Simon's Megalomaniacal Legal Resources

Evidence - Prior Consistent Statements (3)

. R. v. S.S.

In R. v. S.S. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here brought against several sexual assault counts.

Here the court considered 'prior consistent statements', and the narrative exception thereto:

[41] To be admissible under the narrative exception, the prior statement must be an essential “part of the narrative”, which means the statement “advances the story from offence to prosecution, or explains why so little was done to terminate the abuse or bring the perpetrator to justice”: R. v. Fair (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1 (Ont. C.A.), at p. 16; R. v. A.E.R. (2001), 2001 CanLII 11579 (ON CA), 43 C.R. (5th) 340 (Ont. C.A.), at paras. 14-16. Narrative evidence does not prove a material fact and does not assist the trier of fact in evaluating guilt or innocence. It is only “admissible for the purpose of understanding the witness’ story”: A.E.R., at para. 15.

[42] This court has, on many occasions, affirmed the introduction of this type of evidence as narrative “to provide chronological cohesion and eliminate gaps which would divert the mind of the listener from the central issue”: Fair, at p. 18; R. v. M.C., 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 64; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 30, leave to appeal refused, [2017] S.C.C.A. No. 139.

[43] In my view, when the trial judge said that the jurors would “want to know” about the complainants’ prior disclosures, he was clearly intending to convey that they would want to understand the historical context of the matter, especially since so many years had passed between the date of the alleged events and the complainants’ reports to police. Although it is rarely essential to the narrative to admit multiple disclosures, in this case the evolution of the disclosure shows why it took as long as it did for the police reports to be made. The trial judge was entitled to treat all of these disclosures as essential to understanding the unfolding narrative.

[44] As the Crown pointed out in its submissions on appeal, any risk that the jury would use the prior statements to bolster the complainants’ credibility was significantly reduced because the jury did not hear details of the prior statements: A.E.R., at para. 15; R. v. D.M., 2022 ONCA 429, 162 O.R. (3d) 444, at paras. 102, 104; R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 86; R. v. J.H., 2020 ONCA 165, at para. 126. Moreover, the Crown did not just refrain from eliciting details of the disclosures, it did not invite misuse, explicitly telling the jury that the purpose of this evidence was limited to understanding why the police were not immediately notified:

However, the fact that [C.L. and P.L.] have both made prior statements about these incidents to members of their family does not mean it is more likely that their statements are true. His Honour will give you further instructions on this point.

. Okafor v. Ontario College of Teachers [admin]

In Okafor v. Ontario College of Teachers (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a teacher's appeal [under s.35(1) of the Ontario College of Teachers Act], here brought against "the decision of the Discipline Committee of the Ontario College of Teachers .... which found her guilty of professional misconduct ..." and from "the Discipline Committee’s penalty decision ... that ordered ... a five-month suspension, and costs in the amount of $60,000.00".

Here the court considers credibility relating to 'prior consistent statements':

[85] Prior consistent statements are generally inadmissible: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. It is not probative as the mere fact that a statement has been repeated does not mean that it is more likely to be true: R. v. Bagherzadeh, 2023 ONCA 706, 186 O.R. (3d) 780, at para. 52, leave to appeal refused [2023] S.C.C.A. No. 536; Carrasco v. College of Massage Therapists, 2025 ONSC 5896, at para. 28. None of the exceptions to this rule are applicable. In the circumstances, I do find that the Discipline Committee made an error in law in relying on prior consistent statements.

[86] However, an error of law must be material to the result to warrant the court's intervention. Errors that are inconsequential or do not result in a substantial wrong or miscarriage of justice are insufficient to justify appellant intervention: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6): Maple Leaf Acres Members' Association v. Ellig, 2023 ONSC 3940, at para. 23. As the findings regarding credibility relied on other considerations as well, the reference to the use of prior consistent statements in two instances did not result in a substantial wrong or miscarriage of justice sufficient to justify a new hearing.

. R. v. H.P.

