Sex acts that lead to death or serious injury cannot be consensual, Alberta appeal court rules

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Serious injury or death during rough sex negates any possibility of consent, Alberta’s top court has ruled in upholding a manslaughter conviction in one of Canada’s most notorious sex killings in the past 15 years.

Bradley Barton, a trucker from Ontario, was convicted in 2021 by a jury at his second trial of unlawful act manslaughter in the death of Cindy Gladue, a Cree and Métis woman and mother of three from Alberta. By Mr. Barton’s account, Ms. Gladue, a sex worker, had consented to a sexual activity involving his hand on two consecutive nights in 2011. The second night, she bled to death from an 11-centimetre tear to her vagina. His laptop contained searches for vaginal ripping, tearing and stretching. He called her death an accident.

Such cases have given rise to what the Alberta Court of Appeal called the “rough-sex defence”: that the person who was harmed consented to the activity. The defence has been used in dozens of cases in Canada in which men have been accused of severe, even fatal, violence against women. One study dubbed it the “she-asked-for-it defence.”

But the court said in its ruling Monday that no consent to sex can exist where serious harm occurs if the accused was reckless about or wilfully blind to the risks or if the risks were objectively foreseeable.

“It is open to adults to seek sexual experiences without judgment,” Justice Jolaine Antonio wrote in a 40-page ruling, joined by Justice Kevin Feehan and Justice Anne Kirker. “Where choices are safe, sane, and genuinely consensual, mingling sensations of pain and pleasure does not give rise to policy concerns.”

But, Justice Antonio noted, in the Barton case and several others, the victim isn’t around to testify about whether she consented, and the dominant party shouldn’t be allowed simply to claim it was an accident.

“There is a point at which the societal interests in preventing bodily harm and protecting the vulnerable from exploitation take precedence over individual autonomy. That point is where the consequences of the sexual experience become significant, long-lasting or permanent.”

Ms. Gladue’s family, including her mother, Donna McLeod, said in a statement on X, formerly Twitter, that it was deeply relieved by the ruling and expressed hope it ended Mr. Barton’s “efforts to escape justice.”

Peter Sankoff, a lawyer for Mr. Barton, said in an e-mail that his client, who is in prison serving a 12 1/2 year sentence in the killing, is “understandably disappointed” and is exploring the possibility of asking the Supreme Court to hear an appeal.

The case became infamous during Mr. Barton’s first trial after the prosecution brought her preserved pelvic tissue into court as evidence of the wound that killed her, and after more than 50 references to her as a “native” or a “prostitute” by the Crown and defence. A jury acquitted him the first time, which sparked protests from women’s groups across the country.

The Supreme Court of Canada unanimously dismissed the acquittal and ordered a new trial, saying the judge had made devastating errors (such as failing to hold a special hearing to decide if the first night’s sexual activity could be used as evidence) that “haunted” the courtroom. (The Supreme Court did not comment on the use of the pelvic tissue.)

During Mr. Barton’s second trial, Justice Stephen Hillier of the Alberta Court of King’s Bench told the jury that if it decided Mr. Barton had been reckless about the risks to Ms. Gladue in the sexual act, she could not be considered to have legally consented, and her death would therefore amount to unlawful act manslaughter.

Mr. Barton’s lawyers argued at the appeal court that such a standard for consent would expand criminal liability and unduly limit the sexual autonomy of adults. They said the proper standard should be whether Mr. Barton intended to cause Ms. Gladue harm or knew that harm was virtually certain.

In its ruling, the appeal court cited a 1991 ruling by the Supreme Court rejecting consent to a fist fight that killed one of the participants. But in the sexual context, the court said there had been different viewpoints on consent to violence and harm, and it said it would therefore decide the issue on public-policy grounds, such as the protection from sexual violence of women, LGBT2Q+, racialized, disabled or Indigenous persons and other vulnerable groups.

The court pointed to a study by law professors Lise Gotell, Isabel Grant and Elizabeth Sheehy that found 93 reported legal decisions in which the rough-sex defence was invoked in sexual assault, homicide or assault cases between 1988 and 2021 in Canada. All the accused were male, and 94 of 97 complainants were female. There were 11 homicides, of whom three victims, including Ms. Gladue, were sex workers. The appeal court said the study showed the defence is used in a “highly gendered way.”

The ruling “protects women and cuts off opportunities to raise a rough-sex defence,” said Prof. Gotell, of the University of Alberta, on Monday.

“We need to remember that this is a case in which an Indigenous woman died as the result of extreme sexual violence,” she said, adding that the founder of the Institute for the Advancement of Aboriginal Women, Muriel Stanley Venne, called it the most important case of her lifetime.

Pam Hrick, executive director of Women’s Legal Education and Action Fund, said the court had broken new ground in rejecting the possibility of consent to serious harm in sexual activity: “What was really thoughtful about this decision is … that they made reference to balancing sexual autonomy and sexual freedom against the rights and experiences” of vulnerable groups.