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Evidence - Prior Consistent Statements
MORE CASES
Part 2
. R. v. Bagherzadeh
In R. v. Bagherzadeh (Ont CA, 2023) the Court of Appeal considered the evidentiary utility of a Crown-introduced 'mixed' prior consistent statement, that is a statement that has both inculpatory and exculpatory aspects. Recall that when an "accused testifies and adopts the exculpatory aspect of an out-of-court statement, it becomes a prior consistent statement and is subject to the usual exclusionary rule, unless an exception applies":[1] What use can a trier-of-fact make of a mixed statement of an accused led by the Crown when the accused later testifies as to the exculpatory aspects of the statement, rendering those aspects a prior consistent statement? That question forms the central issue in this appeal.
[2] The appellant was convicted of second-degree murder and aggravated assault after he stabbed two men, one of whom died from his injuries, during a fight outside a nightclub in Vaughan.
[3] At trial, the Crown introduced statements that the appellant made to his friends shortly after the incident. On appeal, the Crown acknowledges that those statements could be interpreted as admitting that he stabbed the victims. However, in these statements the appellant also claimed he had acted in defence of his friend Chris MacDonald (the “mixed statements”). When the statements were admitted, the trial judge instructed the jury that they could rely on the appellant’s out-of-court statements, including their exculpatory aspect, in deciding the case.
[4] The appellant subsequently decided to testify. His evidence was consistent with the mixed statements that had been led by the Crown: he had stabbed the victims in defence of Mr. MacDonald. In her final charge, the trial judge instructed the jury that the exculpatory aspect of the appellant’s out-of-court statements could not be used for their truth, but that they could have “a bearing on [the appellant’s] credibility” and were circumstantial evidence that could be considered as to the appellant’s state of mind.
[5] The appellant’s central ground of appeal is that the trial judge erred in instructing the jury that it could not rely on the appellant’s out-of-court statements for their truth. He argues that whether or not the accused testifies at trial, a mixed statement introduced by the Crown can be used by the jury as evidence of its truth. The Crown argues that when the accused testifies and adopts the exculpatory aspect of an out-of-court statement, it becomes a prior consistent statement and is subject to the usual exclusionary rule, unless an exception applies.
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[7] For the reasons that follow, I agree that the trial judge erred in preventing the jury from relying on the exculpatory aspect of the mixed statements for their truth. A mixed statement introduced by the Crown is admissible for the truth of its contents for and against the accused, whether or not the accused later testifies in a manner consistent with the exculpatory aspect of that statement. However, the exculpatory aspect of a prior consistent mixed statement cannot be used for two impermissible lines of reasoning. First, the mere fact that a statement has been repeated does not mean that it is more likely to be true. Second, exculpatory aspects of the accused’s prior out-of-court statement cannot be treated as if it were independent verification of the accused’s in-court testimony, because it comes from the same source. The court walks through this reasoning usefully at paras 24-56.
. R. v. Holder
In R. v. Holder (Ont CA, 2023) the Court of Appeal considered evidence that fit into both the 'prior consistent' and 'identification' categories:(2) Analysis
[10] The appellant’s conviction appeal focuses on one aspect of the jury charge, namely the trial judge’s instruction regarding Mr. Cseko’s identification evidence. The appellant argues that the trial judge erred in instructing the jury that they could rely on Mr. Cseko’s identification of the appellant in the statement he gave to the police two months after the shooting and at the preliminary inquiry. He says that the trial judge’s instructions on this point did not comply with this court’s decision in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.).
[11] In Tat, Doherty J.A. discussed the evidentiary value of prior identification statements. Unlike other prior consistent statements, Doherty J.A. explained that, in the context of identification evidence, “the entire identification process which culminates with an in-court identification” is probative: Tat, at para. 36. He further explained the rationale for this approach, at paras. 36-37, as follows:Clearly, the evidence of the prior descriptions given and prior identifications made by the identifying witness constitute prior consistent statements made by that witness. Generally speaking, evidence that a witness made prior consistent statements is excluded as irrelevant and self-serving. However, where identification evidence is involved, it is the in-court identification of the accused which has little or no probative value standing alone. The probative force of the identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification.
