R. v. Goldfinch

R. v. Goldfinch
Collection
Supreme Court Judgments
Date
2019-06-28
Neutral citation
2019 SCC 38
Report
[2019] 3 SCR 3
Case number
38270
Judges
Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Alberta
Subjects
Criminal law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3
Appeal Heard: January 16, 2019 Judgment Rendered: June 28, 2019 Docket: 38270
Between:
Patrick John Goldfinch Appellant
and
Her Majesty The Queen Respondent
- and -
Attorney General of Ontario and Criminal Lawyers’ Association of Ontario Interveners
Coram: Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 76)
Karakatsanis J. (Abella, Gascon and Martin JJ. concurring)
Concurring Reasons: (paras. 77 to 148)
Moldaver J. (Rowe J. concurring)
Dissenting Reasons: (paras. 149 to 205)
Brown J.
R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3
Patrick John Goldfinch Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario and
Criminal Lawyers’ Association of Ontario Interveners
Indexed as: R. v. Goldfinch
2019 SCC 38
File No.: 38270.
2019: January 16; 2019: June 28.
Present: Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for alberta
Criminal law — Evidence — Admissibility — Complainant’s sexual activity — Accused charged with sexual assault — Accused seeking to introduce evidence that he and complainant were in sexual relationship at time of alleged assault — Trial judge admitting evidence and giving mid‑trial and final limiting instructions to jury on use it could make of it — Accused acquitted — Whether sexual relationship evidence admissible — Criminal Code, R.S.C. 1985, c. C‑46, s. 276 .
The accused was charged with sexually assaulting a woman he had dated and lived with. The two remained friends and the complainant would occasionally come to the accused’s house and stay overnight. At trial, the accused requested a voir dire to determine if evidence that he and the complainant were in a sexual relationship — “friends with benefits” — at the time of the alleged assault was admissible under s. 276 of the Criminal Code . He argued that the sexual nature of the relationship provided important context without which the jury would be left with the artificial impression that he and the complainant had a platonic relationship. The accused also advanced that he did not intend to rely on this evidence to support the twin‑myth inferences that the complainant was more likely to have consented to the sexual activity or was less worthy of belief. The trial judge admitted the evidence, concluding that keeping this “relatively benign” evidence from the jury would lend an element of artificiality to the proceedings and harm the accused’s right to make full answer and defence. At trial, both sides led evidence regarding the frequency of the sexual contact between the complainant and the accused. The jury found the accused not guilty. A majority of the Court of Appeal allowed the Crown’s appeal and ordered a new trial, finding that the trial judge had erred in admitting the evidence. In its view, the only inferences to be drawn from the evidence were those relying on the twin myths and limiting instructions could not cure the fact that the jury had heard inadmissible evidence for which there was no permissible use. The accused appeals as of right to the Court on the issue of whether the “friends with benefits” evidence was admissible.
Held (Brown J. dissenting): The appeal should be dismissed.
Per Abella, Karakatsanis, Gascon and Martin JJ.: The evidence in this case did not meet the requirements of s. 276 of the Criminal Code and admitting it was a reversible error of law which might reasonably be thought to have had a material bearing on the acquittal. A new trial is required.
The Canadian justice system strives to protect the ability of triers of fact to get at the truth. In cases of sexual assault, evidence of a complainant’s prior sexual history — if relied upon to suggest that the complainant was more likely to have consented to the sexual activity in question or is generally less worthy of belief — undermines this truth‑seeking function and threatens the equality, privacy and security rights of complainants. Section 276 was enacted to mitigate these harms, balancing a number of trial fairness considerations and seeking to exclude evidence known to distort the fact‑finding process. It protects the integrity of the trial process by safeguarding both the dignity and privacy of complainants and the right of accused persons to make full answer and defence. It is designed to exclude irrelevant information that is more prejudicial to the administration of justice than it is probative.
