R v Goldfinch: The SCC Declines to Weaken Protections Against Sexual Assault Myths
Warning: The following post by necessity includes details about an allegation of sexual violence and offensive language. It may not be suitable for all audiences.
In the #MeToo era, sexual assault trials are recognized as an area of criminal law plagued by myths about victims of sexual violence. Over the last thirty-seven years, the federal legislature has tried to enact reforms to better protect complainants from sexual assault myths (Goldfinch, paras 2, 34). In doing so, the federal legislature and the Supreme Court of Canada (“SCC”) have tried to achieve the right balance between the equality, privacy, and security rights of complainants with the right of accused persons to make full answer and defence.
R v Goldfinch, 2019 SCC 38 [Goldfinch] is one of those decisions where the Supreme Court tries to strike the correct balance in its interpretation of s. 276 of the Criminal Code, RSC 1985, c C-46 [Criminal Code], which is often referred to as Canada’s rape shield law. In Goldfinch, the Court was asked to decide if evidence that the accused and complainant were friends with benefits is relevant and admissible in a sexual assault trial.
The complainant broke up with Patrick Goldfinch after they had lived together for seven-to-eight months. At some point later, the parties became “friends with benefits” (Goldfinch, para 6). One evening, the complainant called Mr. Goldfinch to pick her up and drive her to his house. Mr. Goldfinch viewed it as a routine evening where the complainant would call him in the middle of the night, she would come over, and they would sleep together (Goldfinch, para 6). Mr. Goldfinch, his roommate, and the complainant, shared drinks while watching TV at Mr. Goldfinch’s house. Mr. Goldfinch testified that at that time he mouthed to the complainant “I’m going to f*** you” and that the complainant smiled back at him (Goldfinch, para 8). The complainant did not recall this exchange. After sharing drinks, Mr. Goldfinch invited the complainant downstairs. At this point, the testimony of Mr. Goldfinch and the complainant are entirely different. Mr. Goldfinch testified that they then had consensual sex, whereas the complainant testified that Mr. Goldfinch sexually assaulted her after she declined to have sex with him (Goldfinch, paras 10-13).
The Sole Issue Has a Nuanced Statutory Test
The sole issue before the SCC was whether the evidence that the accused and the complainant were friends with benefits should have been admissible at trial. Section 276 of the Criminal Code prohibits the admission of evidence that a sexual assault complainant engaged in sexual activity with the accused or any other person, to support the inference that the complainant is more likely to have consented, or is less worthy of belief. However, under s. 276(2), evidence of sexual activity other than the subject matter of the charge is admissible if three conditions are met:
- The evidence must be of specific instances of sexual activity.
- The evidence must be relevant to an issue at trial, other than to make either of the prohibited inferences.
- The evidence must be more probative than it is prejudicial to the proper administration of justice.
In Goldfinch, the central concern for the Court is what constitutes an issue that is sufficiently relevant for sexual activity evidence to be admissible.
Prior to the accused’s trial, the defence sought the admission of evidence that the complainant and Goldfinch were friends with benefits. The defence argued that it was important context and that it was artificial to describe their relationship without referring to their sexual activity. The Crown was willing to admit evidence that the complainant and accused had dated and lived together for seven to eight months before breaking up. The Crown was also willing to admit evidence that they remained friends after they broke up and that the complainant would occasionally stay at Goldfinch’s home overnight (Goldfinch, para 14). The trial judge, Justice Pentelechuk, ruled that the evidence was admissible. Justice Pentelechuk found that the evidence was rather benign and its exclusion would harm the accused’s right to make full answer and defence (Goldfinch, para 15).
Goldfinch was acquitted at trial and the Crown appealed to the Alberta Court of Appeal on the basis that the sexual activity evidence was wrongly admitted. For more in depth coverage of the appeal, see my colleague Julia Kalinina’s post: “Sexual Assault Myths Back on Trial in R v Goldfinch.” The majority of the Alberta Court of Appeal held that the evidence was inadmissible, because its relevance had not been established. An assertion that the evidence speaks to context or credibility in general is not enough to establish relevance (Goldfinch, para 25).
The Majority’s Take
The SCC’s majority decision was made up of Justices Abella, Karakatsanis, Gascon and Martin. They ruled that the evidence was inadmissible. Justice Karakatsanis, writing for the majority, explains that the requirement of specificity in the statutory scheme is meant to prohibit aimless or sweeping interrogations of a complainant’s past (Goldfinch, para 53). Specificity is also required so judges can meaningfully balance the probative value and prejudice of the proposed evidence. For those reasons, the amount of specificity required will vary based on context. The nature of the evidence, what it is intended to be used for, and the type of prejudice it may bring will determine the degree of specificity required for an informed analysis (Goldfinch, para 53).
