Prior Inconsistent Statements

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General Principles

Prior inconsistent statements are the primary manner of impeaching a witness’s credibility.[1]

Section 10 and 11 of the CEA provide limitations on the issue and manner of impeachment with written or oral statements. These provisions are purely procedural and do not prove and substantive rights.[2]

Section 10 states:

Cross-examination as to previous statements
10. (1) On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to the subject-matter of the case, without the writing being shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements, but, if it is intended to contradict the witness, the witness’ attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the witness, and the judge, at any time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such use of it for the purposes of the trial as the judge thinks fit.
Deposition of witness in criminal investigation
(2) A deposition of a witness, purporting to have been taken before a justice on the investigation of a criminal charge and to be signed by the witness and the justice, returned to and produced from the custody of the proper officer shall be presumed, in the absence of evidence to the contrary, to have been signed by the witness.
R.S., 1985, c. C-5, s. 10; 1994, c. 44, s. 86.


This section addresses cross-examination of the opposing party's witnesses and not the calling party's witnesses as contemplated in s. 9.[3]

Requirements Under Section 10
Section 10 sets out the requirements for cross-examining a witness on a prior written statement. [4] It provides no requirement that a contradiction be found before cross-examining as to the statement.[5]

The right to cross-examine on oral statements is a common law right. It too does not require proof of an inconsistency.[6]

Types of Statements
Section 10 only permits written statements made by the witness, not those made by agents or counsel on behalf of witness.[7]

The prior sworn testimony at a previous trial will always be a valid type of statement that may be used for impeachment.[8]

Interview notes made by counsel, that have not been written or signed in the hand of the witness, will not be a "previous statement" unless there is "some indication that they accurately set out the witness' evidence". There must be some "assurance of reliability" such "circumstances demonstrating that the maker has attempted to record the words of the witness" or the witness's acknowledgement of accuracy.[9]

There is no requirement that a "statement" reduced to writing must be a "verbatim rendition" of the oral statement.[10]

Showing the Statement to the Witness
Section 10 permit cross examination on a statement without showing the statement being shown to the witness, but the judge has discretion to require the statement to be shown to clarify things.[11] Thus, when impeaching on a written statement, counsel may hold back the written statement from the witness while questioning on the existence of the prior statement until such time as counsel attempts to impeach the party.

Before impeaching a witness, both s. 10 and 11 impliedly require that the witness be confronted with details of the making of the statement for the sake of fairness. This includes notifying of the time and place of the making of the statement as well as the persons involved in the statement.[12]

No Requirements for Adversity or Recantation
There is no need for a declaration of adversity as in s.9(1).[13]

A recantation of a prior statement, even where demonstrably false, can have impeachment value.[14] The "impact of the falsity of the recantation on its impeachment value will depend on the totality of the circumstances" such as the explanation offered and the degree of support by other evidence.[15]

Presumption of Admissibility of Prior Inconsistent Statement
An inconsistent statement is not presumptively admissible, but is only a tool for impeaching credibility.[16]

Prior Statement as Exhibit
A statement used in cross-examination will not typically become an exhibit.[17] However, in certain cases, the judge may have discretion to accept the statement as an exhibit.[18]

Cross-examination of a Co-accused
Defence counsel may use a prior statement to cross-examine a co-accused who incriminates the accused even where the statement is not voluntary.[19]

  1. R v Morillo, 2018 ONCA 582 (CanLII), per Paciocco J, at para. 20 ("It is trite law that prior inconsistent testimony from a first trial can be used to impeach a witness at a retrial.")
  2. R v Mannion, 1986 CanLII 31 (SCC), [1986] 2 SCR 272
  3. R v Antoine (1949) 94 CCC 106 (BCCA), 1949 CanLII 350 (BC CA), per Bird JA
  4. see R v Turpin, 2005 BCSC 475 (CanLII) at para 16
  5. Turpin, ibid. at para 16
    R v Bloomfield, Cormier and Ettinger, 1973 CanLII 1473 (NB CA)
    R v Savion and Mizrahi, (1980), 52 CCC (2d) 276 (Ont. C.A.), 1980 CanLII 2872 (ON CA), per Zuber JA
  6. Turpin, supra at para 17
  7. R v Peebles, 1989 CanLII 2855 (BC CA), (1989), 49 CCC (3d) 168, [1989] BCJ No. 1056
  8. Morillo, supra at para 20
  9. Mitchell, supra, at para 35 to 37
  10. Mitchell, supra at para 37
  11. R v Rodney, 1988 CanLII 3287 (BC CA), (1988) 46 CCC (3d) 323 (BCCA)
  12. see R v P.(G.), 1996 CanLII 420 (ON CA), (1996), 112 CCC (3d) 263 (Ont. C.A.) at pp. 282 to 283
  13. R v Keegstra, 1994 ABCA 293 (CanLII), (1994) 92 CCC (3d) 505 (ABCA)
  14. R v Snyder, 2011 ONCA 445 (CanLII),
  15. Snyder, ibid.
  16. Mannion, supra at p. 549 (CCC)
    R v Deacon, 1947 CanLII 38 (SCC), [1947] SCR 531
  17. R v Rowbotham, 1988 CanLII 147 (ON CA), (1988), 41 CCC (3d) 1 (Ont. C.A.) R v Bartley, 2012 BCSC 2183 (CanLII)
  18. R v S.Q., 2007 NUCJ 7 (CanLII), at para 28
    R v Kliman, 1996 CanLII 8454 (BC SC) at paras 14 to 18
    R v Rodney, 1988 CanLII 3287 (BC CA), (1988), 46 CCC (3d) 323 aff'd in 1990 CanLII 81 (SCC), (1990), 58 CCC (3d) 408 (S.C.C.)
  19. R v Logan, 1988 CanLII 150 (ON CA) appealed on other grounds to SCC
    see also Voluntariness

Proof of Statement Where Not Admitted

Section 11 concerns previous written or oral statements that are not confirmed by the witness.

Cross-examination as to previous oral statements
11. Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
R.S., c. E-10, s. 11.


Section 11 cannot be applied until it is first established that there is a true contradiction between the statement and the witness's present memory.[1]

  1. see R v Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466

Proof of Statement by Adoption

See also: Prior Consistent Statements

A witness will be said to have adopted their statement where they acknowledge the making of the statement and acknowledge the truth of the statement.[1]

Once adopted there is no need to prove through extrinsic evidence that the statement is accurate.[2]The statement then becomes incorporated into the witnesses evidence.[3]

Whether a witness adopts a statement is a question of fact.[4]

  1. R v Toten, 1993 CanLII 3427 (ON CA), (1993), 83 CCC (3d) 5 (Ont. C.A.) at pp. 23-24 ("If the witness acknowledges making the statement, the witness may be asked whether the prior statement is true. If the witness testifies that the prior statement is true, the witness is said to have adopted the prior statement.")
    R v Smith, 2012 ONSC 910 (CanLII)
  2. Toten at pp. 23 to 24
  3. Toten at pp. 23 to 24
    R v Deacon, 1947 CanLII 38 (SCC), [1947] SCR 531 at p. 534
  4. Toten at pp. 24
    R v Steirs, 2010 ONCA 382 (CanLII), at p. 113

Compelled Prior Statements

Section 13 of the Charter protects accused's persons from self-incrimination, stating:

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.


See Also