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Evidence - Prior Inconsistent Statements. R. v. Collier
In R. v. Collier (Ont CA, 2024) the Ontario Court of Appeal considered prior inconsistent statements:[25] In R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1 and R. v. Kiss, 2018 ONCA 184, this court affirmed that, in assessing credibility, a trial judge can consider material inconsistencies between a voluntary pre-trial statement and the accused’s trial evidence: Hill, at paras. 44-45; Kiss, at para. 40. The adverse inference comes from the inconsistency, not from the accused’s pre-trial silence.Omissions can be integral to the existence of material inconsistencies between two versions of events. An account of an event which leaves out important details may be viewed as inconsistent with a subsequent account that includes those details: Hill, at para. 45. [26] If what the accused voluntarily said before trial is materially inconsistent with the testimony they give at trial, no objection can be taken to using that inconsistency to discount their testimony: Kiss, at para. 40.
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[31] Finally, I note that the trial judge did not use the appellant’s omission in his pre-trial statement for an improper purpose. She reminded herself that the appellant had the right to remain silent and properly used his omission as part of her evaluation of credibility, not as affirmative evidence of his guilt: Hill, at para. 43, and Kiss, at paras. 37-40. . R v G.H.
In R v G.H. (Ont CA, 2020) the Court of Appeal stated some basics regarding the use of prior inconsistent statements:[32] A prior inconsistent statement can be used to cross-examine a witness. It can only be used on the issue of credibility. However, unless the prior inconsistent statement is adopted by the witness, it cannot be used for the truth of its contents. Failure to provide a limiting instruction to the jury has been held to be a reversible error: Deacon v. The King, 1947 CanLII 38 (SCC), [1947] S.C.R. 531; McInroy and Rouse v. R., 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588; R. v. Mannion, 1986 CanLII 31 (SCC), [1986] 2 S.C.R. 272.
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