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Evidence - Prior Consistent Statements (2). 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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