On May 14 the Supreme Court of Canada released the oral decision in R. v Cain, 2018 SCC 20. The decision was a 4-to-1 majority decision.
The appeal dealt with a narrow, but important issue. Can the consistent portions of a prior consistent statement be used when a complainant is cross examined on inconsistencies in a prior statement?
The majority of the Supreme Court of Canada upheld the majority decision in the Nova Scotia Court of Appeal which held that the consistent portions of a prior statement can be used to determine if the alleged inconsistencies were in fact inconsistencies. It could also be used to determine if any actual inconsistencies were material or only peripheral.
The Cain case involved a sexual assault. The complainant was cross examined on her prior statement. Because she had literacy problems the entire statement was put to her on cross. The complainant was the key Crown witness. Defence argued that because of all her inconsistencies between her prior statement and her in-court testimony, the complainant’s evidence was unreliable. The trial judge noted minor inconsistencies, but held that there was a consistent thread between her prior statement and her testimony. He convicted based on her testimony.
The majority of the Nova Scotia Court of Appeal held that the trial judge did not use the consistencies in the prior statement for its truth, but rather to determine if, in the context of the consistent portions of the statement, the inconsistencies were material.
The majority of the Nova Scotia Court of Appeal (approved by the SCC) adopted the following quote from an article written by Professor David Paciocco (now Justice Paciocco of the Ontario Court of Appeal) as the law regarding the contextual exception:
(4) Prior consistent statements that provide context for admissible statements;
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(d) Exception (4) – Prior Consistent Statements that Provide Context for Admissible Statements
The “entire statement rule” can lead to the presentation of prior consistent statements. It holds that where a party proves an admissible statement, this must not be done in a misleadingly selective way. As a matter of fairness, the party proving that statement should not take it out of context – it should prove the entire statement. …
The same principles, therefore, operate where counsel confronts a witness with a prior inconsistent statement. The party launching that challenge should, as a matter of fairness and even ethical obligation, put the entire statement to the witness so that the context of the inconsistencies can be understood, failing which opposing counsel will be permitted to unfold the entire related conversation. Indeed, this tactic can result in related statements being admitted.
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There is nothing, therefore, to prevent a party from pointing to the consistency between the prior related statement and the testimony of their witness. This is not done to prove that the witness was being truthful in their testimony on those matters – the mere making of prior consistent statements does not prove credibility nor do prior consistent statements of a witness corroborate their in-court testimony. The consistencies are relevant solely to enable the decision-maker to judge whether the relevant statement is really materially inconsistent when looked at as a whole, and to gauge the impact that any differences in detail should have on the overall credibility and reliability of the witness. In effect, the consistent features of the prior statement do not add affirmative weight to the party’s scale. They are used simply to knock the “inconsistency” challenge off the opposing party’s scales, or to reduce the weight of those inconsistencies that may remain.
James A. Gumpert, Q.C. is a Senior Crown Counsel with the Nova Scotia Public Prosecution Service. He is an Executive member of the Canadian Bar Association National Criminal Justice Section.