Sections 276(1) and (2) operate together to achieve these objectives. Section 276(1) sets out an absolute bar against introducing evidence of the complainant’s prior sexual activity for the purpose of drawing twin‑myth inferences. When an accused seeks to introduce such evidence for some other purpose, that evidence is presumptively inadmissible unless the accused satisfies s. 276(2). To do so, the accused must demonstrate that the evidence is of specific instances of sexual activity, is relevant to an issue at trial, and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The accused must identify the evidence and its purpose with sufficient precision to allow the judge to apply s. 276(2) and weigh the factors set out in s. 276(3), which include the accused’s right to make full answer and defence, the need to remove discriminatory beliefs or biases from the fact‑finding process, the potential prejudice to the complainant’s dignity and privacy, and the right of every individual to the full protection and benefit of the law.
Evidence of a relationship that implies sexual activity clearly engages s. 276(1), and, to be admissible, must satisfy the requirements of s. 276(2). The risk that evidence of a relationship which implies sexual activity may be used to support twin‑myth reasoning is clear. Even relatively benign relationship evidence must be scrutinized and handled with care. If the accused cannot point to a relevant use of the evidence other than the twin myths, mere assurances that the evidence will not be used for those purposes are insufficient.
In this case, the evidence was barred by s. 276(1) because it served no purpose other than to support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question. Nor did the evidence satisfy the conditions of admissibility under s. 276(2).
As to the first condition, the accused successfully demonstrated that the evidence was of specific instances of sexual activity. The words “specific instances of sexual activity” in s. 276(2)(a) must be read in light of the scheme and broader purpose of s. 276 . Evidence of a relationship that implies sexual activity inherently encompasses specific instances of sexual activity. To satisfy s. 276(2)(a), the accused must point to identifiable activity, but the degree of specificity required in a particular case will depend on the nature of the evidence, how the accused intends to use it, and its potential to prejudice the administration of justice. Here, the accused specified the parties to the relationship, the nature of that relationship and the relevant time period. Requiring further details would have unnecessarily invaded the complainant’s privacy.
However, the accused failed to fulfill the second condition by establishing that the evidence was relevant to an issue at trial as required by s. 276(2)(b). The accused must identify, with precision, how the evidence is relevant to a specific issue at trial. The relevant issue cannot be one of the twin myths prohibited by s. 276(1), and generic references to credibility of the accused or the complainant, narrative or context will not suffice. While the case law provides examples of how evidence of previous sexual activity between an accused and a complainant may be relevant to an issue at trial, none of them apply in this case. There are circumstances in which evidence of a sexual relationship may be fundamental to the coherence of an accused’s narrative, and by extension, credibility, but here there was nothing about the accused’s testimony that cast him in an unfavourable light or rendered his narrative untenable absent the information that he and the complainant were friends with benefits.
As for the third condition — which requires balancing a number of factors to determine whether the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice — the accused’s right to make full answer and defence would not have been compromised by excluding the sexual nature of his relationship with the complainant. Indeed, the evidence was not relevant to an issue at trial and therefore had no probative value.
Admitting the evidence was a reversible error of law which might reasonably be thought to have had a material bearing on the acquittal and a new trial is therefore required. The improper admission of the evidence as “context” risked infecting the trial with the precise prejudicial assumptions s. 276 was designed to weed out. The jury should not have been privy to particulars regarding the frequency of the sexual contact or the accused’s testimony characterizing the evening as “typical” or “routine”. That evidence clearly engaged twin‑myth reasoning by suggesting that because the complainant had “typically” consented to sex with the accused in the past, she was more likely to have done so on that “routine” occasion.
Per Moldaver and Rowe JJ.: The trial judge erred in admitting the “friends with benefits” evidence under s. 276 of the Criminal Code , having particular regard to the manifest deficiencies in the accused’s application to introduce this evidence. The improper admission of the evidence for the broad purpose of providing “context” led to a significant and highly prejudicial broadening of the sexual activity evidence at trial, which might reasonably have had a material bearing on the accused’s acquittal. Accordingly, a new trial is warranted, and the appeal should be dismissed.
