R v Goldfinch: Sexual Assault Cases, Friends with Benefits and Rights

Featured in Robson Crim

Dec 20, 2019

8 min read

Updated: 2 days ago

Author: E Kaka

Some months after the end of their relationship, which had lasted seven to eight months, Goldfinch and the complainant began what both ultimately agreed could be described as a "friends with benefits” relationship.[1] The complainant alleged that during the night in question, she had refused Goldfinch’s invitation to have sex. She described how his demeanor changed; that he dragged her into the bedroom, told to remove her clothes and “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””. Following the assault, she took a taxi home and called the police.[2] At the hospital, both the responding officer and forensics officer who met with the complainant confirmed swelling on her left cheek and elbow.[3]

Introduction of “Friends with Benefits” Evidence

Goldfinch’s defence sought to introduce evidence of Goldfinch and the complainant’s “friends with benefits” relationship. The Crown was already willing to adduce evidence that the two had known each other for four to five years, had dated and lived together for seven to eight months and then broke up.[4] The evidence concerning the “friends with benefits” relationship was admitted at trial. The Alberta Court of Appeal found that the trial judge erred in admitting the evidence under section 276 of the Criminal Code. The Supreme Court of Canada ordered a new trial, finding that:

“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”.[5]

Ultimately, women who have these arguments brought against their credibility often were portrayed as being less worthy of the law’s protection. Historically, evidence of the complainant’s sexual reputation has been the most devastating method of destroying her credibility.[6] The common law was not effective in preventing this type of sexist reasoning. The treatment of women to this regard led to public outcry and finally to Parliament introducing the first “rape shield” provisions into the Criminal Code in 1982, which would later be amended in 1992. These provisions, sections 276 and 277, addressed the stereotypes and invalid inferences about implied consent based on past sexual history that disadvantaged and discriminated against victims of sexual offences. Prior to these provisions, it was not even considered a crime for a man to rape his wife.[7]

Section 276 called for the defence to submit an application to admit the complainant’s sexual history evidence at trial. Judges, when considering the evidence, needed to determine that that evidence was relevant and had substantial probative value. Sections 276 and 277 of the Criminal Code addressed the stereotypes and invalid inferences about implied consent based on past sexual history that disadvantaged and discriminated against victims of sexual offences. It was also necessary that they balanced the admission of this evidence against the concerns enumerated in s. 276(3) which included “whether the evidence would advance the interests of justice more broadly, prevent complainants from disclosing sexual assaults, or prejudice or compromise the privacy interests of the complainant”.[8] Section 277 addressed the inadmissibility of evidence that spoke to the complainant’s sexual reputation for the purposes of determining a claimant’s credibility..[9]

Another pervasive myth that often stands in the way of rape victims getting justice is that sexual assault is committed by people who are strangers to their targets. However, Statistics Canada’s 2016-2017 report reveals otherwise – that “over 80 percent of reported sexual assaults occurred between people who knew one another in some way”. Therefore, most complainants have some sort of relationship with the accused. Thus, the court is required to review the balance between “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”.[10]

Prior to the ‘rape shield’ provisions in the Criminal Code, a woman’s sexual reputation was often used to “undermine her credibility or allege a propensity to consent”.[11] During the course of the trial, Goldfinch repeatedly testified that he had frequently engaged in sexual interactions with the complainant, “indicating he had "had her many times", and stating that "when we're together, [sex] was expected, I guess, from both of us"”.[12] This is irrelevant. Consent must be ascertained each and every time that people wish to engage in sexual contact.

Not only should there be an absence of a “no”, but there should be a resounding and enthusiastic “yes”. Evidence of past sexual interaction is not enough to fulfill this requirement of ascertaining consent. Goldfinch’s testimony did nothing but allow for an inappropriate inference of implied consent based on past sexual history.

Section 11(d) of the Canadian Charter of Rights and Freedoms

Section 11(d) of the Canadian Charter of Rights and Freedoms guarantees “the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". This guarantee includes the accused's right to make full answer and defence, itself crucial to ensuring that the innocent are not convicted.13 There have been many critiques of the Supreme Court of Canada’s Goldfinch decision, namely that it makes the rape shield provisions too rigid and puts at risk the accused’s section 11(d) right which includes the right to make full answer and defence. I reject those arguments for the following reasons. Firstly, the rape shield provisions are intended to be rigid and they are only effective if they are rigid. Questions of consent are clear and must be viewed as such. As I previously stated, it is not enough to determine that there was an absence of a “no”. It should be expected that the person initiating sexual intercourse receives an enthusiastic response to the affirmative. Don Stuart critiqued the Supreme Court’s decision in R v Barton, stating that:

