only.

Fundamentals of Canadian Law is brought to you by the Queen's Certificate in Law, the only online Certificate in Law offered by a law faculty in Canada. You can find out more at takelaw.ca.


00:00 Matt Shepherd: So we should start this with a content warning.

00:03 Lisa Kerr: We should, yeah. We're about to talk about a very difficult, a very troubling case in terms of the facts, it's a case that involves the death of an indigenous woman in very distressing circumstances. And so some of our listeners might want to decide whether this is the right show for them to listen to.

00:26 MS: Right.

00:26 LK: Yeah.

00:27 MS: So we are talking about the Supreme Court, and we're talking about the Barton case and a very recent decision that came down that's essentially saying that there's going to be a new trial for manslaughter.

00:36 LK: Exactly. So let me just see if I can introduce the victim in this case. So, Cindy Gladue, as I said, was an indigenous woman. She was a woman with links to Cree and Métis communities. She grew up and lived on the homeland of the Métis and of Treaty 8 and Treaty 6 territories. And she was a mother of three children, a daughter, a sister, an aunt, a cousin and a friend. And I'm quoting here from the factum of the Institute for the Advancement of Aboriginal Women and Women's Legal Education and Action Fund, the LEAF factum that was filed in this case. And those were just two of the interveners that had a major impact on how this case was litigated and ultimately addressed in the appellate courts. So what happened to Miss Gladue is that she met the defendant, in this case, Bradley Barton and on an evening that they spent together in a hotel room in Edmonton, Miss Gladue died from loss of blood, and that was caused by an 11-cm cut on the inside of her vagina.

01:49 LK: And the Crown's theory at the trial was that Mr. Barton had caused that wound and that he'd done that by using a sharp object or weapon on Miss Gladue and that when he did that he had intent to kill. And so this would have amounted to murder and that murder would have been classified as first degree and would have been subject to a mandatory life sentence with 25 years before parole. Now the Crown at this trial also said in the alternative that Mr. Barton had committed the lesser, an included offense of unlawful act manslaughter. So that's basically causing death in the course of the sexual assault and Mr. Barton winds up acquitted of both murder and manslaughter and there is by his own evidence, he had sex with Miss Gladue in that hotel room. By his own evidence, he used his hand very aggressively on her and that caused bleeding and he said that she went into the hotel bathroom and that he then fell asleep and that he found her dead the next morning in the hotel bathroom.

03:07 LK: Now, of course, we'll never hear from Cindy Gladue, her own version of events from that evening, but we are left with a number of questions about what happened and ultimately Mr. Barton's acquittal was appealed and both the Alberta Court of Appeal and the Supreme Court of Canada have said that a new trial is warranted. The majority of the Supreme Court would limit the new trial to just the manslaughter charge, and the dissent would have allowed Mr. Barton to be retried on both murder and manslaughter. So there are many, many legal issues in this case and there are many people with a great deal of expertise on the case and so I'd really recommend to listeners who are interested in learning more, to go to the Supreme Court of Canada website, look up the Barton case, read the full opinion, and look at the factums that were filed. You can go and click on those and read through them. There were just... There was extraordinary work done here by interveners. Groups like the Aboriginal Women's Action Network, the Women of the Métis Nation, the National Inquiry into Missing and Murdered Indigenous Women and Girls filed a factum. As I said, LEAF had a major impact in this case. And so, all of the materials are there for you to read and learn how this very unusual and very distressing case happened.

04:32 MS: So you've mentioned it's an unusual case and you're not only the creator and instructor of the criminal law module in LAW-201, but you also teach criminal law to law students here at Queens and you mentioned you want to make this case... You wanna organize your criminal law class next year around this case. Why this case in particular?

