Patrick John Goldfinch Appellant v. Her Majesty The Queen, 2019 SCC 38

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 sexualrelationship may be fundamental to the coherence of an accused’s narrative, and by extension, credibility, but here there was nothing about theaccused’s testimony that cast him in an unfavourable light or rendered his narrative untenable absent the information that he and thecomplainant were friends with benefits.

As for the third condition — which requires balancing a number of factors to determine whether the evidence has significantprobative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice — the accused’s right tomake 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 theacquittal and a new trial is therefore required. The improper admission of the evidence as “context” risked infecting the trial with the preciseprejudicial assumptions s. 276 was designed to weed out. The jury should not have been privy to particulars regarding the frequency of thesexual contact or the accused’s testimony characterizing the evening as “typical” or “routine”.

That evidence clearly engaged twin-mythreasoning by suggesting that because the complainant had “typically” consented to sex with the accused in the past, she was more likely tohave 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 CriminalCode, having particular regard to the manifest deficiencies in the accused’s application to introduce this evidence.

The improper admission ofthe evidence for the broad purpose of providing “context” led to a significant and highly prejudicial broadening of the sexual activity evidenceat trial, which might reasonably have had a material bearing on the accused’s acquittal. Accordingly, a new trial is warranted, and the appealshould be dismissed.

The s. 276 regime is designed to respect and preserve the rights of both complainants and accused persons by excluding evidencewhich would undermine the legitimacy of our criminal justice system and inhibit the search for truth, while allowing for the admission ofevidence which would enhance the legitimacy of our criminal justice system and promote the search for truth. In this way, the regime seeks topromote the integrity of the trial process as a whole — a concept that is essential to the public’s faith in the criminal justice system.

Inpursuing 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 finallimiting instruction required by s. 276.4, the s. 276 regime establishes a rigorous, multistep process through which sexual activity evidenceadduced 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, (SCC), [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 canseverely distort the trial process. Accordingly, if the sole purpose for which sexual activity evidence is being proffered is to support either ofthe 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 oron 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 isnot satisfied that certain requirements have been met (e.g., the application is deficient), then he or she may dismiss the application withoutmore.

On the other hand, if the accused’s written application survives scrutiny, then the process moves to the voir dire stage and the court’sattention 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., 2017ONCA 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.

Bycontrast, where the accused seeks to introduce general evidence that describes the nature of the relationship between the accused and thecomplainant, the specificity requirement speaks to factors relevant to identifying the relationship and its nature and not to details of specificsexual 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 accusedmust 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 bythe trier of fact only if reference is made to the sexual activity evidence in question. In articulating these specific facts or issues, simply citingthe 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 theevidence can be linked to specific facts or issues relating to the accused’s defence, admission is not guaranteed. There may be cases in whichthe evidence, while relevant to specific facts or issues relating to the accused’s defence, bears only marginally on it.

In such cases, the trialjudge may, in his or her discretion, exclude the evidence on the basis that countervailing considerations, such as the need to protect the privacyrights and dignity of the complainant, outweigh the tenuous connection the evidence has to the accused’s ability to make full answer anddefence. The third requirement of s. 276(2) is that the evidence have significant probative value that is not substantially outweighed by thedanger of prejudice to the proper administration of justice. As explained in R. v.

Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, the requirementof significant probative value serves to exclude evidence of trifling relevance that, even though not used to support the two forbiddeninferences, 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 islimited in scope and that its legitimate purpose is identified and weighed against countervailing considerations, the trial judge must take intoaccount the factors listed in s. 276(3).

To the extent sexual activity evidence is ultimately admitted, the trial judge must explain to the jury, inclear and precise terms, the uses for which the evidence may — and may not — be used. Finally, all trial participants — including the trialjudge, 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 onlythe 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 — themyth that because the complainant consented to have sex with the accused in the past, she was more likely to have consented to the sexualactivity forming the subject-matter of the sexual assault charge. However, s. 276(1) takes this potential use off the table. As such, unless theaccused could point to some legitimate use of the sexual activity evidence that would justify admission under s. 276(2), that evidence wasinadmissible.

Although the accused’s application under s. 276.1 satisfied the specificity requirement under s. 276(2)(a), it failed to satisfy therelevance 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 atthe time of the alleged sexual assault; and (2) provided “context” to the issues at trial.

However, the accused did not explain why it wasnecessary to correct any potential misapprehension as to the sexual nature of his relationship with the complainant. In addition, the accusedfailed to identify a specific, legitimate purpose for putting the evidence before the jury — he did not link the evidence to specific facts orissues 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 anissue 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 finaldecision on the matter, there was at least one specific issue that the accused could have referred to in his application that might have properlysupported admission of the “friends with benefits” evidence: the jury’s assessment of his testimony that he mouthed the words “I’m going tofuck you” to the complainant. If the jury lacked the knowledge that the two were in a sexual relationship at the time, that statement might haveseemed bizarre or even menacing. Furthermore, the accused’s testimony that he made that statement to the complainant may itself haveseemed implausible.

