The Alberta Court of Appeal has overturned a controversial acquittal of an Ontario trucker charged with killing an Indigenous woman in an Edmonton motel room.
And the appeal decision released Friday contains a harsh rebuke of the Canadian jury system's handling of sexual assault offences
"We have … concluded the time has come to push the reset button for jury charges in this country for cases involving an alleged sexual assault," the appeal court says in its decision.
"This case has exposed the flaws in the legal infrastructure used for instructing juries on sexual offences in Canada."
Found dead in motel
In 2015, a jury found Bradley Barton not guilty of first-degree murder in the death of Cindy Gladue, a 36-year-old sex trade worker who was found dead in a bathtub in an Edmonton motel room in 2011.
There was anger from coast to coast in 2015 when an Edmonton jury found Barton not guilty in Gladue's death.
Support rallies were staged and more than 4,500 people signed a petition asking Alberta's justice minister to appeal the jury's verdict.
In a submission to the appeal court in September last year, the Women's Legal Education and Action Fund criticized the way the trial was conducted. The brief said Gladue was consistently dehumanized and stereotyped.
Warning: graphic details
In its Friday decision, the court overturned the not-guilty ruling and ordered a new trial.
Gladue was found dead at the Yellowhead Inn in June 2011. She died from blood loss from a perforation more than 11 centimetres long that went completely through her vaginal wall.
The Crown's theory was that Gladue was incapacitated by alcohol when Barton used a sharp object to cut her vaginal wall, then moved to the bathtub when she began bleeding heavily.
The defence contended that while Barton caused Gladue's fatal injury, it was a non-culpable act of homicide. Barton testified the injury was an "accident" from consensual sexual activity.
The Court of Appeal found errors of law in the trial and in the jury charge that were "serious in scope and significant in impact."
The errors by Queen's Bench Justice Robert Graesser included erroneous instructions on what use the jury could make of Barton's conduct after the fact, and failing to instruct the jury properly on the law of sexual assault relating to consent.
"These errors of law negatively compromised the jury's ability to properly assess the evidence and apply the law correctly," the court of appeal said in its decision.
The appeal court said there is an "imperative need" to align judges' instructions to jurors with changes to the law on sexual assault that were adopted years ago.
'An affront to the will of Parliament'
Some key provisions currently used in jury charges "have fossilized concepts Parliament sought to remove a quarter century ago," the appeal court said.
Judges instructing jurors need to communicate the present law correctly and effectively, the court said.
The decision said that "despite efforts to thwart them, myths and stereotypes continue to stalk the halls of justice in cases involving sexual offences, enabled sometimes by inadequate jury charges." As well, "persistent presumptions and problematic jury charges" reduce the entitlement of individuals to the equal recognition and protection of the law.
"This inequality falls most heavily on women since sexual assault has been, and continues to be, largely a gender-based crime," the decision said.
"The continuation of these problems is an affront to the will of Parliament and to the standards of our mature society committed to equality under the law."
Gladue often referred to as prostitute or 'native'
The Crown, defence and trial judge all referred to Gladue as a prostitute in front of the jury at various points during the proceedings, the appeal court said.
"Where a participant in sexual activity is a prostitute, a litany of unjust stereotypes about autonomy and consent persist in our society," the appeal court said. "That is so regardless of the label used to describe the person who sells sex for money."
The appeal court said jurors were also repeatedly told that Gladue was a "native girl" or "native woman." She was referred to as "native" approximately 26 times throughout the trial by witnesses, defence counsel and Crown counsel, the appeal court said.
"In one instance, the witness was directly asked to describe Gladue's ethnicity. In other circumstances, witnesses introduced and used the term 'native' or 'native woman' as a descriptor of Gladue and defence counsel, and Crown counsel continued to use that descriptor while questioning the witness."
Barton's evidence about having sex with Gladue on the previous night, and his testimony about her being "native" and a prostitute, "were never admissible for the purpose of establishing that Gladue consented to the sexual activity in question the night she died," the appeals court said.
"Barton's testimony that on the second night [that] 'she knows what she was coming for' led jurors deep into forbidden twin myths territory, territory into which this jury was permitted to wander at will without any caution at all at an appropriate place in the trial," the decision said.
That evidence wrongly invited jurors to infer that Gladue had given subjective consent to the sexual activity that caused her death, the appeal court said.