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Myths about sexual assault complainants are back on trial. The Alberta Court of Appeal [“ABCA”] recently issued two decisions – R v Goldfinch, 2018 ABCA 240 [Goldfinch] and R v Barton, 2017 ABCA 216 [Barton] – that may change Canada’s law of evidence regarding when complainants’ prior sexual history may be admitted in sexual assault trials.

In the 1980s, new provisions under s.276 of the Criminal Code, RSC 1985, c C-46 [Code] banned the admission of prior sexual history evidence?in cases where it went to supporting the “twin myths” (the idea that complainants with a prior sexual history are (1) more likely to have consented and (2) less worthy of belief). The?changes – which became colloquially known as the “rape shield” laws?– restricted the admissibility of sexual history but left judges with significant discretion,? leading to s.276 being applied unevenly across Canada. For example, some common law holds prior sexual history as admissible for “context” or “narrative” of the relationship between a complainant and the accused, even when such evidence does not go to an issue at trial such as defences. Section 276(2), however, requires that prior sexual history only be admitted if, among other factors, it “is relevant to an issue at trial.”?

If the Supreme Court of Canada (“SCC”) upholds?Goldfinch?and?Barton,?admissibility of sexual history for “context” or “narrative” will be considered contrary to s.276. Historically, challenges against s.276 have focused on the rights of the accused to a fair trial and full answer and defence. The issue is one of achieving an appropriate balance between the rights of complainants to maintain privacy over their sexual histories – which the law has held to be broadly irrelevant to the issue of consent – and the rights of the accused to provide exculpatory evidence. The SCC heard Barton in October and will hear Goldfinch in January. If Goldfinch and Barton?are upheld,?it will become more difficult for the accused to adduce evidence of complainants’ prior sexual history.

This post focuses on how Goldfinch expands the scope of “rape shield” protections. The comment will first summarize Parliament’s legislative purpose in introducing s.276 and s.277 to the Code, and how they have functioned in practice. It will then establish the facts of Goldfinch and consider how the ABCA majority interpreted s.276 in a way that broadens the scope of its protections. It argues that Goldfinch reaffirms the law’s prohibition of the twin myths, and clarifies that this prohibition extends to admitting sexual history for “context” and “narrative.” With the clarification, Goldfinch takes s.276 protections further than they are now being applied, strengthens them, and – together with Barton – seeks to apply them more evenly across Canada.

Feminist theory inspires legislative change

The common law historically offered few protections to complainants in sexual assault trials. Evidence of complainants’ past sexual history was often admitted to discredit them on two levels: to suggest (1) that complainants who had consented to sexual activity in the past are more likely to have consented to the sexual activity at issue, and (2) that complainants with sexual histories were less worthy of belief. These became know as the “twin myths.”

In the 1970s, feminist academics argued that the “twin myths” rested on misconceptions about women and chastity, and led to prejudicial treatment of sexual assault complainants, low reporting statistics, and a high incidence of sexual assault. In 1982, Parliament passed new legislation, which banned the admissibility of evidence supporting the twin myths under s. 276 and s.277 of the?Code.

Darrach?tests the constitutionality of the new provisions

In R v Darrach, [2000] 2 SCR 443 [Darrach] the SCC upheld the constitutionality of the new provisions. For a unanimous court, Gonthier J emphasized the limited probative value of sexual history evidence and its very high prejudicial effect. Gonthier J emphasized that the twin myths “are simply not relevant at trial,” as they “are not probative of consent or credibility and can severely distort the trial process” (Darrach, para 33).?He stressed, however, that s.276 was not to function as a blanket exclusion on the admissibility of evidence of prior sexual history. Accused persons?may bring evidence of prior sexual history if it goes to an issue at trial, such as to rebut prior inconsistent statements or to support defences of consent or honest but mistaken belief in consent.?

Current s.276 protections

Section 276 currently provides that evidence of a complainants’ prior sexual history is presumptively inadmissible, but affords judges significant discretion regarding admissibility. The wide scope of discretion has led to some unpredictability within the law of evidence, with some trial judges considering admissible, for example, prior sexual history as necessary “context” even where it does not directly go to an issue at trial.