In this way, withholding the sexual nature of the accused’s relationship with the complainant could have had an adverseimpact on the jury’s assessment of his credibility, potentially infringing upon his right to make full answer and defence. Had the accusedreferenced this aspect of his anticipated testimony in his s. 276.1 application, the trial judge would have been better equipped to engage in thebalancing exercise required by s. 276(2) and (3) and may have properly determined that the evidence was admissible for the narrow purpose ofallowing 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 allowedfor the admission of sexual activity evidence under the broad banner of “context”. Grounded in this ruling, the trial judge’s flawed limitinginstructions failed to delineate how the sexual activity evidence was capable of assisting the jury to resolve specific facts or issues relating tothe accused’s defence.

This flawed instruction’s distorting effect was compounded when additional sexual activity evidence was admitted attrial which was not the subject of its own admissibility determination or limiting instruction. The cumulative impact of these errors canreasonably 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 evidentiaryruling and the jury rendered its verdict after being properly instructed on how to do so. The appeal should be allowed and the acquittalsrestored.

First, the “friends with benefits” evidence did not derive its relevance solely from twin-myth reasoning and should therefore havefiltered through s. 276(1). The test for exclusion under s. 276(1) is whether the evidence derives its relevance solely from twin-myth reasoningand not whether it merely engages that type of reasoning. Were engagement the test for categorical exclusion under s. 276(1), it would riskexclusion of all relationship evidence, or at the very least all evidence of relationships which also involve sexual activity, since that, too, wouldconceivably engage twin-myth reasoning.

Such an approach would resurrect the creation of pre-determined categories of admissibility whichwas rejected in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, and would downplay the text and purpose of statutory provisionslike s. 276.4, which recognizes that evidence may be admissible for certain purposes yet inadmissible for others, and makes a limitinginstruction mandatory where any evidence of other sexual activity is introduced, even if it only refers to other sexual activity indirectly orimplicitly, to cure prejudice and to warn the jury of the impermissible uses of that evidence.

Rather, relationship evidence should typically befiltered 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, whileevidence of other types of relationships which regularly pass through the filter of s. 276(1), and yet which might also suggest previous sexualactivity, 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, andwithout engaging in prohibited lines of reasoning, explain to a jury how two people know each other, consistent with how other relationshipsare presented to juries.

The trial judge’s evidentiary ruling treated the relationship between the accused and the complainant consistently withother 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’sability to make full answer and defence. Indeed, it was necessary for the jury to assess the credibility of the accused’s evidence, which was themost relevant and material issue with which the jury would have had to grapple.

To deny the accused the ability to point to his relationshipwould in these circumstances disable the jury from meaningfully performing its central function of finding facts and seeking out the truth, andwould force the accused to tell an incomplete story — a story which includes an account of the act but no explanation for how he and thecomplainant “got there” and why he said what he said and did what he did.

Without the evidence, the accused’s actions will have appeared tohave 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 (atbest) 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 relationshipand that it was the Crown, and not the accused, who contravened the trial judge’s evidentiary ruling and explored both the details and thefrequency of the sexual activity.

A successful Crown appeal from acquittal in this case inevitably lowers the bar which the Crown mustovercome 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, (SCC), [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, (SCC), [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, (SCC), [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, ; R. v. A.R.C., [2002] O.J. No. 5364 (QL); R. v. Strickland (2007), (ON SC), 45C.R. (6th) 183; R. v. Harris (1997), (ON CA), 118 C.C.C. (3d) 498; R. v. Temertzoglou (2002), (ONSC), 11 C.R. (6th) 179; R. v. M. (M.) (1999), (ON SC), 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, (SCC), [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, (SCC), [1991] 2 S.C.R. 577; R. v. L.S., 2017 ONCA 685, 40 C.R. (7th) 351; R. v. Grant, 2015SCC 9, [2015] 1 S.C.R. 475; R. v. Harris (1997), (ON CA), 118 C.C.C. (3d) 498; R. v. M. (M.) (1999), (ON SC), 29 C.R. (5th) 85; R. v. Temertzoglou (2002), (ON SC), 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.), (SCC), [1991] 1 S.C.R.742; R. v. Crosby, (SCC), [1995] 2 S.C.R. 912; R. v.

Nyznik, 2017 ONSC 4392, 40 C.R. (7th) 241; R. v. Darrach, 2000 SCC46, [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 andRoss (1969), (ON SC), 6 C.R.N.S. 273; R. v. Corbett, (SCC), [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,

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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 for “quite awhile [ sic ]” after the relationship ended (A.R., vol.

II, at p. 81). [ 19 ] Before the cross-examination began, counsel for Goldfinch also sought clarification regarding the permissible scope of questioning. The trial judge agreed that the Crown had opened the evidentiary door and gave the defence permission to ask questions regarding “the number of times, the time frame relative to the relationship proper breaking up, and the last occasion prior to these alleged offences” (A.R., vol. II, at p. 112).

