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EDMONTON – The Alberta Court of Appeal is hearing arguments on whether to overturn a controversial acquittal of an Ontario trucker charged with killing an indigenous woman.

Last year, a jury found Bradley Barton not guilty of first-degree murder in the death of Cindy Gladue, a 36-year-old sex-trade worker who was found dead in a bathtub in an Edmonton motel room in 2011.

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    Gladue bled to death after a night of what Barton called consensual, rough sex.

    READ MORE: Vernon demonstrators protest Edmonton not guilty verdict

    But Crown prosecutor Joanne Dartana criticized the trial judge’s charge to the jury, saying he should have explained that Barton could have been found guilty of a lesser charge if he should have foreseen his actions would harm Gladue. That would have opened the possibility of a sexual assault conviction, she said.

    “He ought to have known that what he did risked bodily harm,” she said.

    Chief Justice Catherine Fraser agreed the trial judge’s instructions to the jury were confusing.

    On the one hand, the law says people are not allowed to consent to being harmed. On the other, the judge said the Crown had to prove that Barton intended to harm Gladue.

    “What’s the jury supposed to make of this?” she asked.

    Fraser pointed out previous decisions have thrown out consent as a defence in cases of voluntary fist-fights.

    “Is a prostitute not entitled to the same degree of protection as two guys fighting on street?” she asked.

    Justice Sheilah Martin pointed out the judge told the jury the fact no evidence had been presented regarding a motive could be considered an argument in the defence’s favour.

    “The jury was being invited to find an absence of motive should lead to an acquittal,” she said.

    Barton’s lawyer Dino Bottos argued the judge qualified those statements adequately.

    “He was not putting (his fingers) on the scales of justice.”

    But Fraser kept returning to the question of whether Gladue really consented to sex so violent it killed her.

    “Why would we think that she would be consenting to the degree of force here?”

    Family members embrace one another as protesters rally outside Edmonton’s City Hall on Thursday, April 2, 2015 in support of Cindy Gladue, a 36-year-old prostitute who bled to death in an Edmonton motel room. THE CANADIAN PRESS/Topher Seguin

    Protesters hold signs outside Edmonton’s city hall on Thursday, April 2, 2015 in support of Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room. THE CANADIAN PRESS/Topher Seguin

    Protesters show their support for Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room, by participating in a rally along Edmonton’s city streets on Thursday, April 2, 2015. THE CANADIAN PRESS/Topher Seguin

    Alberta Regional Chief Cameron Alexis walks alongside family members as they hold signs and wave flags in support of Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room, on Thursday, April 2, 2015. THE CANADIAN PRESS/Topher Seguin

    Cheyanne, left to right, Cindy Gladue’s daughter, Brandy Boorman, her friend, and Donna Mcleod, Cindy’s mother, lead the rally along Edmonton’s streets on Thursday, April 2, 2015 is support of Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room. THE CANADIAN PRESS/Topher Seguin

    Cindy Gladue’s family members lead the rally along Edmonton’s streets on Thursday, April 2, 2015, in support of the decision to appeal the acquittal of an Ontario trucker charged with the murder of an aboriginal woman. THE CANADIAN PRESS/Topher Seguin

    A driver reaches out in support of protesters as they rally down Edmonton streets on Thursday, April 2, 2015 for Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room. THE CANADIAN PRESS/Topher Seguin

    Protesters show their support for Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room, by participating in a rally along Edmonton’s city streets on on Thursday, April 2, 2015. THE CANADIAN PRESS/Topher Seguin

    Donna Mcleod, Cindy Gladue’s mother, embraces a family member on the front steps of Edmonton’s City Hall on Thursday, April 2, 2015 as protesters show their support for the 36-year-old prostitute who bled to death in an Edmonton motel room. THE CANADIAN PRESS/Topher Seguin

    Protesters hold signs outside Edmonton’s city hall on Thursday, April 2, 2015 in support of Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room. THE CANADIAN PRESS/Topher Seguin

    Gloria Laird says a few words before taking part in the rally for Cindy Gladue at Edmonton’s city hall on Thursday, April 2, 2015. Gladue was a 36-year-old prostitute who bled to death in an Edmonton motel room. THE CANADIAN PRESS/Topher Seguin

    Protesters show their support for Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room, by participating in a rally along Edmonton’s city streets on Thursday, April 2, 2015. THE CANADIAN PRESS/Topher Seguin

    Protesters hold signs and wave flags as they participate in a rally on Thursday, April 2, 2015 in support of Cindy Gladue, the 36-year-old prostitute who bled to death in an Edmonton motel room. THE CANADIAN PRESS/Topher Seguin

    Barton’s trial heard that he had hired Gladue for two nights of sex in June 2011.

    He testified that he put his fist in her vagina on the first evening. On the next night, after some drinking, he did the same but she started bleeding. When she went to the bathroom, he fell asleep, he said.

    The next morning he found her body in the tub, he told court. He later called 911.

    Barton told the jury the sex was consensual.

    READ MORE: Alberta prosecutors file appeal of acquittal in Cindy Gladue murder case

    The Crown called a medical examiner at the trial, who testified that an 11-centimetre cut to the woman’s vaginal wall had been caused by a sharp object. Gladue’s vagina had been preserved and the medical expert used that exhibit as he described the fatal wound to the jury.

    In a submission to the court, the Women’s Legal Education and Action Fund criticized the way the trial was conducted. The brief said Gladue was consistently dehumanized and stereotyped.

    “The characterization of Ms. Gladue as ‘native,’ coupled with the characterization of her as a prostitute, created a heightened risk that the jury would bring to the fact-finding process discriminating beliefs, misconceptions or biases about the sexual availability of indigenous women.

    “The dehumanization of her (by using her vagina as an exhibit in court) illustrates a failure to perceive Ms. Gladue as a rights-bearing person who was entitled to be treated with dignity.”

    Edmonton protest for acquittal in Cindy Gladue murder case

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    Edmonton protest for acquittal in Cindy Gladue murder case