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Prior Consistent Statements

. R. v. D.K.

In R. v. D.K. (Ont CA, 2020) the Court of Appeal commented that prior consistent statements are presumptively inadmissible, but there are exceptions:
[34] Prior consistent statements are presumptively inadmissible. There are several rationales for this rule, including that prior consistent statements (1) lack probative value; (2) are often self-serving; and (3) are hearsay: see S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds., McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Thompson Reuters, 2019) (loose-leaf updated 2019), at p. 11-2; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; and R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36.

[35] The overwhelming danger is that a trier of fact may improperly use the mere repetition of a statement as a badge of testimonial trustworthiness. As Hourigan J.A. said for the majority in Khan: “[S]uch evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony”: at para. 41; see also Stirling, at para. 7; R. v. Divitaris (2004), 2004 CanLII 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28; R. v. D.C., 2019 ONCA 442, at para. 19; and R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, at para. 90.

[36] The rule against prior consistent statements is subject to a number of exceptions. For example, a prior consistent statement may be admitted for the limited purpose of rebutting an allegation of recent fabrication: Stirling, at paras. 5-7.

[37] Prior statements may also be admitted where they are “necessary to the unfolding of the events or narrative of the prosecution”: see Dinardo, at para. 37. On this basis, a prior consistent statement may be admitted to assist with understanding how the case came before the court or to appreciate the “chronological cohesion” of the case: R. v. Fair (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1 (C.A.), at p. 18; Khan, per Hourigan J.A., at para. 30. To be admissible under this exception, the statement must be “truly essential” to the unfolding of the narrative: R. v. M.C., 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 91.

[38] Further, prior statements may be admissible under the narrative as circumstantial evidence exception. Admissibility on this basis of such does not hinge on the mere repetition of the same information. As explained by Hourigan J.A. in Khan: “A prior consistent statement can be used not to corroborate the evidence of the witness, but to provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness’s in-court testimony”: at para. 39; see Dinardo, at para. 31.
. R v M.C.

In this useful case, R v M.C. (Ont CA, 2014), the Court of Appeal took the oppourtunity to set out basic step-by-step principles applicable to several evidence rules, including prior consistent statements:
The Prior Consistent Statement Rules

[58] A second group of rules – the prior consistent statement rules – also has a say in the admissibility of the complainant’s utterances during the seizure-like episode. Like the hearsay rule, these rules are exclusionary, either restricting or prohibiting reception of evidence of declarations made by witnesses prior to trial consistent with their in-court testimony at trial: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.

[59] Prior consistent statements are an amalgam of two elements – a hearsay element and a declaration element: Paciocco, The Perils and Potential of Prior Consistent Statements: Let’s Get it Right (2013), 17 Can. Crim. L. Rev. 181, at p. 184. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration element. Their rationale for doing so is that prior consistent statements lack probative value: Stirling, at para. 5.

[60] Like other exclusionary rules, however, the prior consistent statement rules have exceptions. And as with other exclusionary rules, the exceptions to the prior consistent statement rules tend to exist where the purposes that underpin the general exclusionary rule would not be served by excluding the evidence: Paciocco, at p. 187. Typically, the exceptions permit introduction of the prior consistent statement where proof of it is relevant without an inference of credibility enhancement because the witness said the same thing previously: R. v. T. (W.P.) 1993 CanLII 3427 (ON CA), (1993), 83 C.C.C. (3d) 5 (Ont. C.A.), at p. 36.

[61] Where prior consistent statements are admitted by exception, the statements tend to be admissible for limited or restricted purposes. Sometimes, the hearsay part is admitted. Other times, however, the declaration part comes in. At all events, the exceptions are rules of limited or restricted admissibility.