The s. 276 regime is designed to respect and preserve the rights of both complainants and accused persons by excluding evidence which would undermine the legitimacy of our criminal justice system and inhibit the search for truth, while allowing for the admission of evidence which would enhance the legitimacy of our criminal justice system and promote the search for truth. In this way, the regime seeks to promote the integrity of the trial process as a whole — a concept that is essential to the public’s faith in the criminal justice system. In pursuing this objective, the s. 276 regime operates in a step‑by‑step manner. From the accused’s initial application under s. 276.1 to the final limiting instruction required by s. 276.4, the s. 276 regime establishes a rigorous, multistep process through which sexual activity evidence adduced by or on behalf of the accused must be carefully vetted and winnowed down to its essentials. To make its way into evidence at trial, such evidence must withstand careful scrutiny at each stage of the process.
Section 276(1) prohibits the use of sexual activity evidence to support one of the twin myths identified in R. v. Seaboyer, [1991] 2 S.C.R. 577. In doing so, it gives effect to the principle that these myths are simply not relevant at trial and can severely distort the trial process. Accordingly, if the sole purpose for which sexual activity evidence is being proffered is to support either of the twin myths, it will be ruled inadmissible under s. 276(1).
But that does not mean sexual activity evidence will always be ruled inadmissible. While sexual activity evidence adduced by or on behalf of the accused is presumptively inadmissible, such evidence may be admitted where it satisfies a three‑part test under s. 276(2). Before sexual activity evidence can be admitted under this provision, the accused must file a written application under s. 276.1. If the judge is not satisfied that certain requirements have been met (e.g., the application is deficient), then he or she may dismiss the application without more. On the other hand, if the accused’s written application survives scrutiny, then the process moves to the voir dire stage and the court’s attention shifts to s. 276(2).
The first requirement of s. 276(2) is that the evidence be of specific instances of sexual activity. As stated in R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351, the content of the “specific instances” requirement is linked to the nature of the evidence sought to be adduced. Where the accused seeks to introduce evidence of an individual instance of sexual activity, he must identify that instance with specificity. By contrast, where the accused seeks to introduce general evidence that describes the nature of the relationship between the accused and the complainant, the specificity requirement speaks to factors relevant to identifying the relationship and its nature and not to details of specific sexual encounters. These factors will include the parties to the relationship, the relevant time period, and the nature of the relationship.
The second requirement of s. 276(2) is that the evidence be “relevant to an issue at trial”. To satisfy this requirement, the accused must demonstrate that the evidence goes to a legitimate aspect of his defence and is integral to his ability to make full answer and defence. This requires that the accused be able to identify specific facts or issues relating to his defence that can be properly understood and resolved by the trier of fact only if reference is made to the sexual activity evidence in question. In articulating these specific facts or issues, simply citing the need to provide greater “context” or a fuller “narrative” will not suffice. Similarly, bare invocations of credibility will not be enough. Furthermore, the requirement that the evidence be “integral” to the accused’s ability to make full answer and defence means that even if the evidence can be linked to specific facts or issues relating to the accused’s defence, admission is not guaranteed. There may be cases in which the evidence, while relevant to specific facts or issues relating to the accused’s defence, bears only marginally on it. In such cases, the trial judge may, in his or her discretion, exclude the evidence on the basis that countervailing considerations, such as the need to protect the privacy rights and dignity of the complainant, outweigh the tenuous connection the evidence has to the accused’s ability to make full answer and defence.
The third requirement of s. 276(2) is that the evidence have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. As explained in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, the requirement of significant probative value serves to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the proper administration of justice.
In undertaking the analysis required by s. 276(2), which is designed to ensure that any admissible sexual activity evidence is limited in scope and that its legitimate purpose is identified and weighed against countervailing considerations, the trial judge must take into account the factors listed in s. 276(3). To the extent sexual activity evidence is ultimately admitted, the trial judge must explain to the jury, in clear and precise terms, the uses for which the evidence may — and may not — be used. Finally, all trial participants — including the trial judge, Crown and defence counsel, and witnesses — must hew to the specific, legitimate purpose for which the evidence has been admitted, without expanding the scope of the ruling or using the admissible evidence for inadmissible purposes. This is essential to preserving not only the rights of the accused and the complainant, but also the integrity of the trial process as a whole.
