Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. SAS, 2023 ABCA 236, AUGUST 24, 2023.

FACTS:  The accused was convicted of the offence of sexual assault.  On appeal, the accused argued that the trial judge erred in using a prior consistent statement to bolster the complainant’s testimony.

HELD: The appeal was dismissed.  In dismissing the appeal, the Alberta Court of Appeal made the following comments concerning prior consistent statements and section 715.1 of the Criminal Code.

Prior Consistent Statements (at paragraphs 23 to 26):

Because repetition rarely adds much to reliability or credibility, prior consistent statements are often treated as inadmissible. An inadmissibility ruling can intercept such evidence before a jury hears about it. But the real problem is the misuse of the prior consistent statement for the testimonial value of their content as confirmation or corroboration unless there is a basis in law to do so: see R v Stirling2008 SCC 10, [2008] 1 SCR 272.

As said, the concern is the risk that a trier of fact, usually a jury, may erroneously link repetition with reliability or credibility. The fact that a witness has said something more than once does not make it more likely to be honest or accurate, jury or not.

This rule is sound. Any witness can lie twice or be mistaken twice. The mere repetition of a statement by the same witness does not of itself enhance the credibility or reliability of its content, unless the fact of repetition is, in effect, circumstantial (or even real) evidence in its own right, or is otherwise permissibly relevant and probative to an issue in the trial (including rebuttal of an allegation of fabrication) or is permissibly ‘adopted’ into the present testimony of the witness, or is permitted by statute. In the case at bar, the trial judge’s reasoning is consistent with the first three of those bases of legitimate consideration, and it is not the alleged error of iteration as verification.

The common law does not absolutely ban either admission or use of prior consistent statements although ‘context is everything’. Examples of using prior consistent statements include cases of ‘recent fabrication’, ‘past recollection recorded’, ‘refreshed memory’, as against allegations of prior inconsistency, or by operation of a statutory provision. Sometimes parties also argue that a prior statement is allowable in service of ‘narrative’ – perhaps too casually.

Section 715.1 (at paragraphs 37 to 39):

The videotaped statements under s. 715.1 of the Code were not subject to any common law limitations on admission of prior consistent statements: compare.

Rather, a videotaped statement under s 715.1 of the Criminal Code may be admitted as evidence of its contents for the very purpose of being part of the evidence in chief of a complainant. As such, a video statement of a complainant under the Criminal Code it is not subject to exclusion as a prior consistent statement. Parliament has effectively decided the point of admissibility as it was entitled to do.

By a similar token, any differences between what was said in the s 715.1 Criminal Code statement and the viva voce evidence at trial may also be used in assessing the whole evidence. The defence claim may be that any inconsistencies between the two accounts so undermine the witness’s credibility or reliability as to raise a reasonable doubt: R v Untinen2017 BCCA 320 at paras 69-70, [2017] BCJ No 1806 (QL), leave refused [2017] SCCA No 485 (QL). So, evaluation of the content of a s 715.1 statement can cut both ways. As noted in Untinen, at para 74:

74   As this case illustrates, the truth-seeking function of the trial may be enhanced by permitting the trier of fact to consider both inconsistencies and consistencies evident in two versions of events related at different times. In the case at bar, the consistencies permitted the judge to assess the cogency of the defence that the complainant’s in-court account was the product of confabulation. As I have explained, doing so did not require him to conclude that internal consistencies made it more likely that the complainant was telling the truth. The consistent features of the complainant’s prior statement were not used to “add weight” to or otherwise corroborate her account. They were simply used to eliminate, as a potential source of a reasonable doubt, the possibility that the version related by the complainant at trial was a fiction attributable to her cognitive decline. 

[Emphasis added by the Court of Appeal]