The Supreme Court Refuses Leave on Appeal Using Sexts as Evidence of Consent

The Supreme Court of Canada has refused to grant leave to appeal in R v Reimer—a decision from the Ontario Court of Appeal that allowed an accused to use prior sexualized messages as evidence of consent in a sexual assault trial.  

Facts and Judicial History

Jeffery Reimer and the complainant met through a popular dating app. After matching on the app, Mr. Reimer and the complainant exchanged a series of text messages—including some sexualized messages, or ‘sexts.’ Mr. Reimer and the complainant subsequently met in person and engaged in sexual activity. Following their meeting, text messages on the complainant’s phone were deleted without her knowledge. Some of the messages were recovered and used as evidence at trial.

After their meeting, the complainant alleged Mr. Reimer confined, coerced, and sexually assaulted her. Mr. Reimer argued that their sexual encounters were consensual and aligned with the plans the pair discussed in the text messages exchanged ahead of their meeting.

Mr. Reimer was charged with and convicted of sexual assault with a weapon, unlawful confinement, and extortion. Both parties agreed that recovered non-sexualized text messages could be admitted into evidence. However, Mr. Reimer also sought to include the sexualized messages, arguing they were indicative of the party’s intention to engage in sexual activity. The trial judge excluded the messages, ruling that they were inadmissible under Section 276 of the Criminal Code.

Briefly on Section 276

Before “rape shield laws” were enacted in Canada in 1982, a complainant’s sexual history could be discussed and serve as evidence in sexual assault trials. Section 276 of the Criminal Code acts as a first line of defence in protecting the reputation and dignity of sexual assault complainants. Under Section 276, a complainant’s prior sexual history cannot be used to undermine their credibility or as evidence of consent.

Section 276  codifies the “twin myths” principle—minimizing the burden and stigma sexual assault victims face in bringing their case forward. The “twin myths” refer to the falsely held belief that prior sexual activity renders the complainant more likely to have consented to a sexual act or less worthy of belief. 

Despite the breadth of Section 276, it is not a blanket ban on all evidence of prior sexual activity. Prior sexual activity can still be admitted as evidence at trial if it involves specific instances of sexual activity, is relevant, or has significant value as proof in the case such that it outweighs the risk of prejudice to the complainant.

Ruling at the Court of Appeal

At the Ontario Court of Appeal, Justice Paciocco, Justices Simmons and Hourigan concurring, overturned Mr. Reimer’s conviction and ordered a new trial. In their reasons, the Court of Appeal found that at least some of the sexualized text messages exchanged between Mr. Reimer and the complainant were relevant to determining whether consent was given and do not violate the rule that consent must be contemporaneous.

Justice Paciocco relied on a hearsay exception that admits statements of present intention as evidence that the speaker later carried out that intention. Since people often follow through on their stated intentions, and the text messages were illustrative of the sexual acts engaged in by Mr. Reimer and the complainant, the Court found them relevant to the question of whether the complainant consented.

The Court of Appeal took the position that this analysis falls onside the contemporaneity rule (which holds that consent must be given at the time of sexual touching) because it recognizes that the messages in and of themselves, are not determinative of consent. Instead, where earlier words or actions support the likelihood that the complainant consented at the time of sexual activity, they are not irrelevant by the contemporaneity rule.

The Court of Appeal reiterated that Section 276 is not intended to exclude all prior sexual communication from admittance to evidence. Instead, the purpose of Section 276 is to prevent the misuse of prior sexual communication to harm the complainant’s character. In this case, the messages were not introduced to evidence to suggest the complainant was more likely to have consented because of her sexual history. Instead, the messages were used to show her state of mind and intentions leading up to the meeting between Mr. Reimer and the complainant.

Justice Paciocco also found that excluding this type of evidence can undermine the fairness of a trial, especially where the messages go directly to a key issue such as consent. The decision underscored that each case must be analyzed carefully, considering the specific purpose for which evidence is being introduced.

Implications Going Forward

Reimer highlights a cognitive gap between judicial understanding of sexually explicit text messages and the role they play in delineating consent. While the ruling seeks to balance fairness to the accused with protection for complainants, it raises questions as to whether the balance has tipped too far.

As highlighted by Elaine Craig, women and men interpret sexting, and the likelihood of engaging in the sexual activities suggested in their text messages, differently. In fact, research indicates that a large percentage of people have no intention of following through with the explicit activities described in their sexts. This statement is particularly relevant in the context of women sexting with strangers—as was the case in Reimer.

As it stands, Reimer opens the door for pre-assault sexting to be used in a manner that inadvertently reinforces the myths Section 276 was intended to eliminate. Even if prior messages are used for legitimate purposes such as to show “plans” or “state of mind”, their admission risks shifting the focus of trails from the only question that should matter—whether the complainant consented at the time of the encounter.

Looking forward, the prospect of having private digital communications scrutinized in court may deter assault victims from coming forward, adding to the systemic barriers complainants face when reporting sexual assault. Whether a victim engaged in sexual messaging prior to their assault, consent must be specific, continuous, and revocable. A complainant’s choice to engage in sexual activity cannot be inferred from messages sent hours or days earlier, no matter how explicit.

Reimer demonstrates the dangers of digital consent and expression. Since the Supreme Court dismissed the appeal, it’s up to lower courts and practitioners to safeguard victims against monitoring and over-surveillance of their private communications. Sexting is nuanced and does not qualify as a contract for sex. Consent is always fluid, regardless of the Court of Appeal’s ruling in Reimer. In the context of tech-mediated relationships, it is important to understand the limits of virtual consent until the law evolves to reflect reality.

The opinion is the author's, and does not necessarily reflect CIPPIC's policy position.