Court File and Parties
COURT FILE NO.: 15454/20 DATE: 2023-02-03 ONTARIO SUPERIOR COURT OF JUSTICE
His Majesty the King – and – Abhilash Baiju
Counsel: M. Newhouse, for the Crown R. Meredith for the Accused
HEARD: February 2, 2023
BEFORE: Woodley, J.
RULING – CROWN’S PROPOSED USE OF PRIOR CONSISTENT STATEMENTS DURING RE-EXAMINATION
WARNING
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO ANY ORDER UNDER SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA. THESE REASONS FOR DECISION COMPLY WITH THIS RESTRICTION AND CONTAIN NO INFORMATION IDENTIFYING THE COMPLAINANT IN THIS PROCEEDING.
Overview
[1] The accused is alleged to have procured the complainant to provide sexual services for consideration, to have received a financial benefit from the procurement, to have advertised to provide sexual services of the complainant, and to have communicated with the complainant’s clients for the purpose of facilitating the purchase of the complainant’s sexual services, contrary to sections 286.3(1), 286.2(1), 286.4, and 286.1 (1) of the Criminal Code of Canada.
[2] The accused pleaded not guilty to the charges and the trial by jury commenced on January 30, 2023.
[3] The complainant was examined in chief by Crown counsel on January 31, 2023.
[4] The complainant was cross-examined by Defence counsel on February 1, 2023.
[5] During cross-examination, Defence counsel elicited numerous inconsistencies between the complainant’s evidence at trial, her police statement sworn September 2019, and her testimony given at the preliminary inquiry in September 2020.
[6] Re-examination of the complainant by the Crown was scheduled to commence on February 2, 2023.
The Issue
[7] Prior to re-examination, Crown counsel sought leave to introduce certain specified portions of the complainant’s prior consistent statements during re-examination to provide context in which the jury may assess the “attack” on the complainant’s reliability based on inconsistencies.
The Position of the Parties
[8] The Crown submits that the use of the proposed prior consistent statements is permissible to “rehabilitate the witness by reference to consistencies between the prior consistent statements” as per R. v. Murray 2017 ONCA 393.
[9] The Crown further submits that the proposed prior consistent statements may counter, or at least mitigate, a claim that the complainant was not credible or that her evidence was not reliable because of the numerous prior inconsistent statements elicited during cross-examination.
[10] The Crown relies on several cases from the Court of Appeal in support of her submission including R. v. L.O.[^1] 2015 ONCA 394; R. v. Murray 2017 ONCA 393; and R. v. Hunter 2004 ONCA 32107.
[11] The Defence argues that the introduction of prior consistent statements by the Crown during re-examination is impermissible and would cause great prejudice to the accused if permitted.
[12] The Defence argues that the issue and facts in the present case are entirely distinguishable from R. v. L.O., supra. As for Hunter and Murray, the Defence submits that while the test set out in Murray is applicable, the facts in the present case do not satisfy the Murray test nor do they satisfy any exception to the general rule against the admission of self-serving evidence.
The Law and Analysis
[13] The purpose of re-examination is to enable the witness to explain and clarify relevant testimony which may have been weakened or obscured in cross-examination. The general rule is that re-examination must be confined to matters which arose out of cross-examination: see The Law of Evidence in Canada, 6th Edition, Lederman, Fuerst, Stewart, para 16:08.
[14] The right to re-examine also extends to rehabilitation of the credibility of the witness and includes the right to ask the witness to explain or clarify discrepancies between the witness’ evidence in chief and cross-examination.
[15] It is a well-established general rule that prior consistent statements of a witness are not admissible: see R. v. Ellard, 2009 SCC 27.
[16] As explained in Watt’s Manual of Criminal Evidence, 2021, at para 19.08, prior consistent statements are generally excluded by a rule that is known by several names, including, the rule against
a. Narrative;
b. Self-corroboration; and
c. Self-serving statements.
[17] The rule is grounded in concerns that evidence may be manufactured by witnesses through mere repetition of a consistently false story and trials will be prolonged unnecessarily by repetitious evidence of little probative value. What is excluded is not hearsay because it is not tendered for the truth of what is said. The prohibition bars evidence of the statement from both the declarant and the recipient: see Watt’s Manual of Criminal Evidence, at para 19.08.
[18] The rule against narrative has several exceptions. Evidence of prior consistent statements of a witness may be admitted, for example:
a. In rebuttal of an allegation of recent fabrication;
b. As evidence of prior identification;
c. As evidence of recent complaint;
d. As part of the res gestae; and
e. As evidence of the physical, mental, or emotional state of the declarant.
