The court also granted the Crown leave last month of the Ontario Court of Appeal’s decision in R. v. R.V. where questions about the past sexual experiences of a 15-year-old girl allegedly sexually assaulted by her 20-year-old cousin were ruled permissible.
Both cases involve the application of s. 276 of the Criminal Code which was found to be constitutional by the Supreme Court in 2000 in R. v. Darrach.
“Section 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences. These are known as the ‘twin myths’, namely that a complainant is more likely to have consented or that she is less worthy of belief ‘by reason of the sexual nature of [the] activity’ she once engaged in,” the court said in Darrach.
The Criminal Lawyers’ Association and the Ontario Ministry of the Attorney General are interveners at the Supreme Court in Goldfinch.
The defendant and complainant in that case had previously lived together and continued to engage in sexual activity on occasion after their relationship ended.
It was described to the trial court as “friends with benefits.”
The accused, Patrick Goldfinch, allegedly hit the complainant and engaged in sexual relations without her consent, on an evening in 2014 when she visited his residence.
Goldfinch put forward the defence of consent or alternatively, honest but mistaken belief in consent.
The trial judge ruled that the past sexual history was admissible for “context” and gave instructions to the jury on the limited use of this evidence.
The Alberta Court of Appeal, in a 2-1 decision, quashed the acquittal and ordered a new trial on the grounds that the only purpose of admitting the evidence was to suggest the complainant was more likely to have consented, which is prohibited by section 276 of the Criminal Code.
Justice Ronald Berger, in dissent, suggested that misleading the jury about the past sexual history in this case was unfair to the defendant.
Mike Kruse, a criminal defence lawyer who frequently acts for clients charged with sexual assault, says guidance from the Supreme Court on relationship evidence would assist all parties.
“It could clear up a lot of litigation on these issues,” says Kruse, who heads Kruse Law in Toronto and other southern Ontario locations.
Megan Savard, a partner at Addario Law Group LLP and Colleen McKeown, a lawyer at Daniel Brown Law LLP are acting for the CLA in Goldfinch.
“The section 276 regime creates a screening mechanism to enhance trial fairness, not a substantive rule that excludes otherwise relevant evidence,” they write, in the intervener application to the Supreme Court.
The conclusion of the majority of the Alberta Court of Appeal panel that relationship evidence is ordinarily inadmissible when introduced as narrative, should be rejected the CLA argues.
“Categorizing relationship evidence as narrative or context obscures its true relevance to the issues of consent, credibility and honest but mistaken belief,” they write.
“Like other circumstantial evidence, relationship evidence may help the jury assess the parties’ conflicting accounts.”
The Ministry of the Attorney General, in its intervener application, warns against admitting evidence that may easily lead to prohibited reasoning by a jury.
“Bare assertions by the accused that sexual activity must be admitted to counter speculation by the jury about the nature of the relationship do not meet the test under s. 276,” write Crown attorneys Karen Papadopoulos and Jill Witkin.
“In the absence of a specific and permissible purpose at trial, any sexual amplification of the relationship between a complainant and the accused serves no articulable purpose other than to promote twin myth reasoning,” they add.
The province is also asking the Supreme Court to provide direction on relationship evidence that occurs after an alleged assault.
It points to the Ontario Court of Appeal’s decision in 2017 in R. v. L.S. which the Crown argues has “improperly” expanded the potential admissibility of this type of evidence.
As long as juries receive a “proper limiting instruction” from a judge, they can be trusted to deal with evidence of a prior sexual relationship in a proper fashion, Kruse suggests.
“If we don’t receive that evidence, the version of the accused appears to come out of the blue. It might create a false impression with the jury,” says Kruse.
The Supreme Court is expected to hear the appeal in R.V. late this spring or early in the fall, after granting leave to the Crown on December 20.