Post-Offence Conduct By Accused

Three recent cases, R. v. Townsend, 2025 BCCA 459 , R. v. J.A, 2025 ONSC 4531 and R. v. P.G., 2025 ONSC 7018 address what weight or inferences can be drawn from an accused’s conduct after an alleged sexual assault, including a failure to deny allegations over text messages and the accused’s seeming admission of sexual assault in post incident discussions.

In Townsend, the accused had exited his home after realizing the complainant had left and punched the exterior wall of his home. The Crown relied on this behaviour to infer consciousness of guilt as it was out of proportion to what the accused testified as the cause of his reaction.  The accused said he suffered from anxiety and that, when he awoke to find the complainant was gone, he felt pain consistent with being hit in his groin and had discovered his XBox was missing. This perceived robbery was what caused him to punch the wall of his home.

The BC Court of Appeal determined that it was improper for the trial judge to use the accused’s actions of punching his house wall as evidence of guilt because he failed to properly consider the alternative explanations. At para 60:

In the circumstances of this case, the evidence that Mr. Townsend “was distraught after the alleged assault and was seen punching the house” was “too equivocal” to infer his guilt and there is no indication in the trial judge’s reasons that he considered other reasonable inferences that might explain Mr. Townsend’s conduct.

The Court of Appeal ordered a retrial.

In J.A., the Crown submitted 112 pages of text messages between the complainant and accused from after the alleged sexual assault. Those messages were relied on by both the Crown and defence.

J.A. testified that he had discovered the complainant was cheating on him and that they had multiple discussions in person. He said that the complainant begged him to get back together with him, he responded by calling her a cheater and she replied that he was a rapist.

The text messages confirmed that J.A. was accusing the complainant of cheating on him and that the complainant was expressing desperation to get him to get back together with her. It was the accused who first contacted the police, afraid that the complainant would make a false allegation of sexual assault.

Though J.A. said that he denied the allegations while speaking in person with the complainant, the Crown took the position that the accused’s failure to deny in text was an adoption of the truth of the allegation.

As stated in J.A. at para 68:

Adoption by silence must be approached with caution. Not all people respond alike. An accused’s reaction to statements about him may have different meanings. Responses, including silence, may be ambiguous. All relevant circumstances should be considered, including the social context, where appropriate. Other explanations must be considered: see Gordon, at paras. 47 and 53-55

J.A. had testified that they stopped sexual intercourse on the night of the allegation because the complainant expressed some pain during penetration. He said that any apologetic messages were relating to his concern that he had caused her some temporary pain. Beyond those apologies, J.A. testified that his failure to reply directly to the allegations of sexual assault were due to “in some messages he was being sarcastic, and in others he was being an “a-hole”. He was responding emotionally to H.M.’s messages. He said that he was trying not to entertain her allegations of rape.”

The judge found that, despite not having directly denied the rape allegations, J.A. did text a number of things such as “Liek[sic] ur just filled with lies when does it end?” and his continuous assertions that the complainant is just mad because he caught her cheating on him.  The Court thus regarded such exchanges as a form of rebuttal of her allegation of sexual assault.

The trial judge ultimately concluded that, due to credibility issues with both J.A. and the complainant, he could not find beyond a reasonable doubt that a sexual assault had been committed.

The case of P.G. is a unique case involving two parties who were deeply religious and held firm beliefs about abstaining from pre-materital sex.  The accused had made three independent written admissions  that he sexually assaulted the complainant including  admissions to third parties.

Despite the admissions, the trial judge acquitted P.G. based on findings that the accused was deeply affected by his religious beliefs and the admissions were made out of guilt for having violated his religious beliefs, not having violated the law in a way that equated to sexual assault.

P.G. and the complainant had both undertaken an oath to not have pre-marital sex but found themselves engaging in sexual intercourse in violation of their religious oaths.

At some point P.G. went to a religious counsellor and signed an agreement called a “Godly Conduct Agreement” and “completed a worksheet titled “Process of Repentance and Redemption””; P.G. at para 25.

The Agreement was designed to “ensure purity and health”, address “unethical behaviour”, define “forbidden acts” and create a guideline for “punishment” if the Agreement was not upheld. Both the complainant and accused signed the Agreement.

In assessing the meaning of the statements made by P.G. in his “Worksheet,” the trial judge came to the following conclusion at para 127:

The statements on the Worksheet do not amount to a confession to sexual assault.  This was a document completed in the context of religious-based counselling, for an act that P.G. believed was a sin.  Both M.D. and C.J. testified that in the context of their religious community, sex was sacred, to be shared between husband and wife.  I find P.G.’s remorse for having broken his vow was genuine; I entirely accept that P.G. honestly believes he caused M.D. harm.  and that was the basis for what would otherwise appear to be damning admissions on the Worksheet.

The decision in P.G. is an important reminder that statements and actions taken after an alleged sexual assault need to be carefully considered in the full context of who the complainant and accused were at the time and other reasons why they may have said or did specific things afterwards.

The trial judge declined to find that the actions and words of the accused amounted to an admission of sexual assault according to the law and, instead, were an expression of disappointment in his behaviour based on religious standards that both he and the complainant had undertaken to follow.

In addition, the trial judge found that there were credibility problems with some of the complainant’s evidence regarding one of the alleged sexual assaults. She claimed that she was raped in her home on the day she signed the religious “Agreement” and later admitted in cross-examination that she had signed the agreement in the presence of a religious counsellor at another location.