Past Communications about Present Intention (a thought experiment)

Article by Rory Ziv

Imagine a situation where one person texts another person “meet me at the school playground at 2 pm tomorrow if you want to fight?”. Assume the fight takes place the following day, at the agreed upon location and time, and one person is charged with assaulting the other. 

It should be apparent from this fact pattern that a lawyer would want to explore why a person was charged, since ostensibly, it appears as there was evidence that the fight was consensual.    

Remember, an assault is a non-consensual touching. Ordinarily, consensual fights would not be a crime (there are exceptions like bodily harm intended and caused or actions outside the scope of the agreed upon conduct).

In the realm of the law of assault the text message “meet me at the school playground …” would be admissible evidence as some evidence showing consent. It may not be determinative depending on the facts, but it would certainly be relevant especially if the accused person was suggesting the fight was consensual. 

Enter the topic of sexual assault, which is also a non-consensual touching, the difference is that it is of a sexual nature. Change the text message to the following: “meet me in my bedroom tomorrow night at 8 pm I want to have sex with you”. 

Some arguments, supported by some cases, have taken the position that this type of text message is not relevant because consent must be given at the time of the event in issue and past agreements about consent cannot be relevant to whether there was actual consent at the relevant time. 

In my opinion this type of reasoning is flawed because it bypasses a threshold relevance issue. Some thinkers don’t consider the possibility that some past communications could show proof of present intention. While it is not direct evidence, it is circumstantial evidence.  

A person can agree with having sex in the future, but that sex must still be agreed upon at the relevant time for it to be consensual. That doesn’t make the past communication –irrelevant—the past communication is still a piece of evidence that can be used by the accused person, to show along with other evidence, that there was consent at the relevant time. 

There has in my opinion been a fundamental breakdown or break up of the fundamental building blocks of what is “relevancy” and as a result I am particularly concerned that there are going to be wrongful convictions that flow.   Two recent appeal decisions arrive at different conclusions of a very basic and fundamental issue. See the following cases: R. v. Reimer 2024 ONCA 519 but see R. v. MacMillan 2024 ONCA 115.