R. v. Reimer, 2024 ONCA 519
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[63] In order to be admissible under s. 276, sexual activity evidence must be “relevant to an issue at trial”: s. 276(2)(b). In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 47, Rothstein J. explained the theory of narrative: “Evidence that is not adduced to prove a live issue, or support the prosecution’s [or defence’s] case, but that is merely provided to complete the narrative may be admitted even if it does not satisfy the strict requirements of relevance.” Put otherwise, “narrative” evidence is simply background information that is received even though it is not relevant to an issue at trial, because it enables testimony to unfold in a natural and comprehensible fashion. Therefore s. 276 applications should not be granted on the theory that the sexual experience evidence is relevant to “narrative”. The accused must show that the sexual experience evidence is relevant to an identified live issue in the case.
At Least Some Sexualized Texts Are Relevant to Consent
[65] A number of the sexualized texts have obvious relevance on the issue of consent. As indicated, after the meeting was scheduled, the parties exchanged sexualized text messages describing what they intended to do when they met. A sample will suffice.
[69] Evidence is “relevant” if it “has any tendency to prove or disprove a fact in issue”: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 18. This is the standard that applies to the relevance requirement in s. 276 applications. It was described in the context of s. 276 by Doherty J.A. in R. v. L.S., 2017 ONCA 685, 354 C.C.C. (3d) 71, at para. 89:
Evidence does not have to establish or refute a fact in issue to be relevant; it need only, as a matter of common sense and human experience, have some tendency to make the existence or non-existence of that material fact more or less likely. There is a big difference between evidence that is relevant and evidence that is determinative.
[70] Given their timing, context, and content, the illustrative text messages reproduced in paras. 66-68 above were statements made or adopted by the parties about what they intended to do during their pending meeting. Even though individuals can say things that they do not really mean or change their minds, it 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. Because of the sound logical foundation for this kind of reasoning, the law of evidence has recognized a hearsay exception that admits statements of present intention as evidence that the speaker later carried out that intention. That exception was reaffirmed in R. v Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. There the Crown sought to rely on a statement made by the deceased to his girlfriend shortly before his death that he was going to go out with Starr, as evidence that Starr was with the deceased when he died, and therefore had the opportunity to kill him. The majority affirmed this long-standing exception, although it excluded the evidence in that case because, among other things, the deceased may have had real motive to lie to his girlfriend about his intentions. That outcome does not change the salient fact that in Starr the Supreme Court of Canada adopted the logical relevance of the very line of reasoning that emerges in this case and found it compelling enough to embed this kind of inference in a fixed hearsay exception. The fact that the complainant communicated an intention to engage in consensual sexual acts with Mr. Reimer when they got together, is logically relevant to the likelihood that she did so when they got together.
The Relevance of the Text Messages Does Not Offend the Contemporaneity Rule
[74] I am also persuaded that the trial judge erred by accepting the submissions of the Crown and complainant’s counsel that the earlier expressions of consent were not relevant as a matter of law because consent must be given at the time of the sexual touching (the “contemporaneity rule”). This rule has no application to the lines of reasoning I have described. Neither of those lines of reasoning depend upon the theory that the consent the complainant expressed earlier was the consent provided in the motel. They depend, instead, on the theory that her earlier statements of intention to consent are relevant to the question of whether she did, in fact, consent during the meeting in the motel room. The Alberta Court of Appeal rejected a similar overextension of the contemporaneity rule in McKnight. The Alberta Court of Appeal commented, at para. 261, that this kind of error “conflates the law of consent with the law of evidence.” The Court in McKnight, at para. 261, cited Professor Lisa Dufraimont’s observation made in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316, at p. 328, that “the fact that consent must be contemporaneous does not mean that evidence relevant to the factual question of consent must also be contemporaneous.” R. v. Ewanchuk is one of the leading authorities insisting that consent must relate to the complainant’s subjective state of mind at the time of the sexual activity: 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481, at para. 26. Yet in that decision Major J. recognised, at para. 29, that, “the complainant’s words and actions, before and during the incident” can be considered in determining whether a complainant has consented at the time of the sexual activity. So long as the earlier words or action are relied upon because they have a tendency in logic and human experience to support the likelihood that the complainant consented at the time of the sexual activity, they are not rendered legally irrelevant by the contemporaneity rule. In my view, the trial judge misapprehended the contemporaneity rule, erring in law.
The Relevant Lines of Inquiry Are Not Prohibited Inferences
[75] The trial judge also erred in concluding that the relevance of the sexualized texts depended upon the twin myth relating to consent, codified in s. 276(1)(a). The twin myth relating to consent prohibits “the inference that the complainant’s prior sexual activities, by reason of their sexual nature, make it more likely that she consented to the sexual activity in question” (emphasis added): Barton, at para. 100. The relevance of the sexualized texts I have described above does not derive from the sexual nature of the complainant’s activity of sexting. It derives instead from the fact that those texts communicated the complainant’s intentions about what she would do and agree to at the upcoming meeting. The inference that follows – that she may have acted consistently with her stated intention – does not depend upon judgments about her sexual character, disposition or propensity, or assumptions that she is more likely to consent to sex with Mr. Reimer because in the past she agreed to sext with him. Relevance does not derive from the sexual nature of the activity of sexting. It derives from her stated intentions relating to the specific occasion in question. In my view, the trial judge misunderstood the prohibited inference, thereby making a mistake of law.
[76] There are passages to be found in jurisprudence, including appellate jurisprudence, that if read in isolation from the body of authority on point can be misunderstood as suggesting that s. 276 prevents using previous sexual behaviour from drawing any inferences about consent or credibility. This is not the law. As I will explain, not only does the text of s. 276 say otherwise but the Supreme Court of Canada has made it plain, in jurisprudence that has never been overruled, that in some, albeit rare, cases the constitutional right of the accused to make full answer and defence will require the admission of such evidence.
