Not On Record | EP#154 | He Followed Her Plan and She Got Him Charged

In this episode, Joseph and Diana discuss two significant Canadian court cases (R v. Reimer, 2024 and R v. TS, 2025) regarding the admissibility of text messages in sexual assault trials. They explain how these decisions established that prior communications about planned sexual activities can be relevant evidence in determining consent or honest but mistaken belief in consent. Joesph and Diana emphasize that while consent must be contemporaneous to the sexual activity, previous messages and conversations can be logically probative of whether consent was given at the time.

The discussion particularly focuses on the TS case, which involved role-play scenarios and highlights how courts are evolving in their understanding of sexual consent in the context of pre-planned activities. Joesph and Diana note that while broad advance consent remains inadmissible, specific discussions about planned sexual activities that are temporally connected to the incident can be relevant evidence. They also critique the practice of heavily redacting court decisions, arguing it makes it difficult to understand the court's reasoning, and discuss the importance of courts acknowledging the reality of diverse sexual practices while maintaining protective legal frameworks.