When it comes to sexual assault law, rules were created for good reasons regulating when and how a complainant’s sexual history could be discussed during trials. The rules specified that, in some cases, defence counsel would need to write out a lengthy and complex application setting out why they should be permitted to ask the complainant questions about their sexual past. Defence counsel would then argue that application before a judge. If unsuccessful, defence counsel cannot ask the complainant questions about his or her sexual history.

There are many times when previous sexual history is relevant to a client’s defence – that of consent, or honest but mistaken belief in consent, for example. A successful application can therefore be incredibly helpful to a client’s case.

Seen as a response to Jian Ghomeshi’s case, new laws came into existence recently to try and restrict an accused’s right even further with respect to what evidence they can rely on at trial. The new laws cover more than the right to question a complainant about his or her sexual past; they also sought to cover “records.” For example, if defence counsel wanted to question a complainant on his or her sessions with a psychiatrist, defence counsel would need to write up, and argue, an application for permission to talk about the psychiatric records at trial.

The reason these laws were invented is to better protect the privacy of complainants. When defence counsel makes this type of application, they are essentially trying to convince a judge why the need to talk about the record, or sexual past, should trump the complainant’s right to privacy.

The example of psychiatric records is on the higher end of private and sensitive materials. However, imagine that a client has been falsely charged with sexual assault. The complainant, it turns out, has admitted to their psychiatrist that they made the incident up as a way of getting an upper hand in a custody battle for the parties’ children. As much as that victim’s mental health is deserving of privacy, defence counsel would argue that, in this case, it is more important for this evidence to be heard by the judge.

But what about text messages? Facebook messages? Do those count as “records”?

According to one recent Ontario Superior Court decision, Facebook messages are NOT considered records.
In the case of R v. W.M, 2019 ONSC 6535, W.M was charged with several offences, including sexual assault. Defence counsel wanted to question the complainant at trial about Facebook messages between the complainant and W.M. However, they were unsure if an application needed to be written and argued about whether those messages were “records”. The uncertainty comes from the fact that electronic messages are not actually listed in the definition of “record” in the Criminal Code (unlike medical records, which are specifically listed).
The Court stated that the Facebook messages would be considered a “record” if the complainant had a reasonable expectation of privacy. But the Court found that she did not have a reasonable expectation of privacy because she chose to send those messages to W.M, knowing full well that she was creating an electronic record that W.M. could save and share with others. She also did not specify, in her messages with W.M, that she was expecting him to keep the messages private.

For obvious reasons, this case is hugely important for persons charged with sexual assault who have helpful electronic messages from the complainant.

If you or someone you know has been charged with sexual assault, the team at DeMelo Law is prepared to advocate and navigate this complex area of law.