During cross-examination, when defence counsel suggested the two had slept together “dozens of times”, the complainant estimated they had slept together 15 times following the breakup. [ 20 ] Following the complainant’s testimony, the trial judge gave this limiting instruction to the jury: You have heard evidence that [the complainant] and Mr. Goldfinch dated and then briefly lived together. At some point after that relationship ended, [the complainant] and Mr. Goldfinch did on occasion get together and have sexual relations.

This evidence provides you with some context for their relationship, but you must not use this evidence to help you decide that because [the complainant] and Mr. Goldfinch had sexual relations in the past, that [the complainant] is more likely to have consented to Mr. — consented to what Mr. Goldfinch is alleged to have done on May 29th, 2014, and you must also not use that evidence to help you decide that because [the complainant] and Mr. Goldfinch had sexual relations in the past that she is less believable or reliable as a witness in this case, all right? Thank you. (A.R., vol.

II, at p. 148) [ 21 ] Goldfinch repeatedly testified — both in-chief and in cross-examination — to the frequency of his previous sexual interactions with the complainant, characterizing the evening as “typical” or “routine”, indicating he had “had her many times”, and stating that “when we’re together, [sex] was expected, I guess, from both of us” (A.R., vol. III, at pp. 203 and 227).

[ 22 ] During her final jury charge, the trial judge gave extensive instructions regarding consent, highlighting that consent must be contemporaneous and concerns only the subjective state of mind of the complainant. She reiterated the same limiting instruction she had given mid-trial, clarifying that while the jury 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. [ 23 ] The jury found Goldfinch not guilty of sexual assault.

C. The Alberta Court of Appeal, McDonald and Strekaf JJ.A., Berger J.A. Dissenting — 2018 ABCA 240 , 48 C.R. (7th) 22 [ 24 ] The Crown appealed Goldfinch’s acquittal on a question of law pursuant to s. 676(1) (

a) of the Criminal Code .

Section 276.5 of the Criminal Code provides that a determination respecting the admissibility of sexual activity evidence is a question of law. The majority, McDonald and Strekaf JJ.A., characterized the Crown’s appeal as follows: The Crown appellant submits that the trial judge erred in law by admitting the evidence, pursuant to

section 276 of the Criminal Code , of the prior sexual relationship between [Goldfinch] and the complainant. [para. 14] [ 25 ] The majority held that finding evidence provides “context” is insufficient to demonstrate relevance for the purposes of s. 276(2). Thus, they concluded that the trial judge failed to connect the relationship evidence to any issue relevant to Goldfinch’s defence. The majority also rejected the argument that the evidence was relevant to Goldfinch’s credibility or as “context”.

In their view, 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. Given the admissions the Crown had been willing to make, there was no risk that the jury would be misled into thinking Goldfinch and the complainant were strangers. The only inferences to be drawn from the evidence of prior sexual activity could be those relying on the twin myths.

In the majority’s view, limiting instructions could not cure the fact that the jury had heard inadmissible evidence for which there was no permissible use. They allowed the appeal and ordered a new trial. [ 26 ] Berger J.A., writing in dissent, accepted that the evidence was not adduced to support the twin myths. He found that the trial judge had properly exercised her discretion in admitting what she characterized as “relatively benign” evidence in order to preclude misapprehensions on the part of the jury.

In his view, Goldfinch’s right to make full answer and defence required a “candid revelation of the true nature of the relationship” (para. 67). For Berger J.A., it was better to trust the jury to rely on the limiting instructions mandated for evidence admitted under s. 276 than to leave the jury to speculate on what lay beneath Crown admissions for which no such instructions would be required. III. Analysis [ 27 ] This case asks whether evidence of a relationship with an implicit sexual component engages s. 276 of the Criminal Code and, if so, when such evidence may be admitted. A.

Section 276: Text, History and Objectives [ 28 ]

Section 276 [2] balances a number of trial fairness considerations, seeking to exclude evidence known to distort the fact- finding process while protecting the rights of both the accused and the complainant: 276

(1) In proceedings in respect of [various sexual offences], evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (

a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (

b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence (

a) is of specific instances of sexual activity; (

b) is relevant to an issue at trial; and (

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(

a) the interests of justice, including the right of the accused to make a full answer and defence; (

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

d) the need to remove from the fact-finding process any discriminatory belief or bias; (

e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (

f) the potential prejudice to the complainant’s personal dignity and right of privacy; (

g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (

h) any other factor that the judge, provincial court judge or justice considers relevant. [29]

Section 11(

d) of the Canadian Charter of Rights and Freedoms guarantees the right “to be presumed innocent until provenguilty according to law in a fair and public hearing by an independent and impartial tribunal”. This guarantee includes the accused’s right tomake full answer and defence, itself crucial to ensuring that the innocent are not convicted (R. v. Mills, (SCC), [1999] 3S.C.R. 668, at paras. 69 and 76). [30] For this reason, the law of criminal evidence begins with the general principle that all relevant and material evidence isadmissible.

