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Evidence - Prior Consistent Statements (2). R. v. Henry
In R. v. Henry (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here where an issue was the Edgar 'spontaneous exculpatory statement' exception to the rule excluding prior consistent statements:(1) The Edgar issue
[6] The appellant argues that the trial judge erred by not permitting the defence to adduce a statement the appellant made to an RCMP officer, Constable Cole. The defence sought to adduce a video recording of this statement as a “spontaneous exculpatory statement” under the Edgar exception to the general rule excluding prior consistent statements: R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 24, leave to appeal refused, [2010] S.C.C.A. No. 466. The statement was made eight hours after the appellant had seen customs officers open and inspect his suitcase and he was arrested for importing drugs.
[7] The appellant relies on Laskin J.A.’s observation in R. v. Liard, 2015 ONCA 414, 338 O.A.C. 104, at para. 63, leave to appeal refused, [2015] S.C.C.A. No. 402, that “[n]o single consideration, no single point in time, determines whether the spontaneity requirement has been met.” He argues that the trial judge took too rigid an approach to the issue of spontaneity and erred by placing excessive weight on the passage of time between the initial arrest and the statement. In his oral submissions, counsel went further and argued that there is no absolute requirement that a statement even be spontaneous in order to be admissible under Edgar.
[8] I do not agree that the Edgar exception expands as broadly as the appellant contends. As Laskin J.A. explained in Liard, at para. 62:The requirement that the accused’s statement be spontaneous is the critical requirement for admissibility under the Edgar exception. Spontaneity is what gives the statement its probative value and justifies its admission. A spontaneous reaction is more likely “to truly reflect the individual’s honest and genuine reaction to the allegation”, and thus is more likely to be a reliable reaction. Conversely, when an accused has an opportunity to “think things through”, the spontaneity of the statement is diminished, and in some cases eliminated altogether. [Citations omitted.] [9] That said, I agree that the Edgar exception does not impose any fixed time limits on when a statement must have been made in order to be found “spontaneous”. Rather, “spontaneity lies along a spectrum”, along which “the degree of spontaneity may vary”: Liard, at para. 63. As Laskin J.A. explained in Liard at para. 64:[I]n determining whether an accused has satisfied the spontaneity requirement, the trial judge must consider all the circumstances of the case – the passage of time, any intervening events, and the making of the statement itself. [10] The question of whether a particular statement is sufficiently spontaneous to meet the Edgar requirements for admission is “a discretionary decision” that “attracts the usual principle of appellate deference”: Liard, at para. 52. . R. v. B.B.
In R. v. B.B. (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here where considering 'prior consistent' statements:[15] Prior consistent statements are presumptively inadmissible: see e.g., R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. D.K., 2020 ONCA 79, 60 C.R. (7th) 123, at para. 34.
[16] There are exceptions to the rule against prior consistent statements being received into evidence. It is not necessary to summarize the exceptions here. But this court has recognized that distinguishing between permissible and impermissible uses of prior consistent statements can be difficult: D.K., at para. 44.
[17] As presumptively inadmissible evidence, before a prior consistent statement may be received in evidence, the party seeking to tender it must obtain a ruling on admissibility. At the hearing on admissibility, the party requesting the admission of a prior consistent statement must identify “the precise basis upon which it should be received”: D.K., at para. 45. In particular, if a party is seeking to tender a prior consistent statement as relevant to a witness’ credibility, counsel must articulate how the prior consistent statement is relevant to the witness’ credibility: D.K., at para. 45.
[18] The process of seeking a ruling on admissibility of prior consistent statements – required for this presumptively inadmissible evidence – ensures that the parties and the trial judge turn their minds to the precise articulable basis on which admissibility is sought. This, in turn, will ensure that any jury instruction properly explains to the jury the precise manner in which the jury is permitted to use the evidence and any limitations on its use.
