Text messages and social media messages are often some of the most important evidence in a sexual assault case. They can show how the accused and the complainant spoke to each other before and after the alleged incident, establish the timing of events, and contradict what a witness later tells police or says at trial.
But the defence cannot necessarily pull out those messages for the first time during cross-examination.
Since 2018, the Criminal Code has imposed a screening process on certain private records in the possession of an accused. The Supreme Court of Canada upheld the previous version of that regime in R. v. J.J., 2022 SCC 28. In July 2026, Parliament repealed and replaced those provisions with a reorganized and, in some respects, more demanding regime governing records and therapeutic records.
What the Law Requires
Section 278.29 of the Criminal Code now governs records relating to a complainant that are already in the possession or control of the accused and that the accused intends to introduce in a prosecution for a sexual offence.
A qualifying record is inadmissible unless the court determines that the statutory requirements have been met.
For an ordinary record, the judge must find that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
If the evidence is also caught by section 276 because it concerns sexual activity other than the activity forming the subject matter of the charge, the section 276 requirements must also be satisfied.
The 2026 amendments also created a distinct category of “therapeutic record.” These records face a considerably higher admissibility threshold.
Which Messages Are Records
Not every text message, Instagram DM, WhatsApp conversation or other communication between the parties is automatically a record.
Section 278.1 defines a record as any form of record containing personal information for which there is a reasonable expectation of privacy. The definition includes medical, education, employment, child welfare, adoption and social services records, as well as personal journals and diaries.
The Supreme Court considered electronic communications extensively in J.J. Under the Court’s interpretation of the previous but materially similar definition, an electronic communication can qualify as a record where it contains personal information giving rise to a reasonable expectation of privacy. The Court said that the content and context of the communication matter, with information of an intimate and highly personal nature attracting particular protection.
That means a mundane message arranging where to meet may fall outside the regime, while a private conversation concerning deeply personal matters may fall within it. Messages or photographs concerning sexual activity may also engage section 276, depending on the purpose for which the defence seeks to use them.
The line is not always obvious.
In J.J., the Supreme Court said that where counsel is uncertain whether evidence constitutes a record, counsel should err on the side of caution and bring the application. Although J.J. interpreted the former legislation, that remains important guidance because the current definition continues to turn on personal information and a reasonable expectation of privacy.
Therapeutic Records Are Different
One of the significant changes made in 2026 was the creation of a separate statutory definition for a therapeutic record.
A therapeutic record is a record produced in the course of psychiatric treatment, therapy or counselling provided by a qualified health care professional.
The distinction matters because the test for admitting a therapeutic record in the accused’s possession is substantially more demanding than the test for an ordinary private record.
Under section 278.29, the therapeutic record must contain evidence that is likely to raise a reasonable doubt as to the accused’s guilt, and there must be no other evidence capable of raising that reasonable doubt.
That is a much higher hurdle than merely establishing that the evidence is relevant and significantly probative.
The Application
The procedure begins under section 278.3.
The defence must make a written application accompanied by an affidavit setting out detailed particulars of the record it wants to use.
For an ordinary record, the application must explain how the evidence is relevant to an issue at trial. For a therapeutic record, it must explain how the evidence is likely to raise a reasonable doubt as to the accused’s guilt.
A copy of the application and affidavit must be provided to the prosecutor and filed with the court.
The timing requirement is now significant. Before the court proceeds to the admissibility hearing, the application must ordinarily have been provided to the prosecutor and filed with the court at least 60 days previously. The judge can permit a shorter interval where the interests of justice require it. Before the 2026 amendments, the legislation generally contemplated a seven-day period.
This makes early identification of private-record issues considerably more important than it was under the former regime.
The Initial Screening
The judge first considers the defence application with the jury and the public excluded.
At this point, the application has been provided to the Crown but not yet to the complainant.
The court considers whether the procedural requirements have been satisfied and whether the proposed evidence is capable of being admissible under section 278.29. If those requirements are met, the court grants the application for an admissibility hearing under section 278.31.