The right to a fair trial does not, however, guarantee the most favourable procedures imaginable: the accused’s right to make fullanswer and defence is not automatically breached whenever relevant evidence is excluded (R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R.390, at para. 64; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 24; Mills, at para. 75). A fair trial also requires that no party beallowed to distort the process by producing irrelevant or prejudicial evidence (Darrach, at para. 24). [31] A person’s general character and past behaviour provide context for understanding specific events (R. v.

Handy, 2002 SCC56, [2002] 2 S.C.R. 908, at para. 39). However, such evidence often draws on pejorative or judgmental generalizations (D. M. Paciocco and L.Stuesser, The Law of Evidence (7th ed. 2015), at p. 54). This is problematic because “[b]ad character is not an offence known to the law”(Handy, at para. 72). Our legal system neither punishes nor protects people on the basis of lifestyle, character or reputation.

To protect againstpropensity reasoning, trial judges must balance the probative value of such evidence against its prejudicial effects. [32] As a general rule, evidence led by the defence is excluded only where the potential prejudice substantially outweighs itsprobative value (R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 19; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577, atp. 611).

Moreover, because only the accused is being judged at trial, exclusionary rules generally do not prevent the accused from adducingevidence of another person’s bad character (Paciocco and Stuesser, at p. 98). [33] Historically, no limits were placed on the defence’s ability to adduce evidence of a complainant’s prior sexual activities.Such evidence was routinely used to malign “the character of the complainant, distort the trial process, and undermine the ability of thecriminal justice system to effectively and fairly try sexual allegations” (R. v.

L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at para. 79).Subjecting the complainant to humiliating or prolonged examination and exploiting assumptions about “communication, dress, revenge,marriage, prior sexual history, therapy, lack of resistance and delayed disclosure” was commonplace (D. M. Tanovich, “‘Whack’ No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases” (2015), 45 Ottawa L.

Rev. 495, at pp. 498-99).[3] Thesetactics shifted the focus away from the accused and essentially put the complainant on trial. [34] In 1982, Parliament enacted a blanket exclusion of all evidence of sexual activity, subject to limited exceptions. Theprovisions were intended to counter the twin myths that women with sexual experience are more likely to consent to sexual activity or are lessworthy of belief.

Because sexual assault was highly gendered and underreported, Parliament also sought to encourage the reporting of sexualcrimes (Seaboyer, at p. 606, per McLachlin J., and pp. 648-50, per L’Heureux-Dubé J., dissenting in part). [35] In Seaboyer, this Court struck down that blanket exclusion, holding that Parliament had cast the net too wide, impairing theaccused’s right to a fair trial. Improperly excluded evidence critical to the defence included evidence going to: (

i) honest but mistaken belief inconsent, (ii) bias or motive to fabricate on the part of the complainant, (iii) physical conditions establishing the use of force, and (iv) evidenceof a consistent modus operandi such as threatening to accuse someone of rape as a means of extortion (Seaboyer, at pp. 613-16). [36] Parliament responded to this Court’s ruling in Seaboyer by essentially codifying the case’s principles in s. 276 of theCriminal Code because “at trials of sexual offences, evidence of the complainant’s sexual history is rarely relevant and . . . its admissionshould be subject to particular scrutiny” (Preamble, Bill C-49,

An Act to amend the Criminal Code (sexual assault), 3rd Sess., 34th Parl.,1992). Parliament’s recent amendments — reaffirming the exclusion of evidence relying on the twin myths — reinforce the provision’scontinued importance. [37] The mischief Parliament sought to address in enacting s. 276 remains with us today. Sexual assault is still among the most

highly gendered and underreported crimes (J. Desrosiers and G. Beausoleil-Allard, L’agression sexuelle en droit canadien (2nd ed. 2017), atpp. 41-42). Even hard-fought battles to stop sexual assault in the workplace remain ongoing (compare, e.g., K. Lippel, “ConceptualisingViolence at Work Through A Gender Lens: Regulation and Strategies for Prevention and Redress” (2018), 1 U of OxHRH J 142, and C.Backhouse, “Sexual Harassment: A Feminist Phrase That Transformed the Workplace” (2012), 24 C.J.W.L. 275).

As time passes, ourunderstanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens.

Parliament enacted s.276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault.Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour.[4] A recent Department of Justice studyestimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors’ medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering.[5] The harm caused by sexual assault,and society’s biased reactions to that harm, are not relics of a bygone Victorian era. [38] It is against this backdrop that s. 276 must be interpreted and applied.

B. Examining Relationship Evidence Under

Section 276 [39]

Section 276 protects the integrity of the trial process by striking a balance between the dignity and privacy of complainantsand the right of accused persons to make full answer and defence. This appeal asks us to examine that balance as it concerns evidence of arelationship from which sexual activity can reasonably be inferred. [40] As Gonthier J. explained in Darrach, s. 276 is “designed to exclude irrelevant information and only that relevantinformation that is more prejudicial to the administration of justice than it is probative” (para. 43). Sections 276(1) and (2) operate together toachieve this objective.