04:52 LK: I do and you know, I'm sort of of two minds. On the one hand it's so distressing the facts of this case that it might be challenging to think about this case over a long period of time with my first year law students. On the other hand, there are so many important structural systemic issues that this case reveals. So we know and talk a lot about how indigenous people are over-represented in our prison system. Right? We know that but what we sometimes know less about although I think we're in the process, especially with the final report of the Inquiry on Murdered and Missing Indigenous Women coming out in recent days, we're learning more about how the criminal justice system doesn't just over-punish indigenous people, it also under-protects them. And so this case shows us how Miss Gladue was sort of not only under-protected in terms of what may have led to her death, but also under-protected in the course of the trial. So there were failures in my opinion, by each and every legal professional that was involved in this case and I mean to include the Crown prosecutor, the trial judge and defense counsel.

06:12 LK: There were, and this is really largely recognized by the Supreme Court of Canada, failures in the substantive law and how the substantive law of sexual assault was handled, failures in how the victim and the victim's family were treated, failures in the jury instruction, and although this issue wasn't discussed by the Supreme Court, there were in my view failures in how evidence was handled in the course of the trial. So there's a lot to learn from this case in terms of how to advance reconciliation in the context of the criminal justice system, but it's also a case that teaches us a lot about criminal law and especially about the law of sexual assault and many of the important reforms that we have implemented in recent decades in order to sort of bring the law of sexual assault from a largely misogynistic and sexist treasure trove to a modern feminist dignity respecting law of sexual assault.

07:17 MS: And a lot of this relates to what you are or are not allowed to say about people during a trial, correct?

07:25 LK: Yeah, so the really big issue that's at the core of what the majority does in its decision, what Justice Moldaver does in his decision is on this issue of what's called the rape shield provisions. So the rape shield provisions are found in Section 276 of the Criminal Code and basically these are rules that govern the admissibility of evidence about a complainant's prior sexual activities. So what that means is you can't just go into a court and talk about a complainant's sexual past. And you kinda have to turn your mind back to this sort of misogynist sexist past of sexual assault law, when cases would be litigated by referring to the fact that a complainant was not a virgin, by referring to the fact that she had had sex with this man before, and that that was somehow relevant to whether she had consented on this occasion. I mean, all kinds of stuff you'd be shocked about, if you read sexual assault cases from really the bulk of the 20th century and before. So what section 276 says is, you cannot rely on evidence of... It's not... You can't admit evidence of a complainant's prior sexual activity if you're going to use it to support a forbidden inference.

08:44 LK: And so there's two of these forbidden inferences that are set out in 276. Basically, you can't say that sexual past is relevant to whether she consented, and you can't suggest that it's relevant to whether she's worthy of belief, to whether she's credible. Those are called the twin myths. And those apply sort of irrespective of which party leads evidence, and it's categorical. Now, there are times, there are rare instances when the past sexual activity of a complainant might be relevant, in very narrow ways, but you can't just bring that evidence in without getting a judge's permission in advance. So that's called a Section 276 hearing, and you have to go in front of the judge and say, "Yes, I wanna refer to this. I wanna refer to her, typically her, right, sexual past. But I wanna do it for a narrow legitimate reason that is not in support of one of these so-called rape myths."

09:41 MS: That did not happen with Barton, which is one of the things that Supreme Court takes issue with.

09:46 LK: That did not happen. What happened here is there were some, in my view, mistakes on both the part of the Crown prosecutor, and defense counsel. The Crown prosecutor, in its opening statement, referred to the fact that Ms. Gladue had met Mr. Barton the night before for paid sex. So they referred to that, instead of thinking, in what way is their prior sexual history, which was not much of a history, it's just one night before that they'd met one time. Why am I referring to that? How is it relevant to the question of whether she consented on this night? Nobody paused and asked those questions and that is what section 276 is supposed to make us do. Now, so that was a fairly light reference in the opening statement, but defense counsel sort of took that slightly open door and opened it even wider. And Mr. Barton, in his testimony, as Justice Moldaver put it, really flooded the jury with testimony about his sexual experience with Ms. Gladue the night before her death.

