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| Elaine Craig |
As I examine in forthcoming research, “Sexual Communications, Digital Intimacy, and the Extremely Limited Admissibility of Evidence of a Complainant's Intention to Consent,” a lack of judicial understanding regarding the contemporary norms surrounding “sexting,” combined with improper application of s. 276 of the Criminal Code, risks severely undermining Canada’s rape shield protections. The most problematic example of this is the Court of Appeal of Ontario’s decision in R. v. Reimer 2024 ONCA 519, which the Crown has sought leave to appeal.
In Reimer, Justice David Paciocco determined that some of the complainant’s sexual text messages to the accused had “obvious relevance” to whether she consented. He concluded that sexual texts which demonstrate an intention to engage in future sexual activity make it more likely a complainant consented, with the implication that text messages which show this type of communication may be admissible without violating s. 276.
Justice Paciocco based this reasoning on the state of mind, or present intention, exception to the rule against hearsay. But here is the problem: the common-sense inference upon which this hearsay exception is premised is not adaptable to digital sexual communications.
Provided the statement is made in unsuspicious circumstances, and in the ordinary course of things, it is reasonable and reliable to believe, based on a declaration that “I’m going to work” as I head out the door in the morning, that I intended to go to work when I uttered these words, making it more likely that I did go to work.
That inference falls apart in this context. Sexual text messages are not the kind of ordinary, everyday statements contemplated under the present intention exception that Justice Paciocco invokes in Reimer (R. v. Starr, [2000] 2 S.C.R. 144).
It is unreasonable and unreliable to draw the same type of inference about a woman’s sexual intentions from the content of her text messages, as we might draw regarding everyday statements of intention. Indeed, research indicates that a large percentage of people, particularly women, have no intention of actually engaging in the sexual activities that they suggest in their text messages. This is especially true when they are texting strangers, as occurred in Reimer.
There is a second problem with Justice Paciocco’s reasoning. Drawing on R. v. Ewanchuk, [1999] 1 SCR 330, he states that evidence of what a complainant said (including by text), or did, before the alleged incident is relevant to consent. But the court in Ewanchuk was, unlike in Reimer, very clear that the issue of consent is “purely one of credibility:” what a complainant said or did before the alleged offence may be relevant to her credibility regarding consent. But, as reiterated in R. v. J.A., [2011] 2 SCR 440, this type of pre-incident evidence is “not directly relevant” to consent. A complainant’s sexual texts, even if inconsistent with her allegation of non-consent, often tell us very little about her credibility: people frequently change their minds about sex.
Lower courts need clear direction that, as explained in more detail in my research, the reasoning underpinning the present intention exception, upon which Justice Paciocco bases his decision, is not translatable to this context; and that, regardless, a complainant’s sexual texts will rarely be admissible to challenge her credibility that she consented, and never admissible as direct evidence that she consented. Without this direction, Reimer will significantly erode the gains in protection for complainants achieved in the six years since the Supreme Court’s decisions in R. v. Barton, [2019] 2 SCR 579 and R. v. Goldfinch, [2019] 3 SCR 3.
Already, one trial judge in Ontario has applied Reimer to admit FaceTime conversations, which he characterized as “merely an expression [by the complainant] of her sexual fantasies,” as relevant to whether she consented. Justice Rohan Michael Robinson admitted this evidence in R. v. M.A. 2024 ONCJ 416 explicitly on the basis of Reimer.
Despite finding that her statements did not reveal a concrete intention to engage in the impugned sexual activities, but rather an unspecific expression of her desires and fantasies, Justice Robinson concluded that they had “obvious relevance” to whether she consented. Women will not come forward, report sexual offences and access services in a legal system in which their sexual fantasies serve as evidence of their consent.
M.A. is almost certainly a harbinger of things to come if Reimer is permitted to stand, including an onslaught of defence counsel applications to introduce complainants’ sexual digital communications that would otherwise never be brought, let alone granted. This will be problematic for already busy courts and lawyers. It will be particularly harmful to sexual assault complainants.
Elaine Craig is a professor of law and Dorothy Killam Research Fellow at Dalhousie University, where she teaches constitutional law and the law of sexual offences. She is the author of Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, Troubling Sex: Towards a Legal Theory of Sexual Integrity and her most recent book Mainstreaming Porn: Sexual Integrity and the Law.
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