On #CindyGladue and #AmberYoung: We must do better. #MMIW #MMIWG #MMIWG2S #sexwork

In a recent Supreme Court decision, R v Rodgerson, the court ruled on the issue of relying on post-offence conduct. At the actual hearing, the Appellant (the Crown) highlighted that post-offence conduct “continues to be an issue.”[1]In this context, post-offence conduct is an issue for criminal trials involving juries; specifically, it is the trial judge’s instructions to the jury that is the issue—the long and wordy instructions meant to guide the jury in their decision-making.

In R v Barton, the Cindy Gladue case, the trial judge outlined the difference in evidence. There is direct and circumstantial evidence. The trial judge sated post-offence conduct is circumstantial evidence, which is in contrast to direct evidence. Essentially, certain inferences can (or cannot) be made from circumstantial evidence. The example used in the instructions to the jury in Barton pointed to fingerprints “found on one of the beer cans” in the hotel room.[2] The fingerprints would be circumstantial evidence, just like post-offence conduct.

Amber Young was murdered in October 2008.[3] Jason Rodgerson was subsequently charged with first-degree murder in the death of Amber Young.[4] Rodgerson was the “sole witness” to Amber’s death.[5] Rodgerson argued his actions relating to the death of Amber Young was in self-defence.[6] Rodgerson also argued that he had no intent to “kill or seriously injure” Amber Young, instead the “force used was purely accidental.”[7] At trial, the Crown relied on post-offence conduct.[8] The post-offence conduct the Crown relied on included: Rodgerson cleaning and concealing evidence and Rodgerson fleeing from and lying to the police.[9] Both the Crown and defence agreed that Rodgerson fleeing and lying to the police “had no bearing on the issue of Mr. Rodgerson’s intent.”[10] The defence further argued that post-offence conduct (namely, concealing/cleaning up evidence) “had no bearing on the issue of [Rodgerson’s] intent.”[11] The trial judge did not agree with the defence that post-offence conduct “had no bearing on the issue of [Rodgerson’s] intent.”[12] As such, the trial judge instructed the jury that Rodgerson’s post-offence conduct (concealing/cleaning up evidence) is relevant in establishing intent for murder.[13]

If you have been following the Cindy Gladue case, you will notice some similarities to the Amber Young case. As side from their indigeneity, the most obvious similarity is that only Rodgerson and Barton were there to testify in the death of both Amber and Cindy, and they were both charged with their murders (how convenient). Rodgerson and Barton both argued that Amber and Cindy’s deaths were accidental and thus, they had no intent to kill or seriously injure Cindy or Amber. In the case of Amber Young, the trial judge permitted the jury to rely on post-offence conduct to establish Rodgerson’s intent to kill Amber. At trial, however, in the case of Cindy Gladue, the judge instructed the jury that post-offence conduct could not be used in establishing Barton’s intent to kill or seriously injure Cindy.

Another similarity includes the fact that both Cindy and Amber consumed alcohol, to the point of intoxication, prior to their deaths (except in Barton’s defence, the defence argued that Cindy was not intoxicated and consented to sexual activity throughout). In both Amber and Cindy’s case, we also see a particular narrative within each case that constructs Amber and Cindy as prostitutes or whores. While it is an established fact that Cindy met Barton in the context of selling sex, Amber was not selling or trading sex when she met Rodgerson. In the case of Amber Young, however, Rodgerson and his roommate in their testimonies called Amber a “whore”[14] or compared Amber’s actions “to that of a prostitute.”[15] Hence, there is a narrative that constructs Amber as a “prostitute” or a “whore” despite this not being a solid fact. The drunken Indian prostitute or the drunken Indian whore who consented to the sex and then consented to their deaths—you got to love racist and whorephobic imagery.

Nevertheless, a clear (and obvious) difference remains: Rodgerson was convicted and Barton was not (even when it is clear that Barton caused the injuries which led to Cindy’s death and which the trial judge highlighted in the instructions to the jury).

After the jury convicted Rodgerson (of second degree murder), the defence filed for an appeal. The defence argued that the trial judge erred in instructing the jury on post-offence conduct, particularly how post-offence conduct established the intent for murder. At the Ontario Court of Appeal, the majority held that evidence relating to fleeing and lying to police was “irrelevant to determining whether he had the requisite intent for murder”[16] and held that the evidence relating to concealing and cleaning up evidence could only be used in a limited way. On the issue of concealing/cleaning up evidence, the majority held that the trial judge erred by not instructing the jury on the specific way this post-offence conduct could be used for establishing intent.[17]

In the case of Cindy Gladue, the trial judge was clear in his instructions that post-offence conduct could not be used to establish intent. The trial judge wrote, “You cannot consider any of the evidence of Mr. Barton’s after-the-fact conduct on the issue of intention.”[18] Some of Barton’s post-offence conduct includes: cleaning up evidence (cleaning the bathroom floor and disposing of the bloody towel used to clean up the bathroom floor), knowing Cindy Gladue was in the bathtub in the first place, making false statements to Mr. Sullivan, Veronica Chysyk, hotel desk clerk, the 911 operator, Constable Jones and the undercover officer.[19] In the instruction to the jury, Barton argued “he was in shock, didn’t know what to do and didn’t trust anyone, that he did speak to Mr. Sullivan about some of the circumstances and that he called 911 himself.”[20] Immediately following the verdict, the narrative surrounding Barton’s actions read as if Barton was pro-active in calling 911—he was a married man worried about the dead prostitute lying in his bathtub so he obviously cared enough to call 911, right (#rhetoricalquestion)? Yet, in a statement to the police, his co-worker stated that Barton told him it “would be a good day unless the cops showed up.” In a previous post, I wrote the following:

