Her Majesty the Queen v. Khan

[Indexed as: R. v. Khan]

Ontario Reports

Court of Appeal for Ontario

Doherty, LaForme, Pepall, Hourigan and B.W. Miller JJ.A.

February 13, 2017

136 O.R. (3d) 520 | 2017 ONCA 114

Case Summary

Criminal law — Evidence — Hearsay — Accused police officer convicted of sexually assaulting complainant by purporting to search her while transporting her to police station — Complainant protesting that she had already been searched three times when female police officer at police station told her that she was going to search her — Trial judge erring in admitting that statement under principled exception to hearsay rule — Requirement of necessity not met as complainant testified at trial and there was no indication that she was unable to recall significant details of incident.

Criminal law — Evidence — Prior consistent statements — Accused police officer convicted of sexually assaulting complainant by purporting to search her while transporting her to police station — Complainant protesting that she had already been searched three times when female police officer at police station told her that she was going to search her — Trial judge not erring in admitting that statement under narrative as circumstantial evidence exception to rule that prior consistent statements are not admissible — Trial judge properly using statement for purpose of evaluating context in which initial complaint arose, its timing and its spontaneous nature to assist him in assessing truthfulness of complainant's testimony.

The accused, a police officer, was charged with sexually assaulting the complainant by purporting to search her while transporting her to the police station. When the complainant arrived at the police station, a female officer advised her that only she would search her. The complainant became emotional and upset and stated: "I've already been searched three times, why are they searching me again". The trial judge admitted that statement under the res gestae exception to the hearsay rule. He noted that the statement was also admissible under the principled approach to the hearsay rule. The accused was convicted. The summary conviction appeal judge allowed his appeal and ordered a new trial on the basis that the trial judge erred in admitting and relying on the complainant's prior consistent statement. The Crown appealed.

Held, the appeal should be allowed.

Per Hourigan J.A. (LaForme, Pepall and B.W. Miller JJ.A. concurring): As the summary conviction appeal judge did not address the res gestae issue, perhaps because the Crown conceded on appeal that the preconditions of the res gestae exception to the hearsay rule were not met, it was unnecessary to deal with that issue.

The trial judge erred in admitting the statement under the principled exception to the hearsay rule. The requirement of necessity was not met as the complainant testified at trial. The necessity requirement does not require that the witness be absent or unable to give evidence. It can be satisfied where the witness is unable to give a full and frank account of events, or where the witness has difficulty recalling significant details of the event. In this case, the complainant testified consistently about the essential parts of the allegation, and the record did not establish that she was unable or unwilling to give a full account of events or could not recall significant details.

Prior consistent statements are presumptively inadmissible because they lack probative value. One exception to the basic rule is the narrative as circumstantial evidence exception. In appropriate cases, prior consistent statements can be useful tools in assisting the trier of fact to assess the truthfulness or reliability of the declarant. 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. He did not use the statement for the prohibited inference that consistence enhances credibility, or draw the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony. Rather, he used the prior consistent statement for the permissible purpose of evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint and the spontaneous way in which it came out, in assessing the truthfulness of the complainant's in-court testimony.

Per Doherty J.A. (concurring): The admissibility of a prior consistent statement, like the admissibility of other forms of evidence, turns on the relevance, materiality and probative value of the evidence. When a prior consistent statement is tendered, the admissibility inquiry should focus on those broader considerations rather than the technicalities of established exceptions. When a party tenders a prior consistent statement, the court must first determine the purpose for which that evidence is tendered. If the evidence is tendered for its truth, the evidence must qualify for admissibility under the controlling hearsay principles. If the prior consistent statement is not offered for the truth of its contents, the purpose for which it is offered must have relevance to a material issue in the proceeding. Once the purpose for offering the evidence is identified, the party tendering the evidence must show that it has some probative value in respect of the purpose for which it is offered. In this case, the evidence of the complainant's interaction with the police at the station, including her statement, was relevant to a proper assessment of her credibility. It was therefore admissible even if it was a prior consistent statement.

