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Evidence - Prior Consistent Statements (3). 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.
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