Appeal allowed in part. New trial on unlawful act manslaughter ordered. As an additional safeguard, juries should be instructed in a way that counters potential biases, prejudices, and stereotypes against Indigenous persons—particularly Indigenous women and girls, as well as those who perform sex work.
Bradley Barton was charged with first degree murder in the death of Cindy Gladue, an Indigenous woman who was a sex worker. She was found dead in the bathroom of the accused’s hotel room as a result of blood loss from an 11 cm wound in her vaginal wall. At trial, the Crown put forth the theory that the accused used a sharp object to create the wound with intent to seriously harm or kill her. On the alternative, the accused committed the lesser and included offence of unlawful act manslaughter by causing her death in the course of a sexual assault.
The accused admitted that he caused her death, but did not use a sharp object and claimed it was a non-culpable accident. He claimed that Ms. Gladue consented to the sexual activities as it was a commercial transaction, or at least he honestly believed that she did. The accused did not submit an application under ss 276.1(1) and 276.1(2) of the Criminal Code to adduce evidence of the deceased’s prior sexual activity, thereby he testified at length about his previous sexual activity with the deceased. The Crown did not object nor did the trial judge order a separate hearing to consider the admissibility and permissible uses of this evidence. The jury acquitted the accused. The Court of Appeal allowed the Crown’s appeal, set aside the accused’s acquittal, and ordered a new trial on first degree murder. The accused then appealed to the Supreme Court of Canada. The Court ordered a new trial but it is to be restricted to the offence of unlawful act manslaughter, as it was not demonstrated to the majority of the Court that the acquittal for murder was tainted by reversible error.
The Court held that the trial judge erred in failing to comply with the mandatory requirements set out in s 276 of the Criminal Code. Section 276 of the Criminal Code governs the admissibility of evidence about a complainant’s prior sexual activities and the uses to which that evidence may be put. Evidence of a complainant’s prior sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity in question or is less worthy of belief. This section is categorical in nature and applies irrespective of which party led the evidence. The ultimate responsibility for enforcing compliance with the mandatory s 276 regime lies squarely with the trial judge, not with the Crown. The procedural requirements under s 276 should have been observed, and if any of the evidence was deemed admissible, a careful limiting instruction by the trial judge was essential to instruct the jury on the uses of that evidence.
Trial judges are advised to provide an express instruction aimed at countering prejudices, myths and stereotypes, especially about Indigenous women who perform sex work (Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls). When jurors are sworn and empanelled, it is a task that is not easy as it requires patience, judgment, and careful analysis. It would be naïve to assume that the moment the jurors enter the courtroom, they leave their biases, prejudices, and sympathies behind (R v Williams,  3 CNLR 257 (SCC) [“Williams”]).
A carefully crafted instruction can expose biases, prejudices, and stereotypes that lurk beneath the surface, thereby allowing all justice system participants to address them head-on, openly, honestly, and without fear. Trials do not take place in a historical, cultural, or social vacuum. The Court has acknowledged the detrimental effects of widespread racism against Indigenous people within the criminal justice system (Williams; R v Gladue,  2 CNLR 252 (SCC); R v Ipeelee,  2 CNLR 218 (SCC)). With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused.
As well, the language used to refer to Ms. Gladue at trial, witnesses, Crown counsel, and defence counsel all repeatedly referred to Ms. Gladue as a “Native girl” or “Native woman”, which, by the Court of Appeal’s count, occurred approximately 26 times. While in some cases it may be both necessary and appropriate to establish certain biographical details about an individual, it is almost always preferable to call someone by their name. There may be situations where it would be appropriate for the trial judge to intervene to ensure this principle is respected.