La Cour, à la majorité, rejetterait le pourvoi, essentiellement pour les motifs des juges majoritaires de la Cour d’appel. Lors du procès, M. Cain a contesté la fiabilité du témoignage de la plaignante, alléguant l’existence d’incohérences entre ce témoignage et les déclarations antérieures de cette dernière à la police. Le juge du procès a statué que les incohérences portaient uniquement sur des aspects accessoires négligeables, et il a donc rejeté la prétention de M. Cain selon laquelle ces incohérences faisaient perdre crédibilité à la plaignante ou fiabilité à son témoignage. Le juge du procès ne s’est pas fondé sur les aspects cohérents des déclarations de la plaignante et de son témoignage pour confirmer la véracité de son témoignage. L’utilisation qui a été faite de la déclaration antérieure compatible était adéquate et ne constituait pas une erreur de droit.
The issue is governed by the contextual exception which permits a trial judge to fully appraise the Defence’s submission that the inconsistencies were material
[35] In my view, the judge did not err in his use of the Complainant’s prior statement. I agree that the narrative and recent fabrication exceptions do not apply. However, the issue is governed by the contextual exception which permits a trial judge to fully appraise the Defence’s submission that the inconsistencies were material. That is what Judge Digby did.
[36] The Defence, not the Crown, introduced the Complainant’s prior statements into evidence. These were: (1) her verbal recitation that she related to Cst. Rubarth at the scene, elicited in Cst. Rubarth’s cross-examination (above, para. 11); and, more significantly (2) her signed statement later in the evening, elicited in her cross-examination (above, paras. 17-18). The Defence’s closing summation asked the trial judge to find that inconsistencies between the prior statements and the Complainant’s trial testimony, on several collateral matters, showed she was so unreliable that her evidence was not probative on the core allegation of sexual assault (above, para. 22).
[37] The judge dealt with the Defence’s theory. Judge Digby found that the inconsistencies cited by the Defence were only peripheral and were explained by the Complainant’s stroke-induced memory loss. He rejected the Defence’s submission that those inconsistencies showed the Complainant to be unreliable on the central events (above, paras. 27-28).
[38] The judge’s use of a prior statement for that purpose is both sensible and well-supported.
[39] I adopt the following explanation of the contextual exception from Justice Paciocco’s article which Mr. Cain cites as seminal (above, para. 33). Paciocco, J.A. (as he now is) said:
While the basic rule is simple enough, there are numerous exceptions to that basic rule that complicate the law. An exception, of course, exists where the law permits decision-makers to learn that witnesses have made prior statements consistent with their current testimony. Those exceptions include:
…
(4) Prior consistent statements that provide context for admissible statements;
…
(d) Exception (4) – Prior Consistent Statements that Provide Context for Admissible Statements
The “entire statement rule” can lead to the presentation of prior consistent statements. It holds that where a party proves an admissible statement, this must not be done in a misleadingly selective way. As a matter of fairness, the party proving that statement should not take it out of context – it should prove the entire statement. …
The same principles, therefore, operate where counsel confronts a witness with a prior inconsistent statement. The party launching that challenge should, as a matter of fairness and even ethical obligation, put the entire statement to the witness so that the context of the inconsistencies can be understood, failing which opposing counsel will be permitted to unfold the entire related conversation. Indeed, this tactic can result in related statements being admitted. …
There is nothing, therefore, to prevent a party from pointing to the consistency between the prior related statement and the testimony of their witness. This is not done to prove that the witness was being truthful in their testimony on those matters – the mere making of prior consistent statements does not prove credibility nor do prior consistent statements of a witness corroborate their in-court testimony. The consistencies are relevant solely to enable the decision-maker to judge whether the relevant statement is really materially inconsistent when looked at as a whole, and to gauge the impact that any differences in detail should have on the overall credibility and reliability of the witness. In effect, the consistent features of the prior statement do not add affirmative weight to the party’s scale. They are used simply to knock the “inconsistency” challenge off the opposing party’s scales, or to reduce the weight of those inconsistencies that may remain. [emphasis added]
[40] As an example, in R. v. Smith, 2010 ONCA 229 (CanLII) Justice Sharpe for the Court said:
23 I reach the same conclusion with respect to the prior consistent statement issue. It was the defence that led virtually all of the relevant evidence in an effort to undermine the complainant’s credibility. While the Crown overstated the significance of the prior consistent statements at issue, it was nonetheless entitled to rebuff any suggestion that the complainant had been inconsistent.
