{"id":9976,"date":"2018-05-21T12:54:40","date_gmt":"2018-05-21T16:54:40","guid":{"rendered":"https:\/\/www.doyonavocats.ca\/?p=9976"},"modified":"2020-09-14T12:33:20","modified_gmt":"2020-09-14T16:33:20","slug":"prior-consistent-statement-and-the-contextual-exception","status":"publish","type":"post","link":"https:\/\/www.doyonavocats.ca\/en\/prior-consistent-statement-and-the-contextual-exception\/","title":{"rendered":"Prior consistent statement and the contextual exception : R. c. Cain, 2018 CSC 20\u00a0"},"content":{"rendered":"

R. c. Cain, 2018 CSC 20\u00a0<\/a><\/p>\n

La Cour, \u00e0 la majorit\u00e9, rejetterait le pourvoi, essentiellement pour les motifs des juges majoritaires de la Cour d\u2019appel. Lors du proc\u00e8s, M. Cain a contest\u00e9 la fiabilit\u00e9 du t\u00e9moignage de la plaignante, all\u00e9guant l\u2019existence d\u2019incoh\u00e9rences entre ce t\u00e9moignage et les d\u00e9clarations ant\u00e9rieures de cette derni\u00e8re \u00e0 la police. Le juge du proc\u00e8s a statu\u00e9 que les incoh\u00e9rences portaient uniquement sur des aspects accessoires n\u00e9gligeables, et il a donc rejet\u00e9 la pr\u00e9tention de M. Cain selon laquelle ces incoh\u00e9rences faisaient perdre cr\u00e9dibilit\u00e9 \u00e0 la plaignante ou fiabilit\u00e9 \u00e0 son t\u00e9moignage. Le juge du proc\u00e8s ne s\u2019est pas fond\u00e9 sur les aspects coh\u00e9rents des d\u00e9clarations de la plaignante et de son t\u00e9moignage pour confirmer la v\u00e9racit\u00e9 de son t\u00e9moignage. L\u2019utilisation qui a \u00e9t\u00e9 faite de la d\u00e9claration ant\u00e9rieure compatible \u00e9tait ad\u00e9quate et ne constituait pas une erreur de droit.<\/p>\n

R. v Cain, 2017 NSCA 96<\/a><\/p>\n

The issue is governed by the contextual exception which permits a trial judge to fully appraise the Defence\u2019s submission that the inconsistencies were material<\/h2>\n

[35] In my view, the judge did not err in his use of the Complainant\u2019s 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\u2019s submission that the inconsistencies were material. That is what Judge Digby did.<\/p>\n

[36] The Defence, not the Crown, introduced the Complainant\u2019s prior statements into evidence. These were: (1) her verbal recitation that she related to Cst. Rubarth at the scene, elicited in Cst. Rubarth\u2019s 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\u2019s closing summation asked the trial judge to find that inconsistencies between the prior statements and the Complainant\u2019s 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).<\/p>\n

[37] The judge dealt with the Defence\u2019s theory. Judge Digby found that the inconsistencies cited by the Defence were only peripheral and were explained by the Complainant\u2019s stroke-induced memory loss. He rejected the Defence\u2019s submission that those inconsistencies showed the Complainant to be unreliable on the central events (above, paras. 27-28).<\/p>\n

[38] The judge\u2019s use of a prior statement for that purpose is both sensible and well-supported.<\/p>\n

[39] I adopt the following explanation of the contextual exception from Justice Paciocco\u2019s article which Mr. Cain cites as seminal (above, para. 33). Paciocco, J.A. (as he now is) said:<\/p>\n

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<\/strong>:<\/p>\n

\u2026<\/p>\n

(4) Prior consistent statements that provide context for admissible statements;<\/strong><\/p>\n

\u2026<\/p>\n

(d) Exception (4) \u2013 Prior Consistent Statements that Provide Context for Admissible Statements<\/strong><\/p>\n

The \u201centire statement rule\u201d 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 \u2013 it should prove the entire statement. \u2026<\/p>\n

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. \u2026<\/p>\n

There is nothing, therefore, to prevent a party from pointing to the consistency between the prior related statement and the testimony of their witness<\/strong>. This is not done to prove that the witness was being truthful in their testimony on those matters \u2013 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<\/strong>. In effect, the consistent features of the prior statement do not add affirmative weight to the party\u2019s scale. They are used simply to knock the \u201cinconsistency\u201d challenge off the opposing party\u2019s scales, or to reduce the weight of those inconsistencies that may remain<\/strong>. [emphasis added]<\/p><\/blockquote>\n

