Front Burner - What the Cindy Gladue case exposes about the justice system

Episode Date: May 27, 2019

The Supreme Court of Canada has ordered a new trial for a man accused of killing Cindy Gladue. CBC's Kathleen Harris explains why the first trial raised so many questions about how Indigenous women are treated by the Canadian justice system.

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I was so young when it all happened. A part of me feels like it isn't true that she left us so soon. That's the daughter of Cindy Gladue, talking about her mom, who died in 2011. Cindy Gladue has come to represent the mistreatment of Indigenous women in the Canadian courts. If you've been following her case, you know it's tragic and involves some incredibly disturbing details. Can you imagine losing your child in any which way, let alone in such a violent, awful way, and then not seeing justice served? I think it sent a really strong message that if you're an Indigenous woman in Alberta, your life doesn't matter.

This trial has implications for every woman in Canada. The man accused of killing Gladue was acquitted of murder and manslaughter in 2015. But last week, the Supreme Court of Canada decided there needs to be a new trial. there needs to be a new trial. This is because the judge in the case made, quote, devastating errors, so egregious that it might have influenced the jury. Today, I'm talking to CBC reporter Kathleen Harris about this story and its implications

for how the justice system treats Indigenous women. Again, a warning, there's going to be some very difficult graphic details here. This is FrontBurner. Hi, Kathleen. Hi, Jamie. Thank you so much for joining me today. Thanks for having me. So let's start with the news. The Supreme Court of Canada decided there has to be a new trial here. And this is a case that has shocked and galvanized people across the country. Yeah, that's the top line, right? That the man accused of killing Cindy Gladue will be facing a new trial. But this case really became much bigger than the legal principles at play. Cindy Gladue really became the face of how Canada's justice system often treats Indigenous women and

not very well, and how it doesn't afford them the protections and the dignity that they deserve. When Indigenous women are brought in as victims, they're often perceived as almost like they're the criminal. And Cindy, in her death, couldn't defend herself. I think that just shows us how our criminal justice system cannot even contemplate how to deal with gender-based violence against women. And I want to get into some of the specific issues with you in a moment. But first, let's talk about Cindy Gladue. Who was she?

She was 36 years old. She was an Indigenous woman of Cree and Métis ancestry. She was the mother of three children. This is from Donna Gladue, the mother of Cindy Gladue. Cindy had her ups and downs, but nothing seemed to bother her. She always said, life goes on. What can you do anyways? Losing my daughter Cindy was the hardest thing I had to go through.

Telling her brothers and sister was hard. Cindy's girls made it harder because it was their mom. She was much loved as a daughter and as a cousin. We've heard her described as a sex trade worker and as a prostitute, but we don't really actually know much about her past in that regard. We do know that on these two nights that were part of the trial that she was paid for sex, including the night that she died. And those commercial acts were actually brokered by her boyfriend.

So Cindy Gladue died in 2011. And what do we know about her death? Well, we don't know whether her death was caused by an intentional deliberate act or whether it was accidental. That will be for the retrial to decide. But we do know that the circumstances around her death are very, very disturbing. We know that she died from an 11-centimetre wound to her vaginal wall. She actually bled out in the bathtub of Bradley Barton's motel room. At the trial, the Crown argued that she had died from either a sharp cut using some sort of a weapon or an object, or from blunt trauma. Either way, perpetrated, the Crown argued, by Bradley Barton.

No weapon was actually ever found, and Barton has maintained that part of the sex act that Cindy Gladue had agreed to was to insert his fist inside her vagina. Okay, I have to say I've been following this case for a couple of years now, and every time I hear those details, I get this feeling in the pit of my stomach. It is so difficult to listen to them. Bradley Barton's lawyer,

just to note, argued the sexual contact was consensual at the first trial. And what happened that led to Cindy Gladue's death was an accident. You know, I know in the original trial, Bradley Barton was acquitted of murder and manslaughter, and this sparked a public outrage across the country. Today, I stand up for Cindy and all the others that have went through death in a horrendous way. Just because she lived her life a certain way doesn't mean she's less than anybody else. And let's get into some of the issues as to why. In the Supreme Court ruling, the justices addressed some big issues with the trial. And let's start by going through them. First, one was the decision to allow Cindy Gladue's sexual history into evidence.

