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Evidence - Prior Consistent Statements. 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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