[62] Among the exceptions to the general exclusionary rule for prior consistent statements are statements admitted as:
i. circumstantial evidence;

ii. narrative; and

iii. narrative as circumstantial evidence.
[63] Where prior consistent statements are admitted as circumstantial evidence, the statement is not received as evidence of the truth of its contents, rather only to establish that the statement was made. That the statement was made may afford circumstantial evidence of some fact of importance in the proceeding, as for example the declarant’s state of mind: R. v. Edgar, 2010 ONCA 529 (CanLII), 2010 ONCA 529, 260 C.C.C. (3d) 1. It is perhaps unnecessary to add that where the basis upon which the prior statement is admitted is that it affords circumstantial evidence of the declarant’s state of mind, that state of mind must itself be relevant in the proceedings: R. v. Mathisen, 2008 ONCA 747 (CanLII), 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 104.

[64] Within limits, prior consistent statements that are necessary to unfold the “narrative” of a case and make material events comprehensible may be admitted in evidence. This exception permits proof of how a complaint got before the court, even though how it did is not a material fact that will assist the trier of fact in evaluating the adequacy of the Crown’s proof of guilt, or in determining whether a defence, justification or excuse raises a reasonable doubt. The admission of narrative permits the decision-maker to understand the “chronological cohesion” of the case: R. v. F. (J.E.) (1993), 85 C.C.C. 457 (Ont. C.A.), at p. 474.

[65] Evidence of prior consistent statements admitted under this exception is not evidence that can be used to prove the truth of what was said. Nor can the prior statements sponsor an inference that makes the case for the party adducing the statement more compelling. The prior statement is admitted to help the trier the fact understand the case as a whole: R. v. R. (A.E.) 2001 CanLII 11579 (ON CA), (2001), 156 C.C.C. (3d) 335 (Ont. C.A.), at para 15.

[66] Sometimes, a prior consistent statement admitted as narrative may be of service to the trier of fact in the assessment of the truthfulness or reliability of the declarant: F. (J.E.), at p. 476; R. v. Dinardo, 2008 SCC 24 (CanLII), 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 39; and R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, at para. 32.
. R v Luceno

In this criminal case, R v Luceno (Ont CA, 2015), the Court of Appeal considered the rule against the use of prior consistent statements in evidence, and exceptions thereto:
Admissibility of Prior Consistent Statements

[50] Prior consistent statements made by a witness out of court are generally inadmissible because they are a form of hearsay, they lack probative value, they are self-serving, the repetition of a statement by the same person does not make it more likely to be true, and they are not corroborative because they lack independence: R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 36; R. v. Stirling, 2008 SCC 10 (CanLII), [2008] 1 S.C.R. 272, at paras. 5 and 7.

[51] Two exceptions to the inadmissibility of prior consistent statements are applicable on this appeal – narrative of how the complainant’s story was initially disclosed and rebuttal of an allegation of recent fabrication or collusion.

Permissible use of the Complainant’s Prior Consistent Statements

a. Narrative

[52] The narrative may assist in determining the fact and timing of the statements which may in turn assist the trier of fact in the assessment of the credibility of the complainant or with respect to a fact in issue: Dinardo, at para. 37; R. v. F. (J.E.) (1993), 16. O.R. (3d) 1, at pp. 20-21.

[53] It is important to distinguish between using a prior consistent statement to establish the context of a complaint to assist in the assessment of the credibility of the complainant, and the impermissible use – to confirm the truthfulness of the complainant’s testimony. In this case, the appellant rightly conceded that R’s evidence of statements made by the complainant were relevant to the fact that the statements were made and when they were made, as it goes to the credibility and reliability of the complainant.

b. Rebutting Allegation of Recent Fabrication

[54] Where there is an allegation of recent fabrication, or collusion, by a witness, a prior consistent statement is admissible to rebut the alleged recent fabrication or collusion. The prior consistent statements have probative value to the extent that they show a witness’s story has not changed as a result of a new motive to fabricate: R. v. O’Connor (1995), 1995 CanLII 255 (ON CA), 25 O.R. (3d) 19 (C.A.). It is not admissible for the truth of its contents. Only statements made prior to the time when the motivation for the alleged collusion arose are admissible: Stirling, at paras. 5 and 7; F. (J.E.), at p. 14.


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