R. v. L.J.R., 2018 BCPC 387
[13] It should be noted that s. 10 of the CEA provides discretion to the trial judge as to what, if any, portions of the statement to admit into evidence.
[14] Section 10 of the CEA is triggered when a party intends to introduce a previous inconsistent statement to prove a contradiction to the testimony at trial (or current testimony). It does not apply to situations where a question is asked to get the witness to adopt the statement by reminding the witness of the statement, or to situations where it is intended to refresh the witness’s memory by showing him or her the previous prior inconsistent statement. If adoption of the statement is obtained, then there is no need to contradict the witness and the section does not apply.
[15] The majority of the excerpts referred to in this case, contradict to some degree the in-court testimony of Ms. R. As such, the majority by their nature are prior inconsistent statements. However, defence is not the party seeking to tender the statement as evidence. As in R. v. Bartley, it is the Crown who is seeking to tender the statement as evidence for the purposes of credibility assessment and not for truth of its content. Unlike Bartley, Crown is seeking to tender the entire statement (not just portions referred to in cross-examination). Essentially, Crown is seeking to show the statement generally does not contradict the complainant’s testimony at trial. To this extent therefore, Crown is seeking to use it as a prior consistent statement.
[16] It is mainly on the basis of R. v. Smith that Crown is seeking to enter the complainant’s statement as an exhibit. In the case of Smith at para. 17:
Here, Scrivens acknowledged that he had made the statement and acknowledged, also, that there were differences between his testimony at the trial and what he had said, or had not said, in his statement. A corollary of the right to contradict a witness by a previous statement in writing is that the witness has the right to show that the writing generally, not merely the parts referred to by counsel, does not necessarily contradict his testimony.
[17] It is clear that the purpose of cross-examining a witness on his or her previous statement is to contradict his/her testimony at trial.
[18] A statement is not evidence and does not become so, merely because it is cross-examined upon: R. v. Rodney and R. v. Rowbotham.
[19] As to the prior consistent statement: They are generally inadmissible as they lack probative value and are self-serving (R. v. Stirling). There are exceptions to this rule, none of which are applicable in the case at bar. Crown is not making the submission that the statement falls into one of the prior consistent statement exceptions. Prior consistent statements cannot be used to bolster a witness’s credibility (R. v. Kokotailo).
[20] Section 10 of the CEA is not applicable to prior consistent statements. In Bartley, the witness was not cross-examined on inconsistencies between the statement and her testimony. She was cross-examined on her lack of candidness with the police regarding her marijuana operation. The cross-examination was not extensive. In R. v. Bartley the court stated at para. 6:
I have ordered a transcript of Ms. Steeves' evidence to ensure that I have a complete picture of her prior statements, her evidence at trial, and her responses to the cross-examination to properly assess the extent to which she was impeached and in regard to what manner she was impeached. In the particular circumstances of this case, to admit the otherwise consistent statements made by the witness would have the effect of allowing the Crown to bolster her credibility by prior consistent statements that were not the subject of cross-examination. I do not believe this is the purpose of s. 10 of the Canada Evidence Act.
[21] Counsel should be able to cross-examine a witness on his/her prior statement without the concern that the entirety of the statement could be tendered as an exhibit, some of which may be damaging to the accused.
[22] Assuming that a written statement properly falls under s. 10 of the CEA, all case law suggests that cross-examination on that statement must be extensive before a statement could be admitted into evidence. Such was the case, for example, in R. v. Smith and R. v. Newall.
[23] Even if we are dealing with the entry of a prior inconsistent statement into evidence, as set out in R. v. Rodney, the tendency to admit written statements into evidence just because there is some cross-examination should be considered carefully. If there is extensive cross-examination, as in R. v. Smith and R. v. Newall, supra, then it may be necessary to have the statements marked as exhibits so that the Court and counsel, and possibly the jury if the trial judge orders, may properly understand the extent to which he has been contradicted or impeached. On the other hand, if the cross-examination has not been extensive, the proper exercise of the discretion under s. 10(1) may lead the judge to permit only edited parts of the writing to be marked or for none of them to be marked.
[24] In the case at bar, I do not find that cross-examination on the written statement was extensive. The passages referred to were short, and the lengthier passages were few. The cross-examination was not on the statement alone; other topic areas were also canvassed such as the complainant’s health, sexual health, and some of the areas of cross-examination touched on the statement.
[25] There is nothing in the cross-examination of the complainant that makes it impossible for this court to assess her credibility without having the entirety of her statement. There were no suggestions that the passages read to Ms. R. were out of context or caused confusion and therefore required the entirety of her statement to be entered for the court to be able to see the full context. Furthermore, this is not a situation where the witness in her in-court testimony had added additional important facts that were never part of her written statement (as was the case in R. v. Rodney).
Aucun commentaire:
Publier un commentaire