And tell me more about what happened there. You mentioned a little bit about this earlier. Mm-hmm. So they brought in her history in terms of the previous night's sexual activity into evidence. The Supreme Court was pretty clear that that should not have happened in this case. It should not have been allowed. The so-called rape shield law in Canada is pretty clear in speaking to that, that in order to admit evidence on past sexual history,

you need to have a separate hearing first where the jury isn't present and can't hear about it. And then the court or the judge will determine if that should be admissible and if it's actually relevant to the case. Now, that didn't happen here. It was actually the Crown that first brought it up, and then the defense just kind of ran with it. Right. But the Crown did not suggest that I had to do that once they opened the door at the trial.

The judge did not believe that I had to bring on an application at the trial either. So the Supreme Court said the trial judge made a pretty serious legal mistake in allowing that to happen, and that was actually one of the big reasons for ordering a retrial. The whole purpose, am I right here, of rape shield laws is to ensure that a jury isn't prejudiced by a woman's sexual history. That's right. That's exactly right. So the jury can't be making assumptions that because someone consented on another occasion or had a history of certain sexual activity, that that had any bearing on the particular night in question. I know another issue that was brought up, another legal issue that was brought up in the first trial, was the question around consent and the legality of physical force. Am I right about that?

Yes, because, and this kind of goes into the whole argument of whether we should have heard the evidence about the previous night's sexual encounter, because it was Bradley Barton's defense team's argument that while she consented to this act the night before... Mr. Barton testified that on both nights the sexual activity was nearly identical and it involved something fairly unusual. So he reasonably could infer that she was consenting to it the following night. And we don't know that because unfortunately

she's deceased. So we only have his side of the story. But the court did make a pretty strong statement. It didn't break new ground on the issue of sexual consent, but it did issue a reminder that that consent cannot be assumed, that it has to be properly communicated. And I know another big issue brought up by the court is how Cindy Gladue was referred to in the trial. And let's talk about that. Yeah, that was one of the things that caused a lot of public outrage, public protests, rallies across the country. She was described as native and as a prostitute repeatedly through that trial, instead of being referred to as Cindy Gladue or Ms. Gladue, as most people said that likely had the effect of tainting the minds of the jury

and essentially strip her of her human dignity. Beverly Jacobs is a law professor at the University of Windsor. The language has to change. There has to be more respect. You know, I'm frustrated that in 2019 that we're still having to have this conversation. There's been enough studies. There's been enough this conversation. There's been enough studies, there's been enough royal commissions, there's been enough task forces. And what did the Supreme Court justices say about this in their ruling? The justices had some pretty harsh critiques of how she was portrayed in the hearings and

basically said that she wasn't provided the same protections, the same dignity that she should be, and that has got to change, and they made some pretty strong statements on that regard. Justice Michael Moldaver, who wrote for the majority, reminded people that this was a human being. She was a valued member of her family and her community, and he really brought home that kind of personal case of Cindy Gladue. I just wanted to read you one part of what Justice Moldover, who wrote for the majority, said. Her life mattered. She was valued. She was important. She was loved. Her status as an Indigenous woman who performed sex work did not change any of that in the slightest. And is it fair for me to say that the significance of repeatedly bringing up,

you know, the fact that she was Native and a prostitute, this was also brought up many times during the first trial, there was a lot of concern that what this was doing was entrenching stereotypes of Indigenous women. Absolutely. The justices were very clear on that in that it had likely the effect of prejudicing the jury and not really seeing her as a human being but as someone whose life was less than valuable.

The criminal justice system did not deliver on its promise to afford her the law's full protection What do we know about the makeup of the jury? Who was on it? We do know that it was predominantly male and there were only two women jurors. And as far as we know, none identified as Indigenous. and as far as we know, none identified as Indigenous. And one more issue with the trial that I know wasn't addressed in the Supreme Court decision is that, incredibly shocking for me when I initially heard this news, was that a part of Cindy Gladue's body was admitted into evidence. Yes, and that's believed to be the first time that that has ever happened in a Canadian courtroom.

Preserved vaginal tissue from Cindy Gladue's body was actually brought into court, presented as a specimen, as an exhibit. What was the reasoning at the time for bringing in Cindy Gladue's vaginal tissue into the courtroom. Right. Well, the Crown was trying to make the case that this was a deliberate and not an accident, but a deliberate attempt to harm or kill Cindy Gladue. So by bringing in this vaginal tissue, they were hoping that the medical evidence proved their case of deliberate intention to harm. Indigenous rights lawyers say there is no way that would have ever happened to a white woman or to a man.

