Can Texts or Emails Be Used as Evidence in Sexual Assault Cases in Canada?

In today’s digital age, electronic forms of communication play a major role in how people interact. As a knock-on effect, it means there are more forms of evidence that can be used in court. But can digital evidence be used in a trial centred on physical actions?

Regardless of the type of case, electronic messages can often provide critical information. Here we’ll explain if either side can use texts or emails as evidence in a sexual assault case, and the steps you need to take.

Texts or Emails as Evidence in a Sexual Assault Case

More or less anything pertinent to a case can be admissible in court, including texts and emails. However, like any other form of evidence, it must meet relevant criteria before it can be used. Let’s take a look at what these are:

Relevance – The text or email must be relevant to the case. This means there must be a logical connection to the fact that is in dispute. For example, a text can be used to confirm an alibi, show consent, or provide context on a relationship.

Authenticity – In this day and age, it’s easy to manipulate digital media. If there are any doubts about the authenticity of a message, then it must be proved. This can be done through the likes of phone records, account information or forensic analysis.

Admissibility and Rules of Evidence – All evidence needs to be obtained according to the Charter rights and cannot be unfairly prejudicial. If the text or email doesn’t comply with the evidentiary rules, it cannot be admissible.

What About Other Digital Messaging?

There are countless ways people can communicate online. Most social media platforms have their own messaging systems, but you can also get private chats on dating apps, gaming platforms, live streaming, and workplace platforms, among many more.

Here, the same rules apply. If there is any communication between two parties that is both relevant and authentic, it can be used in court. This is regardless of exactly where the online communication took place.

When Are Texts and Emails Typically Used in Sexual Assault Cases?

Electronic messages can be useful to back up physical evidence or to paint a broader picture of the events that took place. Let’s take a look at how this information can be used by both sides.

Why the Prosecution Would Use Digital Messaging

To Corroborate Testimony – Messages can support the complainant’s account of events. This could be confirming the date and time of events, or showcasing emotional responses following the alleged assault.

To Demonstrate Lack of Consent – The accused may have sent messages pressurizing the complainant, or alternatively, the complainant may have sent messages indicating that they weren’t ready for any type of sexual contact.

To Show the Nature of the Relationship – Messages can paint a picture of a relationship. This can show patterns of behaviour that may have been unprofessional, hostile, or threatening. This can be crucial for understanding power dynamics.

To Prove Intent or State of Mind – Messages may be able to show premeditation or intent. Comments that show the likes of anger, frustration, or sexual aggression can be used.

To Rebut the Accused’s Version of Events – The accused may make a claim that can be contradicted by messages.

To Establish a Timeline – Establishing a timeline of events can help the court reconstruct what happened. Messages can be very useful for this.

To Show Post-Assault Behaviour – Either side may have attempted to talk about the alleged incident. This may show trauma and distress on one side, or attempts to justify or downplay the behaviour on another.

Why the Defence Would Use Digital Messaging

To Challenge the Credibility of the Complainant – Messages made before or after the alleged assault may challenge the credibility of the complainant.

To Suggest Consent Was Given – Consent is ongoing and can be withdrawn at any time. However, messages can help to cast doubt on whether or not there ever is a lack of consent.

To Show the Nature of the Relationship – Whereas the prosecution may want to show the negative parts of a relationship, the defence can illustrate the most positive aspects.

To Provide Context – Single messages can seem incriminating. The defence may wish to use a broader set of messages to show an altogether different pattern of behaviour.

To Support an Alibi – Defences of sexual assault can include false allegations and misidentification. Messages can be used to support an alibi for such a defence.

To Demonstrate Motive to Fabricate – Messages can be used to support the complainant having an ulterior motive. Messages showing anger, jealousy or a wish for revenge can support this.

To Rebut Claims – It may be alleged that there were threats, coercion, or negative contact. The defence may wish to show light-hearted and voluntary communication.

What Safeguards Are in Place?

Digital evidence can take an emotional toll. What you thought were private messages can become part of the public domain. However, your privacy and dignity will be considered, and evidence won’t be permitted lightly.

As mentioned, only relevant information can be used at trial, and in all sexual assault cases applications have to be made during pre-trial hearings for the defence to use any digital evidence that the complainant has a privacy interest. Therefore, the defence can’t just start reading out private messages in the courtroom without prior permission from the judge. It is very important to retain a lawyer who knows the rules and can make sure they are followed.

Other factors will be considered too, such as whether the value of the messages is outweighed by the risk of prejudice. Essentially, the judge will decide whether the emotional damage caused by the messages being made public will be outweighed by their usefulness to the case.

In Canada, pre-trial hearings are usually open to the public and can be reported on. However, in sensitive cases, hearings can take place behind closed doors and with publication bans. This helps to both prevent public exposure and trial by media.

What Steps the Accused Should Take

With digital evidence, it can be easy to make the wrong moves. Here are the steps you should take with online messages should you be accused of sexual assault.

Don’t Delete Messages – This is unwise for many reasons. Firstly, it can be seen as an attempt to destroy evidence, which doesn’t paint a good picture. Even if there is incriminating evidence, deletion is a bad idea.

Not only are the messages likely to be stored on the recipient’s devices anyway, but they can usually be forensically recovered even if they aren’t. Knowing what these messages contain also allows your lawyers more time to prepare and strategize.

Consult a Lawyer Immediately – It’s very easy to make mistakes when emotions are running high. Your sexual assault lawyer will be able to guide you on how to deal with online communication. It’s also vital to be open and honest with your lawyer.

A message you feel is embarrassing could actually be important in your defence. It can be awkward, but give your lawyer all the help they can get.

Preserve Context – Instead of deleting messages, you should look to do the exact opposite. Collect them and store them for easy referencing. Broader conversations and context can often be highly useful in ensuring your words aren’t being taken out of context.

Final Thoughts

As we’ve seen, both the prosecution and the defence will use texts or emails as evidence in a sexual assault case. Their use is subject to strict legal standards, but the reality is that what you thought were private messages will become public records.

Due to the complexity of these cases and the emotions involved, legal advice is vital. Here at AGP LLP, we can help to guide you through your case and ensure you receive the best possible defence. Contact us today, and we’ll be happy to offer you a free consultation.