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Complainant’s Texts to Accused Permitted in Sexual Assault Trial, but Email Excluded

April 2, 2020

Chain of text messages found to be necessary for accused to have fair trial

In R. v. R.S., 2020 ONSC 1509 (no hyperlink available as yet) the accused was being tried for sexual assault. He applied to adduce in evidence two items: 1) a number of texts that were sent to him by the complainant, which the trial judge described as:

Deal[ing] with events proximate to the date of the offences and the intervening period. They relate to communications pertinent to setting up the occasions when the sexual assaults are alleged to have occurred and to discussions about what transpired afterwards.

And 2) an email sent to the accused by the complainant in which the complainant described an erotic dream that she had about the accused.

The trial judge, Nakatsuru J. of the Ontario Superior Court, noted that the application was brought under ss. 278.92 and 278.94 of the Criminal Code, relatively new provisions that put strict requirements on the admissibility of records containing personal information about the complainant, which are in the possession of the accused. The texts were held to meet these requirements. Because of their content and their proximity to the events from which the accusation of sexual assault emerged, they were directly relevant to the complainant’s credibility; for the accused to have fair answer and defence, he had to be permitted to use them in cross-examination. As to the complainant’s interests, Nakatsuru J. noted:

In terms of prejudice to L.H.'s personal dignity and right of privacy and her right to personal security and the protection of the law, it must be remembered that these are text messages that she voluntarily sent to the accused. Any assertion of a reasonable expectation of privacy must be assessed in that context. L.H. chose the words she sent. This is not a record whereby some third party noted or is interpreting what she said. As an autonomous individual, it is not an unfair intrusion into L.H.'s privacy to have her explain what she meant by these texts. Texts which are relevant to the issues that the jury must decide.

However, the email was excluded as being insufficiently probative on the conduct charged, and more likely to bring into play some stereotypical views about the behaviour of sexual assault victims.

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