Earlier today, the Supreme Court of Canada released R v Goldfinch, 2019 SCC 38. The case required the Court to consider, yet again, the appropriateness of a trial judge’s decision on a s 276 application – the “rape shield” laws. In particular, the accused had sought to introduce evidence that he and the complainant were “friends with benefits” – meaning involved in a sexual relationship.

The trial judge allowed the application and held that the complainant could be cross-examined on the prior sexual relationship with the accused, on the grounds that the “relatively benign” evidence was relevant to the jury understanding the context of their relationship.

During the jury trial, which took place in the Court of Queen’s Bench for Alberta in February 2017, the complainant was cross-examined about her previous sexual relationship with the accused, including the frequency and timing with which they had slept together after they broke up. The accused also testified about their past sexual history, characterizing the evening in question as routine, noting that sex was “expected” when they were together.

LEAF welcomes the majority decision, finding that the “friends with benefits” evidence was not relevant to any proper issue at trial. As the majority explained, the evidence was relevant only to the twin myths – that because a woman has consented to sex in the past, she is more likely to have consented to the sexual activity in issue; and that a women’s sexual history makes her less worthy of belief. In this case, the evidence only suggested that the complainant was more likely to have consented because she had done so in the past.

LEAF specifically applauds the majority of the SCC for recognizing that the concerns that animated Parliament to enact s 276 continue to persist. As Justice Karakatsanis, writing for the majority, explained at para. 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. Even hard-fought battles to stop sexual assault in the workplace remain ongoing. As time passes, our understanding 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. A recent Department of Justice study estimated 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. The harm caused by sexual assault, and society’s biased reactions to that harm, are not relics of a bygone Victorian era. [Citations omitted.]

LEAF has long recognized the significant harms of sexual violence – and how those harms can too often be replicated in the criminal justice system.

Recent decisions such as R v Goldfinch and R v Barton, 2019 SCC 33, underscore how stereotypes and myths about sexual assault complainants continue to persist in the justice system, close to thirty years after Parliament first enacted Canada’s rape shield laws. As Justice Karakatsanis put it, at para. 2 in R v Goldfinch, “[T]he investigation and prosecution of sexual assault continues to be plagued by myths”.

Trial judges continue to struggle to properly apply s 276. In just over a month, the SCC has issued two judgments (Goldfinch and Barton) that reveal the ways in which myths and stereotypes infuse the trial process, undermining the truth-seeking function (and adversely impacting the equality, privacy and security rights of complainants).

It was precisely for this reason that LEAF recently intervened in the mid-trial application brought by the complainant in R v Boyle seeking to invalidate the provincial court judge’s decision that she could be cross-examined on previous sexual history with the accused.

LEAF intervened in the application before the Superior Court of Justice to argue in favour of a complainant’s right to seek such a review (known as a certiorari application) before being subjected to cross-examination. The proceedings in Goldfinch underscore why this right of review is so essential for complainants. LEAF continues to find the R v Boyle decision denying such a right to complainants very troubling.

While LEAF welcomes the majority decision in Goldfinch, we recognize that this may not be seen as a “victory” for the complainant. She has already had to testify before a jury about both being sexually assaulted and about intimate details of her sexual history with the accused. That she will now need to once again tell her story in front of a jury at a new trial is another example of how complainants can get caught up – and forgotten – by the criminal justice process.

LEAF will continue to fight for the rights equality, privacy and security rights of complainants, as we have done for over thirty years. We welcome your support of these efforts.

Please join us in advocating for women and girls by donating today.