Admissibility of Tinder Dating Application Messages: Evidence in Sexual Assault Trials
Authors: Hamed Sayadi and Tayler Meechan
Introduction
This discussion examines the admissibility of Tinder messages as documentary evidence in sexual assault trials, with particular attention to the evidentiary and legal challenges they present. Generally, written evidence of a complainant’s sexual activity is presumed inadmissible, as it runs afoul of the Criminal Code s. 276.[i] Such evidence can be admitted, but it requires the judge to carefully consider several factors prior to admission.[ii] With the popularity of dating applications like Tinder, it is becoming increasingly difficult to differentiate between communications referencing a complainant’s prior sexual activity and communications that are part of the sexual activity that forms the subject matter of the charges. R v Fraser attempts to answer whether tinder messages exchanged prior to a physical sexual encounter are subject to s. 276 of the Criminal Code.[iii]
Background
S. 276 and the Twin Myths
Section 276(1) of the Criminal Code states: “evidence that the complainant has engaged in sexual activity…is not admissible to support an inference that, by reason of the sexual nature of the activity, the complainant…(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or…(b) is less worthy of belief.”[iv]
R v Seaboyer elaborates on these twin myths, which have been discredited.[v] The main issue is that they are not based on facts, “but on the myths that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief.”[vi]
Seaboyer suggests three subsidiary purposes of s. 276. First, is to eliminate evidence with little or no probative value but which unduly prejudices the judge/jury against the complainant.[vii] The second purpose of s. 276 is to encourage the reporting of crime.[viii] By eliminating the embarrassing and uncomfortable elements of trial for the complainant, future complainants will be more likely to report sexual offences.[ix] The third purpose of rape-shield legislation like s. 276 is protection of a witness’s privacy.[x]
R v Fraser
This leads us to R v Fraser, where Bradley Fraser was charged with sexual assault and unlawful confinement against the Complainant AB.[xi] Prior to the alleged assault, Fraser and the complainant met on Tinder.[xii] While initially playful, the messages soon turned sexual.[xiii] Both parties discussed meeting for sex, and the complainant appeared to consent to some forms of rough sexual activity.[xiv] There was a pause in the messages while the complainant worked.[xv] After, Fraser was invited to the complainant’s apartment, but they eventually decided to go back to Fraser’s (where the alleged assault
occurred).[xvi]
Both the Crown and defence wanted to use the messages.[xvii] The defence argued that no s. 276 application was necessary because the communications are part of the sexual activity that formed the subject matter of the charges.[xviii] The Crown argued that the messages were not part of the sexual activity, and they applied for a s. 276 order for the messages.[xix]
The judge concluded that the Tinder messages could be used by Crown and the defence and were not subject to the provisions of s. 276.[xx] The judge noted that this was merely a “threshold” ruling; it does not preclude objections to the admissibility of evidence for other reasons.[xxi]
Analysis
The principal issue was whether the Tinder messages constituted part of the same sexual activity that formed the charges, or if they constituted prior sexual activity, thus requiring s. 276 protection.[xxii] The Court noted the objective of s. 276 is to exclude information that is more prejudicial than probative, thus requiring broad and general interpretation.[xxiii] This would seemingly give the courts flexibility in determining whether certain conduct constituted part of the sexual activity in question.
The Bright Line
A key factor that the Court considered was whether the communications formed the subject matter of the charge. The Court noted that messages can form part of the subject matter if they are in close proximity in time or if it constitutes the same transaction of the sexual activity.[xxiv] If the communications showed a mutual plan to engage in sexual activity, and they occurred closely in time to one another, then the communications can be considered probative evidence of the parties states of mind.[xxv]
Determining the “bright line” that separates what is proximate sexual activity and communications that form the subject matter of the charge. Communications that cannot be fairly and properly distinguished from the sexual acts are those that don’t have a bright line and seem to be inapplicable to s. 276.[xxvi] There comes a point where it becomes unreasonable to separate and parse every sequence of events as distinct activity.