In this case, the “friends with benefits” evidence could, on its face, potentially be used to support the first of the twin myths — the myth that because the complainant consented to have sex with the accused in the past, she was more likely to have consented to the sexual activity forming the subject‑matter of the sexual assault charge. However, s. 276(1) takes this potential use off the table. As such, unless the accused could point to some legitimate use of the sexual activity evidence that would justify admission under s. 276(2), that evidence was inadmissible.
Although the accused’s application under s. 276.1 satisfied the specificity requirement under s. 276(2)(a), it failed to satisfy the relevance requirement under s. 276(2)(b). The accused argued that the threshold for relevance was met because the “friends with benefits” evidence: (1) was necessary to avoid an erroneous misapprehension on the part of the jury that he and the complainant were platonic friends at the time of the alleged sexual assault; and (2) provided “context” to the issues at trial. However, the accused did not explain why it was necessary to correct any potential misapprehension as to the sexual nature of his relationship with the complainant. In addition, the accused failed to identify a specific, legitimate purpose for putting the evidence before the jury — he did not link the evidence to specific facts or issues relating to his defence that could be properly understood and resolved only if reference could be made to the “friends with benefits” evidence.
The evidence was also incapable of satisfying the third requirement under s. 276(2). Because the evidence was not relevant to an issue at trial based on the application presented to the trial judge, it was necessarily incapable of possessing any probative value.
However, the possibility that the presiding judge at the new trial might, if presented with a properly framed s. 276.1 application, admit the evidence after applying the test and weighing the factors in s. 276(2) and (3) should not be foreclosed. Without reaching any final decision on the matter, there was at least one specific issue that the accused could have referred to in his application that might have properly supported admission of the “friends with benefits” evidence: the jury’s assessment of his testimony that he mouthed the words “I’m going to fuck you” to the complainant. If the jury lacked the knowledge that the two were in a sexual relationship at the time, that statement might have seemed bizarre or even menacing. Furthermore, the accused’s testimony that he made that statement to the complainant may itself have seemed implausible. In this way, withholding the sexual nature of the accused’s relationship with the complainant could have had an adverse impact on the jury’s assessment of his credibility, potentially infringing upon his right to make full answer and defence. Had the accused referenced this aspect of his anticipated testimony in his s. 276.1 application, the trial judge would have been better equipped to engage in the balancing exercise required by s. 276(2) and (3) and may have properly determined that the evidence was admissible for the narrow purpose of allowing the jury to assess the accused’s testimony on this point.
A new trial is required. A number of errors occurred at trial as a result of the trial judge’s improper s. 276 ruling, which allowed for the admission of sexual activity evidence under the broad banner of “context”. Grounded in this ruling, the trial judge’s flawed limiting instructions failed to delineate how the sexual activity evidence was capable of assisting the jury to resolve specific facts or issues relating to the accused’s defence. This flawed instruction’s distorting effect was compounded when additional sexual activity evidence was admitted at trial which was not the subject of its own admissibility determination or limiting instruction. The cumulative impact of these errors can reasonably be thought to have had a material bearing on the accused’s acquittal.
Per Brown J. (dissenting): The evidence was admissible. The trial judge applied the correct legal principles in her evidentiary ruling and the jury rendered its verdict after being properly instructed on how to do so. The appeal should be allowed and the acquittals restored.