On the facts in Goldfinch, Justice Karakatsanis finds that the sexual activity evidence is adequately specific. If further details were required about the sexual relationship, it would violate the complainant’s privacy, which would undermine the goal of the provision (Goldfinch, para 54).
The majority decision also provides some guidance on what constitutes a relevant issue at trial. The relevant issue cannot be either of the prohibited inferences, namely, that past sexual activity reflects that the complainant was more likely to have consented or is less worthy of belief (Goldfinch, para 55). Prior sexual activity can be relevant to a defence of honest but mistaken belief that consent was communicated and could be relevant if the complainant offered inconsistent statements about having had a sexual relationship with the accused (Goldfinch, para 62). Credibility, context, and narrative are all insufficiently precise to adequately identify the relevance of sexual activity to an issue at trial (Goldfinch, paras 56-57). Justice Karakatsanis writes: “General arguments that the sexual nature of a relationship is relevant to context, narrative or credibility will not suffice to bring the evidence within the purview of s. 276(2)” (Goldfinch, para 65). Credibility, context, and narrative can be disguised forms of the prohibited inferences (Goldfinch, paras 56-57).
Justice Karakatsanis, however, acknowledges there will be times when context will be relevant for a jury to properly evaluate evidence (Goldfinch, para 65). Yet sexual activity evidence that is important for the context will only be admissible if it is free of the prohibited inferences (Goldfinch, para 65). As such, evidence has been admitted in other cases where it was fundamental to the coherence of the defence narrative (Goldfinch, para 66). But in the case of Goldfinch, the majority found the evidence to be irrelevant because there was nothing in the defence narrative that – absent the evidence they were friends with benefits – would cast the accused in a bad light, or makes the narrative “utterly improbable” (Goldfinch, para 68). Since the evidence was irrelevant, the Court held that it was inadmissible.
The Concurrence and Dissent
The concurring opinion of Justices Moldaver and Rowe, substantially agrees with the principles articulated by the majority but disagrees with their application to Goldfinch. They agree that the evidence should not have been admitted because the relevance of it was not sufficiently specified (Goldfinch, para 87). However, they argue that the evidence could be found to be admissible at a new trial if the application were to be more specific (Goldfinch, para 87). Without knowing that the complainant and accused were friends with benefits, Mr. Goldfinch’s statement of intention to have sexual intercourse could have appeared bizarre, menacing, or implausible (Goldfinch, para 123). Therefore, at re-trial the accused may be able to establish the relevance of the evidence by identifying it as necessary to understand the accused’s statement (Goldfinch, para 125)
Justice Brown in dissent, finds that the evidence is admissible. He questions why evidence that the accused and complainant were friends with benefits is objectionable, when evidence of other types of relationships which imply sexual activity, like evidence of marriage or dating, is routinely admissible (Goldfinch, paras 182, 184). Further he finds that the sexual activity evidence in the case before the Court was relevant to evaluate the credibility of the accused’s evidence. Absent the sexual activity evidence, the contents of the accused’s testimony may be perceived as crude, reckless, and predatory (Goldfinch, para 192).
The Court Gets the Right Balance, But Fails to Clarify the Law
The majority decision struck the right balance between the rights of accused persons and complainants by refusing sexual activity evidence based on vague notions of relevance to credibility, context, or narrative. At its core, criminal trials consist of oral advocates offering competing narratives and a trier of fact making a decision based on what they believe about those narratives. Consequently, if evidence were admissible based on a vague relation to credibility, context, or narrative, s. 276 of the Criminal Code would be rendered meaningless. These concepts are so ambiguous that most evidence about a complainant could be tangentially connected to context, narrative, or credibility. Through its judgement, the majority of the Court has maintained the effectiveness of s. 276.
However, the Court has declined to clarify s. 276 of the Criminal Code, which would have aided lower courts and prevented future litigation on this issue. The Supreme Court does not tell us in Goldfinch what issues at trial would be sufficiently specific and relevant to make sexual activity evidence admissible. The majority only clarifies that evidence would be relevant in circumstances where the defence of honest but mistaken belief is at issue, or there are prior inconsistent statements about sexual activity (Goldfinch, para 62). In other areas of evidence law, like similar fact evidence, the Court has gone so far as to list the issues that would be relevant enough to make evidence admissible. For example, in R. v. Handy, 2002 SCC 56, the Court brought much needed clarity and stability to the law of similar fact evidence. That clarity and stability has lasted almost 18 years. For that reason, Goldfinch – while correctly decided – is a missed opportunity for the Court to clarify and articulate what evidence is relevant enough to be admissible under s. 276 of the Criminal Code.
 This blog post uses the term ‘complainant’ as it is used by the SCC and in the Criminal Code to refer to the alleged victim of an alleged offence but recognizes that this terminology has been subject to critique in the #MeToo era.