Nov 15

I Have Text Messages Which Shows She Consented to the Sexual Activity

When you are charged with a criminal offence, you must gather evidence that you believe may be important to your defence. When you’ve been charged with sexual assault or a domestic-related offence, evidence gathering may be even more important. Typically, these cases involve he said/she said arguments, and the trial judge will need to review the evidence of each witness to determine their reliability and credibility. Independent evidence, such as text messages, can play a crucial role when assessing credibility and reliability.

Are my Text Messages Important for my Criminal Matter?

Nowadays, communication via text messages or online are commonplace. This is important evidence since it can show what was occurring in the minutes, days, or hours around the alleged offence. This type of evidence is even more important when someone is charged with a sexual assault since there is typically no injuries or physical evidence. The text messages may be the only independent evidence presented at trial.

Do I Need to Disclose the Text Messages I have?

In most criminal cases, you are under no obligation to provide evidence to the Crown or the Court before you decide to use it. For example, if you are charged with a domestic assault, you can wait to disclose family law documents or text messages which may allow you to contradict the complainant without providing the materials in advance of your trial.

For sexual assault charges, this is different, since you are required to disclose materials, such as text messages, which are in your possession. To be able to introduce them at your trial, you may be required to complete ss. 276/278 applications.

What is Section 278 of the Criminal Code?

In R. v. J.J., 2022 SCC 28, the Supreme Court indicated that “records that do not fall within one of the enumerated categories but are nevertheless included within the scope of the regime are records which contain personal information about complainants for which they have a reasonable expectation of privacy… non-enumerated record will only be captured by s. 278.1 , in the context of the record screening regime, if the record contains information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being. Such information will have implications for the complainant’s dignity.”

How do I know if the Materials I have Requires a Section 278 Application?

A trial judge will need to determine whether the materials are a record within the meaning of s. 278.1 of the Criminal Code. If the evidence does not fall within one of the enumerated categories, the inquiry should focus on whether it contains personal information for which there is a reasonable expectation of privacy. Where the evidence is found to be an enumerated or non-enumerated record, the record screening regime is engaged.

A non-enumerated record will be caught by the record screening regime if it contains information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological, or emotional well-being.

If you are charged with a sexual assault, and in possession of materials, you should provide them to your counsel immediately. When deciding to bring a s. 278 application, you should always err on the side of caution and file the affidavit.

How do I find a Brampton Sexual Assault Lawyer?

If you are charged with sexual assault, please contact the experienced sexual assault lawyers of Lockyer Zaduk Zeeh. We would be able to assist you with your bail hearing, reviewing your disclosure, discussing possible ss. 276/278 applications, conducting your trial, and representing you on appeal (if that is needed). To schedule a consultation, please call 416-613-0416.