First, the “friends with benefits” evidence did not derive its relevance solely from twin‑myth reasoning and should therefore have filtered through s. 276(1). The test for exclusion under s. 276(1) is whether the evidence derives its relevance solely from twin‑myth reasoning and not whether it merely engages that type of reasoning. Were engagement the test for categorical exclusion under s. 276(1), it would risk exclusion of all relationship evidence, or at the very least all evidence of relationships which also involve sexual activity, since that, too, would conceivably engage twin‑myth reasoning. Such an approach would resurrect the creation of pre‑determined categories of admissibility which was rejected in R. v. Seaboyer, [1991] 2 S.C.R. 577, and would downplay the text and purpose of statutory provisions like s. 276.4, which recognizes that evidence may be admissible for certain purposes yet inadmissible for others, and makes a limiting instruction mandatory where any evidence of other sexual activity is introduced, even if it only refers to other sexual activity indirectly or implicitly, to cure prejudice and to warn the jury of the impermissible uses of that evidence. Rather, relationship evidence should typically be filtered via the inquiry contemplated by s. 276(2)(b), being whether the evidence is relevant to an identifiable issue at trial.
In this case, the Crown failed to explain why evidence of the “friends with benefits” relationship was objectionable, while evidence of other types of relationships which regularly pass through the filter of s. 276(1), and yet which might also suggest previous sexual activity, is not. Evidence of relationships that involve sexual activity, but which lack the expectation or desire of a more formal relationship, may also give important context to the non‑sexual interactions between the parties to the relationship, which may be, as it was in this case, necessary for the accused to make full answer and defence. Evidence of a “friends with benefits” relationship will, in certain cases, and without engaging in prohibited lines of reasoning, explain to a jury how two people know each other, consistent with how other relationships are presented to juries. The trial judge’s evidentiary ruling treated the relationship between the accused and the complainant consistently with other relationships in society.
Second, the “friends with benefits” evidence met the relevance test under s. 276(2)(b) because it was relevant to the accused’s ability to make full answer and defence. Indeed, it was necessary for the jury to assess the credibility of the accused’s evidence, which was the most relevant and material issue with which the jury would have had to grapple. To deny the accused the ability to point to his relationship would in these circumstances disable the jury from meaningfully performing its central function of finding facts and seeking out the truth, and would force the accused to tell an incomplete story — a story which includes an account of the act but no explanation for how he and the complainant “got there” and why he said what he said and did what he did. Without the evidence, the accused’s actions will have appeared to have arisen out of nowhere, and the accused’s right to make full answer and defence would be reduced to painting a picture of himself as (at best) crude and reckless, or (at worst) predatory.
Ordering a new trial is unfair, given that the Crown’s theory of the case drew directly from the sexual nature of the relationship and that it was the Crown, and not the accused, who contravened the trial judge’s evidentiary ruling and explored both the details and the frequency of the sexual activity. A successful Crown appeal from acquittal in this case inevitably lowers the bar which the Crown must overcome to show that a legal error had a material bearing on the acquittal so as to secure a new trial.
Cases Cited
By Karakatsanis J.
Referred to: R. v. Mills, [1999] 3 S.C.R. 668; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Barton, 2017 ABCA 216, 354 C.C.C. (3d) 245; R. v. Rodney, 2008 CanLII 5114; R. v. A.R.C., [2002] O.J. No. 5364 (QL); R. v. Strickland (2007), 45 C.R. (6th) 183; R. v. Harris (1997), 118 C.C.C. (3d) 498; R. v. Temertzoglou (2002), 11 C.R. (6th) 179; R. v. M. (M.) (1999), 29 C.R. (5th) 85; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.
By Moldaver J.
Referred to: R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3.
By Brown J. (dissenting)
R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351; R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475; R. v. Harris (1997), 118 C.C.C. (3d) 498; R. v. M. (M.) (1999), 29 C.R. (5th) 85; R. v. Temertzoglou (2002), 11 C.R. (6th) 179; R. v. Blea, [2005] O.J. No. 4191 (QL); R. v. A.A., 2009 ABQB 602, 618 A.R. 137; R. v. Provo, 2018 ONCJ 474, 48 C.R. (7th) 1; R. v. W.(D.), [1991] 1 S.C.R. 742; R. v. Crosby, [1995] 2 S.C.R. 912; R. v. Nyznik, 2017 ONSC 4392, 40 C.R. (7th) 241; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609; R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273; R. v. Lane and Ross (1969), 6 C.R.N.S. 273; R. v. Corbett, [1988] 1 S.C.R. 670.
