Prior Consistent Statements

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General Principles

Prior consistent statements are presumptively inadmissible.[1]

Purpose of Rule
The prior statement is undesirable for several reasons. They are a form of hearsay and so like all hearsay are considered unreliable.[2] They are also irrelevant and lacks probative value.[3] 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 even though “consistency is a quality just as agreeable to lies as to the truth”.[4]

A statement can be seen as having two components. There is the "hearsay component" and there is the "declaration componenet".[5]

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.[6]

Implications
The rule against consistent statement prevents evidence from both the declarant and the recipient.[7]

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.[8]

Standard of Review
A jury instruction on the use of a complainant's prior consistent statement is reviewed on a question of law.[9]

  1. R v Beland, [1987] 2 SCR 398, 1987 CanLII 27 (SCC) at para 10-12
    R v Stirling 2008 SCC 10 (CanLII), [2008] S.C.J. No. 10 (S.C.C.)
    R v Ellard, 2009 SCC 27 (CanLII)
    R v Evans 1993 CanLII 102 (SCC), [1993] 2 SCR 629 at para 34
  2. R v Dinardo, 2008 SCC 24 (CanLII), [2008] 1 SCR 788, at para 36
  3. R v Pattison, 2011 BCSC 1594 (CanLII), [2011] BCJ No. 2231 at para 12
    R v Stirling at para 5
    R v Dinardo at para 36
  4. 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 Toten 1993 CanLII 3427 (ON CA), (1993), 83 CCC (3d) 5 (Ont. C.A.) 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 (ONCA) 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 (ON SC), 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. ")
  5. R v Khan 2017 ONCA 114 (CanLII) at para 13
  6. Y(MA), ibid. at para 27
  7. R v RRDG, 2014 NSSC 78 (CanLII) at para 105 citing Watt Manual of Evidence
  8. R v Grey, 2013 BCCA 232 (CanLII) at para 43
  9. R v Sarrazin, 2010 ONCA 577 (CanLII) at para 65
    R v Warren, 2016 ONCA 104 (CanLII) at para 9

Exceptions

Exceptions to the prohibition against admitting prior consistent statements include:[1]

  • Rebutting allegation of recent fabrication[2]
  • Prior eyewitness identification
  • Recent complaint
  • Show physical or mental state of accused (res gestae)[3]
  • Narrative
  • 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 menas it can only go to credibility.[4]

Where the statement is admitted it must usually be accompanied by a limiting jury instruction.[5]

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.[6]

  1. R v RRDG, 2014 NSSC 78 (CanLII) at para 105 citing Watt Manual of Evidence
  2. R v Stirling, 2008 SCC 10 (CanLII) at para 7
  3. R v MC, 2014 ONCA 611 (CanLII), per Watt J 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 2529 at para 35
  4. R v Almasi, 2016 ONSC 2943 (CanLII), 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)
  5. R v JEF, 2012 ONCA 177 (CanLII), [1993] OJ No 2589 (ONCA) (*no link)
  6. MC, supra at para 3

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)
    R v Zou, 2017 ONCA 90 (CanLII), at para. 48
    Y(MA), supra at para 30

Recent Fabrication

The allegation of recent fabrication does not need to be explicit. There only needs be to an "apparent position" alleging a "prior contrivance".[1] However, mere contradiction of the witness is not sufficient.[2]

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.[3]

Recent fabrication exception requires the circumstances to show that the "apparent position of the opposing party is that there has been a prior contrivance"[4] Also, the prior statement was made "before a motivation to fabricate arose".[5]


The fact that the witness's "whole story" is being challenged does not necessarily mean that there is an allegation of recent fabrication.[6]

The "recency" element only requires that the witness made up a false story after the event in consideration.[7] It not not actually need to be "recent" to the testimony.[8]

A "fabrication" can refer to evidence that the witness was influenced by outside sources.[9]

The prior statement is not adduced for the truth of their contents.[10]

This rule can apply to rebut allegations of concoction to an accused who is incarcerated with a co-accused.[11]

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. [12]

  1. R v KT, 2013 ONCA 257 (CanLII) at para 37
    R v Stirling at para 5
    R v Ellard, 2009 SCC 27 (CanLII) at para 32
  2. KT at para 37
    Ellard at para 33
  3. R v Kailayapillai, 2013 ONCA 248 (CanLII) at para 40
    see R v Wannebo (1972), 7 CCC (2d) 266 (BCCA)
  4. R v Evans, 1993 CanLII 102 (SCC), [1993] 2 SCR 629 at p. 643
    R v Stirling, [2008] 1 SCR 272, 2008 SCC 10 (CanLII), at para 5
  5. R v Stirling, at para 5
    R v Ellard, at paras 32‑33
  6. R v Campbell, 1977 CanLII 1191 (ON CA), (1977) 17 O.R. (2d) 673 (Ont. C.A.) ("...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.")
  7. R v O'Connor, 1995 CanLII 255 (ON CA), (1995), 100 CCC (3d) 285 (Ont. C.A.), at pp. 294‑95
    R v JAT, 2012 ONCA 177 (CanLII), [2012] O.J. No. 1208 at para 98
    R v Ellard, at para 33
  8. R v Stirling, 2008 SCC 10 (CanLII) at para 5
    R v KT, 2013 ONCA 257 (CanLII) at para 36
  9. R v JAT at para 98 citing R v Ellard, at para 33
    R v B. (A.J.), 1995 CanLII 94 (SCC), [1995] 2 SCR 413, at para 1
  10. R v J.A.T. at para 98
  11. see R v Divitaris 2004 CanLII 9212 (ON CA), (2004), 188 CCC (3d) 390 (Ont. C.A.), at para 37
  12. R v Divitaris at para 31

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) at para 34
    R v Edgar, 2010 ONCA 529 (CanLII) at para 24

Narrative

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

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] Acceptance of this evidence should be on condition of having no wieght and cannot be used to bolster credibility.[3]

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.[4]

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."[5]

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"[6] It can also be used as narrative to explain why the complainant did not initially report any abuse.[7]

  1. c.f. R v RRDG, 2014 NSSC 78 (CanLII) 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
  3. Y(MA), ibid. at para 31
    R v Khan, 2017 ONCA 114 (CanLII), at para. 30
    R. v. C. (M.), at para. 65
    R. v. A.E.R., 2001 CanLII 11579 (ON CA)
  4. Y(MA), ibid. at para 31
    R. v. F. (J.E.), 1993 CanLII 3384 (ON CA)
    R. v. George, 1985 CanLII 657 (BC CA)
  5. R v Dinardo, 2008 SCC 24 (CanLII) at para 37
    R v Henrich, 1996 CanLII 2057 (ON CA) at p. 746
    R v Fair, 1993 CanLII 3384 (ON CA) at pp. 20-21
  6. R v Dinardo, at para 37 R v Fair, at pp. 20-21
    R v Henrich at p. 746
  7. R v DGS, 2012 MBQB 19 (CanLII) at paras 12 to 14

See Also