Alberta's Court of Appeal has ruled two groups representing women will be allowed to intervene in the appeal of the controversial murder case of Edmonton sex worker Cindy Gladue.
In a ruling issued Tuesday, Court of Appeal Justice Ronald Berger ruled the two groups - Women's Legal Education and Action Fund Inc. (LEAF) and the Institute for the Advancement of Aboriginal Women - may provide written submissions in the appeal of a jury's not-guilty finding in the first-degree murder charge against Ontario trucker Bradley Barton.
Berger ruled the three-judge Court of Appeal panel would "benefit from the unique perspectives of the interveners whose written submissions will assist the court in a meaningful way."
The judge based his decision on "whether the proposed intervener will advance different and valuable insights and perspectives that will actually further the court's determination of the matter.
"Put another way, can the applicant add to the effective adjudication by ensuring that all the issues are presented in a full adversarial context?" Berger wrote, adding that "judges are too quick to shun intervention by a third party in a criminal case.
The two women's groups sought intervener status because they believe the court improperly allowed evidence about Gladue's sexual history to be heard by the jury without a hearing to determine its value and purpose.
Edmonton lawyer Kristan McLeod, representing LEAF, said the groups intend to argue two points:
- whether, if a woman consents to a specific sexual activity, she is also consenting, in law, to any degree of force her sex partner chooses to use while performing that activity;
- and second, whether it is always incumbent on a trial judge to require an application to be made under the Criminal Code before allowing introduction into evidence of a sexual assault complainant's sexual history.
Kim Stanton, LEAF's legal director, said her group was concerned Gladue's sexual history may have prejudiced the jury.
"Given that the evidence in this case was that Cindy Gladue was an indigenous woman involved in the sex trade," Stanton said, "there was a heightened risk that the jury would bring to the fact-finding process some discriminatory beliefs or biases, and that the evidence of her sexual history could give rise to sentiments of prejudice."
Gladue's murder case caused outrage among aboriginal and women's groups across Canada because of the evidence allowed into the record, and how it was allowed to be heard by the jury.
In March 2015, a jury found Barton not guilty of first-degree murder in Gladue's death at the Yellowhead Inn.
Barton, a long-distance trucker from Ontario, rented the room at the Yellowhead Inn while he spent a couple of days in Edmonton on a job in June 2011.
On the second night, Barton called 911 and reported he had found the body of an unknown woman in his bathtub.
But closed circuit video from the hotel showed Barton and Gladue walking together while holding hands the first night and meeting up again the next evening.
The Crown prosecutor argued Barton intentionally killed Gladue, stabbing her in the vagina and allowing her to bleed to death.
A pathologist removed Gladue's pelvic area, including the eleven-centimeter long wound inside her vagina, and presented it to the courtroom as evidence. That caused public outrage among aboriginal groups and others who felt it was an unnecessary desecration of her body and disrespectful to her family.
Barton's defence lawyer, Dino Bottos, argued his client didn't mean to harm Gladue, a 36-year-old Cree mother of three, and that the wound was caused accidentally by rough sex.
The jury heard evidence for a month and found Barton not guilty after a day-and-a-half of deliberation.
Ruling troubles defence
On Tuesday, Bottos said he has no concerns about the appeal because he believes there is no merit to it.
But he is concerned the "the interveners will now be allowed to argue that there was an additional route to manslaughter that firstly, is not established in the law and secondly, was not even sought by the Crown in trial.
"So my client, who won his acquittal fair and square, according to the law, will now have to argue that he should not be put back on trial for a new route to manslaughter which is basically invented by the interveners."
Berger, in his ruling, said lawyers often incorrectly argue that interveners will only advance the Crown's case at trial. He said interveners' submissions may also prove helpful to the defendant.
But Bottos said in this case, the interveners are clearly siding with the Crown and arguing for a new route to try to find his client guilty.
"Regardless of how interventions are looked at in a general fashion, in this intervention, these interveners are being allowed in, to side with the Crown and even go beyond what the Crown had argued in its original factum," Bottos said.
Kim Stanton of LEAF said the case is important not only in respect to how the criminal justice system treats indigenous women.
"It is really important as well for women more broadly in Canada, because sexual violence is so prevalent and the rape myths that are perpetuated in the criminal justice system are to some degree reflected in this case as well," she said.
"And it is really important that voices of women, and indigenous women in particular, be heard in this appeal."