Note: This is a shortened version of a paper I submitted for a class during last term. Not all sources are publicly available. Not all sources previously cited in the paper are referred to in this shortened version and not all sources are cited according to appropriate legal citation. Thus, I significantly changed the structure of this paper for purposes of this post but where available, I cite sources which are publicly available and note when a source is not publicly available.
When the jury delivered its verdict, four years had pass since the police charged Bradley Barton with the murder of Cindy Gladue. During the trial, held earlier this year, Justice Graesser presided over the judge/jury trial. In late February, Justice Graesser held a voir dire. Essentially, a voir dire is a mini trial within the larger trial and the mini trial hears and deliver judgments over distinct and discreet topics relating to topics such as evidence. This particular voir dire in Barton’s trial determined the admissibility of real evidence or the tissue evidence. The tissue evidence was Cindy’s preserved pelvic region that Dr. Graeme Dowling excised after his autopsy the day after the discovery of Cindy’s body, left for dead by Barton in his hotel room. The issue on voir dire was whether Barton caused the injury (an 11 cm wound to Cindy’s vagina) by his hand during consensual sex or with a sharp instrument.
The case of admitting tissue evidence in a Canadian court room sent shockwaves throughout the country. The commentary on the outcome of the trial and the use of tissue evidence, however, was quite superficial. Several people commented that it was Cindy’s vagina that was on trial instead of Barton.[1] It is both too easy and too weak of an argument to say that Cindy’s vagina was on trial. A lot of people, along with myself, also assumed that it was the Defence that sought to have Cindy’s preserved pelvic region admitted as evidence. I, including others, was wrong.
The decision to tender the tissue evidence was made two days prior to the voir dire.[2] The Crown, however, successfully argued to have Cindy’s preserved pelvic region admitted as part of Dr. Dowling’s expert opinion evidence. Along side the tissue evidence, Dr. Dowling also used photographic evidence. Justice Graesser held that the tissue evidence was real evidence and that it satisfied the general rules of admissibility.
The general rules of admissibility can be outlined in the following steps:
- Is the evidence relevant?
- Is the evidence material?
- Is the evidence subject to any exclusionary rules?
- Does the evidence’s probative value outweigh its prejudicial effects?
- Trial judge exercising his or her residual discretion to admit the evidence despite exclusionary rules or prejudicial effects
Among the several kinds of real evidence, Justice Graesser referred to two kinds of real evidence. The two kinds of real evidence that Justice Graesser referred to include experiment evidence and photographic evidence. On voir dire, Justice Graesser outlined that R v Violette was a “good starting point.” Violette is a case concerning experiment evidence which relied on R v Collins. In Violette, the court determined the admissibility of experiment evidence which was not available to the Defence at trial: the testing of grenades prevented (obvious) later testing of same grenades. Violette referred to Collins because Collins determined admissibility of experiment evidence.
In Collins, the Ontario Court of Appeal held experiment evidence is admissible if it is relevant and material (and the rules regarding evidence that is both relevant and material are long-standing and well-established). Evidence is relevant “if, as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced.”[3] Evidence is material if the evidence is “directed at a matter in issue in the case.”[4] Thus, if evidence that is relevant to an issue, then the evidence will generally be admitted.[5] In his reasoning for determining the admissibility of evidence, Justice Graesser held that the evidence was both relevant and material, and the evidence was not subject to any exclusionary rules. So, the majority of Justice Graesser’s reasoning turned on the weighing of probative value versus the prejudicial and Justice Graesser exercising his residual discretion to admit evidence. However, in his reasoning, Justice Graesser failed to consider expert opinion rules regarding experiment evidence and confused the rules regarding photographic evidence and experiment evidence.
