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EVIDENCE - Admissibility - For limited purpose - Relevancy - Witnesses - Credibility

Friday, June 28, 2019 @ 1:48 PM  

Lexis Advance® Quicklaw®
Appeal by Goldfinch from a judgment of the Alberta Court of Appeal setting aside his acquittal. Goldfinch was charged with the sexual assault of a woman he had dated in the past and with whom he continued to engage in sexual activity occasionally. At trial, 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. The trial judge 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. Goldfinch repeatedly testified to the frequency of his previous sexual interactions with the complainant, characterizing the evening when the assault allegedly occurred as “typical”. The trial judge instructed the jury that while it could not use the evidence of sexual activity to infer that the complainant was less believable or reliable, it could consider any contradictions regarding the nature of the relationship in assessing the complainant’s general credibility. The jury found Goldfinch not guilty, and the Crown appealed. The Court of Appeal majority concluded that permitting the defence to lead evidence of previous sexual activity to prevent the jury from concluding that consent was unlikely was no different from admitting that same evidence to establish that the complainant was more likely to consent. The majority of the Court ordered a new trial for Goldfinch.

HELD: Appeal dismissed. In this case, the obvious implication of the evidence of an ongoing sexual relationship was that because the complainant had consented to sex with Goldfinch in the past, in similar circumstances, it was more likely she had consented on the night in question. Section 276(1) of the Criminal Code set out an absolute bar against introducing evidence of the complainant’s prior sexual activity for the purpose of drawing twin-myth inferences. Evidence of a relationship that implied sexual activity, such as a “friends with benefits” relationship, clearly engaged s. 276(1). Where an accused sought to introduce such evidence for some other purpose, that evidence was presumptively inadmissible unless the accused satisfied s. 276(2). The requirement that evidence be “specific” set out in s. 276(2) prevented sweeping inquiries into the complainant’s sexual history. Specificity was required so that judges could apply the scheme in a way that effectively protected the rights of the complainant while ensuring trial fairness. Specifying the parties to the relationship, the nature of that relationship and the relevant time period satisfied the purposes of trial fairness. This criteria was met in this case. However, s. 276.1(2) of the Criminal Code also required the accused to set out the “relevance of the evidence to an issue at trial”. At the voir dire, Goldfinch only described relevance in general terms: the evidence was necessary for “context” or to prevent “faulty impressions”. He was not merely concerned with dispelling the notion that he and the complainant were strangers: he specifically sought to introduce the sexual nature of the relationship. The defence’s “friends with benefits” evidence was not relevant to an issue at trial. It therefore had no probative value. The “context” laid out before the jury was clearly infected with twin-myth reasoning. Goldfinch’s appeal was dismissed.

R. v. Goldfinch, [2019] S.C.J. No. 38, Supreme Court of Canada, R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, R. Brown, M. Rowe and S.L. Martin JJ., June 28, 2019. Digest No. TLD-June242019016-SCC