[19] The evidence is received as an exception to the exclusionary rule, not for other or different purposes: see Watt’s Manual of Criminal Evidence, para 19.08.
[20] It has been held that prior consistent statements may be admissible to provide important context in which a trier of fact may assess an attack on the witness’ reliability based on alleged inconsistencies. The consistencies may counter, or at least mitigate, a claim that a witness was not credible or their evidence reliable because of many prior inconsistent statements: see Murray, supra, at para 152.
[21] Where evidence of a prior consistent statement is offered as support of a witness’ credibility or the reliability of their evidence, a trial judge must decide whether, in all the circumstances, evidence that the witness made a prior consistent statement could assist the trier of fact in making an accurate assessment of the witness’ credibility by removing potentially erroneous impressions fostered by an incomplete picture of what the witness said or failed to say: see Murray, supra, at para 153.
[22] Relevant factors in this determination include:
a. The general rule that prior consistent statements are of no assistance in assessing credibility;
b. The likelihood of prejudice to an accused or the orderly and timely conclusion of trial proceedings; and
c. The extent to which the prior statement should be admitted.
[23] As noted, both the Crown and the Defence rely upon Murray in support of their positions. Having reviewed the relevant authorities, I agree that the test set out in Murray is applicable to determination of the current issue and requires close consideration.
[24] The facts and circumstances upon which the Court of Appeal based their decision in Murray are as follows: A male drug dealer named James was standing on Bleeker Street in Toronto when he was shot and killed by a youth (T.J-D.) seated in the back of a taxi. The driver of the taxi was Murray, and the front seat passenger was a woman named C.L. All three occupants of the taxi were known to one another and “shared an interest in crack cocaine”. Following the murder of James, all three occupants of the taxi were arrested and charged with first degree murder. The shooter, T.J-D., pleaded guilty to first degree murder in Youth Court and received a youth sentence of ten years. The front seat passenger C.L., pleaded guilty to being an accessory after the fact and was sentenced to time served. Murray pleaded not guilty and proceeded to trial by jury.
[25] T.J-D. and C.L. testified as witnesses for the Crown at Murray’s trial. Murray did not testify or call any witnesses in his defence. At the conclusion of the trial, the jury found Murray guilty of first-degree murder.
[26] Murray appealed his conviction on several grounds and the Court of Appeal ordered a new trial. The portion of Murray relevant to the present case involves the propriety of Crown counsel’s re-examination of C.L. on parts of her first police interview consistent with her testimony at trial.
[27] C.L was a critical witness for the Crown at Murray’s trial and provided three statements to the police about what had happened before, at the time of, and after the shooting. The statements varied in detail and in their inculpatory effect on Murray. In her evidence at trial, C.L. admitted that she did not exactly tell the truth in her first statement. The gist of the account she provided at trial was contained in her second statement with some further details added in her third interview shortly before trial.
[28] Defence counsel “vigorously” cross-examined C.L. and challenged the credibility of C.L. and the reliability of her evidence. Defence took the position that C.L. had lied from the outset to avoid the charge of first-degree murder, adding details in her later statements to further incriminate Murray. Defence suggested on several occasions that C.L.’s statement was “full of lies” including positive misstatements about events and omissions of key facts. C.L. agreed during cross-examination that the first police statement was full of lies, but that her second statement was truthful.
[29] The trial judge allowed Crown counsel to re-examine C.L. on specific parts of her first police interview that were said to be consistent with her trial testimony. Defence counsel offered no objection to the proposed re-examination.
[30] Justice Watt, writing for the Court, held that where evidence of a prior consistent statement is offered as support of a witness’ credibility, a trial judge must decide whether, in all the circumstances, evidence that the witness made a prior consistent statement could assist the trier of fact in making an accurate assessment of the witness’ credibility by removing potentially erroneous impressions fostered by an incomplete picture of what the witness said or failed to say.
[31] Relevant factors in determination include: (i) the general rule that prior consistent statements are of no assistance in assessing credibility; (ii) the likelihood of prejudice to an accused or the orderly and timely conclusion of trial proceedings; and (iii) the extent to which the prior statement should be admitted.
