In sexual assault trials, the Crown sometimes calls a friend, a parent or a partner to testify about what the complainant told them after the incident. The evidence can sound persuasive. A jury may assume that a complainant who told the same story to several people must be telling the truth. The law does not permit that reasoning, and the defence has to be ready to object when the Crown tries to use the evidence that way.
The General Rule
A prior consistent statement is an earlier statement by a witness that matches the witness’s testimony at trial. The general rule is that these statements are inadmissible. In R. v. Stirling, 2008 SCC 10, the Supreme Court of Canada explained that repeating a story does not make it more likely to be true. A person who invents an allegation can repeat it as many times as a person who tells the truth.
The statements are also usually hearsay when they are offered for their truth. A friend who testifies about what the complainant said cannot confirm that the events happened. The friend can only confirm that the complainant said they happened.
Recent Complaint No Longer Applies
Under the old common law, a complainant who did not report a sexual assault promptly could be presumed to be less believable. Evidence that the complainant did complain quickly was admitted to answer that presumption. Section 275 of the Criminal Code abolished the rules relating to recent complaint in sexual offence cases.
The Crown cannot rely on the old doctrine to admit early disclosures. In R. v. D.D., 2000 SCC 43, the Supreme Court of Canada held that delay in reporting, standing alone, cannot support an adverse inference about the complainant’s credibility. The defence cannot argue that delay alone makes an allegation less credible. Any argument about the timing of a disclosure has to be based on the evidence and circumstances of the particular case. An assumption about how a person who experienced sexual assault would behave is not a proper basis for that argument.
The Narrative Exception
The Crown may rely on the narrative exception. Under this exception, evidence that the complainant disclosed the allegation to someone can be admitted so that the trier of fact understands how the complaint came to light and how the investigation started. In R. v. Dinardo, 2008 SCC 24, the Supreme Court of Canada set the limits on this exception. The fact and circumstances of a disclosure can help the trier of fact assess the complainant’s account. The disclosure cannot be used to confirm that the allegation is true, and repetition cannot be treated as corroboration.
In Dinardo, the complainant had difficulties as a witness. The Court recognized that the spontaneity of her first complaint and her repetition of its essential details could be relevant context in assessing her account. The trial judge went further and treated her consistency in telling the story to several people as confirmation that the allegation was true. The Supreme Court of Canada held that this was an error and ordered a new trial.
The narrative exception does not give the Crown unrestricted permission to repeat the allegation through several witnesses. The judge must identify why the evidence is relevant and how it may be used. Sometimes the fact of disclosure explains the sequence of events. In other cases, the circumstances of the disclosure may assist in assessing credibility. Repetition alone adds no independent support to the allegation. Defence counsel should object when the evidence goes beyond its permitted purpose.
Rebutting Recent Fabrication
A prior consistent statement can also be admitted when the defence suggests that the complainant made up the allegation at a particular time or for a particular reason. If the complainant made the same statement before that motive existed, the statement can be used to rebut the suggestion. Stirling confirmed that the statement is still not evidence that the allegation is true. Stirling also recognized that rebutting the suggested motive can legitimately affect the overall assessment of the complainant’s credibility.
This is where the defence can create its own problem. A defence suggestion that the complainant invented the allegation after a breakup or during a custody dispute may allow the Crown to introduce relevant statements made before the alleged motive arose. Counsel must understand the disclosure history before advancing that theory. The earlier statements may answer the suggested motive, even though repetition provides no independent proof that the assault occurred.
Using the Complainant’s Own Statements
Prior statements that are inconsistent with the complainant’s testimony are a different matter. The defence can use them in cross-examination to challenge credibility. If the defence relies on part of a statement, however, the Crown may be allowed to introduce other parts to put the inconsistency in context.
Instructions and Objections
In a jury trial, the judge must tell the jury how a prior consistent statement can and cannot be used when one is admitted. In a judge-alone trial, the judge must apply the same limits in deciding the case. The defence needs to object when the evidence is led and ask for a clear ruling on its permitted use. Counsel then has to make sure the final instructions or reasons reflect that ruling. An objection that is not made at trial is difficult to raise on appeal.
