A court acquitted a teenager of sexual assault after Instagram direct messages (DMs) found issues with the complainant’s credibility.
The recent provincial court case involved an important discussion about the admissibility of evidence in sexual assault cases. Had the Court not been able to consider the Instagram messages, it is highly likely there would have been a different outcome.
The alleged sexual assault
The investigation arose out of an alleged sexual assault that took place inside a handicapped bathroom at a high school. The defendant, a teenage student identified as “H.S.S.”, was accused of sexual assault against a female classmate. The Crown said that during the incident, he kissed her, put his hand on her buttock and breast, and showed then showed her his penis, without consent.
The complainant said her two friends had told her to meet H.S.S. in the bathroom and that she was unaware of why they were meeting there. She her friends had been messaging the accused from her phone without her knowledge.
She deleted all of the DMs between her and H.S.S., except for five pages of screenshotted messages from before and after the incident, which she submitted as evidence. They included one in which the defendant said: “It’s (sic) my fault. Im (sic) sorry. I really am deeply sorry.”
There were in fact thousands of messages, filling 233 pages of bound paper, sent between the complainant and the accused in the days leading up to the alleged sexual assault. The Court was only able to consider the messages, which had been submitted by the defence, following a pre-trial hearing on the admissibility of the evidence.
Admissibility of Instagram messages as evidence
Normally, the Criminal Code that prevents the admission of evidence pertaining to a complainant’s previous sexual history. Courts cannot infer that a complainant is more likely to have consented to sexual activity or is less worth of belief depending on their sexual history.
At the pre-trial hearing, the judicial justice ruled the DMs exchanged between the accused’s and the complainant’s accounts could be admitted because they were “probative of the issue of the Complainant’s consent to the sexual activity” were therefore an exception to the Code.
The judicial justice made the ruling because the actual content of the exchanges addressed issues central to the alleged offence.
The messages showed conversations expressing a “mutual intention” to meet for sexual activity in the school’s handicapped bathroom. They included a couple of occasions that spelled this out in explicit detail.
Of course, a person can change their mind about what was agreed beforehand and still be a victim of sexual assault. However, the evidence presented issues with the plausibility of the complainant’s account which ultimately determined the verdict.
Inconsistencies
The complainant maintained throughout that most of the messages had been sent from her account either by her sister or two of her friends. However, the judicial justice found no valid reason why they would set her up like that, saying:
“It is inexplicable why [the friends] were not called to testify, or even interviewed, about the C Block conversation. It is even more inexplicable why the Complainant’s sister was not called to testify, or even interviewed, about the other Instagram conversations.”
The judicial justice also found it strange that the complainant would go to the bathroom on her friends’ direction, without knowing the reason, and fail to read the messages they had allegedly sent.
In order to decide the plausibility of the complainant’s account, the Court applied a legal test from the case Faryna v. Chorney. According to that case:
In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
The Court found the alleged victim’s account did not meet this test as she had given five different versions of how she ended up in the bathroom before trial. “It does not have the ring of truth or even the air of reality.”
The judicial justice said: “In my view, making so many inconsistent statements about the same subject demonstrates the Complainant’s cavalier attitude regarding the truth…The Complainant’s own evidence presents her as a person with a cruel and callous disregard for peoples’ feelings and, more significantly, a callous disregard for honesty and the truth.”
The accused’s evidence, on the other hand, did not contain inconsistencies and “remained unshaken despite searching cross-examination by the Crown”. H.S.S. was found not guilty of sexual assault.