First, s. 276(1) sets out an absolute bar against introducing evidence of the complainant’s prior sexual activity for thepurpose of drawing twin-myth inferences. Where an accused seeks to introduce such evidence for some other purpose, that evidence ispresumptively inadmissible unless the accused satisfies s. 276(2). To do so, the accused must identify the evidence and its purpose withsufficient precision to allow the judge to apply s. 276(2) and weigh the factors set out in s. 276(3). [41] I proceed by first considering when such evidence engages s. 276(1).

I then address two requirements of s. 276(2) whichrequire particular attention in this case: (

a) Is the evidence of “specific instances of sexual activity”? and (

b) What qualifies evidence as “relevant to an issue at trial”? (1) Section 276(1) [42] Turning to the first question, evidence of a relationship that implies sexual activity clearly engages s. 276(1). [43] Section 276(1) bars evidence of a complainant’s previous sexual activity tendered to support the twin myths. Such evidenceis “not probative of consent or credibility and can severely distort the trial process” (Darrach, at para. 33). In barring such inferences, theprovision affirms the equality and dignity rights of complainants and aims to encourage reporting of sexual assault (Bill C-49).

The risk thatevidence of a relationship which implies sexual activity may be used to support twin-myth reasoning is clear. [44] Consider the first myth: that a complainant’s prior sexual activity may support an inference of consent in a particularinstance. Rejection of this myth — and its link to relationships — is intimately connected to the modern understanding of consent.

Until 1983,the fact that an accused was married to a complainant was sufficient to legitimize sexual assault; indeed, rape was defined as non-consensualsexual intercourse between a man and “a female person who is not his wife” (Criminal Code, R.S.C. 1970, c. C-34, s. 143). Today, an accusedmay no longer argue that consent was implied by a relationship: contemporaneous, affirmatively communicated consent must be given foreach and every sexual act (R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, atparas. 34 and 47; R. v.

Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 27; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras.90-94). Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required. [45] Consider also the second myth: that previous sexual activity renders a complainant less worthy of belief or, by extension, offull protection of the law (Barton, at para. 201, per Moldaver J. and, at paras. 222 and 231, per Abella and Karakatsanis JJ.).

Before this Court,Goldfinch advanced that social mores have changed such that being “unchaste” no longer discredits a complainant. However, this Court hasheld that the second myth is not limited to attitudes towards “unchaste” women (Darrach, at para. 33). Moreover, while sexual activitygenerally carries less stigma than it once did, complainants continue to be treated as less deserving of belief based on their previous sexualconduct. The notion that some complainants “invite” assault and, by inference, do not deserve protection persists both inside and outside ourcourtrooms (R. v.

Barton, 2017 ABCA 216, 354 C.C.C. (3d) 245, at para. 128, cited in Barton, at para. 201, per Moldaver J. and, at para. 231,per Abella and Karakatsanis JJ.; see also E. Craig, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (2018), atpp. 32 et seq.). This is implicit in the continued struggle to exclude inaccurate assumptions about what constitutes “typical” or “unusual”activity within a given relationship (see, e.g., E. Craig, “Section 276 Misconstrued: The Failure to Properly Interpret and Apply Canada’s RapeShield Provisions” (2016), 94 Can. Bar Rev. 45, at p. 69; M.

Randall, “Sexual Assault in Spousal Relationships, ‘Continuous Consent’, andthe Law: Honest But Mistaken Judicial Beliefs” (2008), 32 Man. L.J. 144; C. Boyle, “Sexual Assault as Foreplay: Does Ewanchuk Apply toSpouses?” (2004), 20 C.R. (6th) 359). Finally, the suggestion that sexual assault is less harmful to those who are sexually active or inrelationships is simply wrong (see, e.g., J.

Koshan, “Marriage and Advance Consent to Sex: A Feminist Judgment in R v JA” (2016), 6:6 OñatiSocio-legal Series 1377 (online), at pp. 1387 and 1391). [46] Even “relatively benign” relationship evidence must be scrutinized and handled with care. If the accused cannot point to arelevant use of the evidence other than the twin myths, mere assurances that evidence will not be used for those purposes are insufficient.

Thiscase highlights the dangers of accepting such assurances. [47] In this case, the obvious implication of the evidence of an ongoing sexual relationship was that because the complainanthad consented to sex with Goldfinch in the past, in similar circumstances, it was more likely she had consented on the night in question. As Iset out in the sections that follow, the difficulty here was not that Goldfinch and the complainant had a relationship, but that Goldfinch couldpoint to no relevant use for evidence of the sexual nature of the relationship. Such an approach misapprehends the nature of consent and is

barred by s. 276(1). (2) Section 276(2) [48] Taken as a whole, s. 276 seeks to protect the privacy of complainants, encourage the reporting of sexual offences andexclude evidence which fuels propensity reasoning. In pursuit of these goals, s. 276(2) presumptively bars evidence of the complainant’sprevious sexual activity. [49] However, in certain circumstances, the accused’s right to make full answer and defence requires that such evidence beadmitted. Under s. 276(2), the accused must demonstrate that the evidence: (

a) is of specific instances of sexual activity; (

b) is relevant to an issue at trial; and (

c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration ofjustice. [50] In determining whether these criteria are met, s. 276(3) requires judges to consider a number of factors.

