“Friends with Benefits: Sexual Assault and the Evidence of the Relationship constituting Prior sexual history of complainant under Section 276 of the Code.

Published On: Jul 03,2019


"Friends with Benefits" and Evidence of Prior Sexual History under s. 276 of the Criminal Code
“Friends with Benefits” and Evidence of Prior Sexual History under s. 276 of the Criminal Code

The admissibility of prior sexual history under Section 276 of the Criminal Code of Canadahas recently been the subject of heated debate among members of the legal profession. The Supreme Court of Canadaconsidered this issue in Reginav. Goldfinch, 2019 SCC 38.  The relevant facts considered were:


The accused was charged with sexually assaulting a woman he had dated and lived with. The two (2) 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.


In Goldfinch, a majority of the Supreme Court of Canadaordered a new trial for the accused charged with sexual assault.  The inference that Crown sought was that the accused and the complainant were factually platonic friends.  The trial judge admitted evidence of the complainant’s prior sexual history with the accused, to provide context to the incident in question.  From the perspective of the judge, this was to avoid the misapprehension that the accused and the complainant were platonic. The accused and complainant used to date and continued a “friends with benefits” relationship with occasional sexual activity.  The jury acquitted the accused of sexual assault.  However, the Alberta Court of Appeal allowed the Crown’s appeal on the basis that the trial judge erred in admitting the “friends with benefits” evidence because it led to “twin myth” inferences as identified in Regina v. Seaboyer1991 CanLII 76 (SCC),


For the majority of the Supreme Court of Canada, Justice Karakatsanis held that the impugned evidence did not meet the requirements of s.276 of the Criminal Code. The bare assertion that the evidence was relevant to context, narrative or credibility was insufficient. The evidence could only 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 irrelevant and inadmissible. The evidence was not required for the accused to make full answer and defence since there was nothing in the accused’s testimony that cast him in an unfavourable light or rendered his narrative untenable without it.   The relevant passages of the case are as follows:


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

                    As for the third condition — which requires balancing a number of factors to determine whether the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice — the accused’s right to make 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.

In a concurring opinion, Justice Moldaver agreed with the core of the majority’s analysis. The accused failed to identify a specific, legitimate purpose for putting the “friends with benefits” evidence before the jury. However, Justice Moldaver did not explicitly link the impugned evidence to the specific facts or issues relating to his defence. He said that context cannot be used as a means of bypassing thes.276 regime. However, Moldaver J. left open the possibility that the “friends with benefits” evidence may be admissible at the new trial on certain specific issues. The trial judge’s flawed limiting instructions and admission of additional sexual activity evidence warranted a new trial.

In dissent, Brown J. would have admitted the “friends with benefits”evidence .  He ruled that a relationship can, without necessarily engaging in prohibited lines of reasoning, explain to a jury how two people know each other, consistent with how other relationships are presented to juries. Without this type of evidence, the accused’s right to make full answer and defence would be reduced to an image of himself as crude and reckless, or predatory.  The Crown itself took the position that admitting evidence of the relationship was necessary to prevent distortion of the circumstances surrounding the incident. Justice Brown further held:  “Ordering a new trial is unfair, given that the Crown’s theory of the case drew directly from the sexual nature of the relationship and that it was the Crown, and not the accused, who contravened the trial judge’s evidentiary ruling and explored both the details and the frequency of the sexual activity. A successful Crown appeal from acquittal in this case inevitably lowers the bar which the Crown must overcome to show that a legal error had a material bearing on the acquittal so as to secure a new trial.”


If you have been charged with sexual assault, contact Mr. J.S. Patel, Barrister for a free consultation at 403-585-1960.