In R. v. H.P. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal defendant's appeal, this brought against convictions for "sexual interference, invitation to sexual touching, sexual exploitation, and sexual assault, committed against his stepdaughter, beginning when she was 15 years of age".

Here the court considered 'prior consistent statements':

[17] Finally, we do not accept that the trial judge misused a prior consistent statement in admitting or relying upon an earlier complaint made by the complainant to her mother in December 2019. It was not contested that during this event the complainant played the audio recording for her mother, and the mother then played it for the appellant. The prior consistent statement was admitted into evidence for narrative purposes, including to explain the circumstances of the confrontation between the mother and the appellant, as well as the appellant’s reaction. In his testimony about this event, the appellant claimed that at no time did the complainant’s mother tell him that the complainant was alleging sexual impropriety and that he believed he was being confronted about his practice of going into the complainant’s room to say goodnight.

[18] It would have been an error if the trial judge had treated the content of the earlier out-of-court disclosure of the complaint as proof of the sexual assault or if she inferred that, because the complainant had made this same complaint in the past, she was more likely to be telling the truth in court: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 7. But the trial judge did not engage in either of these prohibited lines of reasoning. Instead, she relied on the content of the audio recording in finding that the appellant’s testimony about his encounter with the mother about the audio recording was so implausible as to be incredible. The prior consistent statement itself was not misused.

. Carrasco v. College of Massage Therapists [admin context]

In Carrasco v. College of Massage Therapists (Ont Div Ct, 2025) the Ontario Divisional Court allowed an appeal, this brought against a finding that the appellant "sexually abused the complainant as defined under the Health Professions Procedural Code (the “Code”), which is Schedule 2 to the Registered Health Professions Act, 1991, S.O. 1991, c. 18, and revoking his registration on February 6, 2025". The case was "remitted to the Discipline Committee of the College for a rehearing before a differently constituted panel".

The court considered 'prior consistent statements', here in an administrative context:

[26] Prior consistent statements are presumptively inadmissible: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.

[27] The reason for their exclusion is that repetition does not and should not be seen to enhance the value or truth of a witness’s testimony; the danger being that similar prior statements can appear to make them more credible: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31.

[28] Even if properly admissible, a trier of fact cannot use the fact of the consistency of prior statements to bolster a witness’s credibility: R. v. Freedland, 2023 ONCA 386, at paras. 36-38, 44-45; R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.), at para. 33.

At paras 29-43 the court walks through the evidence and it's reasoning on this issue.

. R. v. J.W.

In R. v. J.W. (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here from "criminal offences involving the abuse of the complainant, who was his domestic partner at the time".

The court considers 'prior consistent statement' doctrine:

[57] .... Prior consistent statements are prima facie inadmissible: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5. First, statements made other than while testifying in the trial are hearsay and cannot be relied upon for the truth of their content unless a hearsay exception applies (the “hearsay element”). Second, the fact that a prior consistent statement was made (the “declaration element”) is not generally relevant because prior consistent statements are redundant to the testimony they are consistent with, and the repetition of the same claim is neither independent corroboration of that claim (coming as it does from the same source) nor an indication that the claim is accurate (given that even a lie or mistake can be repeated): R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-26, leave to appeal refused, [2017] S.C.C.A. No. 139.

. R. v. U.P.

In R. v. U.P. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal.

Here the court considers the need for a 'prior consistent statement' jury instruction:

[22] The general object of a prior consistent statement instruction is to caution the jury against impermissibly relying on a witness’s prior consistent statements to bolster his or her credibility or reliability. Specifically, the fact that someone said the same thing on a prior occasion is not probative of whether a witness, including a complainant, is offering truthful testimony in court. Allowing a witness to bolster their trial testimony with their own prior statements is self-serving: see R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 25, leave to appeal refused, [2017] S.C.C.A. No. 139; and R. v. Mackenzie, 2015 ONCA 93, 19 C.R. (7th) 150, at para. 11.