Prior Consistent Statements

From Criminal Law Notebook
This page was last substantively updated or reviewed March 2021. (Rev. # 92905)

General Principles

Prior consistent statements are presumptively inadmissible.[1]

Purpose of Rule

The prior statement is undesirable for several reasons. [2] They are a form of hearsay and so like all hearsay are considered unreliable.[3] They are also irrelevant and lacks probative value.[4] It is a form of "oath-helping" (or self-corroboration) inappropriately enhancing the evidence. It is self-serving and self-corroborative without actually adding any value to the evidence. The consistent evidence encourages the inference that a story told consistently over time is more likely to be true even though “consistency is a quality just as agreeable to lies as to the truth”.[5] Put another way, the "overwhelming danger" is the risk of using repetition of a statement as a "badge of trustworthiness."[6]

A statement can be seen as having two components. There is the "hearsay component" and there is the "declaration component."[7] The evidence is presumed inadmissible for the exclusion of hearsay rule and the prior consistent statement rule excludes it for the lack of probative value.[8]

The rule "comes into play when the statement is being adduce for its declaration component" (i.e. the fact that the statement was made, not for the truth of the statement). This fact must be shown to be relevant to the case to overcome the prohibition.[9]

Oath Helping
Implications

The rule against consistent statement prevents evidence from both the declarant and the recipient.[10]

It is not open to a witness give evidence my simply adopting a prior statement. The judge is entitled to hear all evidence directly from the witness.[11]

Standard of Review

A jury instruction on the use of a complainant's prior consistent statement is reviewed on a question of law.[12]

  1. R v Beland, 1987 CanLII 27 (SCC), [1987] 2 SCR 398, per McIntyre J, at paras 10 to 12/pp 409-10 (SCR)
    R v Stirling, 2008 SCC 10 (CanLII), [2008] SCJ No 10 (SCC), per Bastarache J, at para 5
    R v Ellard, 2009 SCC 27 (CanLII), [2009] 2 SCR 19, per Abella J
    R v Evans, 1993 CanLII 102 (SCC), [1993] 2 SCR 629, per Cory J, at para 34
    R v DK, 2020 ONCA 79 (CanLII), 60 CR (7th) 123, per Trotter JA, at para 34
  2. R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, per Charron J, at para 36
    Stirling, supra at para 5
    R v DK, 2020 ONCA 79 (CanLII), 60 CR (7th) 123, per Trotter JA, at para 34
  3. Dinardo, supra, at para 36
  4. R v Pattison, 2011 BCSC 1594 (CanLII), [2011] BCJ No 2231, per Holmes J, at para 12
    Stirling, supra, at para 5
    Dinardo, supra, at para 36
  5. R v L(DO), 1991 CanLII 2714 (MB CA), 6 CR (4th) 277 at 309, per O'Sullivan JA, rev’d 1993 CanLII 46 (SCC), 25 CR (4th) 285, per L'Heureux‑Dubé J
    R v Toten, 1993 CanLII 3427 (ON CA), 83 CCC (3d) 5, per Doherty JA at 36 (PCS should be rejected “not ... on any principle unique to prior consistent statements, but on the very practical assessment that, generally speaking, such evidence will not provide sufficient assistance to the trier of fact to warrant its admission.")
    R v Divitaris, 2004 CanLII 9212 (ON CA), [2004] OJ No 1945, per Feldman JA, at para 28
    David M. Paciocco and Lee Steusser, The Law of Evidence, 2nd ed. (Toronto, Ont: Irwin Law, 1999) at 305 (“In most cases, the evidence is ... of no value. It is redundant and potentially prejudicial to allow the testimony to be repeated. It may gain false credence in the eyes of the trier of fact through the consistency with which it is asserted.")
    R v Y(MA), 2017 CanLII 25291 (ONSC), per Bondy J, at para 27 ("The rule against prior consistent statements is merely a manifestation of the general rule that evidence must be relevant to a material issue.")
    R v Nault, 2019 ABCA 37 (CanLII), [2019] AJ No 112, per curiam, at para 19 ("Prior consistent statements are viewed with caution because there is a danger in associating repetition with reliability. The fact that a witness has said something more than once does not make it more likely to be honest or accurate...") and ("He may not reason, without more, that because the witness has made the statement on a previous occasion, she is more likely to be telling the truth. He may not reason, without more, that a witness' out-of-court statement corroborates her own testimony.")
    R v Divitaris, 2004 CanLII 9212 (ON CA), 188 CCC (3d) 390, per Feldman JA, at para 28
    R v DC, 2019 ONCA 442 (CanLII), per Pepall JA, at para 19
    R v SK, 2019 ONCA 776 (CanLII), 148 OR (3d) 1, per Simmons JA, at para 90
  6. DK, supra, at para 35
    R v Khan, 2017 ONCA 114 (CanLII), 136 OR (3d) 520, per Hourigan JA, at para 41 (“[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”)
    see also Stirling, at para. 7
  7. Khan, supra, at para 13
    R v MC, 2014 ONCA 611 (CanLII), 314 CCC (3d) 336, per Watt JA, at para 59 ("Prior consistent statements are an amalgam of two elements – a hearsay element and a declaration element...")
  8. MC, ibid. at 59
  9. Y(MA), ibid., at para 27
  10. R v RRDG, 2014 NSSC 78 (CanLII), per Rosinski J, at para 105 citing Watt Manual of Evidence
  11. R v Grey, 2013 BCCA 232 (CanLII), 338 BCAC 121, per Frankel JA , at para 43
  12. R v Sarrazin, 2010 ONCA 577 (CanLII), 259 CCC (3d) 293, per Doherty JA, at para 65
    R v Warren, 2016 ONCA 104 (CanLII), 26 CR (7th) 390, per Roberts JA, at para 9

