By: Anne-Marie Langan*
In R. v. Kinamore, 2023 BCCA 337, the British Columbia Court of Appeal (BCCA) upheld a decision in which the judge had used prior text messages between the accused and the complainant to support the finding that the complainant had not consented to sexual intercourse with the accused. The defence challenged the decision on the basis the judge had subjected the accused's evidence to greater scrutiny than the complainant's. The defence further challenged the fact that the judge had relied on statements the complainant had made in text messages to the accused to support her finding that the complainant had not consented to sexual activity on the night in question without first having a voire dire regarding whether the messages should be admissible in evidence.
Whose version of events was most credible?
The complainant who was 16 years old and the accused who was 22 years old met at a motorcycle shop where the complainant worked and struck up a friendship. They chatted frequently over social media. The accused invited the complainant to his apartment for dinner and a movie on the night in question. Their stories of what happened next varied greatly.
The judge preferred the complainant's evidence that after spending a short time on the accused's balcony and taking a selfie together, he led the complainant to the bedroom, placed her on the bed and began undressing her. She protested, and he left the room briefly and upon his return commenced again kissing her and touching her sexually. He ignored her protests to slow down and continued to have intercourse with her against her will.
The judge summarized the accused's evidence about what happened as follows:
[8] His evidence is that they were on the balcony and he suggested they go in to watch television. Perversely, even though a television was within inches of the balcony door in the living room, they walked together to his bedroom. His evidence is that they looked at one another in the mirror. She smiled. He stood behind her, held her in a coupley way. She turned around to start kissing him. They found themselves on the bed with her on top of him. He took her shirt off; she took his shirt off. He took her pants off; she took his pants off. Eventually as he was trying to arouse her, he performed cunnilingus. He asked her if she would fellate him. She said not until he finished what he was doing. He performed cunnilingus again. He again asked if she would fellate him. She said no, and he said okay, then, and started scrolling through [Skip] the Dishes to find a sushi restaurant and that she received a telephone call from someone at work and that she was upset because there was a suggestion that someone had taken the manager’s keys.
The court of appeal disagreed with the defence's position that the trial judge had erred by scrutinizing the accused's evidence to a greater extent than the complainant's and noted that the issue should not be whether there was even scrutiny of the parties' evidence but rather whether the judge made errors concerning findings of credibility. In that regard, the court found that the assessment of the complainant's credibility was supported by the evidence and that any errors made concerning the accused's testimony were not directly relevant to the issue of consent. In response to the allegation made by the defence that the judge had applied stereotypical views in finding that the complainant had not consented to sexual activity, the court commented that "underlying Mr. Kinamore’s position appears to be the suggestion that, because G.L. exchanged flirtatious, perhaps even romantic, communications with Mr. Kinamore, she is more likely to have consented to subsequent sexual activity. Respectfully, this is the type of twin myth reasoning that is not permitted: R. v. Barton, 2019 SCC 33 at paras. 94, 100."
Should there have been a "voire dire" about the admissibility of the text messages?
The judge formed the opinion that the complainant had not consented to the sexual activity based, in large part, on the text messages exchanged between the complainant and the accused. The judge summarized their communication as follows:
[5] …There are times when the complainant is flirtatious with Mr. Kinamore, particularly early on in May, but over a period of time she makes it very clear, sometimes on every instant message, that she is not interested in having a sexually physical relationship with him. She does indicate that if they got to know each other, things might happen. But he indicates, equally as frankly as she was… that he is interested in a sexual relationship with her but not particularly a romantic relationship with her.
The defence argued that there ought to have been a voire dire (a discussion between counsel and the judge) to determine whether these messages should be admissible as they were evidence of "prior sexual activity". The purpose of the voire dire would be to determine whether the prohibition of s. 276 (1) of the Criminal Code applies in this case. This provision prohibits the use of evidence of prior sexual activity if being led to support an inference that the complainant is more likely to have consented or is less worthy of belief.
The court of appeal noted that the text messages were being used "not as evidence of past sexual history or to promote improper myths or stereotypical generalizations, but rather as evidence that G.L. had no intention of engaging in a sexual relationship with Mr. Kinamore and that Mr. Kinamore could have had no understanding or expectation to the contrary." As a result, the prohibition of s.276(1) has no application in this case.
Were the text messages inadmissible as "prior consistent statements"?
The defence also argued that the text messages relied on by the judge to establish the lack of consent were "prior consistent out-of-court statements" which are "presumptively inadmissible"(Gorman, 2023). Prior consistent statements are statements made after the event and cannot be used to bolster a complainant's credibility. The Court of Appeal pointed out that the text messages were made before the event and that this rule therefore did not apply.
Why this could be an important precedent
In sexual assault cases, the primary issue is usually one of whether the complainant consented to the sexual activity. Since most assaults happen in private, with no witnesses present, it can be very difficult for the Crown to adduce sufficient evidence to prove beyond a reasonable doubt that there was no consent. This case establishes that in certain cases statements made by the complainant on social media that they did not want to engage in sexual activity with the accused can be used to support their oral evidence. That being said, this case has been appealed to the Supreme Court of Canada and we will wait to see whether the original decision will be upheld at that level.
References:
Criminal Code (R.S.C., 1985, c. C-46)
Gorman, W. (2023, August 23). Keeping up is hard to do: A trial judge’s reading blog. CAPCJ. https://judges-juges.ca/evidence-ofprior-sexual-activity-section-276-criminal-code-necessity-of-holding-a-voir-dire/
Disclaimer: This post contains general legal information as of February 27, 2024, that may or may not apply in a particular situation. It is important to note that the law and government policies can change and this blog will not be updated to reflect these changes. It is highly recommended to seek legal advice from a lawyer about your particular situation.