Statutes and Regulations Cited
Bill C‑49, An Act to amend the Criminal Code (sexual assault), 3rd Sess., 34th Parl., 1992, Preamble.
Bill C‑51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, 1st Sess., 42nd Parl., 2018 (assented to December 13, 2018).
Canadian Charter of Rights and Freedoms, s. 11(d) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 143.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 276 , 276.1 , 276.2 , 276.4 , 276.5 , 676(1) (a).
Authors Cited
Backhouse, Constance. “Sexual Harassment: A Feminist Phrase That Transformed the Workplace” (2012), 24 C.J.W.L. 275.
Boyle, Christine. “Sexual Assault as Foreplay: Does Ewanchuk Apply to Spouses?” (2004), 20 C.R. (6th) 359.
Canada. Department of Justice. Research and Statistics Division. An Estimation of the Economic Impact of Violent Victimization in Canada, 2009, by Josh Hoddenbagh, Ting Zhang and Susan McDonald. Government of Canada, 2014.
Canada. Department of Justice. Research and Statistics Division. Health Impacts of Violent Victimization on Women and their Children, by Nadine Wathen. Government of Canada, 2012.
Canada. Statistics Canada. Canadian Centre for Justice Statistics. Police‑reported sexual assaults in Canada before and after #MeToo, 2016 and 2017, by Cristine Rotenberg and Adam Cotter. Statistics Canada, 2018.
Craig, Elaine. “Capacity to Consent to Sexual Risk” (2014), 17 New Crim. L. Rev. 103.
Craig, Elaine. Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession. Montréal: McGill‑Queen’s University Press, 2018.
Craig, Elaine. “Section 276 Misconstrued: The Failure to Properly Interpret and Apply Canada’s Rape Shield Provisions” (2016), 94 Can. Bar Rev. 45.
Desrosiers, Julie, et Geneviève Beausoleil‑Allard. L’agression sexuelle en droit canadien, 2e éd. Montréal: Yvon Blais, 2017.
Khan, Ummni. “Hot for Kink, Bothered by the Law: BDSM and the Right to Autonomy” (Summer 2016), 41:2 Law Matters 17.
Koshan, Jennifer. “Marriage and Advance Consent to Sex: A Feminist Judgment in R v JA” (2016), 6:6 Oñati Socio‑legal Series 1377 (online: http://opo.iisj.net/index.php/osls/article/viewFile/737/963; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC38_1_eng.pdf).
Lippel, Katherine. “Conceptualising Violence at Work Through A Gender Lens: Regulation and Strategies for Prevention and Redress” (2018), 1 U of OxHRH J 142.
Miller, Karen‑Lee. “You Can’t Stop The Bell From Ringing.” Protean, Unpredictable, And Persisting: The Victim Impact Statement In The Context Of Sexually Assaulted Women, submitted in conformity with the requirements for the degree of Doctor of Philosophy. Toronto: University of Toronto, Dalla Lana School of Public Health, 2015.
Oxford English Dictionary, “friend with benefits” (online: https://www.oed.com/view/Entry/74646?redirectedFrom=friends+with+benefits#eid282828620).
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 7th ed. Toronto: Irwin Law, 2015.
Randall, Melanie. “Sexual Assault in Spousal Relationships, ‘Continuous Consent’, and the Law: Honest But Mistaken Judicial Beliefs?” (2008), 32 Man. L.J. 144.
Rosenbury, Laura A. “Friends with Benefits?” (2007), 106 Mich. L. Rev. 189.
Sealy‑Harrington, Joshua. “Tied Hands? A Doctrinal and Policy Argument for the Validity of Advance Consent” (2014), 18 Can. Crim. L. Rev. 119.
Silver, Lisa A. “The WD Revolution” (2018), 41 Man. L.J. 307.
Stuart, Don. “Twin Myth Hypotheses in Rape Shield Laws are Too Rigid and Darrach is Unclear” (2009), 64 C.R. (6th) 74.