Exceptions

There are various exceptions where the value of the evidence is separate from the [1] Exceptions to the prohibition against admitting prior consistent statements include:[2]

  • Rebutting allegation of recent fabrication[3]
  • Prior eyewitness identification
  • Recent complaint
  • Show physical or mental state of accused (res gestae)[4]
  • Narrative[5]
  • emotional state of the complainant or witness
  • 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 a prior consistent statement is admissible, it can only be used to rehabilitate the witness, which also means it can only go to credibility.[6]

Where the statement is admitted, it must usually be accompanied by a limiting jury instruction.[7]

When the prior consistent statement is received, it will not normally be for the truth of its contents but rather as circumstantial evidence of importance to the proceedings.[8]

  1. MC, supra at para 60 ("...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(WP), 1993 CanLII 3427 (ON CA), 83 CCC (3d) 5, per Doherty JA at p. 36
  2. R v RRDG, 2014 NSSC 78 (CanLII), per Rosinski J, at para 105 citing Watt Manual of Evidence
  3. R v Stirling, 2008 SCC 10 (CanLII), [2008] 1 SCR 272, per Bastarache J, at paras 5 to 7
    R v DK, 2020 ONCA 79 (CanLII), 60 CR (7th) 123, per Trotter JA, at para 36
  4. R v MC, 2014 ONCA 611 (CanLII), 314 CCC (3d) 336, per Watt JA, at para 3("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), 260 CCC (3d) 1, per Sharpe JA, at para 35
  5. DK, supra at para 37
    R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, per Charron J, at para 37 (where it is "necessary to the unfolding of the events or narrative of the prosecution")
  6. R v Almasi, 2016 ONSC 2943 (CanLII), per Goldstein J, at para 40 ("The statement is only admissible for the purpose of rehabilitating the witness. In other words, the prior consistent statement can only go credibility")
    see also R v O'Connor, 1995 CanLII 255 (ON CA), 100 CCC (3d) 285, per Finlayson JA
  7. R v JEF, 2012 ONCA 177 (CanLII), [1993] OJ No 2589, per Watt JA
  8. MC, supra, at para 3

