Alberta court reviewing acquittal in death of Cindy Gladue

The Alberta Court of Appeal is hearing arguments on whether to overturn a controversial acquittal of an Ontario trucker charged with killing an Indigenous woman

Bradley Barton found not guilty of murder in trial last year

Members of Cindy Gladue's family attended a rally in Edmonton in April 2015, a month after the Crown launched an appeal of the verdict. Another rally was held in Edmonton Tuesday morning. (Briar Stewart/CBC News)

The Alberta Court of Appeal is hearing arguments on whether to overturn a controversial acquittal of an Ontario trucker charged with killing an Indigenous woman.

Last year, 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.

Gladue bled to death after a night of what Barton called consensual rough sex.
Cindy Gladue, 36, was found dead in the bathtub of a west end hotel room four years ago. (Facebook)

But Crown prosecutor Joanne Dartana criticized the trial judge's charge to the jury, saying he should have explained that Barton could have been found guilty of a lesser charge if he should have foreseen his actions would harm Gladue.

That would have opened the possibility of a sexual assault conviction, she said.

"He ought to have known that what he did risked bodily harm," she said.

'Confusing' instructions to jury

Chief Justice Catherine Fraser agreed the trial judge's instructions to the jury were confusing.

On the one hand, the law says people are not allowed to consent to being harmed. On the other, the judge said the Crown had to prove that Barton intended to harm Gladue.

"What's the jury supposed to make of this?" she asked.

Fraser pointed out previous decisions have thrown out consent as a defence in cases of voluntary fist-fights.

"Is a prostitute not entitled to the same degree of protection as two guys fighting on street?" she asked.

Barton's trial heard that he had hired Gladue for two nights of sex in June 2011.

He testified that on the second night, she started bleeding after they had rough sex. When she went to the bathroom, he fell asleep, he said.

The next morning he found her body in the tub, he told court. He later called 911.

Barton told the jury the sex was consensual.

The Crown called a medical examiner at the trial, who testified that an 11-centimetre cut to the woman's vaginal wall had been caused by a sharp object. Gladue's vagina had been preserved and the medical expert used that exhibit as he described the fatal wound to the jury.

Gladue dehumanized, intervener said

In a submission to the court, the Women's Legal Education and Action Fund criticized the way the trial was conducted. The brief said Gladue was consistently dehumanized and stereotyped.

"The characterization of Ms. Gladue as 'Native,' coupled with the characterization of her as a prostitute, created a heightened risk that the jury would bring to the fact-finding process discriminating beliefs, misconceptions or biases about the sexual availability of Indigenous women.

"The dehumanization of her (by using her vagina as an exhibit in court) illustrates a failure to perceive Ms. Gladue as a rights-bearing person who was entitled to be treated with dignity."

Barton's lawyer is to speak later Tuesday.