Tanovich, David M. “‘Whack’ No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases” (2015), 45 Ottawa L. Rev. 495.
APPEAL from a judgment of the Alberta Court of Appeal (McDonald, Strekaf and Berger JJ.A.), 2018 ABCA 240, 48 C.R. (7th) 22, 72 Alta. L.R. (6th) 317, 363 C.C.C. (3d) 406, [2018] A.J. No. 830 (QL), 2018 CarswellAlta 1312 (WL Can.), setting aside the acquittals of the accused and ordering a new trial. Appeal dismissed, Brown J. dissenting.
Deborah R. Hatch, for the appellant.
Joanne B. Dartana and Matthew Griener, for the respondent.
G. Karen Papadopoulos and Jill Witkin, for the intervener the Attorney General of Ontario.
Megan Savard and Colleen McKeown, for the intervener the Criminal Lawyers’ Association of Ontario.
The judgment of Abella, Karakatsanis, Gascon and Martin JJ. was delivered by
[1] Karakatsanis J. — Our system of justice strives to protect the ability of triers of fact to get at the truth. In cases of sexual assault, evidence of a complainant’s prior sexual history — if relied upon to suggest that the complainant was more likely to have consented to the sexual activity in question or is generally less worthy of belief — undermines this truth-seeking function and threatens the equality, privacy and security rights of complainants.
[2] In 1992, Parliament enacted s. 276 of the Criminal Code, R.S.C. 1985, c. C-46 , to protect trials from these harms. Nearly 30 years later, the investigation and prosecution of sexual assault continues to be plagued by myths. One such myth is that sexual assault is a crime committed by persons who are strangers to their targets. In fact, in 2016-2017, Statistics Canada found that over 80 percent of reported sexual assaults occurred between people who knew one another in some way.[1] In other words, most complainants will have some kind of relationship with the accused. This case requires the Court to review the balance between, on the one hand, admitting evidence of a sexual relationship that may be fundamental to making full answer and defence, and on the other, protecting complainants and the integrity of the trial process from prejudicial reasoning.
[3] Here, the accused sought to introduce evidence that he and the complainant were “friends with benefits”, a sexual relationship. He argued that the sexual nature of the relationship provided important context without which the jury would be left with the artificial impression that he and the complainant had a platonic relationship, rendering consent improbable.
[4] To be admissible, relationship evidence that implies sexual activity must satisfy the requirements of s. 276 of the Criminal Code . In my view, the evidence here did not meet those requirements. Introducing evidence of the sexual nature of the relationship served no purpose other than to support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question. It was therefore barred by s. 276(1) . Nor could it satisfy the conditions of admissibility under s. 276(2) . While the sexual aspect of the relationship was evidence of “specific instances of sexual activity”, it was not “relevant to an issue at trial”.
[5] A s. 276 application requires the accused to positively identify a use of the proposed evidence that does not invoke twin-myth reasoning. In other words, relevance is the key which unlocks the evidentiary bar, allowing a judge to consider the s. 276(3) factors and to decide whether to admit the evidence. Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276 . The evidence in this case should not have been admitted and a new trial is required. I would dismiss the appeal.
I. Facts
[6] Mr. Goldfinch and the complainant met, dated and lived together for seven or eight months, after which the complainant ended the relationship. At some point during the ensuing months, the two resumed contact. Although they each described the relationship in various ways, both ultimately agreed that their relationship could be described as “friends with benefits”.
[7] On the evening of May 28, 2014, the complainant called Goldfinch, who then drove to the complainant’s house, picked her up, and brought her back to his place. Goldfinch testified that she had called him a few days earlier asking for “birthday sex”, something the complainant couldn’t remember if she had done. Goldfinch stated that he did not “100 percent” expect to have sex that evening, “but that was our routine” (A.R., vol. III, at p. 228). In his view, this was a “typical evening” in that the complainant “would call in the middle of the night, want to come over, and we’d end up going to bed together” (A.R., vol. III, at p. 201).
