The SCC released its decision on the R v Barton appeal or the Cindy Gladue appeal.
The SCC held that the appeal should be allowed in part and a new trial on unlawful act manslaughter ordered with Wagner C.J. and Abella and Karakatsanis JJ. dissenting in part.
There are three major concerns arising from this case that present issues for Indigenous women in the sex trade:
It presumes that Indigenous women who trade and/or sell sex are doing work by referring to all acts of prostitution (a legal term) as sex work (a non-legal term), and this term, “sex work”, likely erases the complex reasons that women, namely Indigenous women, would likely sell or trade sex. This also erases instances of exploitation in a legal relationship. The dissent falls short on this point.
It presumes that any sex trade worker who engages in sexual activity for trade/money consents to any activity in that relationship and thereby, likely erasing the ways sex trade workers negotiate consent in complex and/or dangerous scenarios. This presumes that only the stories of those who are found dead should be considered on an equal basis of the accused.
It acknowledges that all players in the legal system, from defence counsel, to judges and particularly, crowns play a role in how Indigenous women, who are likely victims in the justice system, can be perceived by the justice system. This acknowledges how the law treats Indigenous women and namely, crowns, state actors, cannot rely on their own inaction (for example, not disputing jury instructions) at appeal.
On the first point, the decision refers to Cindy Gladue as a sex worker. I have continuously cautioned the (white) sex work movement to refrain from consistently referring to all people in the sex trade as sex workers. Not everyone who engages in selling/trading sex as work. We cannot know the reasons Cindy engaged in selling/trade sex. We can respect the fact that not everyone’s experience in the selling/trading sex is pleasant or welcomed, and we can recognize that for some, referring to selling/trading sex as sex work creates unpleasant/unwanted feelings/thoughts. It is not work for everyone. And, when we refer to Cindy as a sex worker, we assume that it was work for her. We cannot know this. Specifically, the sex work movement and its allies must recognize that when we refer to prostitution that it is merely a legal term. It means nothing more than to denote a relationship between two people and the complex web of laws that dictate that relationship. For non-sex workers, you can simply refer to Indigenous women in the sex trade as … Indigenous women with sex trade experience. Because, as the sex work movement continues to refuse to address this publicly, when they are calling for the decriminalization of sex work, the laws they are challenging confusingly focus on prostitution. The dissent falls short on this first point.
On the second point, the majority’s reasons on consent and mistake of law does not address how people in the sex trade negotiate consent when trade/money is involved. The reason’s state that Barton’s defence was a mistake in law, not a mistake in fact and the trial judge erred when failing to caution the jury on relying on these mistakes of law. Specifically, the majority held that the trial judge “ought to have clarified for the jury that in determining the ‘sexual activity in question’, they should look to the whole of the evidence, both direct and circumstantial, and they were not bound to accept Mr. Barton’s evidence simply because he was the only witness to the sexual activity in question who was alive to testify” (I have written something similar, here, here and here). This line assumes that only those sex trade workers who are found dead are worth listening too. Being able to survive should mean equal treatment under and before the law too.
On the third point, the majority rightly acknowledges that all players in the court room play an active role and refusing to act is just as problematic as acting in a prejudice, unfair or discriminatory manner. In particular, the majority writes, “the Crown was actively involved in drafting the jury charge” (para 150). The majority held that the court of appeal acted in an appropriate (but limited) manner to properly raise the after-the-fact conduct as a new issue.
In closing, the majority correctly directed judges to appropriately instruct juries when an Indigenous woman is the victim. However, sadly, the reasons do not interrogate the complex way Indigenous women interact with the justice system; they are sometimes “offenders”. This simplicity in victim/offender status has the potential to create more prejudicial and discriminatory views of Indigenous women in the justice system.
Only time will tell.
If you are a lawyer and you are interested in attending a CPD session hosted by OBA, please visit this link: https://www.cbapd.org/details_en.aspx?id=ON_ON19ABO04C. It is on June 17 in Toronto and on webcast.