[32] In the circumstances of Murray, Justice Watt ruled that the Crown was entitled to attempt to rehabilitate the witness by reference to consistencies between the two accounts to provide context for the jury to better evaluated the impact of the inconsistencies on C.L.’s credibility and the reliability of her evidence. Justice Watt noted that the consistencies countered or mitigated the defence claim that C.L.’s testimony was unreliable in part because of the inconsistencies between her first statement and her trial testimony. Finally, Justice Watt noted that it was not without significance that Defence counsel appears to have taken no objection to the re-examination thus affording some indication that counsel did not consider the re-examination unwarranted in light of his own cross-examination of C.L. or unduly prejudicial.
[33] In the present case, Crown counsel urges me to adopt the ruling in Murray to the factual circumstances before me. However, despite Crown counsel’s very able arguments, having considered all the circumstances of the present case and having applied those circumstances to the test outlined in Murray, I find that a different conclusion is warranted.
[34] First, unlike the Crown witness in Murray, the complainant in the present case did not claim that any of her prior statements were full of lies. Unlike Murray, Crown counsel was not put in the unenviable position of having to rehabilitate a witness who agreed in cross-examination that her police statement was full of lies.
[35] In the present case, Defence counsel in a calm, orderly, and methodical manner elicited inconsistencies between the complainant’s prior statements and her evidence at trial. Further, despite numerous inconsistencies having been elicited, at no time did the complainant ever state that she had “lied” or that her previous statements were “full of lies”. Instead, the complainant offered explanations for the alleged inconsistencies without ever claiming that she had been untruthful or deceitful.
[36] Unlike Murray, Crown counsel was not faced with a witness who carte blanche agreed that her prior statement was “full of lies” thereby causing a “potentially erroneous impression fostered by an incomplete picture of what the witness said or failed to say”.
[37] Also, unlike Murray, Crown counsel does not seek to elicit evidence that has been denounced by a witness during cross-examination. Instead, Crown counsel seeks to elicit evidence that the complainant repeatedly and continually confirmed was truthful and accurate.
[38] In the present case Crown counsel seeks to lead prior consistent statements from the complainant’s police interview and preliminary enquiry which detail:
i. the procurement allegations;
ii. the advertising/communication allegations; and
iii. the receipt of monetary benefit allegations.
[39] Having considered the test for admission as set out in Murray, supra, at para 153, I find that the proposed uses of the prior consistent statements do not satisfy the test in Murray nor does the proposed uses otherwise qualify as an exception to the general prohibition.
[40] First, leading such evidence is prohibited by the general rule that prior consistent statements are of no assistance in assessing credibility.
[41] Second, Defence counsel has adamantly objected to the use of the prior consistent statements citing the likelihood of prejudice to the accused and the possible, and perhaps probable, misuse of the prior consistent evidence by the jury, regardless of any direction that may be provided by the jury charge.
[42] Finally, as to the extent to which the prior consistent statement should be admitted, there is no necessity in this case for the introduction of any of the prior consistent statements to be put to the witness on re-examination as “no erroneous impression fostered by an incomplete picture of what the complainant has said as it relates to this evidence” exists on the record.
[43] In the present case, the Crown is seeking to introduce prior consistent statements to rehabilitate the witness’ credibility and the reliability of evidence that was not proven inconsistent during cross-examination.
[44] As noted by Justice Doherty in R. v. Kailayapillai 2013 ONCA 248, at para 42, “clearly not all cross-examination intended to show that an accused’s testimony is false opens the door to prior consistent statements. Were it otherwise, the admissibility of prior consistent statements to rehabilitate credibility could hardly be described as an exception to the general rule excluding such statements.”
[45] The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity to explain, clarify or qualify answers given in cross-examination that are damaging to the party’s case.
[46] In the present case Crown counsel will be afforded the opportunity in re-examination to ask the witness to explain or clarify discrepancies between the witness’ evidence in chief and cross-examination and/or to address new matters raised in cross-examination, including facts that the witness only first remembered during cross-examination.
[47] Crown counsel will also be afforded the opportunity during her closing submissions to advise and remind the jury of all aspects of the witness’ testimony that remained consistent throughout the trial and that were not shaken on cross-examination.
[48] In the circumstances, there is simply no necessity nor basis to allow the admission of the witness’ prior consistent statements during re-examination.
Determination of Issue
[49] For the reasons outlined above, Crown counsel shall not be permitted to introduce prior consistent statements during re-examination to rehabilitate the witness’ credibility or the reliability of her evidence.
Justice S. J. Woodley
Date: February 3, 2023
[^1]: In R. v. L.O., the subject matter of the appeal speaks to the jury instructions provided by the trial judge regarding the inconsistencies and not (as in the present case) whether the proposed use of prior consistent statements was permissible on re-examination.