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A Supreme Court of Canada decision made headlines across the country this week, after the court ordered a new manslaughter trial in the death of Cindy Gladue.

What Happened?

The accused was charged with first degree murder in the death of Cindy Gladue, an Indigenous woman and sex worker, who was found dead in the bathroom of the accused’s hotel room in 2011. 

The cause of death was determined to be loss of blood due to a wound in her vaginal wall. The Crown’s theory was that during the course of commercial sexual activities while Cindy Gladue was incapacitated by alcohol, the accused cut the inside of her vagina with a sharp object with intent to seriously harm or kill her. Alternatively, the Crown took the position that if the accused did not murder Cindy Gladue, he committed the lesser offence of manslaughter, by causing her death in the course of a sexual assault. 

The accused, however, maintained his innocence. 

The accused testified that he and Cindy Gladue engaged in similar consensual sexual activity on both the night leading up to her death and the previous night, and that on both occasions, he penetrated her vagina with his fingers and thrust repeatedly. He claimed that she started to bleed unexpectedly on the second night, bringing the sexual activity to a halt, and he awoke the next morning to find her dead in the bathtub. He then left the hotel in a panic, returned, called 911, and fabricated different versions of a false story. Although he admitted that he caused her death, he claimed that it was a non-culpable accident. He denied using a sharp object and asserted that Cindy Gladue consented to the sexual activities in question — or at least he honestly believed that she did.

Lower Court Proceedings

In its opening address to the jury, the Crown referred to Cindy Gladue as a prostitute and explained that she and the accused struck up a working relationship on the night before her death. In addition, without having submitted an application under s. 276 of the Criminal Code to adduce evidence of Cindy Gladue’s prior sexual activity, the accused testified at length about his previous sexual activity with the victim. 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 Decision

The majority of the court found that the trial judge erred in failing to comply with the mandatory requirements set out in s. 276 of the Criminal Code regarding the admissibility of past sexual activity evidence. The court stated that this error had created ripple effects, especially with regards to the instructions on the defence of honest but mistaken belief in communicated consent, upon which the accused relied. 

In particular, the court found that non‑compliance with s. 276 of the Criminal Code resulted in a failure to expose and properly address misleading evidence and mistakes of law arising from the accused’s defence. The court ruled that this lead to a reversible error warranting a new trial. 

However, the majority of the court decided that the new trial should be restricted to the offence of unlawful act manslaughter, as it had not been demonstrated that the acquittal on murder was tainted by reversible error.

The three dissenting judges would have allowed a retrial on a first-degree murder charge, as well as manslaughter.

Get Advice

Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.