[19] In this case, the Crown adduced the complainant’s prior consistent statements without seeking an advance ruling on their admissibility, and without articulating the purposes for which it proposed to have them admitted into evidence. Neither counsel then made submissions to the trial judge about how the jury should be instructed about the proper and improper uses of these statements. However, in view of our conclusion that the appeal must be allowed for other reasons, it is unnecessary for us to decide on what bases the statements might have been admissible, or whether the trial judge’s instructions about their use were incorrect. . R. v. R.A.
In R. v. R.A. (Ont CA, 2024) the Divisional Court allowed a criminal appeal, here focussing on the hearsay exception of 'spontaneous utterances'.
Here the court comments on the practice issue of holding an evidentiary voir dire in cases of hearsay, and prior consistent statements:[35] To begin, I recognize that the admissibility of the text message was a difficult evidentiary issue for the trial judge. It was both hearsay and a prior consistent statement because the complainant testified. The trial judge had to proceed cautiously with this evidence, and the parties should not have waited until their closing submissions to raise the issues of admissibility and use. Submissions should have been made when the text message was first introduced as this would have focused the attention of the parties and the judge on the test for admissibility and the permissible and impermissible uses of the message: R. v. Schneider, 2022 SCC 34, 418 C.C.C. (3d) 137, at para. 37; R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at p. 664; R. v. Sylvain, 2014 ABCA 153, 310 C.C.C. (3d) 1, at paras. 27-29. This court has reminded counsel and trial judges that because hearsay and prior consistent statements are presumptively inadmissible and the exceptions to this evidence are sometimes difficult to apply, it is important to address the basis for admissibility of such statements when they are first introduced: R. v. A.V., 2024 ONCA 339, 437 C.C.C.(3d) 316, at paras. 34-36; R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 45, leave to appeal refused, [2020] S.C.C.A. No. 87. It is regrettable that this was not done in this case. . R. v. Morin
In R. v. Morin (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal appeal, here where "the trial judge erred by using text messages sent by the complainant to the appellant as confirming her trial testimony and contradicting his evidence" as a error in the doctrine of 'prior consistent statements':[20] As a starting point, it is well-settled that a witness’s prior consistent statements are presumptively inadmissible: see e.g., R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused, [2017] S.C.C.A. No. 139. There are two main reasons for this. First, using a witness’s prior out‑of‑court statements for the truth of their contents engages the hearsay rule, regardless of whether the statements are consistent or inconsistent with the witness’s in-court evidence. Second, when a prior statement is consistent with the witness’s testimony, the mere fact of the consistency cannot be used to infer that the witness’s in-court evidence is more likely to be true: Khan, at para. 25; R. v. S.C., 2023 ONCA 832, at para. 14.
[21] The presumption that prior consistent statements are inadmissible is subject to multiple exceptions: see Khan, at paras. 27-36. However, even when a prior consistent statement is properly admissible on one or more bases, care must be taken to ensure that the trier of fact does not misuse it to draw logically or legally unsound conclusions that depend on prohibited reasoning. . R. v. Burkhard
In R. v. Burkhard (Ont CA, 2024) the Ontario Court of Appeal considered 'prior consistent statements', and warnings in relation to their use:[14] The dangers of prior consistent statements are well known. They are presumptively inadmissible because they lack probative value. The fact that someone said the same thing on a prior occasion as what they said in court is not probative of whether the witness is offering truthful testimony in court. It would be self-serving to allow a witness to buttress their testimony with prior consistent statements: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 25.
[15] Prior consistent statements are admissible in limited circumstances (e.g., for narrative purposes). When they are introduced in evidence, the court must be vigilant in how they are used: R. v. Salah, 2015 ONCA 23, at paras. 136 - 139. The Supreme Court of Canada described the distinction between the permissible and impermissible uses of prior consistent statements in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 37:In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed. The challenge is to distinguish between “using narrative evidence for the impermissible purpose ‘of confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence 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 the truthfulness or credibility”. [Citations omitted.] [16] In a similar vein, in R. v. C. (G.), 2006 CanLII 18984 (C.A.), Rouleau J.A. stated, at para. 20, “the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents.”
