Sexual Assault Evidence: The SCC Revisits Canadian Rape Shield Laws

In R v Goldfinch, The Supreme Court re-examined Canadian rape shield laws. The Court provided examples of when a victim’s prior sexual activity was admissible.

History of Canadian Rape Shield Laws

Sexual assault law in Canada has a long, complicated history. In 1983, the Canadian Government overhauled its rape laws. One purpose of these changes was to encourage victim reporting. The Government also sought to refute the idea that sexually active women were less credible.  Section 276 was one provision designed to achieve these goals.

Section 276 governs evidence of sexual assault complainants. This section is supposed to protect the court’s truth-seeking purpose. This section was also intended to protect sexual assault victims from further trauma. 

The first edition of section 276 prohibited all sexual history evidence with three exceptions. These exceptions included: 

1. The prosecution puts the history into evidence.

2. A valid identity issue and history is used to establish identity.

3. The accused is relying on the fact that that other activity took place. This activity occurred on the same day. The facts are used to raise the defence of honest but mistaken belief.

In R v Seaboyer, The Supreme Court declared that the exceptions in 276 were too restrictive. As a result, the Government revised section 276. The revisions replaced the exceptions with general criteria. These revisions gave us section 276 as we know it today. More information on the history of sexual assault law in Canada is available here.

Section 276 and The Twin Myths 

Section 276(1) of the Criminal Code restricts evidence on prior sexual activity. Courts prohibit evidence used to support the twin-myths. The twin myths suggest that a complaint’s sexual activity relates to whether she is worthy of belief. The myths also suggest that previous sexual activity suggests whether she likely consented. Evidence that supports the twin myths is presumptively inadmissible. This is true even if the evidence is intended for another reason. 

To introduce evidence relating to the twin myths, the accused must satisfy section 276(2). To satisfy s. 276(2), the accused must explain the purpose of the evidence. In particular, the accused needs to show that the evidence relates to a specific sexual activity relevant to the trial. The accused must prove that the value of this evidence outweighs its potential bias. 

Next, a judge will weigh the factors listed in s. 276(3). These factors include the accused’s right to full answer and defence and potential prejudice toward the complainant. The judge will also consider the right to the full protection and benefit of the law.

Case Summary 

The complainant alleges that Patrick Goldfinch sexually assaulted her.  The alleged incident occurred in May 2014 at the accused’s home. Goldfinch and the complainant had a previous romantic relationship. The complainant broke up with Goldfinch after living with him for several months. 

Mr. Goldfinch maintained his innocence. The accused claimed that the sexual activity was consensual. The defence applied under s. 276.1 to present evidence of a “friends with benefits” relationship. This evidence involved previous sexual activity between the complainant and the accused. 

The Crown objected to this application. The Crown was willing to tell the jury that the accused and complainant had dated and lived together. However, the Crown argued that information on prior sexual encounters would bias the jury. 

The defence argued that this evidence was not intended to suggest the twin myths. Instead, evidence on prior sexual activities provided context. The defence argued that prohibiting this evidence would leave the jury with an incomplete picture. The defence suggested that limiting this evidence would interfere with Goldfinch’s section 11(d) Charter right. Section 11(d) of the Charter guarantees the right to make full answer and defence. 

The trial judge allowed Goldfinch to cross-examine the complainant about her prior sexual activity.  This evidence allowed the defence to suggest that sex was expected. The defence described the evening as “typical” or “routine.” 

The jury found Mr. Goldfinch not guilty of sexual assault. The Crown appealed the acquittal. The Crown argued that the judge erred in allowing evidence about the complainant’s sexual history. The Court of Appeal allowed the appeal, ordering a new trial. 

Analysis 

The majority of the Supreme Court found that the trial judge was wrong to allow evidence on sexual history. The Court found that providing a narrative or context was not a sufficient reason to allow the evidence. The evidence implied that previous consent suggests she had also consented on the night of the alleged assault. The jury should not have heard evidence on the frequency of sexual contact. Furthermore, the trial judge should have prohibited some of Goldfinch’s testimony. The trial judge should have forbid comments describing the evening as “typical” or “routine.”

Not all judges on the Supreme Court felt the same way. Justices Moldaver and Rowe, in a separate opinion, suggested that Goldfinch might be able to use the evidence at re-trial. The admissibility would depend on if Goldfinch could properly frame the issue. The judges believed that without context the jury would not understand some of the testimony. Some testimony would have seemed “bizarre” or even “menacing” if the jury did not know about their previous sexual relationship. 

In Goldfinch, the majority did not permit evidence on sexual history. However, this evidence may be relevant in other cases. The Court indicated that judges must consider the facts of the case and the nature of the evidence. Other factors include how the accused wants to use the evidence and its potential bias. For example, this evidence may be relevant is honest but mistaken belief in consent. Honest but mistaken belief is a sexual assault defence. Honest but mistaken belief is used when an accused believes the victim consented. An accused can be acquitted if the court finds that the accused honestly believed the sex was consensual.  

Goldfinch provides lower courts with examples where sexual history evidence may be relevant. Beyond these examples, exactly when courts will permit this type of evidence is unclear. 

Conclusion

Limiting sexual history in cases such as Goldfinch may paint a distorted picture. Although the twin myths serve an important purpose, we must avoid expanding the scope too far. 

An accused must have the chance to tell their story, the whole story. An accused’s freedom depends on a jury’s understanding of what happened. For this reason, it is important that s. 276 does not silence them.

The Supreme Court’s ambiguity about the admissibility of this evidence may harm the accused. The uncertainty of this ruling may result in greater restrictions on defence testimony, interfering with an accused’s Charter rights.


This entry was posted in Tonii K. Roulston, tagged Sexual Assault and posted on March 13, 2020


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