Authorities Referred To

Cases Considered:

R. v. C. (G.), [2006] O.J. No. 2245, 71 W.C.B. (2d) 257 (C.A.); R. v. Mackenzie, [2015] O.J. No. 575, 2015 ONCA 93, 19 C.R. (7th) 150, 119 W.C.B. (2d) 128

Other Cases Referred To:

R. v. C. (M.), [2014] O.J. No. 3959, 2014 ONCA 611, 314 C.C.C. (3d) 336, 325 O.A.C. 1, 13 C.R. (7th) 396, 115 W.C.B. (2d) 585; R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, 234 O.A.C. 238, 54 C.R. (6th) 237, 77 W.C.B. (2d) 143 (C.A.); R. v. Dakin, [1995] O.J. No. 944, 80 O.A.C. 253, 27 W.C.B. (2d) 16 (C.A.); R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, EYB 2008-133045, J.E. 2008-1022, 374 N.R. 198, 231 C.C.C. (3d) 177, 293 D.L.R. (4th) 375, 57 C.R. (6th) 48, 77 W.C.B. (2d) 514; R. v. Evans, [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, 104 D.L.R. (4th) 200, 153 N.R. 212, J.E. 93-1204, 28 B.C.A.C. 81, 82 C.C.C. (3d) 338, 21 C.R. (4th) 321, 20 W.C.B. (2d) 130; R. v. F. (J.E.) (1993), 16 O.R. (3d) 1, [1993] O.J. No. 2589, 67 O.A.C. 251, 85 C.C.C. (3d) 457, 26 C.R. (4th) 220, 21 W.C.B. (2d) 382 (C.A.); R. v. Khan, [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 113 N.R. 53, J.E. 90-1356, 41 O.A.C. 353, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1, 11 W.C.B. (2d) 10, affg , [1988] O.J. No. 578, 27 O.A.C. 142, 42 C.C.C. (3d) 197, 64 C.R. (3d) 281, 5 W.C.B. (2d) 54 (C.A.); R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, 235 C.C.C. (3d) 290, 83 B.C.L.R. (4th) 44, EYB 2008-148153, J.E. 2008-1861, [2008] 11 W.W.R. 383, 260 B.C.A.C. 40, 60 C.R. (6th) 1, 380 N.R. 47, 297 D.L.R. (4th) 577, 79 W.C.B. (2d) 321; R. v. Ratten, [1972] A.C. 378, [1971] 3 All E.R. 801, [1971] 3 W.L.R. 930, 56 Cr. App. Rep. 181, 136 J.P. 27 (P.C.); R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, J.E. 2008-619, EYB 2008-130905, 371 N.R. 384, 229 C.C.C. (3d) 257, 54 C.R. (6th) 228, [2008] 5 W.W.R. 579, 77 B.C.L.R. (4th) 1, 291 D.L.R. (4th) 1, 59 M.V.R. (5th) 1, 251 B.C.A.C. 62, 76 W.C.B. (2d) 761; R. v. Trask, [1987] 2 S.C.R. 304, [1987] S.C.J. No. 58, 79 N.R. 145, 66 Nfld. & P.E.I.R. 262, 68 Nfld. & P.E.I.R. 271, 37 C.C.C. (3d) 92, 59 C.R. (3d) 179, 32 C.R.R. 187; R. v. Youvarajah, [2013] 2 S.C.R. 720, [2013] S.C.J. No. 41, 2013 SCC 41, 362 D.L.R. (4th) 511, 447 N.R. 47, 308 O.A.C. 284, 2013EXP-2493, J.E. 2013-1340, EYB 2013-224843, 3 C.R. (7th) 40, 300 C.C.C. (3d) 1, 108 W.C.B. (2d) 653

Statutes Referred To:

Criminal Code, R.S.C. 1985, c. C-46, ss. 684, 826

Authorities Referred To:

Hill, S. Casey, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed. (Toronto: Canada Law Book, 2013)

Paciocco, D.M., "The Perils and Potential of Prior Consistent Statements: Let's Get It Right" (2013), 17 Can. Crim. L. Rev. 181

Proceedings

APPEAL by the Crown from the judgment of Vallee J., [2015] O.J. No. 6200, 2015 ONSC 7187 (S.C.J.) quashing the conviction entered by B. Frazer J. of the Ontario Court of Justice dated December 16, 2013.

Counsel:

John McInnes, for appellant.

David Butt and Maija Martin, for respondent.

Matthew Gourlay and Maya Borooah, for intervenor Criminal Lawyers' Association.