Prior Eyewitness Identification

Prior recordings of extemporaneous observations of a witness being tendered for the purpose of establishing recognition of the accused, is a permissible form of prior consistent statements.[1]

This type of evidence may be used to give credence to in-court identification.[2]

Statements of prior identification are not considered hearsay.[3]

  1. R v Langille, 1990 CanLII 6782 (ON CA), 59 CCC (3d) 544, per Osborne JA, at p. 556 (CCC)
    R v Tat, 1997 CanLII 2234 (ON CA), [1997] OJ No 3579 (CA), per Doherty JA, at para 35
    R v Downey, 2018 NSCA 33 (CanLII), NSJ No 136, per Saunders JA, at para 84
    E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, loose-leaf (consulted on 12 March 2018), (Toronto, Ont.: Thomson Reuters, 2017) Ch. 16, pp. 16-196-197 ("A prior statement identifying or “describing the accused” is admissible as original evidence where the identifying witness identifies the accused at trial as the person in question.")
  2. Downey, supra, at para 85
    David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 146
  3. Downey, supra, at para 86
    Tat, supra, at para 35

Recent Fabrication

The exception for recent fabrication applies where the statement shows that the statement has not changed "as a result of a new motive to fabricate."[1] It is only statements given prior to the time when the motivation to collude arose.[2]

It is not admissible for the truth of its contents.[3]

Form of Allegation of Recent Fabrcation

The allegation of recent fabrication does not need to be explicit. There only needs be to an "apparent position" alleging a "prior contrivance."[4] However, mere contradiction of the witness is not sufficient.[5]

If a cross-examination suggests, either directly or indirectly, that a witness fabricated evidence and has reason or motive to do so, the party who called the witness may re-examine and lead evidence on a prior statement being consistent with the evidence in court.[6]

Recent fabrication exception requires the circumstances to show that the "apparent position of the opposing party is that there has been a prior contrivance"[7] Also, the prior statement was made "before a motivation to fabricate arose."[8]

Where RF Does not Apply

The fact that the witness's "whole story" is being challenged does not necessarily mean that there is an allegation of recent fabrication.[9]

The mere fact that a prior inconsistent statement was put to the witness does not automatically engage the RF rule to prior consistent statements.[10] It is expected that the consistent statement be made after' the time of the alleged fabrication to be material to the issue of rebutting the allegation.[11]

Recency of Alleged Fabrication

The "recency" element only requires that the witness made up a false story after the event in consideration.[12] It not not actually need to be "recent" to the testimony.[13]

Meaning of Fabrication

A "fabrication" can refer to evidence that the witness was influenced by outside sources.[14]

Use of Prior Statement

The prior statement is not adduced for the truth of their contents.[15]

Purpose of Rule

This rule can apply to rebut allegations of concoction to an accused who is incarcerated with a co-accused.[16]

Jury Trials

Where a prior consistent statement is allowed in evidence on a jury trial, the jury must be given a limiting instruction on the use of the prior statement. [17]

Rebutting Credibility Attack

A judge may refer to a prior consistent statement for the purpose of evaluating a defence allegation against credibility on account of a prior inconsistent statement on the same point of fact.[18]