11:03 LK: So let me tell you a little bit about that evidence that Mr. Barton gave in his testimony and this is really what the Supreme Court was focused on in terms of what it said was inappropriate, absent to section 276 hearing. Mr. Barton gave evidence that he and Miss Gladue agreed on a price of $60 for "everything" on the first night, that they agreed on the same price on the second night. And that "she knew what she was coming for." Mr. Barton also testified that he considered the two nights as forming part of the continuing commercial transaction, that's his evidence, was supposedly similar sexual activities occurring on both nights and further, Justice Moldaver says, defense counsel stressed that "she's a prostitute, and she's consenting to the sex," and that there were "no groans of disagreement, in fact, only groans of agreement, and there were no signs that she was in disagreement, he reasonably believed she was consenting." Those are the submissions of defense counsel. Now, two big problems with that. One, there was never a 276 hearing, and there should have been. This was just material that we just asked the defendant about and that he testified about in front of the jury without ever pausing and saying, "Is this prior sexual activity from the night before, is it appropriate evidence given 276?" Second, those submissions that defense counsel made, that Justice Moldaver said were based on multiple errors of law.

12:42 LK: And so to unpack that a little bit, I need to talk a little bit about the difference between a mistake of a fact and a mistake of law. In a sexual assault trial, a defendant occasionally says, "I thought she was consenting." Maybe the defendant even says, "I understand now that she wasn't, but I had an honest but mistaken belief at the time that she was consenting," and that was part of his defense here. And that's basically suggesting that you didn't have mens rea, that you didn't have knowledge of an essential element of the offense, namely a lack of consent. And that can be a defense in our system, there are a number of important limits on it in the criminal code, but that can be a defense, and it's a mistake of fact defense, right? You are mistaken about a fact, the fact of whether she was consenting. So that can, in some circumstances, be a defense that can lead to acquittal of sexual assault. And in this case, it would mean that he did not commit manslaughter. But you are not allowed to build a defense like that based on a mistaken understanding of the law, right? The old saying, "Ignorance of the law is no defense."

13:56 MS: Right.

13:56 LK: This is an instance of that. And if we think back about those arguments the defense counsel made in closing submissions, right? Defense council stressing, "She's a prostitute, she's consenting. There were no groans of disagreement, there were no signs she was in disagreement." Those kinds of arguments were based on mistakes of law. And there were three main mistakes of law that the majority pointed to: The first was the notion of implied consent, and this goes back to a really important case in this area called Ewanchuk. And Ewanchuk basically said that... So for many years in the law, there was a requirement that a woman would resist forcefully a sexual assault. That was actually required. Utmost resistance. If she didn't fight and kick and scream and try to run away, then the law said she was not sexually assaulted.

14:52 MS: What?

14:52 LK: Yeah.

14:53 MS: Wow! Okay.

14:53 LK: Yeah, yeah, that's what I was talking about when I said it was a misogynistic and sexist area of law for many decades.

15:00 MS: Right.

15:01 LK: That... Oh, and it's really based on the notion of what a US scholar, Susan Estrich called "real rape." There's this notion that a real rape victim fights back, she screams. Now, we know that's a very erroneous understanding of how sexual assault actually happens and that many people will freeze in fear and will be silent in order to try and preserve their life out of fear. And so what Ewanchuk said and held was that implied consent or passivity as consent or a lack of disagreement as consent was not consent, that the only kind of consent that is valid in Canada today is communicated consent, right? Affirmative consent through either words or action, it has to be affirmative. So passivity, silence, a lack of disagreement is not consent. And so Justice Moldaver saying the defense was pointing to some notion of implied consent, and that was wrong. The second mistake of law that the defense was premised on it was the notion of broad advance consent, right? This notion that there was some kind of continuing transaction between these two from night A to night B. That is not how consent works. I can consent on day one, that doesn't mean I'm consenting on day two.

16:24 MS: Right.

16:26 LK: And so that's a mistake of law, to suggest that they did something on Friday night and that means that he could do it again on Saturday night. That's obviously wrong. And then the third mistake was the notion of propensity to consent. So the law today prohibits the inference that a complainant's prior sexual activities make it more likely that she consented to this sexual activity. And I think this suggestion that she consented to whatever Mr. Barton said she consented to on night one meant that she had a propensity to say yes again. This is also false. You... So you... People can... And we don't... I mean, we might disbelieve him, that she consented so clearly on night one. But even if she did, it means nothing in terms of whether she consented on night two.