The Court noted the importance of timing in determining whether the communication and the physical sexual activity formed the same transaction. Interestingly, the Court referenced what it considered to be an analogous case, where Instagram communications spanning four days were found to be inapplicable to s. 276.[xxvii] So, beyond the communication occurring close in time to the sexual act, if the total events essentially represent an “unbroken chain,” then they can be admissible.[xxviii]
Ultimately, using the above reasoning, the court concluded that the Tinder messages did constitute part of the sexual activity that formed the charges, and they were thus not applicable to s. 276.[xxix] The break in time with the communications that resulted from the complainant going to work would seemingly suggest a broken chain, and at least requiring those prior messages to go through s. 276 screening. However, the Court argued that it would be unnatural to do so given the urgent nature of the message and couldn’t conceive how a jury would treat the earlier messages differently from the later ones.[xxx]
Critical Reflection
Potential Dangers
The admission of communications, such as the Tinder messages in Fraser presents some dangers. The argument can be made that admitting such communications as evidence is damaging to complainants, because their prior communications could be used against them. This could result in bias against complainants, making it seem more likely that they would have consented to the sexual activity, when in reality they changed their mind once the physical act commenced. The admission of such messages could also discourage victims from coming forward, if they fear their messages will be used against them. This is particularly true considering the deeply intrusive nature of such communications, which can re-traumatize victims.
Protecting The Right to Fair Defences
While s. 276 aims to protect against such dangers and fears, it is important that its application does not go too far, preventing accused individuals from fair defenses. It is vital that relevant evidence is not prevented from being considered due to the broad interpretation of the provision. As noted in Fraser, giving too broad of an interpretation of s. 276 may undermine the objectives of the provision.[xxxi]
The case R v Reimer[xxxii] clarified the appropriate interpretation for s. 276 screening for communications. The judge noted that it makes logical sense that the communicated intention to engage in an act at a future time increases the likelihood that the individual will engage in that act.[xxxiii] Ultimately, Tinder communications indicating a desire to engage in sexual activity are logically connected and relevant to the sexual activity that eventually took place.
Additionally, the admission of such evidence isn’t an indication of the weight that will be given to it. As noted in Fraser, it will still be up to the jury to determine the amount of weight given to the evidence once admitted.[xxxiv] The admission of such evidence, which is relevant, allows for the jury to give a full and accurate assessment of what happened, while not unfairly preventing the accused from receiving a fair defense.
Ultimately, there still appears to be a grey area in the interpretation of s. 276. There will always be a battle between the dignity and privacy rights of the complainant versus the right to a fair defence for the accused. However, not all prior communications perpetuate the twin myths, and at some point, it becomes impractical to try and separate every act from one another. Those messages–which are relevant and form part of the subject matter of the sexual act–should be admitted into evidence, as was the case in Fraser.
Conclusion
R v Fraser shows the challenge of applying s. 276 to digital communications. s. 276 aims to prevent admitting discredited evidence while encouraging reporting and protecting privacy. As Fraser shows, not all prior sexual communications will fall under s. 276 protection. If communications show a willingness to engage in sexual activity and occur close in time, they may be useful for determining one’s state of mind. The timing of the messages is relevant to determining whether the communications and the physical sexual activity formed the same transaction. The courts must distinguish between messages indicating prior sexual activity and messages that are probatively linked to an accused’s conduct. While potential dangers remain, R v Fraser highlighted that only relevant communications are admitted into evidence. The decision in Fraser allowed for a full and accurate picture of the events that took place, and it will be up to the jury to determine the weight given to such evidence.
Endnotes:
[i] Criminal Code, RSC 1985, c. C-46, s 276. online: < https://laws-lois.justice.gc.ca/eng/acts/c-46/section-276.html >.
[ii] Ibid at s 276(3).
[iii] R v Fraser, 2021 ABQB 914 [Fraser], online : < https://canlii.ca/t/jptf8 >.
[iv] Criminal Code, supra note i at s 276(1)(a)–(b).
[v] R v Seaboyer; R v Gayme, [1991] 2 SCR 577 at p 604, online: < https://canlii.ca/t/1fskf >.
[vi] Ibid.
[vii] Ibid, at 605.
[viii] Ibid.
[ix] Ibid.
[x] Ibid.
[xi] Fraser supra note iii at para 1.
[xii] Ibid at para 9.
[xiii] Ibid at para 10.
[xiv] Ibid at para 11.
[xv] Ibid at para 13.
[xvi] Ibid at paras 13–14.
[xvii] Ibid at para 3.
[xviii] Ibid.
[xix] Ibid at para 4.
[xx] Ibid at para 89.
[xxi] Ibid at para 91.
[xxii] Ibid at paras 3–4.
[xxiii] Ibid at para 40.
[xxiv] Ibid at para 48.
[xxv] Ibid at para 49.
[xxvi] Ibid at para 67.
[xxvii] Ibid at para 49.
[xxviii] Ibid at para 67.
[xxix] Ibid at para 74.
[xxx] Ibid at paras 74–77.
[xxxi] Ibid at para 48.
[xxxii] R v Reimer, 2024 ONCA 519, online:< https://canlii.ca/t/k6gtf >.
[xxxiii] Ibid at para 71.
[xxxiv] Fraser, supra note iii, at para 43.