Barton’s co-worker asked him what he meant by this statement and Barton explained that there was a dead woman in his bathtub. His co-worker asked if Barton called the police. Barton did not call the police until his co-worker suggested he do so.[21]

In the case of Cindy Gladue, the grounds in the appeal focused on instruction to the jury. The judge, as stated earlier, was clear on post-offence conduct: they could not rely on post-offence conduct to establish intent. In R v Rodgerson, an SCC case decided after the Barton verdict, re-affirms that it is totally okay to rely on post-offence conduct but that the instructions to the jury must be specific and “nuanced.”[22] On the issue of post-offence conduct, specifically concealing/cleaning up evidence, the SCC, in the Rodgerson decision, stated:

“It was open to the jury to conclude that Mr. Rodgerson sought to conceal Ms. Young’s body and clean up the scene of her death in order to conceal the nature and extent of the injuries and the degree of force required to inflict them. This in turn could have been relevant on the issue of whether Mr. Rodgerson had the requisite intent for murder: the more severe the injuries, the more force required to inflict them, the stronger the inference that Mr. Rodgerson intended to kill, or to cause bodily harm which he knew was likely to cause death”[23]

Yes, a trial judge can instruct the jury on whether they can rely on post-offence conduct to establish intent. Yes, a trial judge can tell a jury not to rely on post-offence conduct to establish intent. But what is it about Barton’s post-offence conduct that makes it irrelevant to intent?

The Crown’s theory in R v Barton was that Cindy could not consent to the sexual activity because she lacked capacity and that Barton used either a sharp object or used his hand with excessive force to injure Cindy. In R v Rodgerson, the SCC states, “The more severe the injuries caused by Mr. Rodgerson, and the more force required to inflict them, the stronger the inference that he intended to kill Ms. Young or cause her serious injury.”[24] The SCC states that post-offence conduct (namely, the concealing and cleaning up evidence) is “capable of supporting the inference that he acted unlawfully.”[25] Sure, Rodgerson’s post-offence conduct to conceal and clean up evidence was more obvious (like buying bleach and attempting to bury Amber).

Still, in R v Barton, the Crown introduced expert evidence, including Cindy’s preserved pelvis. And the fact remains, Barton admitted to causing the injury: an 11 cm wound which caused Cindy to bleed to death. There was blood on the bed sheets, floor, around the bathtub, and in the bathtub where Cindy lay dead. Then, Barton attempted to clean up the bathroom, where he left Cindy while he went to work without calling 911 until his co-worker suggested he do so.

Does the fact that Cindy met Barton in the context of selling sex play a role? Surely, this fact must play a role since the defence relied so heavily on Cindy selling sex when it came to consent—(#sarcasmalert) since all sex workers consent to everything that happens to them in the context of their work, including the violence they experience, right? And most certainly, the fact that society continuously dehumanizes Indigenous women who sell sex or Indigenous women who act like prostitutes did play a role in both Amber and Cindy’s death. Remember, Rodgerson’s roommate stated Amber “acted like a prostitute”—whatever that means (like, how does a person act like a prostitute?). In other words, the justice system and all of its players relied on constructing both Cindy and Amber as prostitutes or whores to arrive at the verdicts, convicted and acquitted, respectively for Rodgerson and Barton. Where is the justice for Indigenous women who go missing or who are reported missing murdered? What is it about the justice system relying on the denigrating stereotypes about Indigenous women who are murdered?

I often wonder how my narrative will read if (and that possibility is very probable) I am reported as missing or if I am found murdered.

My education will never save me, just like it never saved Loretta Saunders.

The burden I carry as someone who has survived all the violence is unbearable at times. I ask myself, what can I do, as a law student, a future lawyer, to change how the courts and lawyers treat Indigenous women, both the living and the dead? I often think about Cindy Gladue and her family. As I write this, I think about Amber Young and her family. Who is else thinking about Amber Young and her family? I often wonder how the justice system hurt both families. I often wonder how I can help. But, we all should be asking these questions. We must do better. Society must do better. To the Crown, criminal defence and the trial judges who preside over the cases similar to Amber and Cindy: you must do better.

[1] http://www.scc-csc.gc.ca/case-dossier/info/webcast-webdiffusion-eng.aspx?cas=35947
[2] R v Barton: Instructions to the jury at para 41.
[3] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 11.
[4] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 1.
[5] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 12.
[6] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 2.
[7] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 3.
[8] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 4.
[9] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at paras 4-5.
[10] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 5.
[11] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 6.
[12] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 6.
[13] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 6.
[14] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 12.
[15] http://www.scc-csc.gc.ca/WebDocuments-DocumentsWeb/35947/FM020_Respondent_Jason-Rodgerson.pdf at para 18.
[16] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 8.
[17] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 8.
[18] R v Barton: Instructions to the jury at para 120.
[19] R v Barton: Instructions to the jury at para 76.
[20] R v Barton: Instructions to the jury at para 81.
[21] https://kwetoday.com/2015/04/23/the-case-of-cindygladue-tells-indigenous-sexworkers-that-some-lives-matter-more-than-others/
[22] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 34.
[23] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 55.
[24] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 19.
[25] http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15456/index.do at para 20.

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