[77] I will begin with the statutory language. Section 276(1) provides in material part (emphasis added):
[E]vidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that 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.
[78] The text of the provision does not bar the use of sexual activity evidence absolutely. Indeed, nowhere does it suggest that sexual activity evidence is prohibited in all cases on the issue of consent or credibility. Section 276(1) prohibits using sexual activity evidence to advance only certain kinds of inferences relating to consent and credibility, namely, those that arise “by reason of the sexual nature of that activity”. Not all inferences that arise from events involving sexual activity derive from the “sexual nature of [the] activity”, including on the issue of consent and credibility. Proceeding on the assumption that they do would render the limiting phrase “by reason of the sexual activity” meaningless yet it is this limiting phrase that saved s. 276 from being struck down because of unconstitutional overreach.
[79] R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, was the second and most recent case in which the Supreme Court of Canada was called upon to adjudicate the constitutional validity of s. 276. The version of s. 276 that was before the Darrach court, which has not been subject to material amendment since that decision, was enacted in response to the Supreme Court’s earlier decision in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, where the majority struck down a prior version of s. 276 because of its unconstitutional overreach. The prior version of s. 276 was so broad that it purported to exclude evidence of a complainant’s prior sexual activity, even in circumstances where it was relevant and bore significant probative value that was not substantially outweighed by the risks of prejudice it presented. One of the illustrations that McLachlin J. (as she then was) provided of sexual activity evidence that would be unconstitutional to exclude involved evidence relevant to the issue of consent. The hypothetical example was a highly specific pattern of previous conduct by a complainant who engaged in consensual sex in order to extort money from her sexual partners by later threatening to claim that she was sexually assaulted if they did not pay: Seaboyer, at pp. 615-16. By using this illustration to demonstrate that former s. 276 went farther than the Charter allows, McLachlin J. necessarily recognized that an accused person, charged under similar factual circumstances, would have a constitutional right to such evidence, even on the issue of consent.
[80] In Darrach, Mr. Darrach argued that current s. 276(1) contravened the Charter because, contrary to the constitutional balance identified in Seaboyer, it purported to impose a blanket prohibition, including on the issues of consent and belief in consent, the issues in his case. Gonthier J., for the Court, found that this was not so. After noting at para. 1, that s. 276 “essentially codifies” Seaboyer, he said, at para. 32:
Far from being a ‘blanket exclusion’, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences… namely that a complainant is more likely to have consented or that she is less worthy of belief ‘by reason of the sexual nature of [the] activity’ she once engaged in.
[81] In describing the inferences that are caught by s. 276(1), Gonthier J. focused on the limiting phrase, “by reason of the sexual nature of that activity”. He explained that this “is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited” (emphasis added): Darrach, at para. 35; see also R. v. T.W.W., at para. 26, where this passage is reproduced. Of tremendous significance, in Darrach, at para. 58, Gonthier J. explicitly recognised that there are rare cases where other sexual activity will be relevant to consent without engaging twin myth reasoning.
[82] Gonthier J.’s description of the prohibited inferences in Darrach, at para. 32 - “that a complainant is more likely to have consented or that she is less worthy of belief ‘by reason of the sexual nature of [the] activity’ she once engaged in” – is also instructive. This is essentially the same articulation of the prohibited inferences that was repeated in Barton, and that I rely upon in para. 75 above. Because its constitutional validity was directly in issue in Darrach, Gonthier J. went on to explain the operation of the legislation in detail. He said its function is to remove “discriminatory generalizations about a complainant’s disposition”: Darrach, at para. 34. This is in keeping with the fact that the prohibited inferences were historically based upon judgmental and sexist inferences about the character of “unchaste” women arising from the sexual nature of their past activity: Seaboyer, at p. 604.
[83] The following are illustrations of prohibited lines of reasoning that flow from the sexual nature of the activity: (1) that “unchaste” women are more likely to have consented (R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 670-71, quoting Seaboyer, at p. 604; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 101; Barton, at para. 56); (2) that by reason of her past sexual activity a complainant has a “disposition to consent” (Darrach, at para. 34) or a general “propensity to consent” (Barton, at para. 55); (3) that “because the complainant had consented to sex with [the accused] in the past, in similar circumstances, it was more likely she had consented on the [occasion] in question” (Goldfinch, at para. 47); and (4) “because the complainant had ‘typically’ consented to sex … in the past, she was more likely to have done so on this… occasion” (Goldfinch, at para. 72). I am not suggesting that this is an exhaustive list. I provide it to illustrate that the relevance of the sexualized texts that communicated the kind of activity the complainant intended to engage in during her pending date with Mr. Reimer does not derive its relevance from twin-myth reasons. Mr. Reimer was not relying on the sexual nature of the complainant’s act of engaging in sexting as proof that she likely consented in the motel. Nor was he relying on the fact that the complainant had consented in the past to engage in the sexual act of sexting with him. To put it in the terms used by Gonthier J. to describe permissible inferences, he was relying on other “relevant features of the activity”, namely, the statements that she had made in those texts about what she intended to do in the future, during the pending meeting from which the charges ultimately arose: Darrach, at para. 35. In my view, there is nothing discriminatory in inferring that her stated intention to engage in consensual sexual activity on that future occasion has a logical tendency to increase the likelihood that she consented in the motel room. This inference does not trade on sexism, and it is not built on myths about female sexuality. The evidence yielded a logical, permissive inference, and the trial judge erred in finding otherwise.