Regarding the rules on experiment evidence, Collins held that if the experiment evidence extends beyond “inferences from observed fact”[6] then the expert opinion rule applies to the experiment evidence. An opinion that does not require special knowledge is an inference from observed fact.[7] The example of an inference from an observed fact given in Collins includes drawing an inference that someone is drunk.[8] Meanwhile, an expert opinion is an opinion which requires “special knowledge beyond that of the trier of fact.”[9] For instance, in Collins, the Crown’s theory was that Collins demonstrated a “wanton and reckless disregard for life or safety of the child” who was struck by a bullet that “ricocheted off the surface of the water, striking [the child].”[10] The experiment conducted by the Sergeant in Collins did not require special knowledge to understand how the bullets ricocheted off the surface of the water because the experiment did not require “any particular expertise” and “was factual in nature.”[11] The Ontario Court of Appeal held that if the testimony goes beyond inferences from observed facts, then the expert opinion rule applies.[12] Unfortunately, Justice Graesser failed to consider the expert opinion rule relating to the experiment evidence, the tissue evidence.
In his reasoning on voir dire, Justice Graesser agreed with the Crown’s argument that Cindy’s preserved pelvic region was more like “biology lab presentation and was not offensive.”[13] In describing the presentation of the evidence, Justice Graesser writes that photographs were “more disturbing and unsettling than the more scientific and impersonal appearance of the preserved tissue.”[14] In one media article in response to the verdict, one journalist asserts that the details of the trial “begin to offer a picture of a woman who had been reduced to body parts – in fact, reduced to one body part.”[15] Then, the author (a lawyer) of another media article writes, “What is most horrific is that a Canadian court allowed the most intimate part of a woman’s body to be evidence in a jury trial.”[16] And still, another media article quotes a lawyer, “I think this was demeaning to Cindy Gladue.”[17] It is too easy to say the most obvious thing when it comes to such a hard discussion—a hard discussion for an Indigenous woman, like me, with sex trade experience who knows the reality of violence as it intersects with trading sex and drug use. I can continue on this same line of commentary—it was demeaning to Cindy; it was horrific; and it reduced Cindy down to a body part. But I think that we need to think beyond these perfunctory feminist and legal arguments.
Justice Graesser was clear in his reasoning that a good starting point was Violette, which was a case regarding experiment evidence and which relied on Collins. The Ontario Court of Appeal is clear that when experiment evidence goes beyond an inference observed from fact, then the expert opinion rule applies.
The Supreme Court of Canada established the rules relating to expert opinion evidence in R v Mohan. The Mohan rule has four requirements: the evidence is logically relevant, the evidence is necessary to the trier of fact (the necessity requirement), the evidence is not subject to any exclusionary rules, and the evidence is from a properly qualified expert.[18] Though both the Crown and Defence relied on Mohan in their submissions, Justice Graesser did not mention Mohan in his reasoning to admit the evidence. While it is okay for a Justice to not rely on all the cases on submission in his or her reasoning, Justice Graesser erred by stating that Violette is a good starting point, but failed to consider Collins while also failing to apply the Mohan rule. Explicitly, if Justice Graesser admitted that Dr. Dowling’s expert opinion evidence is similar to experiment by referring to Cindy’s preserved pelvic region as more scientific and referring to Violette as a good starting point, then the Collins rule applies along with Mohan.
In Collins, the Ontario Court of Appeal held that if experiment evidence fell under the expert opinion evidence then the evidence can only be admitted if the evidence met the Mohan rule[19]. And since the Supreme Court of Canada established the Mohan rule, several decisions built on the admissibility of expert opinion evidence: R v DD, R v J (–LJ), White Burgess Langille Inman v Abbott and Haliburton Co, and R v Sekhon.[20]
The necessity requirement is a standard that goes beyond “mere relevance or helpfulness.”[21] The Supreme Court of Canada (SCC), in R v DD, affirms Mohan’s necessity requirement and held that “dangers associated with expert evidence are not lightly tolerated.”[22] Justice Graesser in his reasoning simply stated that Dr. Dowling’s testimony was “easier to follow”[23] when he handled the tissue as opposed to the photographs. Dr. Dowling did not use the tissue exclusively; he also used the photographs. Also, Justice Graesser did not state that Dr. Dowling’s testimony with the tissue was more technical in nature, similar to the holding in R v DD.
Then, in R v J (-LJ), the SCC held that expert opinion evidence requires “special scrutiny” the closer an expert’s opinion is to the “ultimate issue.”[24] The issue in R v Barton was whether Barton caused the injury (an 11 cm wound to Cindy’s vagina) by his hand during consensual sex or with a sharp instrument.
