Reconsidering the admissibility of section 276 evidence in sexual offence proceedings: A review of R v Reimer

I.    Introduction

In R v Reimer, 2024 ONCA 519 [Reimer], the Ontario Court of Appeal (“ONCA”) recently reviewed the legal regime created by section 276 of the Criminal Code and examined the admissibility of what is known as other “sexual activity” evidence in the realm of sexual offence proceedings.

Reimer provides a practical analytical roadmap to navigate common and conflated issues in sexual assault cases. This includes issues relating to the twin myths, consent, and the relevance of prior communications of express intention to engage in sexual activity. The ONCA examines the prohibited twin myth reasoning and explains why section 276 does not prohibit sexual activity evidence that is relevant and does not otherwise offend the twin myths. In doing so, the ONCA offers clear direction that evidence of prior sexual activity may be relevant to the issue of consent, but that the analysis is contextual.

II.    Overview of Section 276 of the Criminal Code

Section 276 is an exclusionary rule of evidence that prohibits the accused from adducing evidence of a complainant’s sexual activity that is not part of the alleged offence.

The defence is prohibited from adducing evidence of the complainant’s sexual activity (other than the sexual activity that is at issue in the trial) in order to suggest that, by reason of the nature of the sexual activity, the complainant is either:

(a) more likely to have consented to the sexual activity in question; or

(b) less worthy of belief.

These prohibited inferences are known as the “twin myths”.

If the defence wants to introduce evidence of a complainant’s prior sexual activity at trial, it needs to bring an application that will be decided by the judge. The defence must satisfy section 276(2) of the Criminal Code, which requires the defence to establish that the proposed sexual activity:

a)    does not offend the twin myths,

b)    is a specific instance of sexual activity,

c)    is relevant to an issue at trial; and

d)    that it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

The judge must also consider other factors outlined in section 276(3) of the Criminal Code.

III.    Facts

Mr. Reimer was convicted at trial of sexual assault. He appealed to the ONCA.

Mr. Reimer and the Complainant met on a dating site. They began chatting on the dating site, and subsequently exchanged phone numbers. The two began exchanging sexual text messages and made a plan to meet up. In these text messages Mr. Reimer and the Complainant each described specific sexual acts that they were planning to engage in when they met up. The two then met up, as planned, but their stories as to what occurred during their meet up diverged drastically. Mr. Reimer and the Complainant both agreed that they engaged in sexual activity during this meet up. However, at Mr. Reimer’s trial, the Complainant described acts of forced sexual intercourse. Whereas, Mr. Reimer testified that the sexual activity was consensual.

IV.    Trial Judge’s Decision

Mr. Reimer applied at his trial to introduce as evidence the sexualized text messages between him and the Complainant.

The trial judge found that these text messages were inadmissible on the basis that they were irrelevant to the issue of consent. The trial judge also found that the text messages were being used to propel an argument of advance consent, and that the sought use of the text messages was to further one of the twin myths. He found that, given that there is there is no such thing as advance consent, the text messages could not be relevant.

V.    Ontario Court of Appeal’s Decision

On appeal, one of Mr. Reimer’s arguments was that the trial judge erred in finding the sexual communications to be inadmissible on the issue of consent.

Justice Paciocco, for the ONCA, found that the trial judge erred in his consideration of the sexualized messages and issues related to consent. Justice Paciocco took the opportunity to review and apply basic principles of evidence in this context.

The ONCA emphasized that the prohibition of relying on sexual activity evidence applies where “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”. Not all inferences that arise from events involving sexual activity derive from the sexual nature of that activity. Where there is relevance, apart from the sexual nature of the evidence, it can be admissible (Reimer at para 75). To be relevant, evidence must have some tendency in logic to increase the probability of the inferred fact (Reimer at para 71).

Here, Justice Paciocco notes that the relevance of the sexualized text messages does not derive from the sexual nature of the activity of sexting, but from the fact that the texts communicated the Complainant’s intentions about what she would do and agree to do at her and Mr. Reimer’s upcoming meeting (Reimer at para 75).

The ONCA held that 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 engaged in that act in the future. In this case, sexual activity.

Justice Paciocco also offered the reminder that, even in this context, there is a difference between admissibility and weight. At the admissibility stage, relevance is all that needs to be established. Then, it is up to the trier of fact to decide at the end of a trial whether they accept the evidence and what weight they give to it. Evidence of sexual activity does not need to be determinative to be relevant. It just has to have some tendency in logic to increase the probability of the inferred fact.

Therefore, the fact that the Complainant communicated an intention to engage in sexual activity with Mr. Reimer when they met up is logically relevant to the likelihood that she did so when they did, in fact, meet up (Reimer at para 70). The timing of the statement of intention, along with the context and content, are all factors to be considered when assessing such evidence.

As a result of the trial judge’s errors relating to his consideration of the sexualized text messages, the ONCA ordered a new trial.

VI.    Discussion and Takeaways

While section 276 aims to protect Complainants by guarding against biases and stereotypes, it is often applied more broadly than it should be and unreasonably limits sexual activity evidence. This can paint a distorted and sanitized view of a case and result in relevant evidence not being considered. Reimer is helpful for clarifying the prohibited twin myth reasoning, and explaining why section 276 does not prohibit sexual activity evidence that is relevant and does not otherwise offend the twin myths.

This case is a helpful reminder that the relevance of an express prior intention to engage in sexual activity is a separate matter to be considered in the context of the principles of evidence – the law of evidence should not be conflated with the law of consent. Moreover, this case offers clear and concise direction that not all inferences that arise from events involving sexual activity derive from the sexual nature of that activity.

Reimer will be a useful resource for lawyers handling sexual offence matters, particularly those involving section 276 applications.

*The Crown has applied to the Supreme Court of Canada for leave to appeal; however, a decision on the leave application has not yet been rendered.

The McDougall Gauley Defence Group has experience defending individuals charged with all types of offences, including sexual assault matters. We regularly bring applications under section 276 of the Criminal Code, as necessary, when defending those charged with sexual assault.