17:24 MS: Right.

17:25 LK: And again, if you look back in the history of the law of rape, there was a rule, and this was built into the legal doctrine, that it was an element of the offense that the victim is not your spouse. What is that all about? Well, that meant that a man couldn't rape his wife. The spousal exception was this notion that wives are in a permanent state of consent with respect to their husbands. And so it's this notion, right? That the modern law of sexual assault is all about, "Did this person consent on this occasion to these activities, right?" So the notion... "And did they affirmatively consent?" You don't have to fight back, you don't have to not be the wife of the defendant. There's nothing about you as a complainant, whether you're a sex worker, whether you're a virgin, any of these things are not relevant to that enquiry about: A, whether you consented, or B what whether the defendant is able, in those circumstance, to advance in a mistake of fact defense.

18:35 MS: This is all coming back to why this entire rape shield concept is so important. Why references to someone's past history aren't relevant or necessary in court when you're trying these kinds of cases.

18:47 LK: Right. Well, I think there could be some limited circumstances within which we might want to refer to past experiences between a complainant and an accused. I don't wanna say that door should be fully closed, but there should be a 276 hearing so that the trial judge and council can have a moment to pause and reflect and make sure that the reason they're reducing this evidence is an appropriate one and it's not one based on a discredited rape myth.

19:17 MS: So let's talk about the descending opinion, because there was a majority opinion, which is a new trial for manslaughter, but there is also Supreme Court judges who are descending on this.

19:25 LK: Right. So, Justices Abella and Karakatsanis dissented here. And they agreed with the majority judgment about the need for a new trial on manslaughter. They agreed with the majority about the problems of the defense, in terms of the sexual assault issues and the lack of a Section 276 hearing. So there's agreement on all of those issues from the entire court. What the dissent would have done differently is they would have also ordered a new trial on the murder charge. Basically remember that the issue of whether this was a murder as opposed to man-slaughter, turned primarily on this issue of expert evidence about the cause of the wound. So the crown brought in an expert who said, "This 11 centimeter wound, I think was caused by an object." That would have meant if you accepted that expert's evidence, that Mr. Barton used a weapon.

20:23 MS: Right.

20:23 LK: And when you use a weapon in that way, it's obvious that you would have either intent to kill, or an intent to cause serious bodily harm, knowing it's likely to result in death, and that is the mens rea for murder. This would have also been a murder committed in the course of a sexual assault, that makes it murder in the first degree.

20:43 MS: Okay.

20:43 LK: So the most serious kind of crime in our society. And the majority wanted... So I think the majority said, "Well listen, that issue of whether the jury believed the expert... Found the expert evidence to be convincing that's sort of a separate issue than these other errors I've pointed to with respect to how sexual assault was handled." So, the majority said, the acquittal for murder can stand because that was just a matter of a jury disbelieving an expert and that's... Nothing inappropriate happened there. And that's the appropriate function of a jury to decide, make findings of fact in that way. What the dissent said was... What went wrong at this trial was really more than the mishandling of these issues of consent.

21:38 LK: And what went wrong here really permeated or infected the entire proceeding. And so what were they talking about? Well, there were not only unrestricted references to the victim's sexual history in this case. There were also multiple... Dozens of occasions where the Crown and defense counsel referred to Miss Gladue as a "native prostitute." And the judge gave no specific warning to the jury about that, so never explained to the jury anything about why was she being referred to that? In that way? What was relevant about the fact that she was someone who had done sex work, or that she was an indigenous person. What was relevant about that? In truth, nothing. And yet she's referred to in this way. And of course, I think, at this point in our history, many of us would think of native as an inappropriate word as well.

22:36 MS: Right.