[emphasis added]
[41] Similarly, in R. v. Demetrius, 2003 CanLII 16618 (ON CA), [2003] O.J. No. 3728 (C.A.) Justice Sharpe for the Court said:
18 … Had the defence not advanced the position that the prior statements made its case more plausible, the Crown would have been limited to using the prior statements for its original purpose, as part of the narrative. However, in view of the argument advanced by defence counsel in his closing address, the Crown was entitled to respond with its own explanation of the significance of Jack’s hospital statements. [emphasis added]
[42] To like effect: Justice S. Casey Hill and David M. Tanovich, McWilliams’ Canadian Criminal Evidence (Toronto: Thomson Reuters Canada Limited, 2014), 5th ed. loose-leaf, vol. 2, para. 11:40.60 and footnote 267, with the accompanying text, citing Smith and Demetrius.
[43] Judge Digby found:
The other issue aside, that if she was to be making up a complaint for someone with short-term memory issues, trying to maintain a story over a period of time would be difficult. Ans with respect to the core of her story, it’s … it shows a great deal of consistency over time.
…
I accept Mr. Sarson’s point that the contradictions are numerous. In my view, a number of them can be accounted for by the short-term memory loss. …
There’s a consistent thread about the complaint that goes from one part to the other. There are some minor discrepancies, but I don’t view them as significant. I’m satisfied that Mrs. [sic] [Complainant] was doing her best to be truthful in her evidence. I find that with respect to the touching of her chest and the touching of her buttocks, that her evidence is correct and it’s not mistaken. I’m satisfied beyond a reasonable doubt with respect … that those events happened.
[emphasis added]
[44] Mr. Cain’s submission focuses on the judge’s phrases “consistency over time” and “consistent thread”. He says those forbidden words red flag an infringement of the rule against prior consistent statements.
[45] With respect, the submission ignores the contextual exception. Judge Digby did not appropriate the Complainant’s statement as free-standing confirmation of her testimony. Had he done so, this would be a different matter. Rather, he responded to the Defence’s theory that the Complainant’s prior statement, introduced in full by the Defence, was so inconsistent on circumstantial matters as to impair her reliability for the central allegation of assault. Absent this Defence theory, the judge’s reasons would not have mentioned the prior statement.
[46] To repeat the Defence’s closing summation:
… the list of inconsistencies was long, they were significant and not just minor details. I would suggest her memory clearly was impacted by the stroke. She acknowledged her statement to the police was not accurate. And in all the circumstances, I would suggest that her evidence simply is not reliable enough to the extent it can be relied on to prove the Crown’s case beyond a reasonable doubt.
[47] The “consistency over time” and “consistent thread” on the core events assisted the judge to infer that the inconsistencies cited by the Defence on collateral matters were attributable to the Complainant’s stroke-induced memory loss, but did not signify an impaired recollection of the actual assault. The Defence argued that the discrepancies spilled over to tarnish the Complainant’s reliability on the central facts. Judge Digby was not persuaded.
[48] There is no ground of appeal for unreasonable verdict. The only issue is whether the judge could consider the consistent aspects of her prior statement under the contextual exception.
[49] A judge may fully appraise the Defence’s submission on the impact of the inconsistencies. The judge is not constrained to examine only the extracts cited by the Defence, and precluded from considering the context. Judge Digby performed the decision-maker’s function that Justice Paciocco’s article identifies as within the contextual exception:
The consistencies are relevant solely to enable the decision-maker to judge whether the relevant statement is really materially inconsistent when looked at as a whole, and to gauge the impact that any differences in detail should have on the overall credibility and reliability of the witness. In effect, the consistent features of the prior statement do not add affirmative weight to the party’s scale. They are used simply to knock the “inconsistency” challenge off the opposing party’s scales, or to reduce the weight of those inconsistencies that may remain.
[50] On the appeal, Mr. Cain’s counsel asserted that, as the Complainant’s reading ability was below par, the Defence trial counsel had no option but to read her the entire statement. With respect, that circumstance does not affect the application of the contextual exception. There often are pros and cons to adopting a strategy on cross-examination. The Defence weighed them and, on the second day of the Complainant’s cross-examination, decided it was worthwhile to read her the full statement. As Justice Paciocco’s article says, “the party providing the statement should not take it out of context – it should prove the entire statement” (above, para. 39). Had the Defence read her only extracts, then on re-direct examination the Crown could have entered other extracts to give proper context. At the end of the day, the trial judge would have the context as a resource to appraise the Defence’s submission on the impact of the inconsistencies.
[51] The judge’s use of the prior statements did not err in law.