These include theaccused’s right to make full answer and defence, the need to remove discriminatory beliefs or biases from the fact-finding process, potentialprejudice to the complainant’s dignity and privacy, and the right of every individual to the full protection and benefit of the law. [51] Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2). A s. 276application must provide “detailed particulars” which will allow a judge to meaningfully engage with the tests set out at s. 276(2) and (3).

Theaccused must propose a use of the evidence that does not invoke twin-myth reasoning. These requirements are key to preserving the integrityof the trial by ensuring twin-myth reasoning masquerading as “context” or “narrative” does not ambush the proceedings. (a) Section 276(2)(a): Specific Instances of Sexual Activity [52] Goldfinch suggests that relationship evidence is difficult to situate in s. 276(2) because it does not constitute “specificinstances of sexual activity” (see also R. v. Rodney, (Ont. S.C.J.); R. v. A.R.C., [2002] O.J. No. 5364 (QL) (S.C.J.)).

Thisposition fails to recognize the purposes of the provision. [53] The words “specific instances of sexual activity” must be read in light of the scheme and broader purposes of s. 276. Therequirement that evidence be “specific” prevents aimless or sweeping inquiries into the complainant’s sexual history. The accused must pointto identifiable activity, but the degree of specificity required in a particular case will depend on the nature of the evidence, how the accusedintends to use it, and its potential to prejudice the proper administration of justice.

As Doherty J.A. noted in L.S., specificity is required so thatjudges may apply the scheme in a way that effectively protects the rights of the complainant and ensures trial fairness. A purposiveinterpretation thus calls for evidence that is sufficiently specific to support a fully informed analysis, allowing the judge to circumscribe whatevidence may be adduced and how it may be used. [54] Evidence of a relationship that implies sexual activity, such as “friends with benefits”, as defined by the accused here,inherently encompasses specific instances of sexual activity.

Requiring further details would unnecessarily invade the complainant’s privacy,defeating an important objective of the provision. I agree with the statement in L.S. that specifying the parties to the relationship, the nature ofthat relationship and the relevant time period satisfies the purposes of trial fairness (para. 83). Those criteria are met in this case. (b) Section 276(2)(b): Relevance to an Issue at Trial [55] Turning to the second requirement, the importance of relevance to an issue at trial is highlighted by the proceduralsafeguards inherent in the s. 276 regime.

Section 276.1(2) requires the accused to set out, in writing, the “detailed particulars” of the evidenceto be adduced as well as the “relevance of th[e] evidence to an issue at trial”. The application judge must be satisfied that the evidence iscapable of being admitted under s. 276(2) before ordering a voir dire (s. 276.1(4)(c)).

Judges who admit such evidence must also provide written reasons identifying the relevance of the evidence admitted (s. 276.2(3)(c)).[6] These procedural requirements reflect the fact that sexualassault prosecutions require heightened attention to the general principle that no party should be allowed to distort the process by producingirrelevant evidence (Darrach, at paras. 24 and 37). [56] It goes without saying that the “relevant issue” cannot be one of the twin myths prohibited by s. 276(1).[7] Neither willgeneric references to the credibility of the accused or the complainant suffice.

Credibility is an issue that pervades most trials, and “[e]videnceof prior sexual activity will rarely be relevant to support a denial that sexual activity took place or to establish consent” (Darrach, at para. 58;see also Handy, at paras. 115-16). Arguments for relevance must be scrutinized to ensure “context” is not simply a disguised myth. [57] That said, a relationship may provide relevant context quite apart from any sexual activity.

Where the relationship isdefined as including sexual activity, as the trial judge held “friends with benefits” was here, it is critical that the relevance of the sexual natureof the relationship to an issue at trial be identified with precision. [58] At the voir dire, Goldfinch 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 specificallysought to introduce the sexual nature of the relationship.

The trial judge was clearly alive to the possibility that this could be used to supportthe twin myths. In the end, however, the trial judge concluded that the evidence was relevant because it put the relationship “in propercontext”. In coming to this conclusion, she relied on R. v. Strickland (2007), (ON SC), 45 C.R. (6th) 183 (Ont. S.C.J.).

Inthat case, the trial judge reasoned that the probative value of “contextual” relationship evidence did not support an inference of “an increasedlikelihood of consent” but rather could dispel an inference of “the unlikelihood of consent” (para. 35). [59] With respect, that is a distinction without a difference. Three paragraphs from Strickland illustrate why: It can be said that, as a general rule, people do not have sexual intercourse with complete strangers. Generally speaking, sexual partners are

involved in a relationship of some sort. . . . What does matter is that, at some point, each partner has made an assessment of the other, anddecided that that person is a suitable person with whom to share this most intimate human experience. It is the fact that such a decision was made in the past by the complainant that is relevant. . . . It is this fact that makes it at least somewhatmore probable that a complainant would consent to having sex with a man with whom she had an existing sexual relationship, than if no suchrelationship existed at all. . . .