Decision

HOURIGAN J.A. (LAFORME, PEPALL and B.W. MILLER JJ.A. concurring):

I. Introduction

[1] The respondent, who was a police officer, was convicted of one count of sexual assault. The complainant was a prisoner he was transporting to a police station. She alleged that the respondent sexually assaulted her while performing searches of her in the back of a police cruiser.

[2] The summary conviction appeal judge quashed the conviction and ordered a new trial on the basis that the trial judge had erred in admitting and relying on a prior consistent statement made by the complainant.

[3] In my view, the statement was admissible, and was not used by the trial judge for an impermissible purpose. Accordingly, I would grant leave to appeal, allow the appeal and restore the conviction.

II. Background

[4] The complainant was arrested while in possession of cocaine. The respondent was a uniformed police officer with the York Regional Police Service. He was called to the arrest site to transport the complainant to the police station. According to the complainant, while she was handcuffed behind her back, the respondent opened the back door of the cruiser and proceeded to "pat down" her arms and thighs. A short time later, she says that the respondent advised her that he would do another search to ensure she did not have any weapons. He turned off the interior dome lights of the vehicle, exited the vehicle again and opened the back door. He leaned in and again patted down the complainant's legs and thighs, but this time he also patted down her chest.

[5] The complainant says that the respondent then began to drive toward the police station, but just before getting there, he told her that he had to check for weapons again. He exited the cruiser, opened the back door and leaned in. This time, the respondent pulled the fabric of the complainant's tank top away from her chest, and then looked down her top while shining a flashlight down it. The complainant told the respondent she was uncomfortable, at which point the respondent returned to the driver's seat and drove to the police station.

[6] When the complainant arrived at the police station, a female officer, Constable Flint, advised her that only she would search her. At this point, the complainant stated, "I've already been searched three times, why are they searching me again" and became emotional and confused. Constable Flint asked her what she meant, to which the complainant responded: "I've been searched three fucking times. How many times am I going to be searched?" Constable Flint immediately reported the matter to a staff sergeant, who asked an on-duty sexual assault investigator to interview the complainant.

[7] The respondent was eventually charged with one count of sexual assault. At trial, following a voir dire, the trial judge admitted the complainant's statement to Constable Flint, on the basis that it was "a spontaneous utterance and as a prior statement to assist the court with the ultimate credibility of [the complainant]". The trial judge also indicated that the statement was admissible under the principled approach to the hearsay rule.

[8] On appeal to the summary conviction appeal court, Vallee J. held that the trial judge erred in finding the prior consistent statement was admissible under the principled approach to the hearsay rule, as it was not "necessary" because the complainant testified at trial. Vallee J. also concluded that the trial judge erred in using the prior consistent statement for the truth of its content and, further, that he used the statement for the impermissible purpose of inferring truth from repetition. She referenced the trial judge's language that the prior consistent statement showed "the consistency of [the complainant's] complaint" and that "it assisted the court in determining the overall credibility in a positive way". Vallee J. quashed the conviction and ordered a new trial.

III. Parties' Positions

[9] The Crown argues that the trial judge used the prior consistent statement for a proper and restrained purpose. The spontaneous nature of the initial complaint, and the complainant's repetition of the essential elements of the allegations, provided important context in which to assess the complainant's credibility. The trial judge's reasons as a whole reflect a proper use of the statement, having regard to the circumstances in which it came out. In this case, the trial judge concluded that the circumstances surrounding the initial complaint impacted on the complainant's credibility in a positive way.

[10] The Crown also seeks to have this court reconsider its endorsement in R. v. Mackenzie, [2015] O.J. No. 575, 2015 ONCA 93, 19 C.R. (7th) 150. The Crown's concern is that Mackenzie could be interpreted as standing for the proposition that where a statement is admitted under the res gestae exception to the hearsay rule, but is also a prior consistent statement, it cannot be relied upon for the truth of its contents. In response to a request made by the Crown, the chief justice struck a five-judge panel.

[11] The respondent argues that the trial judge relied heavily on the truth of the complainant's prior consistent statement that she had already been searched three times, when that statement was not admissible as an exception to the hearsay rule, or under the principled approach to the hearsay rule. The respondent further argues that the statement was not admissible pursuant to any recognized exception to the general rule that prior consistent statements are inadmissible. The respondent submits that the summary conviction appeal court correctly quashed the conviction. Further, the respondent submits that the trial judge erred in his analysis of the evidence, and that his reasons are inadequate.