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If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior description will be central to that assessment. [Emphasis added.] [12] The appellant’s argument on appeal focuses on the following portion of the jury charge:You heard evidence that before trial that Steven Cseko told PC Middleton at the scene that he had been shot by Rachard Holder. You also heard evidence that Mr. Cseko gave the same evidence to police two months after he was shot and at the preliminary hearing that was held. What he said then about who shot him is consistent with what he said in his testimony at trial.
Evidence that a witness said something or gave a statement about an event consistent with his testimony at trial about who shot him on September 10, 2016 may only be used, though, for the limited – for a limited purpose in deciding whether Crown counsel has proven the accused’s guilt of an offence beyond a reasonable doubt. Just because a person has said the same thing about the same event more than once, in this case both before and at trial, does not make what he said about it more likely to be true. Repetition and accuracy are not the same thing. A false statement remains a false statement no matter how many times who made it up has repeated it. The only purposes for which you may use this out-of-court statement are, one, as part of the narrative, that is, for the fact that such statements were made; two, to the extent they are inconsistent with his evidence at trial, for the purpose of determining the credibility and reliability of Mr. Cseko’s evidence; three, evidence of previous identifications made and descriptions given can help you assess the value and weight of Mr. Cseko’s identification. [Emphasis added.] [13] The appellant argues that the trial judge erred in referring to Mr. Cseko’s identification of the appellant in his police statement and at the preliminary inquiry because these identifications were not sufficiently close in time to the incident. He submits that they have no added probative value because they are not part of the identification process, and they bear the same risks of prejudice as other types of prior consistent statements.
[14] We see no error in the trial judge’s instruction.
[15] The part of the charge dealing with Mr. Cseko’s prior statements identifying the appellant are entirely consistent with Tat. The appellant was not able to point to any authorities distinguishing between identification statements made immediately following an incident and identification statements made between the time of the incident and the trial. In effect, this would be contrary to the direction in Tat that “the entire identification process” may be probative.
[16] As noted in Tat, at fn. 5, and consistent with general principles of evidence law, “trial judges, of course, retain a discretion to exclude evidence of prior identification where its prejudicial effect outweighs its probative value”. In effect, there may be circumstances where it would be appropriate to instruct a jury that some instance of a witness’s repeated identification of an accused should not be considered as part of the identification process because its prejudicial value outweighs its probative value. However, in this case, trial counsel did not object to the part of the charge dealing with Mr. Cseko’s prior identification statements, including the reference to the police statement and the preliminary inquiry.[1] Even on appeal, the appellant did not point to any specific prejudice caused by the reference in the impugned passage of the jury charge to Mr. Cseko’s identification of the appellant in his police statement and at the preliminary inquiry. . R. v. C.H.
In R. v. C.H. (Ont CA, 2023) the Court of Appeal identifies a misuse of the law of 'prior consistent statements':E. THE PRIOR CONSISTENT STATEMENT
[33] The trial judge concluded that a prior consistent statement by the complainant “provides further support” for the “Woodpile incident” assault, one of the events grounding the assault conviction. This was not a permissible use of the prior consistent statement. A prior consistent statement made by a witness cannot be relied upon as corroborating the witness’s account, or on the basis that repetition adds credibility: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 35. None of the exceptions to the presumptive inadmissibility of prior consistent evidence explain the trial judge’s conclusion, nor are any permissible lines of reasoning apparent. ... . R. v. Freedland
In R. v. Freedland (Ont CA, 2023) the Court of Appeal considers risks involved with prior consistent statements:[37] If admissible at all, prior consistent statements can be used only for certain specified purposes: see e.g. R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-40, leave to appeal refused, [2017] S.C.C.A. No. 139; Watt, Manual of Criminal Evidence, at para. 19.08. When prior consistent statements are admitted, the trial judge should make it clear to the jury that a prior statement made by a witness that is consistent with the testimony of that witness does not, in and of itself, make the witness’s testimony more credible: R. v. W.E.G., 2021 ONCA 365, 73 C.R. (7th) 141, at paras. 21-22; R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at paras. 79-80; and R. v. Demetrius (2003), 2003 CanLII 16618 (ON CA), 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 21. Repetition does not enhance credibility: R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.), at para. 33; R. v. Divitaris (2004), 2004 CanLII 9212 (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28.
[38] In R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 42, the majority observed:As previously noted, because there is a danger that the repetition of prior consistent statements may bolster a witness’s reliability, a limiting instruction will almost always be required where such statements are admitted. The purpose of such an instruction is to tell the jury that consistency is not the same as accuracy[.] . R. v. A.J.D.
