Right to full defence not compromised by excluding sexual nature of relationship with complainant

Evidence - Character - Character of complainant

Accused and complainant dated and lived together, after which they engaged in “friends with benefits” relationship. Complainant went to accused’s house and alleged that after she said she did not want her to have sex, accused dragged her into his bedroom, struck her and had intercourse with her. At accused’s trial for sexual assault, accused requested voir dire to determine if evidence that accused and complainant were “friends with benefits” was admissible under s. 276 of Criminal Code. Trial judge found that evidence was admissible and accused was found not guilty by jury. Court of Appeal allowed Crown’s appeal and ordered new trial. Accused appealed. Appeal dismissed. Evidence that accused sought to admit did not meet requirements of s. 276 of Criminal Code. Evidence was barred by s. 276(1) because it served no purpose other than to support inference that because complainant had consented in past, she was more likely to have consented on night in question. Evidence also did not satisfy conditions under s. 276(2). Although accused successfully demonstrated that evidence was of specific instances of sexual activity, he failed to establish that evidence was relevant to issue at trial. Accused’s right to make full answer and defence would not have been compromised by excluding sexual nature of his relationship with complainant. Evidence was not relevant to issue at trial and therefore had no probative value.

R. v. Goldfinch (2019), 2019 CarswellAlta 1285, 2019 CarswellAlta 1286, 2019 SCC 38, 2019 CSC 38, Abella J., Moldaver J., Karakatsanis J., Gascon J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellAlta 1312, 2018 ABCA 240, Ronald Berger J.A., J.D. Bruce McDonald J.A., and Jo'Anne Strekaf J.A. (Alta. C.A.).

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