Canadian Criminal Evidence/Credibility/Prior Consistent Statements

General Principles Prior consistent statements are presumptively inadmissible.R v Beland [1987] SCJ No 60 at para 10-12 R. v. Stirling [2008] S.C.J. No. 10 (S.C.C.) R v Evans [1993] SCJ No 30 at para 34 The prior statement is undesirable for several reasons. They are a form of hearsay and so like all hearsay are considered unreliable.R. v. Dinardo, 2008 SCC 24 (CanLII), 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36 They are also irrelevant and lacks probative value.R. v. Pattison, [2011] B.C.J. No. 2231 at para. 12 R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5 R. v. Dinardo, 2008 SCC 24 (CanLII), 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36 It is a form of "oath-helping" (inappropriately enhancing the evidence). It is self-serving and self-corroborative without actually adding any value to the evidence. It encourages the inference that a story told consistently over time is more likely to be true. However, “consistency is a quality just as agreeable to lies as to the truth”. R. v. L.(D.O.) 1991 CanLII 2714 (MB CA), (1991), 6 C.R. (4th) 277 at 309 (Man. C.A.), rev’d 1993 CanLII 46 (SCC), (1993), 25 C.R. (4th) 285 (S.C.C.) R v Divitaris, [2004] OJ No 1945 (ONCA) at para 28 2 Exceptions Exceptions to the prohibition against admitting prior consistent statements include: Rebutting allegation of recent fabrication Prior eyewitness identification Recent complaint Show physical or mental state of accused (res gestae) Narrative emotional state of the complainant Statements made on arrest Explanation of accused in possession of illegal goods Admission of video complaints (s.715.1, see Video Statement of Under 18 Year Old) Where the statement is admitted it must usually be accompanied by a limiting jury instruction.R v JEF [1993] OJ No 2589 (ONCA) 2 Recent Fabrication Recent fabrication exception requires the circumstances to show that the "apparent position of the opposing party is that there has been a prior contrivance"R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629 at p. 643 R. v. Stirling [2008] S.C.J. No. 10, at para 5 Also, the prior statement was made "before a motivation to fabricate arose".R. v. Stirling [2008] S.C.J. No. 10, at para 5 R v Ellard at paras. 32‑33 The "recency" element only requires that the witness made up a false story after the event in consideration.R. v. O'Connor 1995 CanLII 255 (ON CA), (1995), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294‑95 R. v. J.A.T. [2012] O.J. No. 1208 at para 98 A "fabrication" can refer to evidence that the witness was influenced by outside sources.R. v. J.A.T. [2012] O.J. No. 1208 at para 98 citing R v Ellard, 2009 SCC 27 at para 33 R. v. B. (A.J.), 1995 CanLII 94 (SCC), [1995] 2 S.C.R. 413, at para. 1 The prior statement is not adduced for the truth of their contents.R. v. J.A.T. [2012] O.J. No. 1208 at para 98 2 Narrative A prior consistent statement may be admitted as part of the narrative. In a jury trial, the trial judge should give instructions that this narrative evidence can only be used is to "assist them in assessing complainant’s credibility, in certain circumstances, particularly where the complainant is a child, and they are not to use the statements as evidence of the truth of their contents." R v Dinardo, 2008 SCC 24 at para. 37 R v Henrich, 1996 CanLII 2057 (ON CA) at p. 746 Fair, 1993 CanLII 3384 (ON CA) at pp. 20-21 Where it is admitted for this purpose in a sexual assault case, it can only be used to help the trier of fact "understand how a complainant’s story was first disclosed"R v Dinardo, 2008 SCC 24 at para. 37 R. v. Fair 1993 CanLII 3384 (ON CA), (1993), 16 O.R. (3d) 1 (C.A.), at pp. 20-21 R. v. Henrich 1996 CanLII 2057 (ON CA), (1996), 29 O.R. (3d) 740 (C.A.), at p. 746 2 See Also Canadian Criminal Evidence/Hearsay Canadian Criminal Evidence/Credibility/Prior Inconsistent Statements