[17] In the case at bar, the consistency between the police statement and the trial testimony was the contention that the appellant was the person who stabbed the victim. Repeatedly in both the police statement and his testimony at trial, Mr. Schindermann testified that it was the appellant who stabbed the victim. There was a realistic danger that the jury would rely on this consistency in assessing Mr. Schindermann’s credibility. Specifically, a juror might reason that, despite the inconsistencies between the police statement and the trial testimony, Mr. Schindermann was consistent regarding the central issue in this case, that the appellant was the person who stabbed the victim. That consistency could be used to bolster Mr. Schindermann’s credibility and support a conclusion that the Crown had proven first degree murder beyond a reasonable doubt. This is particularly so, in this case, given that Mr. Schindermann made the first statement to persons who he did not know were police officers and at a time when he was not facing a murder charge. The prior consistent statement might have been used by the jury to alleviate any concern that they had that Mr. Schidermann was, by the time of trial, attempting to shift the blame for the murder from him to the appellant.
[18] This problem could have been avoided in one of two ways. The first was to excise the prior consistent statements contained in the police statement. As noted, defence counsel at trial did not ask to do this, so it is difficult to fault the trial judge for not taking this step. However, once a prior consistent statement is adduced into evidence, a clear warning by a trial judge is necessary to eliminate the risk that a jury will use it for a prohibited purpose.
[19] There is a practical reason for a warning. In everyday life when someone is consistent in what they tell us, this may be considered a hallmark of veracity. Yet, in a criminal trial, the fact that a witness is consistent is of no relevance in determining credibility. It is because of this divergence between the rules of evidence and our common sense everyday lived experiences that it is vital that jury instructions provide a clear warning about the use of prior consistent statements. In this regard, there is no magic formula about what must be said. It is sufficient if the trial judge instructs that the fact of the consistency cannot be relied on in support of the jurors’ assessments of the credibility of witnesses. . R. v. A.V.
In R. v. A.V. (Ont CA, 2024) the Ontario Court of Appeal considered a practice point regarding 'prior consistent statements':[34] We would add one note of caution, which this court has sounded before. Neither the trial judge nor the parties addressed the admissibility of the complainant’s prior consistent statements when they were admitted or the purpose for which they were admissible. This likely happened because the prior consistent statements formed part of the complainant’s police statement admitted pursuant to s. 715.1 of the Criminal Code and because it was evident that, at a minimum, they were admissible as narrative within the Crown’s case.
[35] This court has emphasized that because prior consistent statements are presumptively inadmissible and the exceptions to the rule against them are sometimes difficult to apply, trial judges and parties should address the basis for admissibility at the time a statement is tendered: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 45.
[36] While we are not persuaded that the trial judge erred in the use he made of the prior consistent statements in this case, addressing the permissible use at the time prior consistent statements are tendered minimizes the risk of improper admission or improper use of such statements. . R. v. S.C.
In R. v. S.C. (Ont CA, 2023) the Court of Appeal considers 'prior consistent statements':Prior Consistent Statement
[14] Prior consistent statements by witnesses are presumptively inadmissible. This is so for several obvious reasons, including the fact that they are hearsay, but also because they are a form of oath-helping which will, if a jury is not properly instructed, encourage the jurors to treat the repetition as a “badge of trustworthiness”: R. v. D.K., 2020 ONCA 79, 384 C.C.C. (3d) 405, at para. 35; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para 25. It is impermissible for triers of fact to reason that a prior consistent statement corroborates in-court testimony or that consistency enhances credibility: Khan, at para. 41. A prior consistent statement cannot corroborate in-court testimony since it is not independent proof, coming as it does from the same source as the testimony. Moreover, repetition does not “enhance the value or truth of the testimony”: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Lies or innocent errors can be repeated as readily as the truth can be repeated. The Crown directly invited the jury to engage in “prohibited inferences”.
[15] There are exceptions to the prohibition against admitting prior consistent statements, including: 1) to rebut an allegation of recent fabrication, 2) to establish prior eyewitness identification, 3) to prove recent complaint, 4) to provide evidence of the emotional state of the complainant or witness, and 5) to adduce facts as part of the narrative: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Bagherzadeh, 2023 ONCA 706, at para. 26.