Once the hearing is ordered, the accused must arrange for a copy of the application to be provided to the complainant by someone other than the accused.
The Admissibility Hearing
The section 278.31 hearing is held with the jury and the public excluded.
The complainant cannot be compelled to testify at the hearing, but is entitled to appear and make submissions. A complainant who participates must also be informed of the right to be represented by a lawyer.
The judge then decides whether the record satisfies the applicable test under section 278.29.
For an ordinary record, that means determining whether it is relevant to an issue at trial and whether its significant probative value is not substantially outweighed by the danger of prejudice to the proper administration of justice.
The judge must consider a number of statutory factors, including the accused’s right to make full answer and defence, the complainant’s privacy and dignity, society’s interest in encouraging the reporting of sexual offences, and the integrity of the trial process.
The court may admit all of the evidence, admit only part of it, or exclude it entirely, and reasons must be given for the decision.
A New Joint Application Procedure
The 2026 amendments also created a new procedure under section 278.35.
The prosecutor, accused and the complainant or witness to whom an ordinary record relates can jointly ask the court to determine that the record is admissible without first holding the regular section 278.31 hearing.
The application must set out the details of the record, its relevance and the basis on which the statutory admissibility test is met. It must ordinarily be filed at least 60 days before trial.
If the judge is satisfied that the evidence is admissible, the application can be granted without the ordinary hearing. If the judge is not satisfied, the court must proceed to a section 278.31 hearing.
This streamlined procedure does not apply to therapeutic records.
The Strategic Cost
The procedure presents an obvious strategic problem for the defence.
Cross-examination on a prior statement is often most effective when the witness has not had an opportunity to prepare an explanation for it. The record-screening process can take away that element of surprise.
Once an admissibility hearing is ordered, the complainant receives the application. The defence has therefore disclosed not only the evidence it intends to use but at least part of the reason it considers that evidence important.
That can reveal part of the defence theory before the complainant testifies.
This issue was central to the constitutional challenge considered in J.J. The accused argued that the former screening regime infringed the rights protected by sections 7, 11(c) and 11(d) of the Charter, including principles relating to trial fairness and self-incrimination.
The Supreme Court majority rejected the challenge. It held that an accused is entitled to a fair trial, but not to procedures designed to maximize every tactical advantage available to the defence. The former regime was upheld because relevant defence evidence could still be admitted where the statutory test was satisfied.
For defence counsel, however, the practical concern remains. A procedure that requires disclosure of proposed impeachment evidence before cross-examination may give the witness time to prepare for evidence that would otherwise have been unexpected. It can also disclose important elements of the defence strategy before the Crown has finished presenting its case.
The legislation now in force is not identical to the provisions considered in J.J., so the decision should not be treated as a Supreme Court ruling on every aspect of the 2026 regime. But its discussion of privacy, defence disclosure and trial fairness remains important to understanding how the current provisions operate.
What This Means in Practice
Texts and other electronic communications should be collected and preserved at the beginning of the case.
That includes messages on platforms such as Instagram, Snapchat and WhatsApp, where evidence can disappear because of platform settings, account deletion, device replacement or the passage of time.
Defence counsel then has to determine which communications may constitute records, which may engage section 276, which may qualify as therapeutic records, and which fall outside those regimes altogether.
Each proposed piece of evidence also needs a purpose.
It is not enough simply to say that a collection of messages is relevant to credibility. The application should connect the evidence to an actual issue in the case: the timing of events, an inconsistency in the complainant’s account, the circumstances surrounding an alleged incident, an allegation concerning the use of force, or another material issue at trial.
The 60-day requirement makes that preparation particularly important.
A defence that discovers the problem shortly before trial may still ask the judge to permit a shorter interval in the interests of justice. But relying on that discretion is very different from identifying and preparing the application at the beginning of the case.
In a sexual assault prosecution, a text message sitting on the accused’s phone may appear to be ordinary defence evidence. Whether the defence is legally permitted to use it can now depend on a detailed statutory analysis that should take place long before the witness enters the courtroom.