IV. Analysis

[12] As I will explain below, I am of the view that the trial judge's reasons, when read as a whole, reflect that the trial judge used the prior consistent statement for a limited, permissible purpose.

[13] The complainant's verbal reaction to Constable Flint advising her that she would be searched is presumptively inadmissible, because it is hearsay or, alternatively, because it is a prior consistent statement. The statement, therefore, can only be admissible if it falls within an exception to the hearsay rule, or an exception to the prior consistent statement rule.

[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] O.J. No. 578, 42 C.C.C. (3d) 197 (C.A.), affd , [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] O.J. No. 944, 80 O.A.C. 253 (C.A.), at para. 20.

[16] The trial judge first addressed the admissibility of the statement under the traditional exception to the hearsay rule of res gestae or spontaneous utterance. He concluded that the statement had a spontaneous quality and was admissible under this exception, and rejected the respondent's argument that, due to her life experiences, the complainant had the ability to concoct the story of having been searched.

[17] The summary conviction appeal judge did not address this route of admissibility in her reasons, perhaps because the Crown conceded before the summary conviction appeal court that the pre-conditions of the res gestae exception to the hearsay rule were not met in this case. Given that concession, this route of admissibility need not be addressed further.

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.

[19] The trial judge concluded that, by virtue of its spontaneity, the statement was reliable, and that it met the necessity requirement. The trial judge based his conclusion that the statement was "necessary" on the fact that there had been "a direct attack on [the complainant's] credibility by way of an allegation of complete fabrication" and her "professed lapses of memory or gaps of memory with respect to portions of her evidence".

[20] The summary conviction appeal court held that necessity was not met in this case because the witness testified. The summary conviction appeal judge stated, at para. 12:

Necessity is a component of the hearsay analysis along with reliability. It often involves a recanting, dead or absconding witness who made the prior consistent statement. If the witness does not attend at trial, it may be necessary to admit the prior consistent statement to obtain the evidence. Here, the complainant did give evidence at trial, so it was not necessary to admit the prior consistent statement in order to obtain the evidence.

[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.

[22] That being said, the trial judge's analysis of necessity was problematic. While lapses in memory can, in some circumstances, satisfy the necessity requirement under the principled approach, an attack on a witness' credibility generally does not satisfy the necessity requirement of the principled approach.

[23] Although not for the reason identified by the summary conviction appeal judge, I am of the view that necessity was not met, and thus the statement is not properly admitted under the principled approach. The complainant testified consistently about the essential parts of the allegations. Whatever lapses may have existed in her memory, they did not go to the essential details of the allegation that she had been previously searched numerous times. The record does not establish that the complainant was unable or unwilling to give a full account of events, or could not recall significant details of the event. The necessity component of the principled approach to hearsay is not satisfied.

[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 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), 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] 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] 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 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.

[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:

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.

[38] The summary conviction appeal judge addressed the admissibility of the statement as a prior consistent statement very briefly, stating, at para. 14:

In Khan, the court does address circumstances in which a prior consistent statement may be admissible; however, these relate to cases involving child complainants and the evidentiary challenges associated with their testimony.

[39] The summary conviction appeal judge also failed to address the basis upon which the trial judge admitted the statement as a prior consistent statement, which, in large part, drove the court's ultimate conclusion that the statement was misused. In particular, and as noted above, in some cases a prior statement has independent cogency, and is not used merely to support the testimony of the witness by duplication. A prior consistent statement can be used not to corroborate the evidence of the witness, but to provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness' in-court testimony: F. (J.E.), at para. 89.

[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.

D. Use of the statement

[41] Although the statement was admissible under the narrative as circumstantial evidence exception to the rule against prior consistent statements, such evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony: Paciocco, at p. 199.

[42] The summary conviction appeal judge concluded that the trial judge had used the prior consistent statement in this impermissible way, stating, at para. 15:

The trial judge used the prior consistent statement for the truth of its contents. This is highlighted where he states that it showed "the consistency of her complaint" and "it assisted the court in determining the overall credibility in a positive way." The trial judge appears to have relied on the prior consistent statement as a foundational pillar for his decision. The use of the prior consistent statement in this way illustrates the reasons why a prior consistent statement is presumptively inadmissible. Just because a witness says the same thing twice does not mean that she is more likely to be telling the truth. The trial judge made an error in the treatment of an important piece of evidence which appears to have informed his conclusion.