  1. R v Luceno, 2015 ONCA 759 (CanLII), 331 CCC (3d) 51, per Weiler JA, at para 54 ("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")
  2. Luceno, ibid., at para 54
    R v Stirling, 2008 SCC 10 (CanLII), [2008] 1 SCR 272, per Bastarache J, at paras 5 and 7
    Fair, supra at p. 14
  3. Luceno, ibid., at para 54
  4. R v KT, 2013 ONCA 257 (CanLII), 295 CCC (3d) 283, per Watt JA, at para 37
    Stirling, supra, at para 5
    R v Ellard, 2009 SCC 27 (CanLII), [2009] 2 SCR 19, per Abella J, at para 32
  5. KT, supra, at para 37
    Ellard, supra, at para 33
  6. R v Kailayapillai, 2013 ONCA 248 (CanLII), 305 OAC 136, per Doherty JA, at para 40
    see R v Wannebo, 1972 CanLII 1440 (BCCA), 7 CCC (2d) 266 (BCCA), per McFarlane JA
  7. R v Evans, 1993 CanLII 102 (SCC), [1993] 2 SCR 629, per Cory J, at p. 643
    Stirling, supra, at para 5
  8. Stirling, supra, at para 5
    Ellard, supra, at paras 32 to 33
  9. R v Campbell, 1977 CanLII 1191 (ON CA), 17 OR (2d) 673, per Martin JA, ("...the fact that the whole story of a witness is challenged does not, by itself, constitute an allegation of recent fabrication: see Fox v General Medical Council, supra, at p. 1026.")
  10. R v Nelson, 2021 NSCA 11 (CanLII), per Beveridge JA(complete citation pending), at para 54 ("Establishment of prior inconsistent statements does not automatically justify proof of a prior consistent statement. ")
    R v Hunter, 2004 CanLII 32107 (ON CA), 182 CCC (3d) 121, per curiam
  11. Ellard, supra, at para 34 ("...the statements put to Ms. Bowles on re-examination were not made prior to the atmosphere of rumour and speculation that the defence claimed had led to her changed memory. As a result, their timing prevented them from being capable of rebutting an allegation of recent fabrication. The trial judge therefore erred in ruling that the re-examination was permissible on the basis of this exception.")
  12. R v O'Connor, 1995 CanLII 255 (ON CA), 100 CCC (3d) 285, per Finalyson JA, at pp. 294‑95
    R v JAT, 2012 ONCA 177 (CanLII), [2012] OJ No 1208, per Watt JA, at para 98t/
    Ellard, supra, at para 33
  13. Stirling, supra, at para 5
    R v KT, 2013 ONCA 257 (CanLII), 295 CCC (3d) 283, per Watt JA, at para 36
  14. JAT, supra, at para 98 citing Ellard, supra, at para 33
    R v B(AJ), 1995 CanLII 94 (SCC), [1995] 2 SCR 413, per Sopinka J, at para 1
  15. JAT, supra, at para 98
  16. see R v Divitaris, 2004 CanLII 9212 (ON CA), 188 CCC (3d) 390, per Feldman JA, at para 37
  17. Divitaris, ibid., at para 31
  18. R v Noftall, 2018 ONCA 538 (CanLII), per curiam, at para 18

State of Mind

A prior consistent statement can be admissible, for its declaratory value, as circumstantial evidence showing the state of mind of a witness as long as it relates to a trial issue.[1]

  1. R v Edgar, 2010 ONCA 529 (CanLII), 260 CCC (3d) 1, per Sharpe JA
    R v Zou, 2017 ONCA 90 (CanLII), 346 CCC (3d) 490, per Doherty JA, at para 48
    Y(MA), supra, at para 30

Spontaneous Utterance

A spontaneous and exculpatory statement of the accused shortly after arrest may be admitted to "show the accused's reaction when first confronted with the allegation, provided the accused testifies."[1]

  1. R v KT, 2013 ONCA 257 (CanLII), 295 CCC (3d) 283, per Watt JA, at para 34
    R v Edgar, 2010 ONCA 529 (CanLII), 260 CCC (3d) 1, per Sharpe JA, at para 24

Narrative and Context

A prior consistent statement may be admitted as part of the narrative.[1]

Understanding Material Facts

The evidence may be admissible as narrative evidence where it is necessary to "help the trier of fact to understand the case and to make the material facts more comprehensible."[2] It is to help understand the "chronological cohesion" of the case.[3] Acceptance of this evidence should be on condition of having no weight and cannot be used to bolster credibility.[4]

As a precondition, the narrative evidence must be "truly essential" to the narrative.[5]

In most instances this type of evidence is admissible for the purpose of showing how the complaint came before the court or to provide context to an admissible statement.[6]

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."[7]

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"[8] It can also be used as narrative to explain why the complainant did not initially report any abuse.[9]

Assist in Credibility Assessment

PCS can be used to assess credibility when considering things such as:[10]

  • the "context in which the initial complaint arose, in particular the fact and timing of the complaint"
  • understanding “the sequence of events from the alleged offence to the prosecution so that [the trier of fact] can understand the conduct of the complainant and assess her truthfulness” or
  • assessing if there is “evidence that an individual has a motive to lie".