[16] However, even when a prior consistent statement is admissible under one of these exceptions or on some other proper basis, it must “almost always” be accompanied by a limiting instruction to prevent the evidence from being used for impermissible purposes: Ellard, at para. 42. As Watt J.A. explained in R. v. J.A.T., 2012 ONCA 177, 290 O.A.C. 130, at para. 50:A judge presiding over a criminal jury trial has a duty to ensure that only relevant, material and admissible evidence gets before the jury: R. v. B.(F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, at pp. 735-736; R. v. Hawkes (1915), 1915 CanLII 347 (AB CA), 25 C.C.C. 29 (Alta. S.C., A.D.), at p. 34. Further, where evidence of limited admissibility is received, the presiding judge has an obligation to instruct jurors about the permitted and prohibited use of that evidence: B.(F.F.), at pp. 733-734; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 184; R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at paras. 106-197. Where inadmissible evidence seeps into a criminal jury trial, the trial judge should instruct the jury in such a way to ensure that the evidence is not missed in the jury’s decision-making: R. v. A.(J.) (1996), 1996 CanLII 1201 (ON CA), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 537. . R. v. G.S.
In R. v. G.S. (Ont CA, 2023) the Court of Appeal considers the admissibility of prior consistent evidence, and exclusory exceptions:(ii) The admissibility of prior consistent statements
[35] I start with the well-known rule that prior consistent statements are generally inadmissible. Why? Because lies can be repeated just as easily as truths. Therefore, a witness’ evidence is not rendered more likely to be true simply because the witness has said the same thing on a prior occasion. In the normal course, these types of statements are entirely self-serving, superfluous and lack any probative value: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. See also R. v. M.A.J., 2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 45; R. v. W.E.G., 2021 ONCA 365, 73 C.R. (7th) 141, at paras. 19, 22.
[36] With that said, there are numerous exceptions to the general rule of exclusion.
[37] One such exception is that a prior consistent statement is admissible when an explicit or implicit suggestion is made to a witness that they have made a previously inconsistent statement about a particular point, when in fact they had previously made both inconsistent and consistent statements. In this context, depending upon the exercise of discretion by the trial judge, it is possible to elicit the fact of prior consistent statements in order to achieve contextual fairness.
[38] Therefore, where a witness’ credibility is attacked on the basis of prior inconsistent statements, the question becomes whether a prior consistent statement can assist the trier of fact in making a more accurate assessment of the witness’ credibility by taking away potentially erroneous impressions fostered by the incomplete picture of what the witness has previously said: R. v. Murray, 2017 ONCA 393, 138 O.R. (3d) 500, at para. 153; R. v. Royer (1995), 1995 CanLII 1174 (ON CA), 77 O.A.C. 309 (C.A.), at para. 11, aff’d 1996 CanLII 197 (SCC), [1996] 2 S.C.R. 169; and M.A.J., at para. 60. This rule allows for a balanced perspective on the witness’ prior statements and gives the jury a proper and accurate context in which to consider the defence attack upon the credibility and reliability of the witness based upon alleged prior inconsistencies: R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 34-36.
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[44] Even where an exception to the general rule of exclusion applies, trial judges must remain on high alert when dealing with prior consistent statements. This is because, even where an exception applies, a risk of prejudice can still flow from the admission of such statements, particularly when unaccompanied by strong jury instructions. Therefore, even after a finding of admissibility is made, it remains incumbent upon trial judges to consider limiting how the prior consistent statement is to be elicited. This includes assessing whether the full content of the statement, or just a part of it, needs to be elicited to achieve the purpose of admission. And, indeed, it includes determining whether it is sufficient to simply elicit the fact that a prior consistent statement was made, without actually placing the statement before the trier of fact: R. v. Hunter (2004), 2004 CanLII 32107 (ON CA), 182 C.C.C. (3d) 121 (Ont. C.A.), at para. 5.
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