In Goldfinch, the ABCA majority explicitly rejected such a wide scope of admissibility. The ABCA majority suggested that admitting evidence of past sexual history as “context” or “narrative” does not take sufficient account of the test for admissibility under s.276 subsection (2), which requires that the evidence be relevant to an issue at trial and have probative value that significantly outweighs its prejudicial effect.?Goldfinch echoed the Court’s suggestion in?Barton?that “myths and stereotypes continue to stalk the halls of justice in cases involving sexual offences” (Barton, para 8)?and affirmed?that “the time has come to push the reset button” (Barton, para 8) within the law of evidence under s.276.

The facts in?Goldfinch

Goldfinch concerned a sexual assault trial where the accused and the complainant had previously dated and continued see each other occasionally for casual sex. The trial concerned an occasion in May 2014 where the parties agree they were socializing at Mr. Goldfinch’s home, consensually kissed, but the parties’ versions of what happened next diverge significantly.

The complainant testified that she declined sex and Mr. Goldfinch proceeded to sexually assault her. After returning home, the complainant called police and was taken to hospital where authorities documented swelling to her face, bruises, and emotional distress.

Mr. Goldfinch denied violence, testified that the encounter had been like others in the past, and said the complainant had not told him to stop. Mr. Goldfinch said that he fell asleep, was awakened by the complainant telling him that he had hit her head while she was asleep, became annoyed, and told her to leave.

Before trial, defence counsel for Mr. Goldfinch brought an application under s.276.1 of the Criminal Code to adduce evidence of the complainant’s sexual history, specifically the general nature and duration of her relationship with Mr. Goldfinch (Goldfinch, para 6). The defence argued that the evidence was necessary to avoid giving the jury the false impression that the two did not know each other. Defence counsel indicated that he would not use that evidence to support the twin myths. The Crown opposed the admissibility of past sexual history between the complainant and the accused and proposed admitting only evidence that established that the complainant and Mr. Goldfinch had previously had a relationship but they remained friends and she occasionally slept over (Goldfinch para 7). The defence countered that putting the evidence in this way would be misleading since it left the impression that their relationship had become “platonic” (Goldfinch, para 7).

The trial judge in Goldfinch noted that there was no evidence in the accused’s affidavit to support a defence of consent or honest but mistaken belief in consent. She nonetheless admitted the prior sexual history evidence as relevant in order to prevent the jury thinking that the relationship was platonic. She concluded that the prejudicial effect of the evidence did not outweigh its probative value, and instructed the jury on its prohibited uses. The jury acquitted Mr. Goldfinch.

ABCA majority: Admitting prior sexual history for “context” is overbroad

The ABCA majority held that admitting the evidence as prior sexual history as “context” or “narrative” – without establishing that it goes to an issue at trial – was overbroad, as the terms “context” and “narrative” could refer to any part of the accused’s story. The majority thus concluded that the trial judge in Goldfinch erred in admitting the evidence because, under the guise of “context” or “narrative,” the evidence supported the twin myths contrary to s.276.

Sexual history evidence – especially evidence of “casual sex” outside of a relationship – has a high prejudicial effect because it plays to common and lingering misconceptions about complainants’ chastity or promiscuity, and allows triers of fact to make a connection between sexual history and the likelihood that the complainant consented or is less worthy of belief. These misconceptions – the “twin myths” – are exactly the reason that Parliament enacted ss.276 and 277 in the early 1980s. Because of the prejudicial impact of the twin myths, the Court in?Goldfinch?overturned Mr. Goldfinch’s acquittal and ordered a new trial. The decision?is a reminder that courts must continue to be vigilant in preventing such myths from influencing?the adjudicative process. Goldfinch is a welcome reminder that a “platonic” relationship between the complainant and the accused – or otherwise – is not relevant evidence in sexual assault trials.

