Supreme Court to hear questions in case of death in motel after rough sex

OTTAWA — The case of an Ontario trucker acquitted in the death of an Alberta woman referred to at trial as a “native” and a “prostitute” is to go before the Supreme Court this week in what could set a precedent in Canada’s sexual-assault laws.

Bradley Barton said Cindy Gladue died after a night of consensual, rough sex in an Edmonton motel in June 2011. Her body was found in the bathtub after Barton called 911. She had an 11-centimetre cut in her vagina and had bled to death.

A jury found Barton not guilty of first-degree murder and manslaughter. The Crown appealed following nationwide protests and the Alberta Court of Appeal ordered a new trial.

The Appeal Court ruled serious errors were made in the original trial and in the judge’s charge to the jury about Barton’s conduct and on sexual-assault legislation as it pertains to consent.

The Supreme Court is to hear arguments Thursday on several procedural matters, including the role of interveners, but might also decide for the first time whether an “objective likelihood of harm” cancels out sexual consent.

The Alberta Crown, as well as attorney generals in other provinces, including Ontario, is arguing for such an addition to the law.

Barton’s lawyer, Dino Bottos, said it would be a big deal if the top court agrees. He plans to argue that the Crown brought up the consent versus harm argument on appeal — not at trial — and it shouldn’t affect his client’s case.

It would be akin to double jeopardy, Bottos said. “We’re just trying to hold the line.”

Lise Gotell is a gender studies professor at the University of Alberta and chairwoman of the Women’s Legal Education and Action Fund, or LEAF, one of 16 groups intervening in the Barton case.

She said the court has previously ruled that a person killed in a fist fight couldn’t have consented to bodily harm.

“But the court has never made a ruling on whether or not this rule applies in a sexual context.”

Barton has testified that he hired Gladue for two nights of sex that included putting his fist into her vagina.

He testified that when he woke up after the second night, he found her dead in the tub.