R. v. Khan, 2017 ONCA 114
[14] The trial judge identified three possible routes of admissibility for the statement: (i) admission under the traditional hearsay exception of res gestae or spontaneous utterance; (ii) admission under the principled approach to hearsay; and (iii) admission as an exception to the rule against prior consistent statements. In my analysis of this issue, I will consider all three routes. I will then analyze the permissible use of the statement.
A. Admissibility under the res gestae exception
[15] Res gestae statements are admissible as an exception to the hearsay rule: R. v. Khan, 1988 CanLII 7106 (ON CA), [1988] O.J. No. 578, 42 C.C.C. (3d) 197 (C.A.), affd 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, at para. 21; R. v. Ratten, [1972] A.C. 378, [1971] 3 All E.R. 801 (P.C.), at pp. 389-91 A.C. Statements are admitted under this exception to the hearsay rule on the basis that the stress or pressure under which the statement is made can be said to safely discount the possibility of concoction: S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed. (Toronto: Canada Law Book, 2013), at p. 7:120.20.10. The statement should be reasonably contemporaneous with the alleged occurrence, although exact contemporaneity is not required: Khan, at para. 25; R. v. Dakin, 1995 CanLII 1106 (ON CA), [1995] O.J. No. 944, 80 O.A.C. 253 (C.A.), at para. 20.
B. Admissibility of the statement under the principled approach
[18] An excited utterance can also satisfy the principled approach to the hearsay rule. The two requirements for the admission of a hearsay statement under the principled approach are reliability and necessity: R. v. Youvarajah, [2013] 2 S.C.R. 720, [2013] S.C.J. No. 41, 2013 SCC 41, at para. 21. The reliability of the statement comes from the absence of an opportunity to concoct a story. As for necessity, where, as in this case, the witness testifies, the objection to hearsay statements arising from the absence of an opportunity to cross-examine is negated. More fundamentally, though, as pointed out by Justice Paciocco in "The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013), 17 Can. Crim. L. Rev. 181 (Paciocco), at pp. 192-93:
. . . [T]he "necessity" component [of the basic hearsay principles] performs a "best evidence" function. It exists to ensure that if it is possible to present "better evidence" in the form of in-court testimony, parties should not be permitted to resort to hearsay proof . . . There are times, however, when hearsay evidence is expressed under circumstances that yield tremendously helpful criteria for evaluating the reliability or credibility of a factual claim.
[21] As noted above, the necessity requirement under the principled approach does not require that the witness be absent or unable to give evidence. Rather, the necessity requirement can be satisfied where the witness is unable to give a full and frank account of the events, or where the witness has difficulty recalling significant details of the event: Khan; R. v. C. (M.), [2014] O.J. No. 3959, 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 56.
[24] Therefore, the statement is also not admissible for the truth of its contents under the principled approach to hearsay. What remains is whether the statement is admissible as an exception to the general rule against the admission of prior consistent statements.
C. Admissibility as an exception to the rule against prior consistent statements
[25] Prior consistent statements are presumptively inadmissible because they lack probative value: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at paras. 5-7. The fact that someone said the same thing on a prior occasion to what he/she has said in court is, generally speaking, not probative of whether the witness is offering truthful testimony in court. It would be self-serving to allow a witness to buttress his or her own testimony with her own prior statements.
[26] As Watt J.A. noted in C. (M.), at para. 59, citing Paciocco, at p. 184, prior consistent statements are an amalgam of two elements -- the hearsay element and the declaration element. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration [page528] element. Where admissible, the declaration element is proof that a statement was made, and allows a trier of fact to derive appropriate inferences from the fact and context in which the statement was made: Paciocco, at p. 184.
[27] The common law recognizes a number of exceptions to the basic rule that prior consistent statements are inadmissible. When a prior consistent statement is admissible pursuant to one of these exceptions, it is admissible for limited purposes, and those purposes differ among exceptions.
