Case information

Criminal law - Evidence - Admissibility and use of text messages exchanged before and after alleged offence - W.(D.) analysis - Sufficiency of reasons - Whether the trial judge erred in law by (1) using the text messages exchanged after the alleged offence to bolster the complainant’s testimony in a manner that is prohibited pursuant to the law governing the use of prior consistent statements, (2) failing to hold a voir dire to determine whether the text messages exchanged prior to the alleged offence, together with other relationship evidence, were admissible pursuant to s. 276 of the Criminal Code and/or the principles in R. v. Seaboyer, [1991] 2 S.C.R. 577, and (3) failing to properly apply the principles in R. v. W.(D.), [1991] 1 S.C.R. 742, and concomitantly failing to provide sufficient reasons in relation to the application of the W.(D.) principles.

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At trial, the respondent, Mr. Langan, was convicted of sexual assault contrary to s. 271 of the Criminal Code. The trial judge admitted into evidence numerous text messages between the complainant and the accused, send both before and after the alleged offence. A majority of the British Columbia Court of Appeal allowed Mr. Langan’s appeal, set aside the conviction and ordered a new trial. In the majority’s view, the trial judge erred by using the text messages as prior consistent statements to corroborate the complainant’s evidence, and his brief reasons revealed an error in his approach to W.(D.). Both errors warranted a new trial. The majority was also of the view that the text messages preceding the event ought to have been subjected to a s. 276 voir dire to determine its relevance. In dissent, Chief Justice Bauman would have dismissed the appeal and upheld the conviction as, in his view, the trial judge’s reasons displayed no errors of law. The trial judge made no error of law in admitting or using the text messages sent before and after the event in question: the “post-visit” text messages were not admitted or improperly used as prior consistent statements, and the “pre-visit” text messages were not presumptively inadmissible and no voir dire was required on the latter. In Chief Justice Bauman’s opinion, the trial judge’s reasons were sufficient to support meaningful appellate review.