Law Times

Law Times • augusT 21, 2017 Page 5 www.lawtimesnews.com SCC won't wade into witness statements BY SHANNON KARI For Law Times T he Supreme Court of Canada has decided not to enter again into the sometimes compli- cated area of when a prior con- sistent statement by a witness may be admissible in court. A recent decision not to grant leave of a rare five-judge panel decision of the Ontario Court of Appeal earlier this year in R. v. Khan means that the original sexual assault conviction of a York Regional Police Service of- ficer stands. It also leaves open the ques- tion of whether lower court judges in Ontario will follow a concurring judgment in Khan by Justice David Doherty that suggests a "principled-based ap- proach" to admissibility in this area of the law, rather than what he refers to as the traditional common law model. Michael Dineen, a Toronto- based criminal appeals lawyer, says the method outlined by Doherty is helpful. "It is not inconsistent with the majority. But he is asking for more analytical rigour in approaching this issue," says Dineen, a partner at Dawe Dineen and an adjunct profes- sor at the University of Toronto law school. Khan was charged in late 2011 after he was accused of sex- ually assaulting a female suspect who had been arrested for pur- chasing $50 worth of cocaine. The court heard that she was searched three times by the offi- cer en route to the police station. The third time, he pulled her top away from her body and shone his f lashlight as he looked at her breasts. The woman was handcuffed behind her back during these searches, and when another officer at the police station in- formed her she would be subject to a search, the woman stated, "I've been searched three fuck- ing times. How many times am I going to be searched?" The trial judge admitted the statement under two of the ex- ceptions to the presumption against the admissibility of prior consistent statements. He also found it assisted in determining the credibility of the in-court testimony of the complainant. Superior Court Justice Mary Vallee quashed the conviction and found that the police station statement was in- admissible. The Crown appealed and sought a special five-judge panel to assess as well whether the Court of Appeal should recon- sider a 2015 decision in R. v. Mackenzie, related to spontane- ous prior consistent statements. In restoring the conviction, the main judgment written by Justice William Hourigan found that the utterances were admis- sible under the "narrative" ex- ception to the rule against prior consistent statements. The Court of Appeal in Khan declined to revisit its decision in Mackenzie and Justices Harry LaForme, Sarah Pepall and Bradley Miller concurred with the ruling written by Hourigan. Doherty, in his concurring judgment, said he agreed with the disposition of the case by the majority, but he explained that he thought an approach should be used that is more in line with how other evidentiary rules are now determined. There should be "broader considerations" than the "tech- nicalities" of whether a prior statement fits within the excep- tions to the rule against admis- sibility, he wrote. "Instead of broad statements such as 'the evidence goes to credibility,' the principled ap- proach should produce reasons explaining exactly how the evi- dence, in the circumstances of the case, goes to credibility," wrote Doherty. Dineen says the improper admission of prior consistent statements is often a ground of appeal from lower court deci- sions. "It is amazing how often the Crown is allowed to lead this at trial and nobody says anything," he suggests. "It is an error that comes up all the time," says Dineen. The approach outlined by Doherty calls on trial judges to make sure the party seeking to have the statement included is "perfectly clear at the outset" what the specific purpose is of having it admitted, Dineen says. Defence lawyer Diana Lumba agrees that the concurring deci- sion is asking for more rigorous explanation from lawyers as to why the presumption against admissibility should not apply and also more analysis by trial judges in this area. "Justice Doherty's approach is consistent with the direction that other evidentiary rules have gone," says Lumba, a lawyer at Edward H. Royle & Partners LLP in Toronto. "Even with a limiting instruc- tion, it can be confusing for ju- rors," she adds. Requiring law- yers and courts to be more pre- cise about the "exact purpose" of seeking to have certain evidence admitted can only be beneficial, she states. While the decision in Khan may be more closely followed by the criminal law community, it could also have some applica- tion in civil litigation, says Anna Wong, a partner at Landy Marr Kats LLP in Toronto. "The rules of admissibility are more relaxed in the civil con- text. It is usually more a question of weight," says Wong. However, there is also a move- ment "away from technical argu- ments" in determining whether evidence can be admitted. For plaintiffs, a prior consis- tent statement may be helpful to bolster credibility and not necessarily be self-serving, she says. "The analytical framework is very useful," in the concurring judgment, for lawyers seeking to have this evidence admitted, Wong says. LT NEWS Michael Dineen says the improper admis- sion of prior consistent statements is often a ground of appeal from lower court deci- sions. 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