R v Goldfinch – 2019 SCC 38 (Karakatsanis):

[46] 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 evidence will not be used for those purposes are insufficient. This case highlights the dangers of accepting such assurances.
[47] In this case, the obvious implication of the evidence of an ongoing sexual relationship was that because the complainant had consented to sex with Goldfinch in the past, in similar circumstances, it was more likely she had consented on the night in question. As I set out in the sections that follow, the difficulty here was not that Goldfinch and the complainant had a relationship, but that Goldfinch could point to no relevant use for evidence of the sexual nature of the relationship. Such an approach misapprehends the nature of consent and is barred by s. 276(1).
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[49] However, in certain circumstances, the accused’s right to make full answer and defence requires that such evidence be admitted. Under s. 276(2), the accused must demonstrate that the evidence: (a) is of specific instances of sexual activity; (b) is relevant to an issue at trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
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[51] Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276(2). A s. 276 application must provide “detailed particulars” which will allow a judge to meaningfully engage with the tests set out at s. 276(2) and (3). The accused must propose a use of the evidence that does not invoke twin-myth reasoning. These requirements are key to preserving the integrity of the trial by ensuring twin-myth reasoning masquerading as “context” or “narrative” does not ambush the proceedings.
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[53] The words “specific instances of sexual activity” must be read in light of the scheme and broader purposes of s. 276. The requirement that evidence be “specific” prevents aimless or sweeping inquiries into the complainant’s sexual history. 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 proper administration of justice. As Doherty J.A. noted in L.S., specificity is required so that judges may apply the scheme in a way that effectively protects the rights of the complainant and ensures trial fairness. A purposive interpretation thus calls for evidence that is sufficiently specific to support a fully informed analysis, allowing the judge to circumscribe what evidence may be adduced and how it may be used.
[54] Evidence of a relationship that implies sexual activity, such as “friends with benefits”, as defined by the accused here, inherently encompasses specific instances of sexual activity. Requiring further details would unnecessarily invade the complainant’s privacy, defeating an important objective of the provision. I agree with the statement in L.S. that specifying the parties to the relationship, the nature of that relationship and the relevant time period satisfies the purposes of trial fairness (para. 83). Those criteria are met in this case.
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[74] Where a trial judge is concerned that the jury may improperly speculate about past sexual activity, it may be helpful to give an instruction specifying that the jury will not hear any evidence about whether the relationship included a sexual aspect. The instruction should explain that the details of previous sexual interactions are simply not relevant to the determination of whether the complainant consented to the act in question. No means no, and only yes means yes: even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past. Giving such an instruction would both reinforce the principles which guide a proper analysis of consent and mitigate the risk that jurors will rely on their own conceptions of what sexual activity is “typical” in a given relationship.