[8] Goldfinch lived in the basement of a small, older home which he shared with a roommate. After arriving at the house, Goldfinch and the complainant shared drinks and conversation with the roommate while watching television. Goldfinch testified that, during this time, he mouthed “I’m going to fuck you” to the complainant. He says she responded with a smile. The complainant couldn’t remember whether this exchange had occurred, but acknowledged that it might have.
[9] A few minutes later, Goldfinch invited the complainant to go downstairs. The complainant testified that she told Goldfinch “nothing was going to happen”, meaning that she did not wish to have sex. Goldfinch denies ever hearing this.
[10] Downstairs, the two sat on a couch together. At some point, they shared a consensual kiss. After the kiss, Goldfinch suggested that they go to bed.
[11] From this point on, the two accounts of the evening diverged radically.
[12] According to Goldfinch, after the consensual kiss, he followed the complainant into his bedroom where they each removed their own clothes. He and the complainant then discussed which side of the bed they wished to sleep on. Following this discussion, the two engaged in consensual foreplay and brief intercourse. He fell asleep and, hours later, she woke him up complaining that he had struck her on the head in his sleep. He was annoyed, told her to leave and called a taxi using her phone.
[13] The complainant testified that she responded to Goldfinch’s invitation by telling him she did not want to have sex. He then grabbed her arm and dragged her into the bedroom. She explained that Goldfinch’s demeanour changed, “[j]ust like something snapped” (A.R., vol. II, at p. 88), and she felt scared. She removed her clothes because he told her to. He pushed her onto the bed, struck her in the face, pushed her shoulder so hard that she believed her arm was broken, and told her “he was going to have [her], just like everyone else” (A.R., vol. II, at p. 91). Following the assault, she dressed and called a taxi from her cell phone. She called the police shortly after she arrived back at her home. Both the responding officer and a forensics officer who met the complainant at the hospital confirmed swelling on her left cheek and elbow.
II. History of the Proceedings
A. The Voir Dire, Pentelechuk J. — Court of Queen’s Bench of Alberta, 140600008Q1, January 23, 2017
[14] The defence requested a voir dire to determine if evidence that the complainant and Goldfinch were “friends with benefits” was admissible under s. 276 of the Criminal Code , submitting that it was highly artificial to describe the relationship without reference to sexual activity. Counsel advanced that Goldfinch did not intend to rely on twin-myth inferences, but failed to identify any other inference or relevant use beyond “context”. The Crown was willing to adduce evidence that the two knew each other for four to five years, dated and lived together for seven to eight months, and then broke up. The Crown was also prepared to adduce evidence that the two remained friends and that the complainant would occasionally come to Goldfinch’s house and stay overnight.
[15] The trial judge accepted that “friends with benefits” meant that “they were friends who . . . from time to time got together to have sex” (A.R., vol. I, at p. 10). She agreed that keeping this evidence from the jury would lend an element of artificiality to the proceedings and harm Goldfinch’s right to make full answer and defence. She concluded this “relatively benign” evidence would not “prejudice the complainant’s personal dignity, right to privacy, or personal security” if admitted in this limited form.
B. The Trial, Pentelechuk J. — Court of Queen’s Bench of Alberta, 140600008Q1, February 9, 2017
[16] The trial unfolded before a jury over four days in February 2017.
[17] Before examining the complainant, Crown counsel sought clarification regarding the permissible scope of questioning with respect to previous sexual activity, noting that she would not have led this evidence had the s. 276 application not been granted. The trial judge stated that she had envisioned that the “contextual information” identified in the voir dire would be reduced to an agreed statement of facts. But, because the parties had not done so, the trial judge reiterated her expectation that any questioning would be “extremely limited”, following “fairly narrow confines for the purposes of context and to simply let the jury know the nature of the relationship” (A.R., vol. II, at p. 53).
[18] During direct examination, the complainant initially denied that she and Goldfinch were ever “more than just friends” following their breakup. Shortly thereafter, however, she admitted that she had been to Goldfinch’s bedroom to have sex on “various” dates