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By: Joseph A. Neuberger, LL.B, LL.M., C.S.
and Diana Davison, Legal Researcher
Since the decision in R. v. J.J., 2022 SCC 28 the defence in sexual assault cases are now required to bring pre-trial applications to request admissibility rulings on all evidence in their possession.
There are two Stages to these applications. The first is to determine if a hearing is warranted or required. The second is to determine the admissibility based on relevance and probative value versus possible prejudicial effect. The complainant only has standing at Stage Two to make submissions.
The first stage is a low threshold in favour of the defence. The question is only if the evidence is capable of being admissible. The actual argument about the probative value is part of Stage Two.
If the defence evidence is determined not to be a “record with an expectation of privacy,” the application is no longer required to continue and the defence is free to use the evidence in accordance with the regular rules of relevance.
If the application proceeds to Stage Two, it is now a common argument from the Crown that the evidence in defence possession is a “collateral fact” and that evidence containing content of a sexual nature should not be permitted if the sole purpose is for narrative, context or to attack the credibility of the complainant.
The “narrative” issue is cited as stemming from R. v. Goldfinch, 2019 SCC 38 in which the Supreme Court states at para 5:
A s. 276 application requires the accused to positively identify a use of the proposed evidence that does not invoke twin-myth reasoning. In other words, relevance is the key which unlocks the evidentiary bar, allowing a judge to consider the s. 276(3) factors and to decide whether to admit the evidence. Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276.
The Goldfinch decision was not intended to declare that narrative, context and credibility will never be permissible uses for evidence. It is only in cases where it is a “bare assertion” of relevance not grounded in any material issue.
It remains that, when a complainant puts the very nature of the relationship with the accused into question, evidence regarding that relationship may have increased probative value.
In Goldfinch, at para 63 the Supreme Court notes that “[e]vidence of a sexual relationship may also be relevant when complainants have offered inconsistent statements regarding the very existence of a sexual relationship with the accused.” Further, at para 65 they acknowledge that “[t]here will, of course, be circumstances in which context will be relevant for the jury to properly understand and assess the evidence.”
Paragraph 95 of Goldfinch similarly relates context evidence where the accused must demonstrate that the evidence goes to a legitimate aspect of his defence and is integral to his ability to make full answer and defence.
The current legislation specifies that the evidence is presumptively inadmissible unless it has “significant” probative value. This language appears to put an onus on the defence to not just provide a purpose for the evidence but to provide a compelling purpose for each and every piece of evidence.
In determining that the legislation was constitutional, the Supreme Court, citing R. v. Darrach, 2000 SCC 46, was careful to point out in para 131 of J.J. that the word “significant” is interpreted that it “simply requires that the evidence not ‘be so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt.’”
Goldfinch at para 66 also does not rule out that context evidence may be necessary to the coherence of the defence narrative.
In Darrach, the Supreme Court further notes at para 39 that:
At the same time, Morden A.C.J.O. agrees with R. v. Santocono (1996), 1996 CanLII 828 (ON CA), 91 O.A.C. 26 (C.A.), at p. 29, where s. 276(2)(c) was interpreted to mean that “it was not necessary for the appellant to demonstrate ‘strong and compelling’ reasons for admission of the evidence”. This standard is not a departure from the conventional rules of evidence. I agree with the Court of Appeal that the word “significant”, on a textual level, is reasonably capable of being read in accordance with ss. 7 and 11(d) and the fair trial they protect.
Darrach also notes at para 40 that a balance must occur in order to not violate the accused’s right to full answer and defence. The words “significant probative value” must be balanced by the words that follow, allowing only that any non-trifling value should not be “substantially outweighed” by the risk of prejudice.
The value versus risk assessment is essential to ensure the defence is not denied evidence that may legitimately assist in their defence.
It is also commonly argued that evidence should be barred if it could result in a myth or stereotype about sexual assault complainants. The permissible inferences drawn from the evidence are a completely separate issue to be outlined at trial. The legislation is specifically designed to block evidence that can only be used to advance a myth or stereotype.
Justice Paciocco explains this issue in detail in R. v. J.C., 2021 ONCA 131. He notes at para 68:
The second critical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence (citations omitted).
The list of “myths and stereotypes” continues to grow. The “twin myths” remain the focus – that a complainant is more likely to consent or less worthy of belief solely based other sexual activity not subject matter of the charge. In addition, it is now accepted that victims may remain in contact with an abuser and may not report in a timely manner.
In R. v. Seaboyer; R. v. Gayme,  2 S.C.R. 577, Justice L’Heureux‑Dubé listed a number of “rape myths” and stereotypes that concerned her. The list includes motives to fabricate as being stereotypes and questions the legitimacy of an accused whose defence is that no sexual encounter actually occured.
Some of these alleged stereotypes run dangerously afoul of fundamental principles of our justice system. If a denial that a sexual encounter occured is a myth, it would rob an accused of access to a legitimate defence.
Similarly, some people do have motives to fabricate. The evidence must always be tethered to the specific individuals and grounded in the anticipated evidence on a case by case basis. (R. v. R.V., 2019 SCC 41 at para 34, citing Seaboyer)
Goldfinch specifically rejects “bare assertions” related to narrative, context and credibility. This means the purpose of the evidence must be fleshed out. As also noted at para 124 of Goldfinch, “Credibility is a key issue in almost every sexual assault trial”.
Contrary to some interpretations, context and narrative are not “dead since Goldfinch.”