Warning: this story contains details some readers may find disturbing.
I choose to mention the names of the victim(s) abundantly in my analysis including naming them in the headings of the article I write so my readers can remember the victims more than the perpetrators. We are bombarded by news of violent crimes that rip through society daily. We forget or choose to forget some stories over others. We sometimes remember the names of offenders but we usually don’t remember the names of the victims. Every case in our Canadian Common Law system is labeled as R. v Offenders’ last name and that is how practitioners and the general public remember the case. My students often get impressed when they realize I have memorized so many case laws when I eloquently cite cases. However, ask me the name(s) of any of the victims and I will be dumbfounded. The criminal justice system and society get so immersed in the prosecution of the offender that we often forget the victim.
The name Cindy Gladue may not mean much to readers, but the name Bradley Barton will certainly raise a few eyebrows.
The Case
Bradley Barton is currently on trial for manslaughter in the Court of Queen’s Bench. It is a retrial that was ordered by the Supreme Court of Canada in 2019. In the summer of 2011, the 52-year-old former long-distance truck driver met Gladue in a bar at the Yellowhead Inn. She went back to his room on June 20 and June 21. Police found Gladue’s naked, bloodied body in the bathroom of Barton’s hotel room in the morning on June 22 after Barton called 911. At the initial trial, Barton was found not guilty of murder or manslaughter.
The jury has been told that Gladue died from blood loss caused by a fatal 11-centimeter injury to her vaginal wall due to blunt force trauma.
After Barton was arrested in 2011, his laptop computer was seized and forensically searched. According to an agreed statement of facts read aloud to the jury, there were 191 searches or website accesses on Barton’s laptop on June 13, 2011.
“Most of the sites were pornographic and freely accessible on the internet,” Crown prosecutor Lawrence Van Dyke told the jury. “The Crown is not alleging that the websites accessed … contain any child pornography.”
Barton’s computer was used to access websites showing beach nudity, anal sex, “blue videos” and looking up women’s skirts.
Seven times, searches focused on vaginas getting ripped or torn by “huge objects.”
Barton’s computer was also used to access a medical website to find out about the impact of childbirth on the mother’s vagina.
Dowling, a retired pathologist who performed an estimated 6,000 autopsies during his decades with the Edmonton medical examiner’s office, apologized to the jury at least twice while explaining graphic photos from Gladue’s autopsy.
“I want to emphasize to the ladies and gentlemen of the jury this (wound) is not, to me, trivial,” Dowling said during his examination by the Crown Tuesday. “It is not minor. This is an injury that has resulted in death. So therefore, the force, to me, would be considerable.”
The Law
The public discourse surrounding the case largely concerned Ms. Gladue’s status as both an Indigenous woman and a sex worker. The case raised questions as to whether our criminal justice system sufficiently dispels prejudicial myths and stereotypes about women such as Ms. Gladue. On this issue, both the majority and the minority of the Supreme Court provided important commentary about the desirability of specific instructions to juries addressing prejudice against Indigenous women and girls in sexual assault cases. As the trial of Barton continues, the jurors, who are the trier of fact, will decide whether the crown has proven their case against the accused beyond a reasonable doubt.
The Criminology
The Truth and Reconciliation Commission’s Calls to Action mandate cultural competency and Indigenous law training for law students and legal professionals, and the creation of Indigenous law institutes (Calls to Action #27, 28, and 50). These present critical, perhaps even existential challenges, for legal practice and reasoning in Canada.
The Supreme Court of Canada’s recent decision in R. v. Barton illustrates this challenge. In Barton, the court shouldered specialized jury instructions with the task of reducing prejudice towards Indigenous peoples. At the same time, it reiterated a common belief in the ideal juror, who sets aside his or her prejudices when directed to do so.
Empirical research suggests that setting aside one’s prejudices is an ongoing activity of internally-motivated introspection and self-awareness. Barton jury instructions may have the ironic effect of actually exacerbating racial prejudice and inoculating prejudicial jurors from the challenge. To do things differently, we must begin to challenge fundamental assumptions about our justice system, including the hyper-rationalist idealization of the juror. Also, we must challenge lawmakers and courts who speak of Indigenizing the criminal justice system, yet are resistant to change how the administration of justice is carried out. The longstanding ways of the colonizers remain to be categorically accepted as the only right way of doing things. This case is not only about justice for Cindy Gladue, but for all the Indigenous victims of violence who are portrayed as sub-humans and that they were deserving of victimization. If anything, victims of violence are gallant-humans who are fighting the fight that most of society will probably never understand.