[40] As an example, in R. v. Smith, 2010 ONCA 229 (CanLII) Justice Sharpe for the Court said:<\/p>\n

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\u2019s 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<\/strong>.<\/p>\n

[emphasis added]<\/p><\/blockquote>\n

[41] Similarly, in R. v. Demetrius, 2003 CanLII 16618 (ON CA), [2003] O.J. No. 3728 (C.A.) Justice Sharpe for the Court said:<\/p>\n

18 \u2026 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<\/strong> of the significance of Jack\u2019s hospital statements. [emphasis added]<\/p><\/blockquote>\n

[42] To like effect: Justice S. Casey Hill and David M. Tanovich, McWilliams\u2019 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.<\/p>\n

[43] Judge Digby found:<\/p>\n

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\u2019s \u2026 it shows a great deal of consistency over time.<\/p>\n

\u2026<\/p>\n

I accept Mr. Sarson\u2019s point that the contradictions are numerous. In my view, a number of them can be accounted for by the short-term memory loss. \u2026<\/p>\n

There\u2019s a consistent thread about the complaint that goes from one part to the other. There are some minor discrepancies, but I don\u2019t view them as significant. I\u2019m 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\u2019s not mistaken. I\u2019m satisfied beyond a reasonable doubt with respect \u2026 that those events happened.<\/p>\n

[emphasis added]<\/p><\/blockquote>\n

[44] Mr. Cain\u2019s submission focuses on the judge\u2019s phrases \u201cconsistency over time\u201d and \u201cconsistent thread\u201d. He says those forbidden words red flag an infringement of the rule against prior consistent statements.<\/p>\n

[45] With respect, the submission ignores the contextual exception. Judge Digby did not appropriate the Complainant\u2019s statement as free-standing confirmation of her testimony. Had he done so, this would be a different matter. Rather, he responded to the Defence\u2019s theory that the Complainant\u2019s 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\u2019s reasons would not have mentioned the prior statement.<\/p>\n

[46] To repeat the Defence\u2019s closing summation:<\/p>\n

\n

\u2026 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\u2019s case beyond a reasonable doubt.<\/p>\n<\/blockquote>\n

[47] The \u201cconsistency over time\u201d and \u201cconsistent thread\u201d on the core events assisted the judge to infer that the inconsistencies cited by the Defence on collateral matters were attributable to the Complainant\u2019s 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\u2019s reliability on the central facts. Judge Digby was not persuaded.<\/p>\n

[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.<\/p>\n

[49] A judge may fully appraise the Defence\u2019s 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\u2019s function that Justice Paciocco\u2019s article identifies as within the contextual exception:<\/p>\n

\n

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\u2019s scale. They are used simply to knock the \u201cinconsistency\u201d challenge off the opposing party\u2019s scales, or to reduce the weight of those inconsistencies that may remain.<\/p>\n<\/blockquote>\n

[50] On the appeal, Mr. Cain\u2019s counsel asserted that, as the Complainant\u2019s 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\u2019s cross-examination, decided it was worthwhile to read her the full statement. As Justice Paciocco\u2019s article says, \u201cthe party providing the statement should not take it out of context \u2013 it should prove the entire statement\u201d (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\u2019s submission on the impact of the inconsistencies.<\/p>\n

[51] The judge\u2019s use of the prior statements did not err in law.<\/p>\n","protected":false},"excerpt":{"rendered":"

R. c. Cain, 2018 CSC 20\u00a0 La Cour, \u00e0 la majorit\u00e9, rejetterait le pourvoi, essentiellement pour les motifs des juges majoritaires de la Cour d\u2019appel. Lors du proc\u00e8s, M. Cain a contest\u00e9 la fiabilit\u00e9 du t\u00e9moignage de la plaignante, all\u00e9guant l\u2019existence d\u2019incoh\u00e9rences entre ce t\u00e9moignage et les d\u00e9clarations ant\u00e9rieures de cette derni\u00e8re \u00e0 la police. […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[2],"tags":[3844],"yst_prominent_words":[],"acf":[],"_links":{"self":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/9976"}],"collection":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/comments?post=9976"}],"version-history":[{"count":0,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/9976\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/media?parent=9976"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/categories?post=9976"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/tags?post=9976"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/yst_prominent_words?post=9976"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}