• Lewis Waring

Moving Towards Justice in R v Barton - Katie Rothwell

As a judge, one has a duty to uphold Canadian law to the highest standard and ensure fairness within the courtroom. R v Barton (“Barton”) is a clear example of when a trial judge fails to live up to this duty. Ultimately, in such circumstances, it is the victim and their family who suffer the consequences by not achieving justice in their case.


In 2011, Cindy Gladue was found dead in Barton’s Edmonton hotel room. She had suffered an extensive cut to her vaginal wall, which ultimately caused her death. Barton was charged with first degree murder, as the Crown presented that Barton deliberately cut Cindy Gladue with a sharp object intending to kill or at least seriously hurt her. However, Barton asserted he was innocent of murder; he proclaimed that Cindy Gladue’s death was nothing more than an accident. Further, Barton raised that no sexual assault had taken place as he “honestly believed” Cindy Gladue had consented to the sexual acts that took place that night. In making such an assertion, Barton relied on the prior sexual activity that took place between Cindy Gladue and himself the night before her death.


The trial for Cindy Gladue’s death was one laced with myths and stereotypes. Cindy Gladue was an Indigenous woman and a sex worker, two facts the jury would hear over and over as the trial proceeded. In fact, the Court of Appeal of Alberta counted 26 times throughout the trial in which Gladue was referred to as a “Native woman” or a “Native girl”. Further, Gladue’s prior sexual activity was also improperly emphasized repeatedly in court by the accused. The jury heard extensive details regarding Cindy Gladue’s sexual history and the sexual conduct between Cindy Gladue and Barton the night prior to her death. As the accused went on and on about Cindy Gladue’s sexual history, the trial judge failed to properly comply with secction 276 of the Criminal Code (“the Code”), which was created to protect against the “twin myths”. The twin myths are just two examples of what took place during the trial for Cindy Gladue’s death, which ultimately saw Barton acquitted of first degree murder and manslaughter at the trial level and Cindy Gladue and her family finding no justice. As the Institute for the Advancement of Aboriginal Women (“the IAAW”) and the Women’s Legal Education and Action Fund (“the LEAF”) recounted, “the decision makes clear the trial ‘let us all down’ by failing to uphold the dignity and humanity of Cindy Gladue”.


The clear demonstration of bias and myths that occurred during the trial is not exclusive to the trial for Gladue’s death. Rather, such bias and stereotyping have played a main role in numerous trials for missing and murdered Indigenous women and girls. Time and time again, the victim’s prior sexual activity as well as stereotyping and bias towards Indigenous People overshadowed the need for fairness and justice within the criminal justice system. As the Supreme Court of Canada (“the Court”) stated during their decision in Barton, “we can - and must - do better”.


The defence will often try to bring a victim’s sexual history into the courtroom as a way to persuade the jury that the victim has an “increased … likelihood that she consented to the sexual activity in question because she had a propensity to consent”. Such a tactic has become part of what is now known as the twin myths, which “can severely distort the trial process”. The accused presented to the jury, in great lengths, the sexual activity of Cindy Gladue on the night before her death and this was presented to the jury without an application to the Court and without an admissibility hearing. This was a clear failure to uphold section 276 of the Code. Even further, upon hearing this evidence from the accused, the trial judge failed to comply with the principles of section 276 by not providing to the jury an instruction as to the limited use of such evidence. Complying with section 276 to the fullest extent is crucial during a trial, as it helps to ensure fair and just outcomes from the criminal justice system. As noted in the IAAW and LEAF’s factum “guard[ing] against the danger [of] myths and stereotypes … is heightened when the sexual history of Indigenous women and women who exchange sexual activity for

money are implicated”.


The trial judge, defence, and Crown failed Cindy Gladue and her family by allowing myths of her prior sexual activity and bias towards Indigenous women to overrun the trial. In particular, the Court noted that “trial judges, as gatekeepers, play an important role in keeping biases, prejudices, and stereotypes out of the courtroom. … A carefully crafted [jury] instruction can expose biases, prejudices, and stereotypes that lurk beneath the surface”. Although bias may never be able to be completely removed from the minds of jurors, judges have a duty to exercise the utmost diligence in ensuring that stereotypes and myths do not play a role within the criminal justice system. In exercising such a duty, this not only helps to ensure fair and just decisions are reached for the victim but also for the public; such outcomes like that reached in the original trial of Barton not only impact the victim and their family but they have an echoing impact on Canadian society as a whole.


The Court’s decision to order a new trial for the death of Cindy Gladue is a step in the right direction, demonstrating that bias, myths, and stereotypes have no place within the criminal justice system. However, as the IAAW’s research advisor, Julie Kaye, has stated, “condemning stereotypes is important, but it cannot account for the level of violence Indigenous women experience in this system. We must continue to work together to dismantle the racism, sexism, and systemic discrimination perpetuated by the criminal legal system”.


Check out the Robson Crim MLJ
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