22:36 LK: Many of us think of prostitute as an inappropriate word. So we've got this almost slur that's being used against her, by the legal professionals in front of the jury. So I think there's a sense that that left a real risk that the jury was gonna draw prejudicial and stereotypical assumptions about indigenous women who are working in the sex trade. As they decided not only the manslaughter but also the issues they had to decide with respect to murder. So the dissent said that there were sort of devastatingly prejudicial effects from these phrases that were used and the trial judge's failure to address those phrases. And that the effects of this error that we can't sort of neatly cabin off the effects to just the manslaughter charge, that they must have infected also the jury's reasoning with respect to murder.

23:27 LK: And I think... I said at the outset, and it's worth repeating that this is another aspect of this case that's very unusual is the extraordinary contribution that interveners made in this case. And now that we've talked about it a bit, you can really understand that the Crown and defense and trial judge in many ways, failed to protect the interests of Cindy Gladue. And legal issues really weren't argued properly at the trial, evidence wasn't handled properly, the jury wasn't instructed properly, and so that leaves a real vacuum in our system. It's really the crown prosecutor who's supposed to be sort of protecting the interest of victims and sort of seeing justice be served, and the trial judge has a role to play and there's ethical obligations that bind the defense, as well.

24:14 LK: And so there were problems with all of that and so what that meant was that in order for the appeal to be done properly, you really needed interveners more than you usually need interveners. To come and make those arguments on behalf of Miss Gladue in ways that the Crown really couldn't. 'Cause the crown hadn't made those... Hadn't done things properly either. And so, groups like LEAF, groups like aboriginal legal services, you know these groups they show up unpaid, uncompensated, do this work, many academics volunteering their time, many community leaders volunteering their time, in order to ensure that the appropriate legal arguments get in front of our appellate courts and this trial gets corrected. And so... And when you read the final decision from the Supreme Court of Canada, you don't necessarily see that labor, and the trauma, and the labor and everything else that these people took on in order to make this contribution to this case. And so it's really worth remembering the contribution and the analysis and the argumentation and the insight that many of those groups brought to this case are all over the majority opinion.

25:21 LK: Both in the Alberta Court of Appeal decision, and in the majority and dissenting opinions of the Supreme Court of Canada. So these groups made an extraordinary contribution. And so, I'll just refer in closing to the argument that was made by Jonathan Rudin and his colleagues at aboriginal legal services, they talked about this issue of how Miss Gladue was referred to as a "native prostitute." And at one point, this was a very compelling submission, and I showed this argument in my class 'cause you can watch the webcast of the Supreme Court of Canada hearings. And I showed this argument being made in class, and it was really powerfully done.

26:00 LK: So, aboriginal legal services said this, "In this case the identity of Miss Gladue was not in question. Therefore there was no need to refer to her by anything other than her name. Repeatedly describing her as native would suggest to the jury that there were something about her background that was relevant to the case, but the jury was never told what that was. And this leads to the problematic outcome, that the jury was left to ascribe whatever meaning they wish to her description without guidance from the court." So I think that submission was very much I picked up on in the majority, to a degree, but certainly by the descent in terms of these really problematic references and yeah. So as I said, it's a difficult case to talk and think about, but I feel for Miss Gladue's family having to return to a trial court now. You know, Miss Gladue was... Died in 2011. It's now 2019, and they're headed back to trial. So I think it's... I think there's been incredible work done in the appeal context here by both judges and counsel and community leaders, but it's hard even in the face of that incredible work to say that this case was really anything but a failure.

27:23 MS: Well, thank you for taking the time for this today.

27:26 LK: Thank you.

Thanks to Lisa Kerr. Criminal law is one of many modules in Canadian Law, Law 201/701, Introduction to Canadian Law. If you're interested in the connections between Indigenous people and the law in Canada, you may want to look into Law 202/702, Aboriginal Law, taught by professor Hugo Choquette. You can learn more about it at takelaw.ca.

Fundamentals of Canadian Law is recorded at Queen's University, situated on traditional Anishinaabe and Haudenosaunee territory. Our theme music is by Megan Hamilton, who is also a staff member here at Queen's Law! You can find out more about her music at meganhamiltonmusic.wordpress.com. Original illustrations for this podcast are by Valerie Desrochers. You can find her work at vdesrochers.com.

Thanks for listening.