[28] For example, where a prior consistent statement is admitted to rebut an allegation of recent fabrication, it is admitted solely to provide a direct response to the suggestion that the witness concocted allegations after a triggering event. The statement is not admitted for the truth of its contents, but only to show that the details were not added after the point in time suggested by opposing counsel.
[29] Other recognized exceptions include admitting prior consistent statements as pure narrative evidence, and narrative as circumstantial evidence: Paciocco, at p. 182.
[30] As pure narrative, prior consistent statements carry no weight because they are tendered simply to give the background to explain how the complaint came to be before the court. This court described the pure narrative exception in R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), as allowing the decision maker to understand the "chronological cohesion" of the case. The statement is not used to prove the truth of its contents, nor are there any inferences arising that would make the case of one person more compelling than that of another. It is merely an aid in understanding the case as a whole.
[31] But sometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a more substantive use: R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 39; R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, at para. 32. This is referred to as narrative as circumstantial evidence.
[32] In R. v. C. (G.), 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245, 2006 CarswellOnt 3413 (C.A.), at para. 22, Rouleau J.A. identified the limited way in which prior consistent statements can be used to assist the trier of fact in assessing the cogency, and therefore the reliability and credibility, of a witness:
In cases involving sexual assault of young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate [page529] cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child's evidence, be a useful tool in assisting the trial judge in the assessment of the child's truthfulness.
[33] While Rouleau J.A. was discussing the use of prior consistent statements to assess the reliability and credibility of young children, there is no reason why the principle should be so restricted. In the appropriate case, prior consistent statements can be useful tools in assisting a trial judge in the assessment of the truthfulness or reliability of the declarant, whatever their age: C. (M.), at para. 66; R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, at para. 37.
[34] As this court noted in Curto, at para. 34, it will not always be necessary to know why or how the case came to the attention of the police; however, the fact that a statement was made, and the context in which the statement is made, can be probative and help in assessing a witness' credibility.
[35] The line between the permissible and impermissible uses of prior consistent statements is a fine one, as noted by the Supreme Court of Canada. In Dinardo, the prior consistent statements of an intellectually disabled complainant were, at trial, used to corroborate her in-court testimony. The Quebec Court of Appeal held that the trial judge erred in using the complainant's prior consistent statements to corroborate her evidence that the crime had been committed. The Supreme Court of Canada agreed and highlighted the distinction between the permissible and impermissible use of prior consistent statements. Charron J. stated, at para. 37:
In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed. The challenge is to distinguish between "using narrative evidence for the impermissible purpose of aeconfirm[ing] the truthfulness of the sworn allegation'" and "using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of the truthfulness or credibility".
(Emphasis added; citations omitted)
[36] Charron J. cited this court's decision in C. (G.), in which Rouleau J.A. stated, at para. 20:
. . . the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can "be supportive of the central allegation in the sense of creating a logical framework for its presentation . . . and can be used in assessing the truthfulness of the complainant. [page530]
[37] In this case, while the trial judge did not expressly refer to the narrative as circumstantial evidence exception, it is clear from his reasons that it was through this lens that he considered the admissibility of the complainant's statement. The trial judge stated [see 2015 ONSC 7187 (CanLII), [2015] O.J. No. 6200, at para. 13]:
Having touched on the issue of an allegation of fabrication by the defence, I would also admit the statement as a prior statement of [the complainant] as relevant and capable of assisting the trier of fact in determining a fact in issue and the credibility of [the complainant], it having been put squarely in issue that she fabricated her evidence.
Such admission has the capacity to impact positively, where admission of the statement directly addresses the allegation of fabrication, as but one factor to be taken into account as part of the larger assessment of credibility.
[40] It is the "declaration part" of the prior consistent statement that is relevant and leads to permissible circumstantial inferences. Given the circumstances in which the complainant made her statement in this case, the trial judge did not err in admitting the statement under the narrative as circumstantial evidence exception to the prior consistent statement rule.
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