Lisa Kerr and Erin Sigurdson have an op-ed in yesterday’s Toronto Star on the Barton murder trial – specifically, on the judge’s decision to admit ”œthe preserved pelvic region” of Cindy Gladue. They rightly point out that Mr Justice Graesser, though he considered the interests of the accused, the jury, and the public at large, did not weigh ”œthe dignity or spiritual concerns of Gladue and her family.” The article is worth a read.

Here, I want to offer a short rejoinder.

This is an aspect of the Barton case that has properly attracted a great deal of criticism and media commentary. The upshot has generally been that this is just one more way in which the criminal justice system failed Ms. Gladue; that it symbolizes its wider victimization of Aboriginal peoples and sex workers. To a degree, that is fair enough: what, after all, could more viscerally suggest the radical objectification of a human being than its transformation into an inert object placed on a table and discussed as if it was so much meat in a butcher shop? In the absence of consent, we do not tend to treat human bodies in this way. (Even with consent, it can be controversial, as Gunther von Hagens’ Bodyworlds exhibition illustrates.) And in a case where the sexual consent of Ms. Gladue was such a central issue, the temptation to see this ruling as but one more instance in which she was treated as a means to other people’s ends is powerful indeed.

And yet. And yet. It is important to keep in mind that this was, as Kerr and Sigurdson observe, an ”œunusual” ruling. The central issue on the first-degree murder charge was whether Mr. Barton applied a sharp instrument to Ms. Gladue’s vaginal wall. The jury instruction later given by Mr. Justice Graesser is quite clear that, if the jury found that no sharp instrument was used, it could not convict Mr. Barton of first-degree murder. (As an abstract point of law, that does not strike me as true, but it appears to have been the agreed position of both the defence and the Crown, so there we are.)

On the question of whether a sharp instrument was used, the expert testimony of Dr. Dowling was plainly critical. The Crown argued that he could not sensibly explain the basis for his opinion, that Ms. Gladue’s injuries could only have been caused by such an instrument, without some sort of illustrative aid. A photograph of her pelvic region would (obviously) have been useful, but the trial judge explicitly found that the preserved tissue ”œis in many ways better than the photographs of it taken during the autopsy.” He stated: ”œ[Dr. Dowling’s] evidence using the tissue was more understandable than his evidence using the photos. I do not mean to criticize his evidence using the photos; but his evidence using the tissue was an improvement.” Given the significance of the issue, the trial judge was not inclined to require the Crown to use something other than the best evidence available – or (implicitly) to require the Crown to produce an alternative kind of demonstrative aid, such as a three-dimensional model.

Was that wrong? Maybe, but I suspect we need to appeal to something other than the ”˜search for truth’ in order to explain why. Mr. Justice Graesser himself ”œrecognize[d] that there is a natural discomfort to the presence of a body part in court.” But he concluded that the way in which the tissue was preserved changed its physical appearance in some respects. The formaldehyde bleached and hardened the tissue. This, in the view of the trial judge, ”œlessen[ed] the graphic nature of its appearance.” Indeed, he found that the photographs would be more likely to ”œdisturb[] and unsettl[e] [the jury] than the more scientific and impersonal appearance of the preserved tissue.”

Kerr and Sigurdson take these aspects of the ruling and argue that, in an important respect, they miss the point: So much the worse for Cindy Gladue if her pelvic region has been chemically treated in such a way that it is no longer even recognizable as a body part. So much the worse if her body can be put on display in a courtroom without eliciting even a glimmer of recognition, from those who see it, that it was a constitutive part of a person.

There is much to be said for that view. I would not want to see spiritual, family, or community preferences enter into every question of admissibility – into whether, for example, photographs of victims, or three-dimensional models, should be admitted into evidence. The body itself, however, strikes me as another matter altogether. At the very least, there is a reasonable argument that it should be presumptively inadmissible in the absence of truly compelling reasons to the contrary. That, of course, is not the law as it currently stands.

If the sole criterion for admissibility is whether the probative value of the preserved tissue exceeds its prejudicial effect – whether its admission sheds more heat than light – then it is difficult to criticize Mr. Justice Graesser’s reasoning. Our squeamishness about the ruling, though, may have nothing to do with that. It may, rather, have to do with our ideas of how it is appropriate to treat a human body, and our lingering sense that, even after death, the ends of the person it ”˜belonged to’ matter in a way that our usual approach to the admission of evidence does not recognize. Perhaps it is all the more important in a murder trial, where the ends of a human being have been so frustrated and undone with such terrible finality, to vindicate her will – as a person, and as an Aboriginal person – in some small way.

Even if it means using less than the best evidence to convict her killer.

Michael Plaxton
Michael Plaxton is an Associate Professor of Law at the University of Saskatchewan. His research focuses on criminal law, constitutional law, and legal philosophy. His book, Implied Consent and Sexual Assault, published by McGill-Queen's University Press, is now available on Amazon. Follow him on Twitter @MichaelPlaxton.

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