The Admissibility of Prior Consistent Statements in R v Stirling

This past Friday, the Supreme Court of Canada (“SCC”) handed down R v Stirling, [2008] 1 SCR 272 [“Stirling“], a case that will shed some light on the admissibility and use of prior consistent statements at trial. The SCC upheld judgments of the British Columbia Court of Appeal and the British Columbia Provincial Court, thereby legitimizing the use of prior consistent statements in limited circumstances.

At Trial

Beau Jake Stirling was involved in a single vehicle accident which resulted in the death of two of the car’s occupants and the injury of two others (including Mr. Stirling himself). The key issue at trial was whether or not Mr. Stirling was the driver of the vehicle at the time of the accident. In the course of cross-examining Mr. Harding, (the other surviving party in the accident), counsel for Mr. Stirling brought to the courts attention that Mr. Harding had commenced a civil proceeding against Mr. Stirling stemming from the same accident. In so doing, he established a motive for Mr. Harding to fabricate his testimony, in particular with respect to his contention that Mr. Stirling was operating the vehicle at the time of the accident.

With an aim to providing the prosecution with an opportunity to rebut this motive, the trial judge admitted into evidence several prior consistent statements by Mr. Harding. Drawing among other things on these statements, the trial judge concluded that Mr. Stirling was indeed the driver of the vehicle, and rendered a convictions on two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

At the British Columbia Court of Appeal

On appeal, Mr. Stirling did not take issue with the trial judge’s decision to admit the prior consistent statements in order to refute the inference that Mr. Harding may have fabricated his testimony. Rather, he alleged that the trial judge had used the statements inappropriately.

A majority of the Court of Appeal dismissed Mr. Stirling’s argument. In dissent however, Levine J.A. opined that although the trial judge had, for the most part, provided a “textbook example of a thorough, careful consideration of the evidentiary and legal rules” the good judge had nevertheless erred by using prior consistent statements to enhance Mr. Hardings’s “general” credibility, as well as by using statements adduced out of court for the truth of their contents.

Perhaps encouraged by Levine J.A.’s dissent, Mr. Stirling sought to challenge the majority decision in the Supreme Court.

The Supreme Court’s Take

In a very short decision, the Supreme Court agreed with the majority of the B.C. Court of Appeal and the trial court. Writing for a unanimous court, Batarache J. reasoned that although prior consistent statements are generally inadmissible, (per R v Evans, [1993] 2 SCR 629, R v Simpson, [1988] 1 SCR 3, and R v Béland, [1987] 2 SCR 298), they may be admitted in the context of allegations that a witness has fabricated portions of his or her evidence.

However, Bastarache J. was careful to place limits on the use of prior consistent statements. Such statements, he qualified, “lack any probative value beyond showing that that the witness’s story did not change as a result of a new motive to fabricate.” In other words, although a prior consistent statement may attest to consistency, in no way can it speak to the truth of the claim a question. “A concocted statement, repeated on more then one occasion,” Bastarache J. quoted from R v Divitaris, [2004] OJ No 1945 (ONCA), “remains concocted.”

Therefore, although the prior consistent statements were admissible, the manner in which they could be used was substantially limited. Bastarache J. explained, “the reality is that even when Mr. Harding made his very first comments about who was driving when the accident occurred, he already had a visible motive to fabricate — to avoid the clear consequences which faced the driver of the vehicle — and this potential motive is not in any way rebutted by the consistency of his story.”

Having defined the conditions under which Mr. Harding’s prior consistent statements could be employed as evidence, Bastarache J. proceeded to appraise the trial judge’s use thereof. He framed his judgment against Levine J.A.’s dissenting opinion. To refute Levine J.A.’s contention that the trial judge had used the prior consistent statements improperly to attest to the truth of Mr. Harding’s testimony, Bastarache J. pointed to a number of statements in the trial judge’s decision which suggested that this was not the case. Perhaps the most significant of these is the trial judge’s affirmation that “prior inconsistent statements and any previous consistent statements admitted to rebut an allegation of recent fabrication and and bias are not evidence as to the truth of their contents.”

As far as Levine J.A.’s claim that the trial judge had used the prior consistent statements
of Mr. Harding to attest to his “general credibility,” Bastarache J. suggested to the contrary that “prior consistent statements have the impact of removing a potential motive to lie” and accordingly that “the trial judge is entitled to consider removal of this motive when assessing the witness’s credibility.”

Drawing on recent appellate court jurisprudence, Bastarache J. held that “although it would clearly be flawed to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.” Levine J.A., then, was incorrect in suggesting that “prior consistent statements cannot be used to “bolster” or “support” the credibility of a witness generally.”

While not a particularly groundbreaking decision, Stirling is likely to provide trial judges with a clear mandate to — in limited circumstances — admit and rely on prior consistent statements to help dispel any suspicion of fabricated testimony.