“In that horrific case whether the complainant actually consented to fisting for money the night before was surely relevant to whether she may have consented to the violent fisting on the next night when she was killed”.[14]

Don Stuart fundamentally misunderstands the meaning of consent. To re-iterate, a person consenting to sexual activity in the past is irrelevant to their consenting on a different occasion. Barton made the same mistake in believing that Cindy Gladue consented to “everything” – that “she knew what she came for” even going as far as to offer his friend “a piece” of Gladue before they entered his hotel room.[15] This demonstrated how little respect Barton had for Cindy Gladue’s bodily autonomy.

Additionally, Don Stuart failed to consider Cindy Gladue’s vulnerabilities – the level at which she was intoxicated as well as the fact the Barton was exploiting a woman who was engaged in sex work in order to feed her addictions. Even framing Gladue’s actions as sex work is problematic because it gives the interaction between Barton and Gladue the air of a business transaction instead of recognizing it as a power imbalance steeped in violence and extreme inequality. It is incredibly dangerous to posit that because Gladue was engaged in sex work that she consented to anything and everything – even the violent fisting that eventually lead to her death. Our laws are meant to protect everyone, they are not meant to exclude the most vulnerable in our society. Setting aside sections 267 and 277 to determine whether a person consented to sex in the past goes completely against their purpose. The ‘rape shield’ provisions were put in place to prevent people who think like Don Stuart from allowing harmful and incorrect statements about consent to affect the outcome of a trial. These provisions act against the flawed conclusions about sexual assault cases that come from pre-conceived notions about women’s sexuality, their level of agency in different situations and ‘implied consent’.

It is important to note that, in regard to section 11(d), the right to a fair trial is not a guarantee of “the most favourable procedures imaginable: the accused's right to make full answer and defence is not automatically breached whenever relevant evidence is excluded”.[16] It would not be far-fetched, especially given the outcome of this case at trial, that a woman engaged in a “friends with benefits” relationship would be viewed negatively. Women are often shamed for exerting their agency and sexuality. I presume that entering this “friends with benefits” relationship into evidence would allowed for jurors who hold regressive views about women’s sexuality the opportunity to doubt the complainant’s contention that she had not consented to sexual intercourse with Goldfinch. The admission of a “friends with benefits” relationship put the complainant at the very real risk of “being unfairly cast in gender-specific terms as a woman who uses sex as a weapon, or as a woman of low morals driven only by her sexual appetites”.[17]

However, what may be viewed as "bad character” is not an offence known to law and “our legal system neither punishes nor protects people on the basis of lifestyle, character or reputation”.[18]

In the dissent, Justice Brown criticized the majority for allowing evidence of adult sleep overs, but not evidence of the “friends with benefits” arrangement, arguing that it would be more likely to invite speculative inferences from the jury.[19] This argument lacked insight into the different connotations that these descriptions hold. The term “friends with benefits” belies the relationship with “an entitlement to sexual access”.[20] The connotations that the “friends with benefits” label holds, puts the victim at risk of their agency being disregarded by the jury.

The defence’s reason for introducing this evidence was to provide “context”, but the majority held that evidence that only provides context is “insufficient to demonstrate relevance for the purposes of s. 276(2)”.[21] The trial judge’s limiting instruction after admitting this evidence of a “friends with benefits” relationship could serve to remedy the fact that the jury had heard inadmissible evidence when there was no permissible use. This was the reason for which they allowed the appeal and ordered a new trial.[22]

Conclusion

A person’s entitlement to their bodily autonomy, especially in sexual matters, does not disappear because that person was previously engaged in a sexual relationship with the rapist. If there were no concerns about jurors and others in the justice system continuing to make unfair assumption based on a complainant’s prior sexual history, a rape shield law would not be needed in Canada. But these laws are necessary. It is important to remember that the law and whether justice is served is not and has never been neutral. As such, it is important for our ‘rape shield’ provisions to be rigid. Sections 276 and 277 of the Criminal Code were meant to address this injustice. Clearly, attention and a full understanding of these provisions has been lacking. As a result, the justice system has only further victimized women who have suffered through the most brutal crimes. Cultural biases often invoke ideas about implied consent. As such, serving justice for victims of sexual offences can often be an uphill battle. Our legal system must continue to place measures that prevent myths and stereotypes from holding credence in the court room.