Il y a toujours un gros éléphant rose dans la salle d'audience lors d'un procès pour agression sexuelle. POURQUOI une plaignante inventerait-elle cet horrible mensonge. POURQUOI irait-elle voir la police pour se plaindre et POURQUOI subirait-elle un procès où elle sera contre-interrogée par un avocat de la defense? La défense doit-elle démontrer que le plaignant a des motifs pour fabriquer une plainte? La réponse est que la défense ne doit pas prouver que le/la plaignant(e) a menti.
There is always a big pink elephant in the courtroom at a sexual assault trial. Why would a complainant make up this horrendous lie, go to the police complain and then put herself through a trial where she will be cross-examined? Does the defence have to demonstrate that the complainant has a motive to lie? The short answer is the defence must not prove a motive for the complainant to lie about the allegations.
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.