May 24, 2019 Edmonton/Toronto

The Institute for the Advancement of Aboriginal Women (IAAW) and the Women’s Legal Education and Action Fund (LEAF) react to the Supreme Court of Canada Judgment in R v Barton

This morning the Supreme Court of Canada released its decision to order a new trial on manslaughter with partial dissent of three judges who would have ordered a new trial on manslaughter and murder. 

The decision strongly condemns the use of racist and sexist stereotypes about Indigenous women and encourages trial judges to explicitly counter prejudice against Indigenous women and girls in their instructions to juries. The Court denounces the use of dehumanizing language and the prejudice that was brought into the trial by failing to call Cindy Gladue by name. The decision makes clear the trial “let us all down” by failing to uphold the dignity and humanity of Cindy Gladue. As the decision reads, “She was a mother, a daughter, a friend, and a member of her community. Her life mattered. She was valued. She was important. She was loved.”

The Court provided clear and conclusive direction on consent – including that there is no defence of implied consent, the accused cannot rely on past sexual history evidence to ground a belief in consent, and that expressed consent to every sexual activity is necessary. “The Court sent a strong message that men are not free to rely on their own, prejudicial views about what women do or do not want when engaging in a sexual act” says Lise Gotell of LEAF National. “Only expressed, communicated consent to every sexual act is sufficient. This is a resounding endorsement of women’s equality and women’s sexual autonomy.”

However, while claiming to uphold the importance of her dignity, the decision fails to go far enough to address the level of dehumanization the trial perpetrated against Indigenous women and to ensure that no Indigenous woman ever has to face such treatment again. As Order of Canada recipient Beverly Jacobs says, “It in no way erases the anger, humiliation, and dehumanization of the lower court for the barbaric treatment of her body or the violation of Indigenous laws in caring for the deceased.” The Court had an opportunity, but failed to adequately hold all members of the proceedings – the Judge, the Crown, the defence – to account for perpetuating racism in the trial and allowing the humiliating dehumanization of an Indigenous woman. As Julie Kaye, Research Advisor for IAAW states, “condemning stereotypes is important, but it cannot account for the level of violence Indigenous women experience in this system. We must continue to work together to dismantle the racism, sexism, and systemic discrimination perpetuated by the criminal legal system.”

Reflecting on the decision, human rights defender and founder of IAAW, Muriel Stanley Venne insists, “this is just the beginning. We are determined to eliminate racism and sexism from the legal system. Canada’s system was built with contempt for Indigenous women and it continues to try to dehumanize us. But we are stronger than the systems that seek to destroy us. We will build justice systems that work for and with Indigenous women.” The decision makes clear that “everyone is equally entitled to the law’s full protection and to be treated with dignity, humanity, and respect.” Equal protection for Indigenous women has not manifested from far too many Inquiries and previous Supreme Court decisions, IAAW and LEAF’s work will continue to ensure the promises made in the Supreme Court decision today are upheld. As the Court stated, “we can — and must — do better.”

IAAW and LEAF’s intervention at the Alberta Court of Appeal (ABCA) and at the Supreme Court of Canada strongly shaped the decision’s rebuke of the trial court for admitting evidence of Ms. Gladue’s sexual history. The judgment relies heavily on the work of IAAW and LEAF who put equality rights arguments before the court of appeal, including arguments about sexual history evidence. At the Supreme Court, we were joined by many other skilled interveners who took on the difficult, and often uncompensated, work of challenging discrimination in law. The work of Indigenous women, feminist legal interveners, and community advocates was fundamental the Court’s recognition of this atrocity.

For more information, please contact:

Beverly Jacobs, University of Windsor, Faculty of Law
519-253-3000 ext. 2936, Beverly.Jacobs@uwindsor.ca

Muriel Stanley Venne, IAAW, President and Founder
780-479-8195, murielv@shaw.ca 

Julie Kaye, Research Advisor, IAAW
306-880-2910, julie.kaye@usask.ca

Lise Gotell, LEAF National
789-297-0326, lgotell@ualberta.ca

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