Okay. My name is Jean Taye. I am legal counsel for the women of the Métis Nation. Not one of the judges even addressed that issue. It allows the criminal justice system to continue to use Indigenous women's body parts as evidence. It allows the state to continue to cut up women's bodies and serve them up on a platter that somebody calls justice. I don't. So we have all of these ideas that the first trial brought up. You know, one, the fact that her sexual history was entered into evidence before the jury without having a robust discussion around that. This is sort of a contravention of our rape shield laws. Two, that she was repeatedly called a native woman and a prostitute instead

of by her name, which is Cindy Gladue. And also these other maybe not legal issues, but certainly an issue that made people feel like Cindy Gladue was not being treated like a human being in this trial because a body part was being entered into evidence. And so this case was appealed to the Alberta Court of Appeal. That brought us to the Supreme Court's decision last week. And what is this trial, what is this new trial going to look like? Well, it's going to happen actually early next year. So it's already been scheduled for February 2020. And of course, Bradley Barton will be tried for manslaughter, not for first-degree murder, as he was in the first trial. We don't know yet how the past sexual activity, whether or not it will be allowed into evidence.

I'm sure the defense team will make a strong argument for that. So how has Bradley Barton or his lawyer responded to this retrial for manslaughter? retrial for manslaughter. So there, his lawyer, Dino Batos, I spoke with him, and he's seeing this as a victory, essentially, for Bradley Barton, because he's going back to retrial, yes, but he is facing the lesser charge of manslaughter. The lawyer says, you know, the jury believed him and found him not guilty the first time around, and he's feeling pretty confident that a new jury will draw the same conclusion. The family of Cindy Gladue is happy that at least it's going back to trial again, but as one lawyer described it, the horror show continues because more gruesome evidence, the family is going to have to sit through

and hear that a second time around. I mean, we're happy that he's not going to get off, that he's going to be retried, but it's also bittersweet. Cindy's mother's going to have to sit through this all over again.

And it was a horror show the first time. It will be worse. the first time. It will be worse. And why did the Supreme Court decide that this case should be retried on manslaughter, but not first degree murder? Justices were actually split on this for three. The majority said that the jury had weighed the evidence and did not believe that he had committed first degree murder but potentially because of all the legal principles involved a jury might consider manslaughter after those legal principles had been sorted out the three justices that dissented on that thought that the jury had been so tainted by all the portrayals of Cindy Gladue and by all of the other legal contacts that we've discussed, he should just go back to face the original charge of first-degree murder,

which also includes the option of finding him guilty of manslaughter. Okay, and I know there are several advocates and law professors who are angry that Mr. Barton won't be facing first-degree murder charges. Well, it's, yeah, there's been mixed opinions. Some are just happy that at least he's facing a new trial. Some say that it doesn't go far enough, and they think that he should be facing the highest charge. I'm actually very angry about the decision and just the way that the system has treated Cindy Gladue

and just the indignity to her body. So after this Supreme Court ruling, what changes are we going to see around cases with Indigenous victims? If any, this case has, as we mentioned at the beginning of this conversation, raised a lot of issues around how Indigenous women are treated in the courts. Yeah, we'll have to see, I guess, how impactful the decision will be. But certainly Indigenous leaders and activists are hoping this will lead to transformative change in how the justice system treats Indigenous people, particularly women. I mentioned Justice Michael Muldaver wrote for the majority,

and he made the point that her life mattered and that she was loved and valued, but he also issued a call for trial judges to take safeguards and provide instruction to jury members to try to counter all of this prejudice against Indigenous women and girls. My name is Kayak Robinson. I am a commissioner with the National Inquiry into Missing and Murdered Indigenous Women and Girls. Responsibility lies on all those within the criminal justice system, judges, defence lawyers, prosecutors, police,

to ensure that the sentiment, the message, the obligations outlined in this decision are given life so that Indigenous women across this country have our justice system as a legitimate source of justice and recourse and safety and protection. Kathleen, thank you so much. Thank you. So just two things before I let you go today. The Supreme Court ruling, it's coming out a week before the National Inquiry into Missing and Murdered Indigenous Women, is expected to release its final report. And this report will address the root causes of violence against Indigenous women and girls,

so we will certainly keep you posted on that. Also, this case has spurred more calls for sexual assault training for judges. Former interim Conservative leader Ronna Ambrose introduced a bill that would require mandatory training for judges in 2017. It passed the House unanimously, but it's been sitting in the Senate ever since. I spoke with Ronna about this a while back, and you can find that episode in our feed. A signal from the federal parliament that this kind of training is important is extremely powerful. That's all for today. I'm Jamie Poisson, and thanks so much for listening to FrontBburner. For more CBC Podcasts,

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