[43] In my view, taking the reasons as a whole, the trial judge used the prior consistent statement for the permissible purpose of evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint, and the spontaneous nature in which it came out, in order to assist him in assessing the truthfulness of the complainant's in-court testimony. While some of the trial judge's language was not ideal, his phraseology must be put in context. In referring to the "consistency of her complaint", the trial judge stated:

[The statement's] spontaneity and the context in which it was made, are capable of, and do support her credibility and the consistency of her complaint. In short, the court finds her evidence credible.

In the court's view, the spontaneity of that statement is compelling, and also assists the court in determining the overall credibility of [the complainant], and impacts upon her credibility in a positive way.

[44] The trial judge properly placed the prior consistent statement on the scale in assessing the credibility of the complainant's in-court testimony by considering the circumstances in which she made her initial complaint to Constable Flint. To this extent, the prior consistent statement does add to the credibility of the complainant's in-court testimony and had probative value beyond mere repetition. It was evidence of the sequence and timing of events and the emotional state of the complainant at the time of the utterance, and assisted the trial judge in evaluating the credibility of the complainant's in-court testimony. The trial judge's use of the prior consistent statement was proper.

E. Reconsideration of Mackenzie

[45] In Mackenzie, the court concluded that the trial judge erred in the way he used the complainant's prior consistent statements to police officers and her daughter about an assault committed on her by her boyfriend. The trial judge indicated, at para. 127, that he had looked for, and found, "corroboration" of the complainant's allegations in her statements to her daughter and the officers. He also concluded, at para. 116, that the complainant was consistent in describing what happened because ". . . she told essentially the same things to Sergeant Pulfer, Constable Deschamps and again in the police audio-video interrogation".

[46] In concluding that the trial judge erred in his use of the prior consistent statements, this court made the following comments, at paras. 10-12:

. . . the trial judge relied upon certain statements admitted, in some cases at least, as part of the res gestae, as confirmation of the complainant's account.

The relevant evidence was provided by the complainant's daughter and several police witnesses who, as I have said, responded to the 911 call. The daughter's evidence was proffered by the Crown under the common law res gestae exception and admitted on that basis. To the extent that the statements coincided with the complainant's trial evidence, they were prior consistent statements not admissible for their truth, and thus not capable of providing substantive support for the complainant's testimony. Their use however, was not so limited.

. . . The evidence upon which (the trial judge) relied as confirmation consisted of an amalgam of inadmissible opinion and of evidence of the complainant's statements that was properly admissible for one purpose, but not for that purpose used by the trial judge.

(Emphasis added)

[47] The Crown argues that the court's comments in Mackenzie could be interpreted as meaning that statements admitted under the res gestae exception to the hearsay rule are not capable of providing substantive support for consistent testimony.

[48] Given that in this case the res gestae exception to the hearsay rule is not operative, the issue of the suggested interpretation of Mackenzie raised by the Crown is not relevant to the present analysis.

[49] I will state that I do not interpret the comments in Mackenzie in the same manner as the Crown. In my view, the cited passage stands for the correct principle that a prior consistent statement that is admitted under the res gestae hearsay exception will have limited permissible uses. For example, there is no added value in the fact that the same statement was repeated; the value, if any, comes from the context and circumstances in which the admissible hearsay statement was made: Paciocco, at pp. 192-94. I do not view the court's comments in Mackenzie as inconsistent with this well-established law.

F. Other arguments raised by the respondent

[50] The respondent submits the trial judge misapprehended the evidence against the respondent by failing to consider inconsistencies in the complainant's testimony, and by misstating the evidence regarding the precise areas of her body that were searched.

[51] I would not accede to these arguments. The trial judge carefully reviewed the complainant's evidence and he acknowledged that there were minor inconsistencies. Ultimately, he found her to be a credible witness. There is no basis for appellate interference with that finding. To the extent that the trial judge may have misstated the evidence by failing to reference the fact that the respondent also rubbed the complaint's thighs during the second search, I do not find that omission to be a palpable and overriding error. Indeed, the exclusion of a reference to the rubbing of the complainant's thighs, if anything, inured to the benefit of the respondent.