In R. v. A.J.D. (Ont CA, 2022) the Court of Appeal considered the use of prior consistent statements:[70] The legal principles that governed the trial judge’s treatment of the diary are settled law: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 78. The complainant’s diary was to be treated in accordance with the law governing prior consistent statements. In general, prior consistent statements are inadmissible because they lack probative value and constitute hearsay when adduced for the truth of their contents (Dinardo, at para. 36).
[71] However, in some circumstances, prior consistent statements are admissible as part of the narrative and may be used by the trier of fact to understand how the complainant’s story was initially disclosed (Dinardo, at para. 37). It is impermissible for the narrative evidence to be used to confirm a complainant’s in-court testimony (Dinardo, at para. 39). However, the narrative evidence can be used for the “permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility” (Dinardo, at para. 37). Particularly in cases involving the sexual abuse of children, the prior consistent statements of a complainant may assist the court in assessing the complainant’s likely truthfulness (Dinardo, at para. 38). . R. v. R.M.
In R. v. R.M. (Ont CA, 2022) the Court of Appeal considered an issue of prior consistent statements in a jury trial, and - in the course of that - illustrates how evidence may be use for purposes of 'narrative', but not for truth. When tendered for truth the prior consistent statements should have been subjected to a voir dire to decide admissibility:[47] The appellant argues that the evidence of the complainant’s prior statements to her parents about the alleged sexual assault should not have been admitted into evidence as they were prior consistent statements, and in any event, should have been the subject of a voir dire on admissibility prior to the evidence being led.
[48] The Crown agrees that there should have been an admissibility voir dire in relation to the complainant’s prior consistent statements disclosing the alleged sexual assault, but argues that the evidence was properly admissible as narrative, and the trial judge properly instructed the jury as to its limited use.
[49] I agree with the Crown that in the circumstances of this case, the prior statements were properly admissible as narrative.[2] The trial judge gave an appropriate limiting instruction to the jury about the use of the prior consistent statements. That instruction included that the prior consistent statements could not be used for the truth of their contents, and that repetition did not make something more likely to be true. The trial judge also instructed the jury that the only purpose for which they could use the prior statements was “as part of the narrative; that is to help you understand the flow of events.”
[50] As the trial judge belatedly recognized, and as both appellate counsel agree, the prior statements should have been the subject of a voir dire prior to being admitted. The starting point with prior consistent statements is that they are not admissible, subject to various exceptions: R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at paras. 96-100. As such, the party seeking to tender prior consistent statements, in this case the Crown, should seek a ruling on admissibility prior to tendering such evidence. However, as the evidence was properly admissible as narrative in this case, and a limiting instruction was given to the jury, I see no reversible error. . R. v. Brown
In (Ont CA, 2022) the Court of Appeal comments on prior consistent statements:[14] Prior consistent statements are, as the appellant argues, generally inadmissible. Even where admitted under one of the exceptions to the general exclusionary rule, they can never be used for the inference that in-court testimony is more likely to be true because a witness said the same thing on a previous occasion out of court. ... . R. v. I.W.
In R. v. I.W. (Ont CA, 2022) the Court of Appeal considered prior consistent statements:[38] Prior consistent statements are presumptively inadmissible: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. This is so for good reason. They are self-serving, typically lack probative value, and are by their very nature repetitive and redundant. In the normal course, they amount to an improper attempt to bolster a witness’s credibility. The rationale for excluding prior consistent statements is that repetition does not “enhance the value or truth of the testimony”: R. v. Ellard, 2009 SCC 27, [2009] SCC 27, at para. 31. However, there are exceptions: Stirling, at para. 5. For present purposes, the question is whether the trial judge properly admitted this evidence as a way for the Crown to rebut an allegation of recent fabrication.
[39] In Stirling, the Supreme Court held that prior consistent statements can be admitted to rebut an allegation that a witness has recently fabricated parts of their evidence. The allegation need not be expressly made. It is enough that the “apparent position of the opposing party is that there has been a prior contrivance”: Stirling, at para. 5, citing R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, at p. 643. Furthermore, the alleged fabrication need not be recent. What matters is that an allegation, or suggestion, that the complaint is fabricated must have been made at some point after the event in question: see Stirling, at para. 5; R. v. O’Connor (1995), 1995 CanLII 255 (ON CA), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-295. . 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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