Is Friends with Benefits Evidence Admissible in Sexual Assault Case ?

In a case called Goldfinch, the Supreme Court of Canada considered whether the trial judge should have admitted evidence that Mr. Goldfinch and the complainant in a sexual assault case were in a “friends with benefits” relationship. At trial, the evidence was admitted to give context to their relationship. Mr. Goldfinch was found not guilty by a jury. It is now clear that “friends with benefits” evidence will not be admitted just to put a relationship in context because that would violate the myth that someone who has consented to sexual activity in the past is likely to have consented on the date of the alleged offence. At Mr Goldfinch’s trial, he and the complainant both testified that he mouthed the words “I’m going to fxxx you.” One of the Supreme Court opinions, written by Justice Moldaver, suggested that the ‘friends with benefits” evidence might have been admissible had Mr. Goldfinch been more specific in his Notice of Application about the specific and legitimate purpose that the evidence would have had at trial. Specificity could avoid violating the myth that prior consent is relevant to consent at the time of the alleged offence. Justice Moldaver wrote that the “I’m going to fxxx you” comment could have seemed “bizarre or even menacing” without evidence about “friends with benefits”. Because the Supreme Court found that the trial judge made errors, Mr. Goldfinch has to go to trial again. At his new trial, Mr. Goldfinch will have to file a detailed application and the trial judge will decide whether the evidence is admissible. The trial judge will weigh the narrow purpose for admitting the evidence and the impact that the evidence could have on the complainant’s privacy rights and dignity. If the trial judge finds that the evidence is necessary to ensure Mr. Goldfinch can make full answer and defence to the charge, it will be admitted. This is a very complex and developing area of law requiring counsel with expertise.