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


R. v. G.S., 2023 ONCA 712, OCTOBER 27, 2023.

FACTS: The accused was convicted of the offence of sexual assault.  At his trial, defence counsel cross-examined the complainant (D.A.) in relation to alleged “inconsistencies between what she had told the police during her initial statement and her testimony at trial. Crown counsel raised the concern that while there were inconsistencies between the complainant’s trial testimony and her police statement, her evidence at the preliminary inquiry was the same as her trial evidence. Accordingly, the Crown sought and was granted permission to re-examine the complainant on the consistencies between her preliminary inquiry and trial evidence. It is this ruling that forms the subject of the first ground of appeal” (at paragraph 15).

HELD:  The appeal was dismissed.  The Ontario Court of Appeal saw “no error in permitting the Crown to elicit evidence about the prior consistent statements from the preliminary inquiry” (at paragraph 16).

The Court of Appeal started “with the well-known rule that prior consistent statements are generally inadmissible” (at paragraph 35).  However, “[o]ne such exception is that a prior consistent statement is admissible when an explicit or implicit suggestion is made to a witness that they have made a previously inconsistent statement about a particular point, when in fact they had previously made both inconsistent and consistent statements. In this context, depending upon the exercise of discretion by the trial judge, it is possible to elicit the fact of prior consistent statements in order to achieve contextual fairness….Therefore, where a witness’ credibility is attacked on the basis of prior inconsistent statements, the question becomes whether a prior consistent statement can assist the trier of fact in making a more accurate assessment of the witness’ credibility by taking away potentially erroneous impressions fostered by the incomplete picture of what the witness has previously said…This rule allows for a balanced perspective on the witness’ prior statements and gives the jury a proper and accurate context in which to consider the defence attack upon the credibility and reliability of the witness based upon alleged prior inconsistencies” (at paragraphs 37 and 38).

Finally, the Court of Appeal expressed a note of caution (at paragraphs 44 and 45):

Even where an exception to the general rule of exclusion applies, trial judges must remain on high alert when dealing with prior consistent statements. This is because, even where an exception applies, a risk of prejudice can still flow from the admission of such statements, particularly when unaccompanied by strong jury instructions. Therefore, even after a finding of admissibility is made, it remains incumbent upon trial judges to consider limiting how the prior consistent statement is to be elicited. This includes assessing whether the full content of the statement, or just a part of it, needs to be elicited to achieve the purpose of admission. And, indeed, it includes determining whether it is sufficient to simply elicit the fact that a prior consistent statement was made, without actually placing the statement before the trier of fact: R. v. Hunter (2004), 182 C.C.C. (3d) 121 (Ont. C.A.), at para. 5.

While there was no objection taken at trial or on appeal to the trial Crown having read some passages from the preliminary inquiry transcript aloud during the re-examination, it strikes me that in order to achieve the purpose for admission in this case, there was no need to read from the actual transcript. To place the matter in its proper context, what the jury needed to know was that D.A. was not recounting the impugned details for the first time during her testimony at trial. Accordingly, it would have been sufficient to simply elicit from D.A. that she had testified at the preliminary inquiry in a manner consistent with what she said at trial.

This Case:

In this case, the Court of Appeal concluded that because “the defence closing address alleged that the complainant was fabricating her evidence at the time of the trial on the spot to deceive the jury”, this “created a misleading and inaccurate picture of her evidence. The complainant had recalled those details in advance of the trial and committed them to the record in her preliminary inquiry testimony. Fairness demanded that the trier of fact understand that context…Therefore, there was no error in allowing the Crown to pursue this matter in re-examination” (at paragraphs 41 and 42).