When the Crown Introduces Text Messages at a Sexual Assault Trial
The Short Version
The BCCA quashed a sexual assault conviction and ordered a new trial because the Crown introduced pre-incident text messages during cross-examination of the accused, without first holding a Seaboyer voir dire. The Crown conceded the error. No curative proviso was sought.
What Happened at Trial
The accused and complainant had a prior relationship. In the weeks before the alleged assault, they exchanged texts that touched on their past sexual history and included the complainant expressing that she did not want to engage in sexual activity with the accused. The Crown adduced these messages during cross-examination of the accused, not through its own case-in-chief, and neither party applied to have their admissibility vetted. No voir dire was held.
The trial judge relied on the texts heavily, using them to reject the accused’s credibility and to corroborate the complainant’s account of non-consent. The accused was convicted and sentenced to three years.
The Law
Under s. 276 of the Criminal Code, evidence of a complainant’s sexual activity, including communications of a sexual nature, is presumptively inadmissible. This protection now explicitly extends to sexual inactivity evidence: messages where a complainant expresses disinterest in sexual activity fall squarely within the regime. As the SCC confirmed in R. v. Kinamore, 2025 SCC 19, the Crown is not exempt from this framework. Before adducing such evidence, the Crown must bring an application under ss. 278.93/278.94, and the trial judge must hold a voir dire.
The BCCA confirmed that the texts at issue, referencing a prior sexual relationship and the complainant’s stated disinterest, triggered s. 276 on both fronts. Admitting them without a voir dire was a legal error. Because the Crown declined to invoke the curative proviso under s. 686(1)(b)(iii), and could not demonstrate the error was harmless given how central the texts were to the trial judge’s reasoning, the conviction could not stand.
Why Trial Lawyers Should Pay Attention
This case is a useful reminder that the s. 276 regime cuts both ways. Most practitioners are conditioned to watch for defence applications to introduce sexual history evidence. The obligation on the Crown to seek admissibility rulings before adducing this class of evidence is less often litigated and, in my view, likely under-reported.
A few practical points worth flagging:
- The timing of disclosure matters. The texts here weren’t put to the complainant during her own testimony. They surfaced only in cross-examination of the accused. This procedural choice is what made the Crown’s error particularly difficult to cure: the evidence came in through the back door of cross and was then used substantively by the judge.
- “Sexual inactivity” is a live category. After Kinamore, messages expressing disinterest, refusal, or reluctance are presumptively caught by s. 276. Defence counsel reviewing disclosure should be alert to whether the Crown intends to use this type of communication, and should be prepared to require a voir dire if no application has been made.
- The curative proviso won’t always save the Crown. Where texts are central to credibility findings, it will be difficult to argue that admitting them without vetting was harmless. The Crown’s concession here reflects that reality.
- Trial judges don’t always have the benefit of current jurisprudence. The BCCA noted that Kinamore was not yet decided when the trial judge ruled. That observation cuts two ways: it explains the error, but it also signals that trial courts going forward will have no such excuse.
The Takeaway
If the Crown plans to use pre-incident communications touching on sexual history or expressed disinterest, a Seaboyer application and voir dire are required: full stop. Defence counsel should be watching for this gap in Crown procedure. When it’s missed and the evidence is relied upon, the path to a new trial may be shorter than it appears.
R. v. Lyons, 2026 BCCA 178 (Mayer, Fenlon, DeWitt-Van Oosten JJ.A.), April 15, 2026.
