Recent Cases

Jillian Williamson recently secured the withdrawal of a sexual assault charge after bringing a focused and strategic s. 276 Criminal Code pre-trial application. The application centered on the admissibility of a series of explicit text ("sext") messages exchanged between the complainant and the accused. These messages revealed prior inconsistent statements that went directly to the core of the allegations. In this case, her client was a customer at a facility that provides esthetic style services. The complainant was the service provider. In her statement to the police, she portrayed herself as a vulnerable victim who was attacked by her customer (my client). Once the evidentiary issues were placed before the Crown, the prosecution withdrew the charge before the matter proceeded to trial.

This case serves as an important illustration of how diligent pre-trial work, careful evidence review, and proper use of s. 276 procedures can fundamentally change the trajectory of a prosecution.

Background

The accused was charged with one count of sexual assault arising from an encounter with the complainant. From the outset, he maintained that the interaction had been entirely consensual and that the complainant’s account (as later given to police) did not reflect their prior communications or the context of their relationship.

During the initial consultation, the client disclosed that he still possessed a series of explicit, sexually-charged messages exchanged with the complainant both before and after the alleged incident. These messages were detailed, reciprocal, and inconsistent with the allegations later made to police.

Because sexual history evidence is presumptively inadmissible, even when highly relevant, the defence could not simply rely on these messages at trial. The correct route was to bring a formal s. 276 application, supported by a detailed affidavit and legal argument demonstrating that the messages were not being adduced to support “twin myths,” but rather for permissible purposes, including:

• Demonstrating prior inconsistent statements;
• Providing essential context for the relationship and communications;
• Challenging the credibility and reliability of the complainant’s narrative.

The s. 276 Application

• Our office prepared a comprehensive s. 276 notice and supporting materials, including;
• An exhibit containing the relevant messages;
• A clear articulation of the specific issues of credibility and reliability to which the messages were directly relevant;
• Legal submissions explaining why the evidence should be admitted and how its probative value substantially outweighed any prejudicial effect.

The application emphasized that the messages were initiated by the complainant, contemporaneous to the time of the alleged offence, and demonstrably inconsistent with her later account. Their exclusion would deprive the trier of fact of essential context.

Outcome

Upon reviewing our application materials and the nature of the inconsistencies within the messages, the Crown reassessed its position. Before the s. 276 hearing proceeded, the prosecution advised that it would withdraw the charge in its entirety.

No trial. No further proceedings. The client was able to move forward free of the stigma and consequences associated with a sexual assault prosecution.

What You Need To Know

• Early evidence preservation matters. Had the client deleted the messages, the outcome could have been dramatically different.
• Section 276 is not a barrier, it is a structured pathway. When used properly, s. 276 allows the defence to introduce necessary communications that go directly to credibility, narrative, and context.
• Credibility and reliability evidence can be decisive. Inconsistencies within the complainant’s own words were ultimately what undermined the viability of the prosecution.
• Thorough pre-trial strategy often resolves cases before trial.

Conclusion

This case underscores the importance of sophisticated pre-trial litigation in sexual assault matters. A carefully crafted s. 276 application allowed the defence to present highly relevant communications in a legally appropriate way, leading to the withdrawal of a serious criminal charge.

If you or someone you know is facing allegations of sexual misconduct, legal advice should be sought as early as possible. Early intervention can significantly shape the direction and outcome of the case.