R. v. X.C.

R. v. X.C.

Admissibility of Text Messages in Sexual Assault Trials

By
Zachary Al-Khatib
Jun 2025
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Background

X.C. was facing a single count of sexual assault based on allegations made by his estranged wife, D.Z. The alleged conduct spanned the entirety of their six-month relationship (paras 1–2).

Central to the sexual assault charge were DZ’s claims that Mr. C. coerced her into bondage and domination-style sexual acts, including being blindfolded, tied up, gagged, and subjected to painful sex toys (paras 12–16, 20).

Prior to trial, Defence brought a motion for directions about whether certain text messages and emails needed to be screened by the Court and provided to the complainant under the new Criminal Code records screening provisions. XC wanted to introduce these messages in his defence to contradict the police complaint of the complainant (para 3). Many of the messages appeared to show that DZ was an eager and willing participant in these acts, and had planned and encouraged XC continuously throughout the relationship.

Outcome

Justice Dawe held that X.C. was not required to bring a pre-trial s. 278.93 application to admit all the messages. He accepted the Defence argument that the relevance of the messages would only be concrete once the complainant had testified, and therefore allowed the Defence to bring an mid-trial application (paras 74–78). This was a critical ruling for the Defence because it meant that the complainant would not get to preview the Defence case in its entirety.

The Court also ruled that some of the discussions of sexual activity happened so close in time to the physical acts that they were not unrelated “sexting”, which would require a separate application before it could be put before the Court, but were part of the charges and therefore could be admitted at trial without an application.

After this ruling, the Crown reviewed some of the material on trust conditions, and ended up dropping the charges.

Key Takeaways

  1. Sexual Assault Charges Require Detailed Knowledge of Complicated New Laws
    Sexual assault law in Canada has become the most complicated area of criminal procedure due to new legislation governing what can and cannot be said and used in Court. It is essential to have experienced and competent counsel who know how to navigate this area and ensure that important information gets into Court, and at the right time.
  1. Clarification of Bill C-51 Regime
    This decision provides a detailed analysis of the 2018 Bill C-51 amendments to the Criminal Code, clarifying how ss. 276, 278.1, 278.92, and 278.93 interact. Notably, “sexual activity” now includes sexual communications (para 26), and s. 278.93 governs admissibility when “records” involving the complainant’s personal information are at issue (paras 27–28).
  2. Scope of s. 276 Exemptions
    Justice Dawe emphasized that communications about sexual activity may fall outside s. 276 if they are sufficiently connected to the physical sexual acts forming the subject matter of the charge. Discussions of past sexual activity can be admissible if they concern alleged non-consensual acts (paras 35–38, 47–51). Conversely, future-tense sexual discussions—unless clearly linked to alleged non-consensual events—may require pre-screening (paras 52–53).
  3. Reasonable Expectation of Privacy and Records
    Text messages exchanged between complainant and accused are not automatically “records” under s. 278.92. The reasonable expectation of privacy must be assessed in context, considering the nature of the relationship, content of the messages, and the adversarial proceedings (paras 55–57, 63–69). Importantly, if the complainant has already disclosed the messages to police, or if they directly relate to the allegations, privacy expectations diminish (para 67).
  4. Flexible Timing for s. 278.93 Applications
    The Court recognized that requiring pre-trial s. 278.93 applications can unfairly force the defence to disclose its strategy prematurely and potentially impair s. 7 Charter rights (paras 75–76). Allowing mid-trial applications supports a more accurate, context-aware adjudication while preserving procedural fairness and trial efficiency, particularly in judge-alone trials (paras 77–78).
  5. Practical Guidance for Counsel
    The judgment serves as a procedural roadmap for both Crown and defence counsel handling digital communications in sexual offence cases. Defence counsel should segment messages by content and context, and identify which ones clearly fall within or outside the scope of ss. 276 and 278.92. Judges may adopt a sealed-review procedure when balancing privacy and fair trial rights (paras 22–23).

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