The Supreme Court Revisits Prior Consistent Statements in R. v. Dinardo
A little over a month ago, the Supreme Court ruled on the use of prior consistent statements to dispel allegations of fabricated testimony, in R. v. Stirling  SCC 10. The Supreme Court’s latest decision, R. v. Dinardo 2008 SCC 24 revisits the issue of prior consistent statements. Among other things, Dinardo considers some of the limits on the admission and use of prior consistent statements as evidence.
Facts and the Trial Court Decision
Jean Dinardo was charged with sexual assault and sexual exploitation of a person with a disability contrary to ss. 271(1)(a) and 153.1(1) of the Criminal Code. At the commencement of the trial, amid concerns about the capacity of the complainant (who is mildly mentally challenged) to testify, the trial judge held a voire dire to determine whether the complainant could be heard in court. While cognizant of the complainant’s deficiencies, the trial judge nevertheless decided to allow the complainant to testify.
At trial, both Mr. Dinardo and the complainant testified. In applying the R. v. W.(D.)  1 S.C.R. 742 test for determining whether or not the Crown has discharged its burden to establish guilt beyond a reasonable doubt, the trial judge concluded that while Mr. Dinardo had [translation] “testified well,” there were key questions about the plausibility of his story, based on photographs produced by Mr. Dinardo, and also on the complainant’s own testimony.
Although the complainant’s testimony at trial was essentially consistent with respect to the substance of her allegations, it also contained substantial contradictions. Not the least of which, the complainant made two seemingly inconsistent statements relating to whether or not she had fabricated her allegations against Mr. Dinardo. Consider the following passages from the cross examination and the subsequent re-examination of the complainant:
Q This story you told Ms. Thériault on arriving at the Maison des Jeunes, is it possible that it, that the story was made up?
Q Why did you make the story up?
A Well, I made it up to say he touched me.
Q You made it up to say he touched you?
Q Why? You didn’t like him?
A No, I didn’t like him.
A I was afraid of him.
Q You were afraid of him. Because he had tattoos?
The complainant’s testimony changed considerably when she was re-examined:
Q . . . [L]isten to me carefully. He said: “Is it possible that you made up the story you told Nicole Thériault?”
A Oh, I didn’t make it up.
Q Okay. But you said yes. Do you know . . . what do you mean by that? What is . . . explain that, about that.
A I didn’t make it up.
Q Okay. Your sentence, it was: “I made it up – after what he said to you – to say he touched me”.
Q What do you mean by that?
A He touched me.
Q Okay. But when you told her that, told Nicole Thériault that, was it made up? Had you made it up?
In spite of this testimony, the trial judge found the complainant to be a reliable witness, noting that when she was cross-examined by counsel for the accused, she “never contradicted herself on important facts, only on certain details that the Court does not consider important enough for the contradictions to affect her credibility.” The trial judge also emphasized the consistency between statements made by the complainant in the immediate aftermath of the alleged incident and in the course of her testimony at trial. Accordingly, he convicted Mr. Dinardo on both counts.
Mr. Dinardo appealed his conviction to the Quebec Court of Appeal, (2007 QCCA 287). Rochon J.A. writing for a majority of the Quebec court upheld the trial judge’s decision. To be sure, Rochon J.A. did have significant concerns with the trial judge’s reasons. He noted, for instance, that the trial judge did not explicitly consider the second stage of the W. (D.) test, which holds that when “you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.” Nevertheless, the Rochon J.A. held that the trial judge’s reasons — whether or not they explicitly followed the formula set out in R. v. W.(D.) — made it clear why he disbelieved Mr. Dinardo’s testimony.
With respect to the complainant’s testimony, Rochon J.A. reviewed ten inconsistencies identified by Mr. Dinardo, (none of which had been identified by the trial judge), but concluded that they were not related to the core elements of the complainant’s allegations against Mr. Dinardo.
The majority also found that the trial judge had incorrectly relied on the complainant’s prior consistent statements to substantiate her evidence. In Rochon J.A.’s view however, the accused suffered no prejudice as a result of the court’s reliance thereon.
In a strong dissenting opinion, (which would ultimately be tracked by the Supreme Court), Chamberland J.A. took issue with the trial and appeals court decisions. In his view, the trial judge had not only neglected to explicitly consider the second stage of the W. (D.) test, but had altogether failed to provided an explanation for rejecting Mr. Dinardo’s denial of guilt. Chamberland J.A. also expressed his concern about the complainant’s conflicting testimony (see above) on whether or not she had fabricated her story, as well as the absence of any corroborative evidence.
Perhaps encouraged by Chamberland J.A.’s dissent, Mr. Dinardo appealed to the Supreme Court.
The Supreme Court Decision
Writing for a unanimous court, Charron J. set aside the trial and appeal court decisions and ordered a new trial. Charron J. divided her analysis into two sections, the first dealing with the sufficiency of the trial judge’s reasons, and the second with the admissibility of the complainant’s prior consistent statements as corroborating evidence.
Interestingly, Charron J. agreed with the majority of the Quebec Court of Appeal that the trial judge’s failure to adhere to the formula set out in W.(D.) was not itself an error in law. “The assessment of credibility” she explained, “will not always lend itself to the adoption of the three distinct steps suggested in W. (D.).” What was important, Charron J. explained, was that the “substance of the W.(D.) instruction be respected.” “In a case that turns on credibility, such as this one,” Charron J. continued, “the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.” Charron J. concluded that the trial judge failed in this regard by “failing to explain how he reconciled the inconsistencies in the complainant’s testimony on the issue of whether she invented the allegations.”
Charron J. also found that the trial judge had erred by admitting and relying on the complainant’s prior consistent statements. Drawing on Stirling, she identified the two primary justifications for excluding such statements, first that they lack probative value, and second, that they constitute hearsay when adduced for the truth of their contents. In Stirling however, the Supreme Court ultimately admitted the impugned statements, reaffirming that in limited situations, prior consistent statements could be admitted and relied on as evidence. Charron J. pointed to R. v. G.C.,  O.J. No. 2245,
In the final analysis however, Charron J. found that the trial judge had erred by using prior consistent statements as evidence to corroborate the complainant’s testimony at trial. Unlike the Quebec Court of Appeal, Charron J. held that the admission of the impugned statements did in fact prejudice Mr. Dinardo and accordingly ordered a new trial. The trial judge, she explained, “was clearly of the view that the complainant’s consistency in recounting the allegations made her story more credible” thereby contributing to the finding of guilt beyond a reasonable doubt.