‘Sexts’ as Evidence of Future Likelihood to Consent: Implications of R v Reimer by C Bellows

Sexual assault cases present uniquely challenging evidentiary issues due to the threat of prejudicial reasoning against the complainant. While Parliament and the courts have settled on a progressive legal framework to reflect these concerns, the application of these laws can vary considerably where the evidence suggests an intention of the complainant to consent.1 Recently, the Ontario Court of Appeal’s decision in R v Reimer 2 recognized that a complainant’s past sexual relations may be relevant to the issue of consent without leading to a prohibited inference. In light of this decision, judges should remain vigilant when weighing the probative value of such evidence against its prejudicial effect.

In R v Reimer, the Court addressed the admission of text messages in which the complainant had expressed an intention to engage in sexual relations with the accused in the future. Jeffrey Reimer was charged with sexual assault with a weapon, unlawful confinement, and extortion after meeting with a complainant whom he had met on a dating website.3 The complainant claimed that Mr. Reimer coerced her into the motel room and subjected her to forced sexual acts.4 Conversely, Mr. Reimer testified that the complainant willingly entered the motel room, where they engaged in consensual sexual activity.5

Before the meeting, the complainant and Mr. Reimer had exchanged text messages detailing the sexual activity in which they intended to engage.6 Before the trial, Mr. Reimer’s lawyer brought an application to include those messages as evidence under section 276 of the Criminal Code.7 This section oversees the admission of evidence related to a complainant’s past sexual activity and which inferences may be drawn from this evidence.8 Under Section 276(1), evidence of a complainant’s past sexual behaviour cannot be used to support inferences, referred to as the “twin myths,” that the complainant was more likely to have consented or is less worthy of belief.9 To be admissible under section 276(2), the evidence must also: 1) be relevant to an issue at trial; 2) pertain to a specific instance; and 3) have a significant probative value that is not substantially outweighed by its prejudicial effect.10 Ultimately, Mr. Reimer was convicted of sexual assault after the trial judge excluded the text messages.11 The Ontario Court of Appeal reversed this decision and ordered a new trial.12 Paciocco J, writing for the majority, claimed that the trial judge erred in his section 276 analysis by finding that the evidence: 1) was irrelevant; 2) was introduced for the improper purpose of demonstrating prior consent; and 3) was based on prohibited inferences.13

First, considering whether the text messages were relevant to the issue of consent, Paciocco J reasoned: “[I]t is an incontrovertible proposition of logic and human experience that a statement of present intention to do an act at a future time increases the likelihood that the speaker will engage in that act on that future occasion.”14 This line of reasoning is consistent with the fundamental evidentiary principle that relevance is established by the presence of a logical connection to the fact the evidence aims to prove.15 Paciocco J then referred to the trial judge’s conclusion that the text messages would only be relevant to prove advance consent as an “overextension of the contemporaneity rule.”16 Valid consent must be given during the time the sexual activity is taking place.17 However, this does not mean that evidence relevant to the existence of consent must also be contemporaneous.18 The past statements of intention were not offered to prove that consent was given in advance of the sexual activity itself. Instead, they were relevant because they had a logical bearing on whether the complainant consented.19 Finally, the majority of the Court of Appeal concluded that the admission of the messages would not lead to an improper inference that because the complainant had engaged in prior sexual activity, she was more likely to have consented. The relevance arises not from the sexual content of the messages but from the fact that they expressed the complainant's intentions related to the meeting.20

However, a finding that the evidence is relevant is not conclusive of admissibility. The admission of the text messages into evidence would hinge on balancing the evidence's probative value against its potential prejudicial effect. Although the Court in Reimer did not address this final criterion for admissibility of evidence under section 276(2) of the Criminal Code, courts must be careful in taking a complainant’s sexualized text messages as an indicator of a future likelihood to consent. A complainant’s text messages of a provocative or sexual nature may attract prejudicial inferences. Further, there is research indicating that young adults “sext” for various reasons, such as to fulfil perceived expectations, without any intention of physically engaging in sexual activity.21 The impact of these considerations may bear more on the weight of the evidence once it is admitted rather than on its relevance. Nevertheless, the trial judge has the discretion to exclude the evidence of a complainant’s previous sexual activity if its prejudicial effect substantially outweighs its probative value. As reliance on digital evidence in sexual

assault trials increases, this weighing analysis may help ensure that relevant evidence, which is nonetheless overly prejudicial, is not presented to the trier of fact.

The decision in Reimer reflects a broad, flexible stance on relevance in sexual assault cases, effectively removing barriers that could hinder the accused from having a fair opportunity to present a complete defence. However, courts must take caution to ensure that the complainant is not subjected to unnecessary deprivations of privacy or dignity and that the issue of consent is not adjudicated based on myths and stereotypes. This requires a delicate balancing act, ensuring that the rights of both parties are respected while maintaining the integrity of the judicial process.

Endnotes

1 Lisa Dufraimont “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s LJ 316 at 336.

2 R v Reimer, 2024 ONCA 519 [Reimer].

3 Ibid at paras 1, 4.

4 Ibid at paras 10-11.

5 Ibid at para 14.

6 Ibid at para 2.

7 Ibid at para 20.

8 Criminal Code, RSC 1985, c C-46, s 276 [Criminal Code].

9  R v Goldfinch, 2019 SCC 38 at para 51.

10  Criminal Code, supra note 8, s 276(2).

11 Reimer, supra note 2, at paras 22-23.

12 Ibid at para 102.

13  Ibid at para 64.

14  Ibid at para 70.

15 Morris v The Queen, 1982 CanLII 28 (SCC) at 198.

16 Reimer, supra note 2 at para 74.

17 Criminal Code, supra note 8, s 273.1(1.1). See also R v JA, 2011 SCC 28 at para 46.

18 R v McKnight, 2022 ABCA 251 at para 261.

19 Reimer, supra note 2 at para 74.

20 Ibid at para 75.

21 Michelle Drouin & Elizabeth Tobin, "Unwanted but Consensual Sexting among Young Adults: Relations with Attachment and Sexual Motivations" (2014) 31 Computers in Human Behavior 412 at 415.