In many sexual assault trials, an accused person will have a copy of text messages or emails from the person making the allegations (known in the criminal justice system as the “complainant”). Sometimes those communications might be about the offences themselves. Other times, they might contradict what the complainant has said about things other than the offences. In either case, they can be a powerful tool in attacking the credibility and reliability of the complainant.
Recent changes to the legislation require that before “records” in the possession of an accused person can be used at trial, an application to the court must be made. There has been no appellate authority yet on the issue of whether text messages constitute “records”. In some lower court decisions, the courts have found that they are. In other case, the courts have concluded they are not. When faced with this situation, counsel for an accused person should bring an application to the court seeking directions on whether the messages are considered a record. If the messages are not deemed to be a record, then the defence need not disclose them to the Crown and the complainant. This means that the defence can produce them for the first time during cross-examination at trial.
If the messages are held to be a record then the defence will be required to follow the procedure set out in ss. 278.93 and 278.94 of the Criminal Code. A formal application will need to be filed. The complainant will have the right to lawyer who can appear and make submissions at the hearing. The court will ultimately have to determine whether the messages have significant probative value that is not substantially outweighed by the danger of prejudice that admitting the evidence would have on the proper administration of justice.
If you have any communications between you and the complainant in your possession, it is important that you let your lawyer know as soon as possible so that the legislation can be complied with in a timely way.