To restate in the language of Darrach, the inference of an increased likelihood of consent does not flow from the sexual nature of the activity,but rather from the existence of a relationship in which that activity took place. [paras. 27-28 and 30] [60] It is difficult to conceive of a more clear instance of twin-myth reasoning than the proposition that because the complainanthad “at some point” consented to be intimate with the accused, it was “more probable” that she would have done so again. [61] Moreover, while the case law provides examples of how evidence of previous sexual activity between an accused and acomplainant may be relevant to an issue at trial, none of them apply here. [62] Prior sexual activity may be particularly relevant to a defence of honest but mistaken belief in communicated consent(Seaboyer, at pp. 613-16; Darrach, at para. 59; Barton, at paras. 91 et seq.).

However, an honest but mistaken belief cannot simply rest uponevidence that a person consented at “some point” in the past: that would be twin-myth reasoning. By definition, the defence must rely uponevidence of how the complainant previously communicated consent so that the accused can adequately support a belief that consent wasexpressed.

Here, the trial judge properly instructed the jury not to rely on the “friends with benefits” evidence in evaluating the defence ofhonest but mistaken belief. [63] Evidence of a sexual relationship may also be relevant when complainants have offered inconsistent statements regardingthe very existence of a sexual relationship with the accused (see, e.g., R. v. Harris (1997), (ON CA), 118 C.C.C. (3d) 498(Ont. C.A.); R. v. Temertzoglou (2002), (ON SC), 11 C.R. (6th) 179 (Ont. S.C.J.)).

There were no such contradictorystatements from the complainant in the record at the time of the voir dire and Goldfinch did not proceed on this basis. [64] To the extent that Goldfinch sought to establish a pattern of behaviour, the “pattern” here was hardly distinctive; it wouldnot be admissible as similar fact evidence (Handy, at paras. 82, 127 and 131). As I have noted, the limited admissibility of similar factevidence protects the truth-seeking function of the trial by excluding evidence that is overly prejudicial to the accused.

By imposing the sameevidentiary standard under s. 276, neither the accused nor the complainant is denied equal protection of the law on the basis of lifestyle,character or reputation (Craig, “Section 276 Misconstrued”, at p. 71). [65] Finally, Goldfinch submits that the sexual aspect of a relationship may be relevant to the coherence of the accused’snarrative, and by extension, credibility. There will, of course, be circumstances in which context will be relevant for the jury to properlyunderstand and assess the evidence. That assessment, however, must be free of twin-myth reasoning.

General arguments that the sexual natureof a relationship is relevant to context, narrative or credibility will not suffice to bring the evidence within the purview of s. 276(2). [66] That Goldfinch points to only two cases in which evidence was admitted as necessary “context” illustrates the rarity of suchcircumstances (Temertzoglou; R. v. M. (M.) (1999), (ON SC), 29 C.R. (5th) 85 (Ont. S.C.J.)). In both of these cases, theevidence admitted was fundamental to the coherence of the defence narrative. It was not merely helpful context.

This was not the case here. [67] Before this Court, Goldfinch sought to articulate specific issues which made the sexual nature of the relationship critical tohis defence. He advanced that his narrative would be inherently improbable if the jury did not know he and the complainant were “friendswith benefits”.

Among other things, he argued that the evidence was relevant to the jury’s assessment of the complainant’s call suggestingGoldfinch owed her “birthday sex” as well as to his testimony that the complainant smiled when he mouthed “I’m going to fuck you”. [68] In my view, there is nothing about Goldfinch’s testimony that casts him in an unfavourable light or renders his narrativeuntenable or utterly improbable absent the information that the two were “friends with benefits”. The complainant’s request for “birthday sex”does not reflect on Goldfinch’s character or behaviour.

As well, her reaction to his comment was a smile — hardly an indication that thisbehaviour was beyond the pale of their relationship. Tellingly, the complainant did not deny the call, Goldfinch’s comment or the smile. (c) Section 276(2)(c): Balancing Probative Value and Prejudice to the Proper Administration of Justice [69] The final step in the s. 276 analysis requires judges to balance the probative value of proposed evidence against the dangerof prejudice to the proper administration of justice, taking into account the factors set out in s. 276(3).

Both considerations must receiveheightened attention as “[the test] . . . serves to direct judges to the serious ramifications of the use of evidence of prior sexual activity for allparties” (Darrach, at para. 40). Balancing the s. 276(3) factors ultimately depends on the nature of the evidence being adduced and the factualmatrix of the case. It will depend, in part, on how important the evidence is to the accused’s right to make full answer and defence.

Forexample, the relative value of sexual history evidence will be significantly reduced if the accused can advance a particular theory withoutreferring to that history. In contrast, where that evidence directly implicates the accused’s ability to raise a reasonable doubt, the evidence isobviously fundamental to full answer and defence (Mills, at paras. 71 and 94).