Justice Graesser held that “Dr. Dowling’s evidence was based on his observations with the tissue itself, not the photographs of the tissue.”[25] So, the expert’s opinion does not get any closer to the ultimate issue than seeking to tender Cindy’s preserved pelvic region in court as evidence which speaks to the expert opinion—what caused the injury. Subsequently, Justice Graesser failed to put the tissue evidence under special scrutiny, a standard which demands more than mere relevance or helpfulness.
The SCC in Sekhon held that the admissibility of expert’s testimony does not end after applying the Mohan rule. Even if the issue on voir dire was not expert evidence, the SCC held that “trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence.”[26] The testimony of Dr. Dowling can be likened to the testimony of the expert in Sekhon.
In Sekhon, the police charged the accused with trafficking cocaine. The defence was that Sekhon was a “blind courier.”[27] A blind courier is someone who claims that he or she “does not know the nature or existence of the commodity being moved from one location to another.”[28] At trial in Sekhon, the police expert stated, “[I]n the thousand or more cocaine-importing investigations he has been involved in[,] he has never encountered a blind courier.” [29] This is the impugned testimony, where absence of an experience confirms a necessary element in an offence charged.[30] On trial, the Court admitted the impugned testimony from the expert evidence. The accused appealed and the majority at the Court of Appeal held the trial judge properly admitted the expert evidence, or the impugned testimony.[31]
However, on appeal and in the dissent, Justice Newbury stated the evidence “was purely anecdotal evidence, not amenable to cross examination in any real sense.”[32] On cross-examination on voir dire, Justice Graesser held that the testimony of Dr. Dowling when he handled the tissue evidence was “easier to follow.”[33] So, the tissue helps the Defence in its cross examination, which suggests the evidence is less prejudicial. Overall, Justice Graesser also held that the prejudicial effects did not outweigh the probative value of the tissue evidence.[34] I do not agree because the standard for admitting expert opinion evidence in the context of an experiment demands a special scrutiny, more than mere relevance or helpfulness.
On appeal, Justice Newbury also held that the impugned testimony was anecdotal and “[the impugned testimony] does not speak to the particular facts before the Court, but has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown’s favour, and of coming from the mouth of an ‘expert.’”[35] Justice Graesser noted that the tissue evidence did speak to the particular facts before the Court.
Building on Mohan, the SCC held that impugned testimony in Sekhon lacked relevance and probative value.[36] Though Justice Graesser states that the tissue is relevant, he does not distinguish between the probative value of the experiment evidence and the probative value of the photograph evidence. In fact, Justice Graesser confuses the two different types of evidence and the rules relating to experiment evidence and photograph evidence. Justice Graesser simply admits the tissue evidence because it is also in the photographs. Justice Graesser states, “[I]f the photographs are admissible, the object of the photograph itself should be admissible as real evidence.”[37] The logic suggesting objects in a photographs should be admissible because if the photographs are admissible, then the object is also admissible should be alarming (at minimum). There is no probative value to admitting the object of a photograph simply because it is the object of a photograph; this is circular logic, a fallacy. Further, there was nothing preventing Justice Graesser from suggesting the expert opinion of Dr. Dowling could solely rely on the photographs. Justice Graesser just says it is “easier to follow” Dr. Dowling’s testimony when Dr. Dowling used the tissue.
Additionally, the Crown theory was that Barton inserted a sharp object into Cindy’s vagina, which caused the 11 cm wound. Dr. Dowling’s testimony agrees with this theory. Similar to the analysis in Sekhon, Dr. Dowling’s experiment evidence can be likened to impugned testimony. Dr. Dowling told the police that he “was not able to say what the mechanism was that had caused the cut to [Cindy’s] vagina, however that the cut was clean-edged.”[38] Dr. Dowling’s experience, with tissue and conducting autopsies, suggests that there could be no other explanation for the mechanism (a sharp object) that caused the injury because he never encountered any other injury not caused by a sharp object. While it might appear that I am arguing that the Defence’s theory is more believable, that is not what I am suggesting. I am suggesting that Justice Graesser simply admitted the tissue because (possibly) in Dr. Dowling’s experience, he had no other explanations for the injury. Thus, in Justice Graesser’s reasoning, the tissue should be admitted simply because it helped Dr. Dowling’s testimony. Again, the standard for admitting expert opinion evidence under the experiment rule requires a standard beyond mere relevance or helpfulness.