In dissent, Berger JA held that the evidence was properly admissible as context of the casual but romantic relationship between the complainant and the accused, and necessary to avoid misleading the jury into thinking the relationship had been “platonic.” Berger JA suggested that such evidence provided a “level playing field” (Goldfinch para 65) between the complainant and the accused.

Goldfinch broadens the scope of s.276 protections

The trial judge in Goldfinch, and Berger JA in the ABCA dissent, imply that the probative value of the prior sexual history evidence is in its ability to dispel any misapprehension that the parties had a platonic relationship. Berger JA agreed with the trial judge that, although the evidence did not go to an issue at trial or defences, it was nonetheless important for the trier of fact to know that the complainant and the accused had had consensual sex in the past. Without this evidence going to an issue at trial, is it difficult to imagine what else such prior sexual history evidence may go to other than to support the twin myths. In other words, adducing evidence of prior sexual history as “context” simply suggests that the complainant was more likely to have consented to the sex in question if she had consented to sex with the accused in the recent past.

In Goldfinch, the only evidence that the Crown argued against admitting was explicit testimony that the two had had prior consensual sex, especially after their relationship ended. The Crown was prepared to admit evidence of the prior relationship between the complainant and Mr. Goldfinch, including that they had dated in the past, broken up, that the complainant occasionally visited the accused’s house and sometimes stayed overnight, and that at the time of the assault in May 2014 they were on good terms (Goldfinch, para 11). The Crown’s approach represents a better balancing between the rights of the complainants and the accused because it leaves available: (1) the admissibility of other kinds of evidence to establish a pre-existing relationship between the complainant and the accused, and (2) the admissibility of prior sexual history evidence in cases where it is relevant to an issue at trial and where it does not have an overall prejudicial effect.

In Darrach, a unanimous SCC held that s.276 protects both complainants and accused in sexual assault trials. Goldfinch follows?Darrach in?affirming that prior sexual history evidence may never be admitted to support the twin myths. If an accused can, however, establish that evidence of prior sexual history goes to support an issue at trial, then Goldfinch – like Darrach – will not preclude the accused from adducing it. The accused can similarly establish a prior relationship without adducing explicit evidence of sexual history contrary to s.276.

Conclusion

In Goldfinch and Barton, the ABCA noted that, despite s.276, the twin myths continue to operate in sexual assault trials in Canada and suggested that it is time to clarify the law, because the “continuation of [myths and stereotypes influencing the judicial process] is an affront to the will of Parliament and to the standard of our mature society committed to equality under the law” (Barton, para 9). In?Barton, the court went even further and questioned?whether evidence characterising a complainant as a “prostitute” was captured by s.276 protections, and whether alluding to a complainant’s past sex work supported the twin myths and was therefore against s.276.?(Barton?also considered?whether s.276 applies to a murder charge.)?Barton?suggests that, indeed, such evidence requires an application?under s.276(1) and a determination by a judge of its probative value and prejudicial effect in?voir dire. In this way,?Barton is another reminder that myths?about vulnerable people – in that case, sex workers – continue to influence the administration of justice.

If the SCC upholds Goldfinch, it will effectively overrule cases admitting sexual history for contextual purposes, expand the scope of s.276 protections, and make it more difficult for the accused in sexual assault trials to adduce evidence of complainants’ prior sexual history. It will effectively reject the argument that?sexual assault history is necessary to establish “context” or “narrative.”

Because both cases emphasize the existence of alternative ways of admitting contextual evidence of the relationship between the complainant and the accused – without admitting sexual history – both decisions strike an appropriate balance between the rights of the accused to a fair trial and the rights of complainants. They provide a welcome clarification that the law must never support the twin myths and a?reminder that admitting evidence of sexual history through backdoor concepts like context and narrative must be avoided.?

Julia Kalinina

Julia Kalinina

Before law school, Julia Kalinina worked in journalism in Canada, Russia, and the UK. At Osgoode, she has volunteered at the legal aid clinic, works as a research assistant in constitutional law, and is a senior editor at the Transnational Legal Theory Journal. She is interested in constitutional and transnational law, technological change in how information is communicated in the 21st century, and combining law and journalism. She lived on a boat in central London, England for two years.

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