Barton is serving a 12½-year prison sentence for manslaughter
WARNING: This story contains distressing details.
CBC Indigenous: Cindy Gladue’s family is hopeful that a dismissal of Bradley Barton’s bid for a third trial marks the end of a legal process that has dragged on for more than a decade.
On Monday, the Court of Appeal of Alberta rejected Barton’s request that his conviction in Gladue’s 2011 death in an Edmonton hotel room be vacated, and a new trial ordered.
In 2021, a jury found Barton guilty of manslaughter in the death of the 36-year-old Cree and Metis mother of three, after hearing evidence that he fatally injured her during a violent sexual encounter. He’s currently in the midst of serving a 12½-year prison sentence.
Barton appealed the conviction, with his lawyers arguing that the trial judge erred by allowing evidence that should not have been admitted at trial, and by improperly instructing the jury about consent and bodily harm during sexual activity.
The court unanimously rejected both grounds of appeal. That came as a relief to Gladue’s family, says friend and family spokesperson Julie Kaye.
Kaye said the family hopes that the legal process will finally end. “They’re very much hoping that that is the case, that they’ll be able to allow Cindy’s spirit to rest and not continue to put her through this and the family through these processes,” Kaye said in an interview Monday.
During Barton’s first trial for first-degree murder, court heard that the truck driver from Mississauga, Ont., performed a sexual act on Gladue that severely wounded her. She bled to death in a bathtub. Barton testified the sex was consensual.
During that trial, Gladue’s partial remains were brought into the courtroom as evidence by prosecutors.
The jury found Barton not guilty of first-degree murder in 2015, but the case was appealed all the way to the Supreme Court of Canada, and he was ordered to go to trial for a second time. In 2021, he was convicted of manslaughter.
Kaye said Gladue’s family’s experience with the justice system has been “nothing short of absolutely horrific,” and that they were continuously re-traumatized by the way Gladue was characterized both in court and in the media.
She said over the years they’ve encountered racism, sexism, victim blaming and discrimination.
Kaye said the family’s focus is now on re-centring Gladue’s legacy to be about who she was as a person. “She was just a really loving, joyful spirit,” Kaye said. “She was a mom and a daughter and a cousin and niece, and so those who knew her really remember how much she looked out for and protected other people.”
The family’s experience has motivated them to stand in solidarity with families of missing and murdered Indigenous women and girls, such as the families of women whose remains are believed to be in a Winnipeg landfill, Kaye said.
“There’s just that empathy in terms of what those families are experiencing in not being heard,” Kaye said. “In having their loved ones — their dignity — being violated, in allowing their bodies to rest in literal garbage, is just reflective of the unrelenting violence that Indigenous women and girls are facing.”
Barton’s lawyer Peter Sankoff said Barton was taken into custody when he was sentenced and remains there. Sankoff didn’t rule out attempting another appeal. “Mr. Barton is understandably disappointed with the court’s decision, and he is exploring the possibility of seeking leave to appeal to the Supreme Court,” Sankoff said in an email Monday.
Appeal possible
During the appeal, Barton’s lawyers argued that the trial judge erred by telling jurors that if they found that Barton either intended to cause serious bodily harm to Gladue, or was reckless about causing the harm, then any consent she’d initially given related to the sexual activity is vitiated – meaning, it’s legally invalidated.
In its decision, the appeal court disagreed, and instead found that the trial judge made an error that benefited Barton by not instructing the jury that it’s possible to find consent is no longer present if the accused is being willfully blind to the possibility of significant bodily harm, or that the harm is “objectively foreseeable.”
That finding is in conflict with rulings on consent and violence during sex made by Ontario’s appeal court, says University of Alberta professor Lise Gotell.
Gotell, who research sexual assault and law, was involved with advocates who intervened the last time the Barton case went to the Supreme Court of Canada.
She believes Monday’s decision is significant, and that if Barton seeks leave to appeal at Canada’s highest court again, it will probably get accepted. “The key thing is that it’s taking a position really different from the Ontario Court of Appeal,” Gotell said. “I would characterize it, actually, as feminist in the sense that it is broadly concerned with the problem of violence against women.”
Gotell said that while she thinks it is important for the Supreme Court to clarify the law, she acknowledges that further legal proceedings will be incredibly difficult for Gladue’s family to endure.
The Alberta appeal court’s decision cites recent research published in the Alberta Law Review in 2023 that Gotell co-authored.
The study posits that there’s been a rise in the so-called “rough sex defence” – which invites judges and jurors to find that a complainant consented to violence that caused bodily harm, or that the person who committed the violence had an honest but mistaken belief in consent.
The researchers argue that people accused of causing significant injury or death during sex should not be allowed to use consent as a defence unless the harm was unforeseeable.
ABOUT THE AUTHOR
Paige Parsons, Reporter
Paige Parsons reports on justice issues, courts and crime, with a special focus on public safety. Send Paige a story tip at paige.parsons@cbc.ca.