19 Jun Other Sexual Conduct in Sexual Offence Prosecutions
Can I Use My Accuser’s Text Messages or Past History in Court?
“Can I use my accuser’s text messages or past history in court?” It is one of the most common questions people ask after being charged with sexual assault or another sexual offence. The question is understandable. Many sexual assault cases turn on what happened between two people, what was said before or after, whether there was consent, and whether the evidence supports one version of events over another. But the answer is rarely simple.
In Canada, sexual assault trials are governed by strict rules about when evidence of a complainant’s sexual history, sexual communications, or private records can be used. These rules are often referred to as “rape shield” laws. That phrase can be misleading. Section 276 of the Criminal Code does not block every piece of evidence that may assist the defence. It prevents the Crown or defence from using a complainant’s sexual activity to support two prohibited assumptions, known as the “twin myths.”
What Are the “Twin Myths”?
The first myth is that a person is more likely to have consented to the sexual activity in question because of their sexual history. The second is that a person is less worthy of belief because of their sexual history. Section 276 directly prohibits evidence being used to support either inference.
In practical terms, this means an accused cannot argue that a complainant must have consented because they previously had sex with the accused, had sex with other people, exchanged sexual messages, used dating apps, attended parties, dressed a certain way, or had a particular sexual history.
Why Prior Sexual History Does Not Prove Consent
This distinction matters in sexual assault cases, including cases that arise in dating, intimate partner, or domestic violence contexts. A complainant and accused may have a prior relationship. They may have exchanged sexual messages. They may have had consensual sexual contact before. None of that proves consent to the specific sexual activity that forms the subject of the charge.
Consent must relate to the sexual activity at issue. Prior consent does not equal present consent. Prior sexual interest does not automatically make later consent more likely. Canadian courts treat this distinction seriously because sexual assault trials must focus on the evidence relevant to the actual allegation before the court.
Are Text Messages Ever Admissible?
Text messages can be admissible, but they must be connected to a real issue at trial for a legally permissible reason. The defence may seek to rely on messages because they show the development of a relationship, contradict a specific statement, provide necessary context, or speak to a live issue in the case.
However, the defence cannot simply point to past sexual communications and ask the judge or jury to infer consent or dishonesty from them. Sexualized text messages, DMs, emails, photos, or app messages trigger the Section 276 process because “sexual activity” can include communications made for a sexual purpose or communications whose content is sexual in nature.
The key issue is purpose. A sexual message is not automatically admissible because it helps the defence. It is also not automatically excluded because it is sexual. The question is whether the evidence assists the court in deciding a real issue without relying on improper reasoning.
What Is a Section 276 Application?
If the accused wants to introduce evidence of other sexual activity, the defence must bring a formal application. This is commonly called a Section 276 application.
To be admitted, the evidence must meet strict legal requirements. It must not be offered for one of the prohibited twin myth purposes. It must be relevant to an issue at trial. It must relate to specific instances of sexual activity. It must have significant probative value that is not substantially outweighed by prejudice to the proper administration of justice.
These requirements are not minor procedural hurdles. They are central to how sexual offence trials are managed in Canada.
How the Court Reviews the Evidence
Under sections 278.93 and 278.94 of the Criminal Code, the defence must usually file a written application setting out detailed particulars of the evidence and explaining its relevance to an issue at trial. The application is considered with the jury and public excluded. If the judge grants a hearing, the complainant is not compellable at that hearing but may appear and make submissions. The judge must also inform a participating complainant of their right to counsel.
The judge must then decide whether some or all of the evidence is admissible and provide reasons. If evidence is admitted, the judge may also limit how it can be used at trial.
What Factors Does the Judge Consider?
The judge must consider several factors, including the accused’s right to make full answer and defence, society’s interest in encouraging the reporting of sexual assault offences, the need to remove discriminatory belief or bias from the fact-finding process, the risk of prejudice, the complainant’s dignity and privacy, and the right of every individual to personal security and equal protection of the law.
This balancing exercise is why Section 276 applications require careful preparation. The defence must identify the specific evidence, explain the legitimate purpose for using it, and show why it matters to a live issue in the case.
Why These Cases Require Careful Strategy
Sexual assault and other sexual offence cases require careful legal strategy from the beginning. Decisions about disclosure, cross-examination, digital evidence, private records, prior relationship evidence, and Section 276 applications can shape the entire trial.
These issues may also arise in domestic violence cases where the allegations include sexual assault, coercive sexual conduct, or intimate partner sexual offences. In these cases, the evidence may involve a complicated history between the parties, prior communications, allegations of control or coercion, and sharply different accounts of what occurred.
Speak with a Criminal Defence Lawyer Early
An experienced Calgary criminal lawyer or Vancouver criminal lawyer can assess whether proposed evidence is admissible, whether a Section 276 or records application is required, and how to advance the defence without relying on prohibited reasoning.
Jason Wuttunee Criminal Defence represents clients in serious criminal matters, including domestic assault, sexual offences, trial litigation, and appeals. His experience on both sides of the justice system informs a strategic approach to complex criminal defence.