EDMONTON — 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.
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.
Chief Justice Catherine Fraser agreed the trial judge's instructions to the jury were confusing.
One 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.
Justice Sheilah Martin pointed out the judge told the jury the fact no evidence had been presented regarding a motive could be considered an argument in the defence's favour.
"The jury was being invited to find an absence of motive should lead to an acquittal," she said.
Barton's lawyer Dino Bottos argued the judge qualified those statements adequately.
"He was not putting (his fingers) on the scales of justice."
But Fraser kept returning to the question of whether Gladue really consented to sex so violent it killed her.
"Why would we think that she would be consenting to the degree of force here?"
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Barton's trial heard that he had hired Gladue for two nights of sex in June 2011.
He testified that he put his fist in her vagina on the first evening. On the next night, after some drinking, he did the same but she started bleeding. 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.
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."
The appeal is to finish Wednesday. A written decision is expected.
— Follow Bob Weber on Twitter at @row1960