By Lisa Kerr and Elin Sigurdson
The prosecution following the death of Cindy Gladue, particularly the use of her bodily tissue in court, has raised serious concerns about the ways criminal trials can cause harm to human dignity and further alienate marginalized groups, including women, indigenous people and sex workers, from the criminal justice system.
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Ms. Gladue died as a result of a wound to her vaginal wall. The prosecution argued that a sharp object caused the wound. The defence argued it was caused by the defendant’s hand. Resolving this dispute was central to the question of whether Mr. Barton was guilty of murder.
In a ruling handed down before the trial, the judge held that the “preserved pelvic region” of Ms. Gladue could be brought into the courtroom and shown to the jury. The decision to bring a portion of Ms. Gladue’s remains into a courtroom raises clear concerns about respect for her human dignity. Yet such concerns were not raised by the lawyers or considered by the judge. While the court conducted a careful consideration of the law of evidence, the dignity of Ms. Gladue and the effects of this use of evidence on her family and community did not feature in the analysis.
Permitting the use of this type of physical evidence is highly unusual. The judge noted that “use of portions of a victim’s body as evidence at trial” was a novel legal issue for which there was no clear precedent. The lack of precedent did not deter the court. The judge elected to resolve the issue with general evidentiary principles, meaning the court weighed how probative the evidence may be against the potential for the evidence to cause prejudice.
Alternatives were available that would not have required bringing “human tissue” into court. The autopsy report was available to the jury, who could see photographs and hear expert testimony about the likely cause of the wound inflicted on Ms. Gladue. However, the judge found that the prosecution expert who analyzed the evidence of injury was “more understandable” when he referred to the “human tissue” than when he used the photos and that the live use of the actual tissue was “in many ways better than the photographs taken during the autopsy.” Additional alternatives were not raised by the lawyers or considered by the court. When the tissue was brought into the courtroom, it was viewed on a projected screen as the expert referred to the images and explained his analysis.
The court analyzed a number of concerns in its decision to allow the evidence to be used in this way, including that it might be prejudicial, highly disturbing, and might inflame the jury against Mr. Barton and prevent them from reasoning fairly about the facts. More technical issues as to whether this evidence would usurp the role of the expert, and whether the tissue had been properly preserved, were also raised. The court considered further that the jury could suffer post-traumatic stress as a result of exposure to this evidence. In the end, the court allowed this use of the evidence on the basis that it was “probative in assisting the pathologist in explaining the wounds suffered by the deceased.” That issue was, as we have said, one of the central issues in the trial.
It is telling that, in this decision, counsel did not raise—and the court did not consider—the dignity or spiritual concerns of Ms. Gladue and her family that might be implicated by the use of this evidence. The debate was focused on whether the evidence would be prejudicial to the defence, and whether it would be helpful to the prosecution. Although the judge recognized that the evidence could be disturbing, the focus was on the experience of the jury rather than the interests of Ms. Gladue. The judge recognized that there is a “natural discomfort to the presence of a body part in court.” He found, however, that “the presentation using the tissue was very respectful and inoffensive and the initial shock or revulsion subsided very quickly.”
The judge said that the tissue was “not particularly recognizable as female genitalia,” implying that the ability to dissociate from the fact that these were bodily remains cut in favour of this use. Similarly, the Crown argued to the court that the expert’s use of the tissue “resembled a biology lab presentation and was not offensive.” Each of these subjective assessments fails to contemplate the need for due respect to the victim and her body. They do not pay heed to the experience of indigenous women or sex workers with the courts, or how the use of this evidence may further alienate these groups from the justice system.
The principal concern of criminal proceedings is fairness, given that the accused faces the potential loss of personal liberty. A further goal is to secure convictions that will improve public safety and deliver just punishment. The public interest is also engaged. The respectful treatment of all participants in a criminal trial is mandated by the public interest, but was neglected here.
When the Crown asked the court to allow the use of Gladue’s remains in this way, its goal was undoubtedly to protect the public by securing a conviction of the person who had inflicted her fatal injury. The jury still acquitted. We must carefully consider what message was sent in the process, by all involved, about Gladue and the value of her life and death as a woman, an indigenous person and a sex worker. This case reminds us of the harm that a criminal trial can itself visit upon human dignity, adding to the violence that preceded it.
Lisa Kerr is a doctoral candidate in the law faculty at New York University, and a Trudeau Foundation Scholar. Elin Sigurdson is a lawyer with JFK Law Corporation in Vancouver. Both work with the Sex Work Law Reform Committee of Pivot Legal Society.
A version of this article appeared in the Toronto Star.