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


In R. v. Primmer, 2021 ONCA 564, August 10, 2021, the accused was convicted of the offence of assault.  At his trial, the Crown introduced photographs of the complainant’s injuries, a broken necklace and evidence from witnesses that the complainant had told about the assault.

In convicting the accused the trial judge said:

I find that [the complainant’s] evidence relating to the beating and the cutting is corroborated by the photographs, the broken necklace, and also the evidence of the other witnesses…

On appeal from conviction, the accused argued that that the trial judge erred in law in concluding that the photos, the broken necklace, and the evidence of other witnesses “corroborated” the complainant’s evidence.

The appeal was dismissed.

The Prior Consistent Statements:

The Court of Appeal held that the evidence of the witness the complainant spoke to after the assault, “was, without question, admissible for certain purposes in the context of the issues at trial. As Crown counsel submitted, the evidence of the complainant’s explanations for her injuries and her disclosures were part of the narrative…Moreover, her changing account, which was focused on by the defence, was central to the assessment of her credibility and reliability. She had repeatedly denied that she had been assaulted by the appellant, including to the CAS and the police, and it was only months after she sustained the injuries that she told the police they were inflicted by the appellant” (at paragraph 27).

The Court of Appeal concluded that the complainant’s prior consistent statements became relevant because the defence argued that she had been inconsistent (at paragraph 28):

The fact that the complainant told others on earlier occasions that she had been assaulted by the appellant was relevant to her credibility in that it could help the trial judge assess the defence argument that the complainant should not be believed because of the different accounts of the relevant events she had given. Defence counsel not only highlighted the complainant’s lies about the cause of her injuries, he also attacked her credibility by arguing that there were material inconsistencies between what she told S.M., H.E., and R.E., when she disclosed that the appellant had caused her injuries, and her evidence at trial. The trial judge was entitled to consider that argument having regard to the entirety of the statements made to these witnesses. Using the complainant’s prior statements in assessing the effectiveness of the defence challenge to her credibility does not constitute using those statements for their truth or for the prohibited inference that repetition enhances credibility. In addressing the prior statements, the trial judge did what she was invited to do: she considered S.M. and H.E.’s accounts of what the complainant told them about the incidents and the complainant’s testimony to assess whether the complainant’s account was materially inconsistent when looked at as a whole, and to gauge the impact that any differences in detail should have on the complainant’s overall credibility and reliability. This is a permissible use of prior consistent statement evidence: see e.g., R. v. L. (O.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 34-36.


The Court of Appeal indicated that “[i]n a strict, legal sense,  evidence can corroborate the testimony of a witness only if that evidence is independent of the witness’s testimony. What the witness said on a prior occasion is not independent evidence capable of corroborating her evidence…[I]n saying that the evidence of the complainant’s statements, the necklace and the photos ‘corroborated’ the complainant’s evidence, the trial judge was not using the term in the strict legal sense. Rather, she was referring to evidence that supported the complainant’s evidence” (at paragraphs 30 and 38).

The Court of Appeal held that the “fact that the evidence did not directly confirm the most contentious point of the complainant’s evidence is of no moment. The consideration of evidence which is capable of confirming or supporting certain aspects of a witness’s testimony is typically part of the assessment of credibility in making findings of fact. ‘[C]onfirmatory evidence is often merely other circumstantial evidence that tends to support the Crown’s case, or to dispose of alternative hypotheses put forward by the defence. Such evidence can be given weight even if it does not directly ‘confirm the key allegations of sexual assault’ or ‘directly implicate the accused’”: R. v. Demedeiros, 2018 ABCA 241, 364 C.C.C. (3d) 271, at para. 8, aff’d 2019 SCC 11, [2019] 1 S.C.R. 568” (at paragraph 39).