This was not the case here: Goldfinch’s right to full answer anddefence would not have been compromised by excluding the sexual nature of the relationship. [70] Indeed, having found that the “friends with benefits” evidence was not relevant to an issue at trial, it follows that it has noprobative value. The evidence was relevant only to suggest that the complainant was more likely to have consented because she had done so in

the past. Thus the evidence went only to the twin myths which, as Gonthier J. held in Darrach , are “not probative of consent or credibility and can severely distort the trial process” (para. 33). C. R. v. Graveline, 2006 SCC 16 , [2006] 1 S.C.R. 609 [ 71 ] The improper admission of relationship evidence from which sexual activity may be inferred risks infecting a trial with the precise prejudicial assumptions s. 276 is designed to weed out. [ 72 ] In the case at bar, the “context” laid out before the jury was clearly infected with twin-myth reasoning.

The jury should not have been privy to particulars regarding the frequency of the sexual contact or Goldfinch’s testimony characterizing the evening as “typical” or “routine”. That evidence clearly engages twin-myth reasoning by suggesting that because the complainant had “typically” consented to sex with Goldfinch in the past, she was more likely to have done so on this “routine” occasion. Admitting that evidence was a reversible error of law which might reasonably be thought to have had a material bearing on the acquittal ( Graveline , at para. 14 ). D.

Final Comments [ 73 ] Evidence of sexual relationships must be handled with care in sexual assault trials. [ 74 ] Where a trial judge is concerned that the jury may improperly speculate about past sexual activity, it may be helpful to give an instruction specifying that the jury will not hear any evidence about whether the relationship included a sexual aspect. The instruction should explain that the details of previous sexual interactions are simply not relevant to the determination of whether the complainant consented to the act in question.

No means no, and only yes means yes: even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past. Giving such an instruction would both reinforce the principles which guide a proper analysis of consent and mitigate the risk that jurors will rely on their own conceptions of what sexual activity is “typical” in a given relationship. [ 75 ] How evidence is to be adduced may also impact trial fairness.

Much of the evidence that ultimately came out in this case was adduced during the Crown’s examination of the complainant and, to a lesser degree, its cross-examination of Goldfinch. This requires two observations. First, I note that Crown counsel would not have adduced this evidence but for the s. 276 application, which I have concluded should not have been granted.

While the parties did not have the benefit of this Court’s recent holding in Barton , I would reiterate that Crown- led evidence of prior sexual activity must be governed by the principles set out in s. 276(1) and Seaboyer ( Barton , at paras. 68, 80 and 197 ). Second, proper management of evidence which falls within the scope of the s. 276 regime requires vigilance from all trial participants, but especially trial judges — the ultimate evidentiary gatekeepers. Leading evidence through an agreed statement of facts, as the trial judge suggested here, is one way to do so. [ 76 ] I would dismiss the appeal.

The reasons of Moldaver and Rowe JJ. were delivered by Moldaver J. — I. Overview [ 77 ] This case raises the difficult yet important issue of whether — and if so, to what extent — evidence of an ongoing sexual relationship between the accused and the complainant is admissible in a sexual assault trial. [ 78 ] The complainant in this case alleges that on May 28, 2014, the appellant, Patrick John Goldfinch, sexually assaulted her in his home. The incident resulted in Mr. Goldfinch being charged with both assault and sexual assault. Mr.

Goldfinch maintained his innocence, claiming that the sexual activity in question was consensual. [ 79 ] At trial, Mr. Goldfinch applied under s. 276.1 of the Criminal Code , R.S.C. 1985, c. C-46 (“ Code ”), [8] to adduce evidence that at the time of the alleged sexual assault, he and the complainant were in a “friends with benefits” relationship that involved occasional sex. The Crown opposed the admission of this evidence.

Following a voir dire , the trial judge ruled that the evidence was admissible for the dual purposes of providing context to the events in question and avoiding an erroneous misapprehension on the part of the jury that Mr. Goldfinch and the complainant were platonic friends. The trial ended with the jury acquitting Mr. Goldfinch of both assault and sexual assault. [ 80 ] The Crown appealed Mr. Goldfinch’s acquittals to the Alberta Court of Appeal. A majority of that court overturned the acquittals, holding that the trial judge erred in admitting evidence of the nature of Mr.

Goldfinch’s relationship with the complainant — “friends with benefits” — at the time of the alleged assault. In the majority’s view, this evidence was inadmissible because it did nothing more than advance one of the twin myths prohibited by s. 276(1) — namely, that the complainant was more likely to have consented on the night in question because she had previously engaged in sex with Mr. Goldfinch. Justice Berger dissented. In his view, the impugned evidence was admissible under s. 276(2) because it was integral to Mr. Goldfinch’s ability to make full answer and defence. Mr.

Goldfinch now appeals to this Court as of right. [ 81 ] The s. 276 regime is sometimes viewed as a zero-sum game pitting the rights of the complainant against those of the accused. But in my respectful view, this is a mischaracterization. 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. [ 82 ] 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.

[83] As I will explain, for sexual activity evidence to be admitted under s. 276(2), the accu

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