The applicant, J.L., sought leave to introduce electronic records and cross-examine the complainant, B.M., regarding their contents, as well as to testify about them, pursuant to section 278.94 of the Criminal Code.
The records included Facebook messages from November 2015 suggesting prior sexual activity, messages from April 2016 discussing sleeping arrangements and having a flirtatious tone before the alleged assault, and messages from April 2016 (the day after the alleged assault) and later, which discussed the sexual encounter and the complainant's departure.
The Crown and complainant's counsel objected to admissibility.
The court found the November 2015 messages relevant as a specific instance of sexual activity and potentially contradictory to the complainant's police statement.
The April 2016 pre-assault messages were found relevant for impeachment value and to provide context for the complainant's decision to come to the applicant's residence.
The April 2016 post-assault messages were deemed relevant as a potential prior inconsistent statement regarding the complainant's departure.
The court applied the factors under s. 276(2) of the Criminal Code, concluding that the records were not being adduced for prohibited inferences, had probative value, were necessary for full answer and defence, and would not prejudice the administration of justice or have a chilling effect.
All three sets of communications were admitted as evidence, and the applicant was permitted to cross-examine the complainant and testify regarding them.