[52] The respondent submits that the trial judge's reasons were insufficient. I disagree. In my view, the reasons are sufficient to fulfill their threefold functions: (i) they explain the verdict; (ii) they provide public accountability; and (iii) they permit effective appellate review: R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, at para. 15. Moreover, when the respondent's submissions regarding the reasons are examined, they amount to nothing more than a complaint that the trial judge did not reference each of his arguments. A trial judge is not obliged to refer to every item of evidence or every argument raised in his/her reasons: Dinardo, at para. 30.

[53] The respondent also seeks to appeal his sentence in this court. However, we have no jurisdiction to consider his sentence appeal, as the conviction was quashed by the summary conviction appeal court, and that court never determined the sentence appeal.

[54] Finally, the respondent submits that this is one of those rare cases where it is appropriate to order the Attorney General of Ontario to pay the legal fees and disbursements of the respondent, pursuant to ss. 684 and 826 of the Criminal Code, R.S.C. 1985, c. C-46. I would reject this request.

[55] The discretionary awarding of costs in this manner is very rare, and is generally restricted to situations where the Crown is appealing a summary conviction matter in order to settle a point of law. In those cases, it is the public at large who are the beneficiaries of the litigation, so it makes good sense that the individual litigant should not bear the costs of the litigation: R. v. Trask, [1987] 2 S.C.R. 304, [1987] S.C.J. No. 58. That is not this case. This judgment applies well-established legal principles to the facts of this case. Consequently, this is not one of those very rare cases where a costs award is appropriate.

V. Disposition

[56] I would grant leave to the Crown to appeal, allow the appeal, restore the conviction entered at trial and remit the sentence appeal to the summary conviction appeal court for determination.

Concurring Opinion

[57] DOHERTY J.A. (concurring): -- I agree with Justice Hourigan's proposed disposition of the appeal. I write separately to outline the approach I suggest should be taken in determining the admissibility of a prior consistent statement.

[58] The admissibility of prior consistent statements is governed by what I would describe as the traditional common law model. We are told that prior consistent statements are presumptively inadmissible subject to a series of discrete exceptions. Admissibility depends on whether the proffered evidence fits into any of the pre-existing exceptions. This approach, once common to most evidentiary rules, most notably the rules governing hearsay evidence, has to a large extent been abandoned in favour of a principled-based approach to admissibility.

[59] The admissibility of a prior consistent statement, like the admissibility of other forms of evidence, turns on the relevance, materiality and probative value of the evidence. When a prior consistent statement is tendered, the admissibility inquiry should focus on these broader considerations rather than the technicalities of established exceptions. This change in focus would not produce any significant change in the circumstances in which the prior statement would be admitted. The existing exceptions are to a large extent a product of the application of the broader principles underlying the admissibility of evidence. An approach which looks to broader principles would, however, require counsel and the trial judge to come to grips with the precise use of and value of the evidence of the prior consistent statement in the specific circumstances of the case. I think an approach based on the broader principles is much more likely to focus the minds of counsel and the trial judge on exactly what the evidence is said to do and the ability of the evidence to further that stated purpose. Instead of broad statements such as "the evidence goes to credibility", the principled approach should produce reasons explaining exactly how the evidence, in the circumstances of the case, goes to credibility.

[60] When a party tenders a prior consistent statement, the court must first determine the purpose for which that evidence is tendered. If the evidence is tendered for its truth, in this case to prove that the complainant was in fact searched three times before she was to be searched at the police station, the evidence must qualify for admissibility under the controlling hearsay principles. My colleague has referred to those principles (see paras. 15-24).

[61] If the prior consistent statement is not offered for the truth of its contents, the threshold admissibility question remains the same -- for what purpose is the evidence offered? That purpose must be one which can properly be the subject matter of evidence in the proceedings. In other words, the purpose must have relevance to a material issue in the proceeding.

[62] Once the purpose for offering the evidence is identified, the party tendering the evidence must show that it has some probative value in respect of the purpose for which it is offered. For example, if it is said that the evidence of the prior consistent statement is relevant to the complainant's credibility, the party offering the evidence must show how it is relevant to the complainant's credibility.