When considering the difference between the photographs and the tissue evidence, Justice Graesser does not distinguish between the mere relevance or helpfulness and probative value of the tissue evidence in comparison to the photographs. Justice Graesser states, “[I]t was somewhat difficult to follow Dr. Dowling’s descriptions and orientations of the photographs at times.”[39] He states “I was able to understand the gist of Dr. Dowling’s observations and to understand his opinions and the reasons for his opinions during his evidence using the autopsy photos (emphasis added).”[40] In describing Dr. Dowling’s testimony handling the tissue, Justice Graesser states, “viewing the tissue and the manner in which it was used by Dr. Dowling to illustrate his observations, conclusions and opinion was easier to follow than his evidence using the autopsy photos (emphasis added).”[41] Dr. Dowling handled the tissue behind a screen, where the Court projected the tissue, up close, as an image onto an overhead projector.
On voir dire, Dr. Dowling also testified that “it would be of benefit to the Court and the jury to see the actual tissue to better understand his evidence and opinions.”[42] Justice Graesser acknowledges that Dr. Dowling could demonstrate everything in his evidence using the photographs but that some of these photos were “not as bright” which affirmed the use of the tissue by Dr. Dowling.[43] Dr. Dowling further testified that “the tissue itself showed certain aspects of the injury important to his evidence, and others potentially important to the defence, more clearly than the photographs.”[44] The above indicates the difference between the photographs and the tissues is one of mere relevance or helpfulness especially when Justice Graesser uses phrases “easier to follow.”[45] Justice Graesser also affirms that the photographs could be used for the entire duration of Dr. Dowling’s testimony. The photographs were just simply “not as bright” as the expert would prefer, and the terms “not as bright” suggests a standard of mere relevance or helpfulness.[46]
In conclusion, if Justice Graesser likened the tissue evidence to an experiment, Justice Graesser incorrectly referred to the tissue evidence like photographs. Justice Graesser also incorrectly applied the test for admitting experiment evidence especially as it relates to expert opinion evidence. Throughout his reasoning, Justice Graesser states that the tissue evidence is like photographic evidence.[47] Yet, Justice Graesser refers to Violette, which is a decision concerning experiment evidence. Justice Graesser ignores the law in all aspects, especially as it relates to the admissibility of experiment evidence in the context of expert opinion evidence. The Supreme Court of Canada is clear on experiment evidence concerning an expert’s opinion: the admissibility of such evidence does not exist in isolation of the rest of the trial.[48] Since I analogized the experiment evidence as it relates to expert opinion evidence to impugned testimony in Sekhon, then it follows that Justice Graesser should not have admitted the tissue evidence. Justice Graesser simply admitted the evidence because in Dr. Dowling’s experience there was quite possibly nothing else that could have caused the injury except for a sharp object. Again, I am not affirming the Defence’s theory that Cindy consented to any sexual acts. I am simply highlighting the problems with Justice Graesser’s reasoning in admitting the tissue evidence.
On the issue that the tissue evidence and Dr. Dowling’s opinions and conclusions on the evidence is similar to impugned testimony (where absence of an experience affirms a necessary element of an offence) and thus, the evidence should not be admitted, Justice Graesser’s reasoning also affirms that graphic photographs can be admitted if they go to a necessary element of the offence. In citing R v McLeod in his decision, Justice Graesser writes, “In that case, the Crown argued that the graphic photographs were relevant to show the jury the nature and distribution of the deceased’s wounds, which might shed light on the accused’s state of mind which was the key issue at trial[49]” The key issue on voir dire was whether a sharp object or some other mechanism caused the injury. This issue goes to a necessary element of the offence charged, murder. Throughout his reasons, Justice Graesser notes the graphic and disturbing nature of the photograph. There is nothing suggesting that Dr. Dowling could have solely used the photographs—it was just easier to follow, a standard of mere relevance or helpfulness, when Dr. Dowling used the tissue.
