R. v. REIMER, 2024 ONCA 519, AUGUST 26, 2024.

FACTS:  The accused was convicted of the offence of sexual assault.  At his trial, the complainant described acts of forced sexual intercourse in a motel. The accused testified that the sexual activity was consensual.

The accused applied pursuant to section 276 of the Criminal Code to introduce messages exchanged by the accused and the complainant before the sexual activity occurred.  In the messages, they discussed engaging in sexual activity.  The trial judge dismissed the section 276 application.

The accused appealed from conviction.  The appeal raised the following issues:

-Did the trial judge err in finding that s. 276 applied to all sexual communications, requiring all of them to satisfy the s. 276 admissibility requirements?

-Did the trial judge err in finding the sexual communications to be inadmissible on the issue of consent?

HELD:  The appeal was allowed, and a new trial was ordered.

The Ontario Court of Appeal noted that “in order to be admissible under s. 276, sexual activity evidence must be ‘relevant to an issue at trial’” (at paragraph 63).  The Court of Appeal held that 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” (at paragraph 65). 

The Court of Appeal concluded that some of the messages were relevant because they constituted statements of “present intention” and were relevant on the issue of consent (at paragraphs 70 and 74):

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. 

 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] 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.