[63] The operation of the approach I have outlined can be described by reference to one of the most common situations in which a prior consistent statement is tendered at trial. The Crown may seek to elicit evidence of a statement made by a complainant to the police shortly after an alleged assault. That statement may be consistent with the complainant's trial testimony. When the statement is offered, the first question in the evidentiary inquiry must be -- for what purpose is the evidence offered? If the Crown argues that the statement is admissible to prove as true the contents of the statement, the Crown must establish that the statement is admissible hearsay.

[64] If the Crown does not suggest that the evidence is admissible to prove the truth of its contents, the Crown must identify some other purpose for which the statement is offered. The Crown may argue that the prior consistent statement supports the complainant's credibility. Clearly, the complainant's credibility is material to the proceeding and is properly the subject matter of evidence at trial. It is not enough, however, for the Crown to show that the complainant's credibility is a material fact. The Crown must also demonstrate how the prior consistent statement can impact positively on the complainant's credibility. If the Crown's argument comes down to the suggestion that the consistency between the prior statement and the complainant's evidence at trial justifies admissibility, the argument fails because consistency on its own provides no insight into credibility. To know that the complainant made a statement that is consistent with his evidence at some earlier point in time simply does not assist in the assessment of his credibility.

[65] The prior consistent statement can, however, become relevant to credibility if the assumed facts change somewhat. If the defence challenged the complainant's credibility, claiming he had fabricated the allegation after being confronted by his boyfriend about his relationship with the accused, evidence that the complainant made a prior consistent statement before his boyfriend confronted him, would support the complainant's credibility. The prior statement would support the complainant's credibility, not because it is consistent with his testimony, but because it refutes the defence claim that the complainant fabricated a false allegation in response to being confronted by his boyfriend. By neutralizing the reason advanced by the defence for the fabrication of the allegation, the evidence has the effect of supporting the complainant's credibility.

[66] The trial judge held that the complainant's prior consistent statement to Constable Flint that she had been searched three times was relevant in that it assisted in assessing the complainant's credibility. I think he was right. On the approach I have set out above, the reasoning goes as follows.

[67] I begin with the substance of the complainant's evidence. She testified that she was searched by the respondent three times in the police cruiser. The first two searches did not concern her. The complainant was unfamiliar with police practices and assumed that the respondent was following established procedures. During the third search, the respondent shone a flashlight down her shirt and looked at her breasts. The complainant told the officer that this made her uncomfortable and he stopped.

[68] On the complainant's evidence, she did not know if the respondent's actions constituted a sexual assault. She had no intention of alleging that the respondent had sexually assaulted her, or complaining about his behaviour when she arrived at the police station. In her testimony, the complainant presented as a reluctant complainant who had done nothing to initiate the allegations against the respondent and was testifying only because she had been subpoenaed. On her evidence, the police initiated the sexual assault investigation and carried it forward to trial.

[69] The complainant was vigorously cross-examined. In that cross-examination, the defence alleged that the complainant had fabricated the allegations, and that the respondent had not searched her at all in the vehicle. During cross-examination, counsel suggested to the complainant various reasons she might have to fabricate the allegations.

[70] The complainant's evidence that she did not complain about the respondent's conduct at the police station, and that it was the police who initiated the sexual assault investigation in response to her comment that she had been searched three times, was consistent with and therefore tended to confirm her trial evidence to the effect that she was a disinterested, reluctant complainant with no real interest in the outcome of the trial. If the trial judge accepted that the complainant did not initiate the allegation and was disinterested in pursuing it, that finding could reasonably make her evidence describing the events in the police car more credible. Also, if the trial judge accepted that the complainant had not been the one to make the sexual allegation and had not pursued that allegation, the defence suggestion that she had fabricated the allegation would have no force.

[71] In my view, the evidence of the complainant's interaction with the police at the station, including what she said to Constable Flint, was relevant to a proper assessment of her credibility. It was therefore admissible even if it was a prior consistent statement.

[72] I agree with my colleague's proposed disposition.

Result

Appeal allowed.

Notes

1 There are exclusionary rules that have nothing to do with the relevance and materiality of the proffered evidence, e.g., claims based on privilege. All evidence tendered by the Crown is also subject to an overriding authority to exclude Crown evidence where its prejudicial effect outweighs its probative value. The approach I outline is not intended to undercut any of these exclusionary rules. For my present purposes, I assume none apply here.

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