In Sekhon, the SCC held that even when evidence is logically relevant, it could also be legally irrelevant and thereby, justifying its exclusion.[50] The SCC held that legally irrelevant expert evidence goes to lack of relevance or probative value.[51] Where expert evidence is not legally relevant, trial judges must apply the proper rules. The SCC states, “[I]t is not enough to simply consider the Mohan criteria at the outset of the expert’s testimony and make an initial ruling as to the admissibility of the evidence.”[52] And so, Justice Graesser did not properly consider the necessity requirements in the Mohan rule when considering the admissibility of the tissue evidence. Justice Graesser only affirmed the tissue’s relevance and probative value on the fact that the same evidence was also in the photographs.[53] His reasoning for admitting the tissue evidence went to mere relevance or helpfulness, not necessity. Again, it was only easier to follow Dr. Dowling’s testimony when Dr. Dowling used the tissue evidence as opposed to only using the photographs. The suggestion that it was easier to follow Dr. Dowling’s testimony does not mean that the trier of fact could not follow or understand Dr. Dowling’s testimony by solely using the photographic evidence.
In describing Cindy’s preserved pelvic region as evidence, Justice Graesser uses the term “novel.”[54] Yes, excising Indigenous people’s body parts and putting them on display is novel, but only if you ignore the history of colonialism in Canada. Justice Graesser further writes, “I recognize there is a natural discomfort to the presence of a body part in court. It is perhaps unprecedented to present this type of evidence to a jury, at least in Canada. But the absence of precedent does not mean that it should not be done.”[55] In that same breadth, the absence of a precedent does not mean that admitting an Indigenous woman’s preserved pelvic region should be done. In his reasoning to admit Cindy’s preserved pelvic region, Justice Graesser failed to consider long standing and established rules, especially in relation to experiment evidence concerning expert’s opinions, and failed to consider the colonial and historical context where Canadian law manifests itself. Consequently, Justice Graesser should not have admitted Cindy’s preserved pelvic region.
While the commentary on the use of Cindy’s preserved pelvic region as evidence is valid, it is too easy to say that it was demeaning or that it was horrific or that it reduced Cindy down to a body part. Literally almost anyone can say the same if they read the facts of the case. However, to examine Justice Graesser’s reasons in detail requires something more than just stating the obvious—Cindy and her family deserve it.
The Court attempted to function in an objective manner and that is where the problem lies. The Court positioned Cindy’s preserved pelvic region as evidence existing in the abstract, void of any colonial or historical context. And that is where the real violence lies: the treatment of Cindy’s body existing in the abstract void of any colonial or historical context.
When the Crown exercised its discretion to admit Cindy’s preserved pelvic region as evidence, Justice Graesser acknowledged this discretion in the context of an accused’s right to a fair trial.[56] Justice Graesser writes, “Fair trial does not only mean a fair trial for the accused. The Crown is entitled to present its case in the manner it considers best, subject to the rules of admissibility.”[57] But, we must ask, fair to whom? Cindy did not consent to death and most certainly, Cindy cannot consent to the use of her preserved pelvic region as evidence. The function of law attempted to act in an objective manner when the Crown exercises its discretion and the Courts acknowledge that the Crown is entitled to present its case in the manner it considers best. Entitled! Everyone but Indigenous women are entitled to exercise consent over our bodies.
In her article titled, “The Violence We Women Do: A First Nations View,” Patricia Monture writes, “[T]his topic ‘violence against women,’ it mystifies me.”[58] Monture discusses the topic, violence against women, as themes relating to definitions and consent. Then, in her seminal paper titled Home/Land, Mary Ellen Turpel claimed that Canadian law silenced Aboriginal people.[59] Turpel writes, “There is no place for [A]boriginal peoples to stand and directly articulate their reality in Canadian law or politics.”[60] In relying on Patricia Monture’s work, Turpel agreed with Monture by acknowledging that “Aboriginal peoples are objects in any process that is alien to them and as such are silenced.”[61] I agree. Canadian law displaces Indigenous people’s realities from its systems and in effect, the law also silences Indigenous peoples. The ultimate form of displacing and silencing appears in Justice Graesser’s decision to admit Cindy’s preserved pelvic region.