The fact and timing of the prior statement may be relevant to credibility assessment.[11]

Text Messages Sent by Complainants

Courts will usually permit the admit post-offence messages such as those "sent by a complainant following an alleged sexual assault under the narrative as circumstantial evidence exception to prior consistent statements."[12] Such messages can be used "to assess the conduct of the complainant and her truthfulness in describing it, particularly when the defence used those messages to attempt to contradict her narrative of events and diminish her credibility."[13]

  1. cf. R v RRDG, 2014 NSSC 78 (CanLII), per Rosinski J, at para 105 citing Watt Manual of Evidence for the rule against narrative
  2. R v Y(MA), 2017 CanLII 25291 (ON SC), per Bondy J, at para 31
    R v Khan, 2017 ONCA 114 (CanLII), 136 OR (3d) 520, per Hourigan JA, at para 39 (“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”)
    R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, per Charron J, at para 31
  3. R v Fair, CanLII 3384 (ON CA) 85 CCC (3d) 457, per Finlayson JA at p. 18(complete citation pending)
    Khan, supra, at para 30
    R v DK, 2020 ONCA 79 (CanLII), 60 CR (7th) 123, per Trotter JA, at para 37
  4. Y(MA), ibid., at para 31
    Khan, supra, at para 30
    R v MC, 2014 ONCA 611 (CanLII), 314 CCC (3d) 336, per Watt JA, at para 65
    R v AER, 2001 CanLII 11579 (ON CA), 156 CCC (3d) 335, per MacPherson JA
  5. DK, supra at para 37
    R v MC, 2014 ONCA 611 (CanLII), 314 CCC (3d) 336, per Watt JA, at para 91
  6. Y(MA), supra, at para 31
    R v F(JE), 1993 CanLII 3384 (ON CA), 85 CCC (3d) 457, per Finlayson JA
    R v George, 1985 CanLII 657 (BC CA), 23 CCC (3d) 42, per MacFarlane JA
  7. R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, per Charron J, at para 37
    R v Henrich, 1996 CanLII 2057 (ON CA), 108 CCC (3d) 97, per Osborne JA, at p. 746
    R v Fair (JE), 1993 CanLII 3384 (ON CA), 85 CCC (3d) 457, per Finlayson JA, at pp. 20-21
  8. Dinardo, supra, at para 37 Fair, supra, at pp. 20-21
    Henrich, supra, at p. 746
  9. R v DGS, 2012 MBQB 19 (CanLII), 274 Man R (2d) 313, per Spivak J, at paras 12 to 14
  10. R v Langan, 2019 BCCA 467 (CanLII), 383 CCC (3d) 516, per Bauman CJ, at para 99 ("It is well-established that prior consistent statements may be used to assess credibility. Proper use turns on whether the statements are used to find a witness credible because of specific, permissible inferences of credibility, such as: “evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint”...; understanding “the sequence of events from the alleged offence to the prosecution so that [the trier of fact] can understand the conduct of the complainant and assess her truthfulness” ...; or assessing if there is “evidence that an individual has a motive to lie”") [Bauman affirmed by 2020 SCC 33 (CanLII)]
  11. Dinardo, supra at para 37
    R v Luceno, 2015 ONCA 759 (CanLII), 331 CCC (3d) 51, per Weiler JA, at para 52
  12. Langan, ibid., at para 101
  13. Langan, supra, at para 102

See Also