Case Comment — R. v. TS 2025 BCCA 25

Article by Rory Ziv

[1] I recently blogged about an Ontario case that discusses the issue of whether prior communications about sex are relevant in a sexual assault trial. Confusion often arises on this question because of the subtle distinction between threshold relevance and ultimate relevance, and the consequent failure to keep these concepts distinct in admissibility hearings under the section 276 regime of the Criminal Code.

[2] A new case from the British Columbia Court of Appeal illustrates how this error can impact a court’s reasoning, impairing its ability to make accurate findings of fact in a sexual assault trial, and potentially resulting in a wrongful conviction.

[3] In R v. TS, the accused wanted to adduce evidence at trial that he and the complainant had discussed the prospect of engaging in sexual role-play the day before the alleged sexual assault. The role-play contemplated by the accused and complainant was a rape scenario where the complainant would feign sleeping during sex. The text exchange sought to be adduced at trial reads as follows [emphasis added]:

Appellant:              I’d love to…Just not sure how to pull that off with you fully
Complainant:        I got lots of fantasy’s like [8 words of sexual communication removed]
Appellant:              [7 words of sexual communication removed]
Complainant:        No when you said you wanna sneak in here when I’m sleeping still can’t get it outta my head
Appellant:              Oh and then [2 words of sexual communication removed]
                               Got it
Complainant:       Yup
Appellant:             Hot
                               Keep sending, I’m enjoying your finds
Complainant:       I know the door just opened and [12 words of sexual communication removed]
Appellant:             Yum
                              You [8 words of sexual communication removed]?
Complainant:       When [name removed] walked in
Appellant:             Damn that’s some good shit then
                              [2 words of sexual communication removed] I take it?

[4] In the same text conversation, the complainant also sent the accused a sexually explicit GIF (short video image) referencing an interest in “rape play.”

[5] The accused claimed that this text conversation was followed by a verbal discussion on the day of the alleged sexual assault. During this verbal discussion, the complainant requested that the accused pretend to be a stranger and have sex with her as she pretends to sleep.

[6] Relying on both the text conversation and the subsequent verbal discussion, the accused’s position at trial was that the sex was consensual or that he believed it was.

[7] The trial judge found that the text conversation was irrelevant to the issues of both consent and mistaken belief in communicated consent. The three-judge panel hearing the case for the British Columbia Court of Appeal unanimously disagreed. At paras 50 and 52, the decision reads as follows:

Viewed in this context, I agree with the appellant that the trial judge erred in her assessment of the relevance of the November Texts. The trial judge found that because the November Texts did not contain a detailed script for the role-play, they were not relevant to the issues of consent or mistaken belief in communicated consent. However, it was wrong for the judge to view the November Texts in isolation. The question of relevance did not turn on whether the November Texts, standing alone, established that the complainant had consented to the activity. The question was, simply, whether the November Texts were logically probative of a fact that was in issue at trial. Here, the key fact in issue was what discussion (if any) took place prior to the sexual activity about a rape role-play.

I also agree that the judge erred in failing to consider the relevance of the November Texts in light of their asserted connection to the Kitchen Conversation. The appellant testified that the Kitchen Conversation represented a continuation of the one that occurred the prior day. The November Texts were prior communications that related to the complainant’s interest in engaging in the very specific type of role-play that the appellant says was then discussed the next morning in the Kitchen Conversation and carried out a short time later. Without the November Texts for context, the appellant was left to testify, in effect, that the Kitchen Conversation occurred out of the blue, rather than as a follow-up to a discussion that the complainant initiated and participated in.

The issue of relevance did not turn on whether or not the appellant would actually succeed on any of his defences at the conclusion of trial. Evidence does not have to establish a fact to be relevant, nor does it need to be determinative. Whether the appellant and the complainant communicated in advance about a sexual role-play that would involve a stranger rape and feigned sleep was directly relevant to the issues of whether the complainant consented to the sexual activity and whether the appellant had an honest but mistaken belief in communicated consent. Indeed, whether such communication occurred was the critical factual issue at trial. The trial judge correctly accepted that evidence of the Kitchen Conversation was relevant for a purpose (ascertaining consent) that did not involve twin-myth reasoning. However, she erred in failing to carry this analysis through to the November Texts.

[8] This case provides an example of how the foundational concept of relevancy is being overlooked or misapplied in many sexual assault cases. Moreover, it underscores the need for judges and defence counsel to be vigilant in ensuring that the lower standard for threshold relevance is adhered to. As the court notes at para 41, “generally speaking, the threshold for evidentiary relevance is low.”. 

[9] I also want to comment on a specific credibility finding the trial judge made in this case and offer some critique.

[10] The trial judge found the complainant’s denial of the verbal discussion about role-play just prior to the alleged assault credible because her denials “were spoken with a firmness and clarity absent in many other of her answers.”

[11] Why does this make the complainant’s evidence more credible? What assumption is the judge relying on to make this credibility finding? Is it not just as likely, or at least possible, that this firm denial is a result of embarrassment? After all, the complainant is giving testimony in an open courtroom—a very public place—and is being challenged on a very personal fantasy.

[12] I am skeptical of credibility findings made on a whim. If you are going to employ logic to make a credibility finding, all other logical possibilities should be ruled out before drawing a firm conclusion. Without a logical basis or explanation of why an overly assertive denial is more credible, this kind of reasoning should not stand.

[13] There is a larger problem at play here and it has to do with confirmation bias error in credibility findings, but that is a past discussion and part of a larger topic.