Some feminists will argue that how Cindy met Barton, in the context of prostitution, is violence in and of itself. This strand of feminism argues prostitution is violence against women because prostitution is rape. However, I position prostitution within the context it existed then and now: the criminal context. In talking about consent, Monture also asserts that “the entire criminal justice system, the entire legal system in this country, were never consented to by First Nations.”[62] Monture also states, “The process of racially controlled definitions and the overlooking of consent creates silence and perpetuates racism. The result is violence.”[63] When feminists argue that all prostitution is violence against women, this creates the silence that is also violence for Indigenous women in the sex trade. When Justice Graesser ignored the consent of Cindy by acknowledging prosecutorial discretion in the criminal context, this created the silence that perpetuates racism and the result is violence: the function of law which treated Cindy’s preserved pelvic region as evidence.
Monture also wrote, “It is out of my race that my identity as a woman develops. I cannot and will not separate the two.”[64] When I write as an Indigenous woman, I write as an Indigenous woman with sex trade experience. I cannot separate these identities. But still, I am silenced through the feminist argument that all prostitution is violence and this silencing is violence. While I can go into a detailed analysis on the issues with ignoring the experiences of Indigenous sex workers in the context of Cindy Gladue’s murder, this will be a futile exercise. There is no debate because Indigenous sex workers do not consent to violence. So, I do not want to give anymore time to the argument that all prostitution is violence.
I first wrote about Cindy Gladue after the jury delivered its verdict. I wrote, “Sex workers do not consent to the violence that they experience. Money does not change the circumstances of rape, violence or murder.”[65] In a follow-up post, I wrote about ways to respond to violence that Indigenous women, especially those in the sex trade, may experience.[66] As an Indigenous woman with sex working experience, I know that criminal justice responses to our realities invites more violence. Justice Graesser’s decision is evidence of this violence.
The responses to violence in Indigenous women’s lives needs to think beyond the criminal justice system. In my follow-up post, I called upon people to “think about ways to respond to gender and colonial violence within your own communities that does not rely on the criminal (in)justice system and that is inclusive of people who trade or sell sex and/or work in the street economies.”[67] Like Monture asserts, the tension with the legal system and Indigenous people exists at the definitions of rights versus responsibilities.[68] Monture argues for a responsibility-oriented philosophy over of rights-oriented one, in the context of law.[69] I agree.
I argue that my responsibility to the legal system and to my community is the same as any other law student: we do not exist in isolation. And, my responsibility to the community is the same as the Crown’s responsibility to the community as well as Justice Graesser’s responsibility to the community. Perhaps, the Crown’s responsibility and Justice Graesser’s responsibility is higher than mine (and, rightfully so). However, if Justice Graesser and the Crown are entitled to make decisions regarding the admission of evidence without considering the effects their decisions have on communities, they ignore their responsibility to those communities. When we focus on our responsibilities both as persons representing the legal system and as persons of the larger community, only then do we center both the families and the realities of Indigenous sex trade workers: Indigenous people do not consent to violence, including excising parts of our bodies for use by the courts as evidence.
[1] Rosie DiManno, “A final indignity for Cindy Gladue: DiManno”, The Toronto Star (2 April 2015), online; Elizabeth Renzetti, “Cindy Gladue was reduced to a body part”, The Globe and Mail (6 April 2015), online; Ryan Cormier, “‘This was demeaning’: Body part as evidence in Cindy Gladue Murder Trial comes under fire”, National Post (30 March 2015), online.
[2] R v Barton, 2015 ABQB 159 at para 40 (CanLII) [Barton].
[3] R v Collins, 2001 CanLII 24124 at para 18 (Ont Ca) [Collins]
[4] Ibid.
[5] Ibid.
[6] Ibid at para 20.
[7] Ibid at para 17.
[8] Ibid.
[9] Ibid.
[10] Ibid at para 12.
[11] Ibid at paras 36, 37.
