Almost every conversation in today’s digital world leaves a trace. Text messages can quickly turn from private chats into key legal evidence. For someone accused of a sexual offence in Canada, these messages can carry serious weight in court. They might be friendly, intimate, or unclear.
Regardless, they can shape the outcome of a trial. A skilled sexual assault defence lawyer knows that context matters. A text can support a claim of consent or complicate the defence.
However, messages must first meet legal tests for admissibility, privacy, and relevance. This blog looks at how texts impact sexual assault trials in Canada and the defence lawyer’s role in using them.
The Legal Framework For Admitting Text Messages Into Evidence
Digital evidence isn’t automatically admissible in Canadian courts. A judge must be convinced that the messages are both relevant to the matter at hand and authentic in their origin.
In the context of a sexual assault charge, these legal standards are especially stringent due to the privacy protections afforded to complainants.
Relevance And Authenticity
For text messages to be admissible, they must pass the twin tests of relevance and authenticity under the Canada Evidence Act. Relevance means the messages must have a logical connection to the allegations, such as shedding light on the issue of consent.
Authenticity requires proof that the text messages weren’t tampered with and that they indeed came from the individuals involved.
Metadata, screenshots, timestamps, and testimony about the origin of messages often serve as verification tools. Defence lawyers will also ensure that message chains are presented in their full context to avoid cherry-picking that could skew interpretation.
Privacy Considerations And Charter Rights
The issue of privacy surrounding text messages is a major legal consideration. In R v. Marakah, 2017 SCC 59, the Supreme Court of Canada ruled that individuals have a reasonable expectation of privacy in text messages, even after they’ve been received by another party.
This landmark decision affirms that law enforcement must typically obtain a search warrant before accessing digital communications.
If messages are seized unlawfully, a defence lawyer may file a Charter motion under Section 8 to have the evidence excluded for violating the accused’s right to be free from unreasonable search and seizure.
Private Records And The Criminal Code: Section 278 Applications
When the content of a text message is considered a private record, meaning it relates to personal or confidential matters, its use in court becomes even more restricted. Under Sections 278.1 to 278.9 of the Criminal Code, a sexual assault defence lawyer must apply to the court for permission to admit these records.
This process, called a 278 application, requires the defence to show:
- The text is likely relevant.
- Its admission is necessary in the interest of justice.
- Its probative value outweighs any potential harm to the complainant’s dignity or privacy.
How Text Messages Can Strengthen The Defence
Text messages, when used strategically and lawfully, can provide important insights that strengthen a defence case. They often contain indicators of the nature of the relationship, attitudes, and intentions of both parties before and after the alleged offence.
Showing Evidence Of Consent
Consent is a key issue in sexual assault trials. While past messages do not prove consent at the exact moment of the alleged act, they can show context—mutual interest, flirtation, or emotional closeness, which may support the accused’s narrative.
For example, messages showing the complainant agreeing to meet privately, expressing affection, or initiating contact may help establish that the relationship was consensual up to that point.
Revealing Inconsistencies In The Complainant’s Story
Text messages can be used as impeachment evidence. This happens when a complainant’s statements conflict with their written communication. For example, the complainant may tell police or testify that they cut off all contact after the incident.
However, messages might show they continued to chat, joke, or make plans with the accused and this could seriously affect their credibility.
This doesn’t mean the case will be dismissed, but it does open a critical avenue for cross-examination by the defence.
Demonstrating Motive To Fabricate Or Bias
Though used cautiously, messages may hint at ulterior motives. Examples could include threats, expressions of jealousy, or other emotionally charged statements that suggest a motive to fabricate an allegation.
A sexual assault defence lawyer will examine messages for signs of potential bias or intent that could shape the narrative being presented to the court.
The Risks of Misusing or Misunderstanding Text Messages
While potentially powerful, text messages can also become a liability in a sexual assault defence strategy if used carelessly.
Lack Of Tone Or Context
Text messages are notoriously easy to misinterpret. Without vocal tone, facial expression, or context, jokes may appear cruel, flirtation may seem coercive, and simple misunderstandings can be blown out of proportion. Courts are cautious about making assumptions based solely on written words, especially in emotionally charged situations.
Potential To Backfire
Apologetic or emotionally reactive messages sent after the alleged incident can be damaging. In R v. Preston, 2022 NSCA 66, the Nova Scotia Court of Appeal ruled that a text message saying “I’m sorry for what I did” could reasonably be interpreted as an admission of guilt.
Technical Challenges: Deleted Or Incomplete Messages
Sometimes, only fragments of conversations are available, particularly if messages have been deleted or selectively retained. Partial message threads can present a misleading narrative.
Forensic recovery of deleted messages may be necessary, but it comes with technical and legal complications. Defence counsel must ensure a comprehensive and fair presentation of any digital evidence.
Role Of A Sexual Assault Defence Lawyer In Managing Text Evidence
Digital evidence demands experience and discretion. A qualified sexual assault defence lawyer will:
- Thoroughly review all communications relevant to the timeline of events.
- Advise clients on which messages may be helpful or harmful.
- Navigate Section 278 applications to get relevant evidence admitted.
- Challenge improperly obtained evidence through Charter motions.
- Coordinate with digital forensics experts, if necessary, to retrieve or validate messages.
A lawyer’s role isn’t just to present messages, it’s to ensure they’re framed correctly, legally admissible, and ethically presented in court.
About Daryl Royer Criminal Law
Daryl Royer is a seasoned criminal defence lawyer based in Edmonton, Alberta, with over 20 years of experience representing clients in complex criminal matters. A former Crown Prosecutor, he brings a deep understanding of both sides of the justice system, including trial strategy, digital evidence, and appellate advocacy. His firm focuses exclusively on criminal law, offering clients personalized and vigorous defence.
If you’re facing sexual assault allegations, it’s critical to speak with a defence lawyer who can handle the sensitive and technical aspects of your case. Contact us today to schedule a confidential consultation.