[12] Ibid at paras 20, 21.
[13] Barton, supra note 2 at para 42.
[14] Ibid at para 55.
[15] Elizabeth Renzetti, “Cindy Gladue was reduced to a body part”, The Globe and Mail (6 April 2015), online.
[16] CBC News, “Bradley Barton found not guilty in death of Cindy Gladue”, CBC News: Edmonton (198 March 2015), online.
[17] Ryan Cormier, “‘This was demeaning’: Body part as evidence in Cindy Gladue Murder Trial comes under fire”, National Post (30 March 2015), online.
[18] R v Mohan, [1994] 2 SCR 9 at 20, 1994 CanLII 80 (SCC) [Mohan].
[19] Collins, supra note 2 at paras 20, 21.
[20] I will not consider White Burgess Langille Inman v Abbott and Haliburton Co because the decision relates to impartial expert witnesses and this is not an issue on voir dire.
[21] R v DD, 2000 SCC 43 at para 46, [2000] 2 SCR 275 [DD].
[22] Ibid at para 47.
[23] Barton, supra note 2 at para 19.
[24] R v J (-LJ), 2000 SCC 51 at para 37, [2000] 2 SCR 600 [JLJ].
[25] Barton, supra note 2 at para 22.
[26] R v Sekhon, 2014 SCC 15 at para 46, [2014] 1 SCR 272 [Sekhon SCC].
[27] Ibid at paras 21-25.
[28] Ibid at para 36.
[29] Ibid at para 36.
[30] Ibid.
[31] Ibid at para 41.
[32] R v Sekhon, 2012 BCCA 512 at para 26 (CanLII) [Sekhon BCCA].
[33] Barton, supra note 2 at 19.
[34] Ibid at paras 49-51
[35] Sekhon BCCA, supra note 32 at para 27.
[36] Sekhon SCC, supra note 46 at para 50.
[37] Barton, supra note 2 at para 37.
[38] Document not publicly available.
[39] Barton, supra note 2 at para 19.
[40] Ibid.
[41] Ibid.
[42] Barton, supra note 2 at para 17.
[43] Ibid.
[44] Ibid.
[45] Ibid at para 19.
[46] Ibid at para 17.
[47] Ibid at paras 27-36.
[48] Sekhon SCC, supra note 26 at paras 46-47.
[49] Barton, supra note 2 at para 48.
[50] Sekhon SCC, supra note 26 at para 49.
[51] Sekhon SCC, supra note 26 at para 50.
[52] Sekhon SCC, supra note 26 at para 46.
[53] See R v Barton, 2015 ABQB 159 (CanLII)
[54] Barton, supra note 2 at para 20.
[55] Barton, supra note 2 at para 52.
[56] Ibid at para 43.
[57] Ibid.
[58] Patricia Monture-Okanee, “The Violence We Women Do: A First Nations View” in Constance Backhouse & David H Flaherty eds, Challenging Times: The Women’s Movement in Canada and the United States (McGill-Queen’s University Press, 1992) 193 at 193.
[59] Mary Ellen Turpel, “Home/Land” (1991) 10 Can J Fam L 17 at 20 (WL Can)
[60] Ibid.
[61] Ibid.
[62] Patricia Monture-Okanee, “The Violence We Women Do: A First Nations View” in Constance Backhouse & David H Flaherty eds, Challenging Times: The Women’s Movement in Canada and the United States (McGill-Queen’s University Press, 1992) 193 at 193.
[63] Ibid at 197.
[64] Ibid at 194.
[65] Naomi Sayers, “Our bodies are not terra nullius” (20 March 2015), Kwe Today (blog), online.
[66] Naomi Sayers, “#CindyGladue: I want to think about ways that do not rely on the criminal (in)justice system to feel safe” (26 March 2015), Kwe Today (blog), online.
[67] Ibid.
[68] Patricia Monture-Okanee, “The Violence We Women Do: A First Nations View” in Constance Backhouse & David H Flaherty eds, Challenging Times: The Women’s Movement in Canada and the United States (McGill-Queen’s University Press, 1992) 193 at 196-197.
[69] Ibid at 197.
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