



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Stirling
,







2007 
          BCCA 4



Date: 20070102





Docket: CA033331

Between:

Regina

Respondent



And

Beau 
    Jake Stirling

Appellant












Before:


The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Levine




The 
          Honourable Mr. Justice Chiasson








J.W. 
          Green


Counsel for the Appellant




T.L. 
          Robertson, Q.C. and M. K. Gill


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver
,
British Columbia




18 October 2006




Place 
          and Date of Judgment:


Vancouver
,
British Columbia




2 January 2007








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Chiasson




Concurring 
          reasons in the result by:




The 
          Honourable Madam Justice Newbury (p. 20, para. 74)




Dissenting 
          Reasons by:




The 
          Honourable Madam Justice Levine (p. 27, para. 86)



Reasons 
    for Judgment of the Honourable Mr. Justice Chiasson:

Background

[1]

The appellant appeals his conviction on two counts of criminal negligence 
    causing death and one count of criminal negligence causing bodily harm.

[2]

Although the appellant also was charged with a number of impaired driving 
    offences, he was acquitted on them.

[3]

The convictions arose out of a single-vehicle accident, which occurred 
    at approximately 4:00 a.m. on July 16, 2003 in View Royal, a suburb of Victoria, 
    British Columbia.

[4]

The accident, which accurately has been described as horrific, occurred 
    when the appellants 1963 Chevrolet Impala, while partially out of control 
    and travelling at approximately 115 km/h, struck a cement utility pole.  Prior 
    to the collision the vehicle had been travelling approximately 135  140 km/h 
    in a residential area in which the posted speed limit was 50 km/h.

[5]

As the vehicle entered a left bend in the road, it began to yaw, 
    that is, as the tires lost traction, the car began to slip sideways.

[6]

At the time of the accident, there were four men in the car:  Travis 
    Bateman, Kenneth Hamilton, Adrian Harding and the appellant.

[7]

The right side of the vehicle hit the cement pole and the two passengers 
    on that side of the vehicle, Messrs. Bateman and Hamilton, were killed.  Mr. 
    Harding and the appellant were injured seriously.

[8]

The issue which gives rise to this appeal is the identity of the driver 
    of the vehicle.

[9]

The appellant stated the issue for this Court as:

Did 
    the trial judge err in law in the course of assessing the credibility and 
    reliability of the witness Adrian Harding when he:

i)          found that  previous consistent statements 
    supported the credibility and reliability of the witness;

ii)         drew inferences based on conjecture and speculation 
    when assessing the credibility and reliability of the witness; and

iii)         
    misapprehended relevant evidence, and drew inferences based on conjecture 
    and speculation in rejecting the evidence of Gary Chartrand.

[10]

It is the position of the appellant that he, . . . could only be convicted 
    in this case if the trial judge accepted the evidence of Adrian Harding that 
    the appellant was driving the car at the time of the accident.  The appellant 
    asserts:

The 
    Crown relied on five sources of evidence in arguing it had proven beyond 
    a reasonable doubt that the appellant was driving at the time of the accident:

i)          Adrian Hardings evidence;

ii)         
    Crown accident reconstruction experts;

iii)         statements allegedly made by the appellant 
    to a witness, Shayla Richdale;

iv)        
    the appellants failure to respond to a question from an ambulance attendant 
    as to who was driving; and

v)         the appellant was the registered owner of the car.

[11]

The appellant takes no exception to the trial judges treatment of 
    items iv) and v), but says, [t]he convictions in this case depend upon the 
    trial judges treatment of the remaining three sources of evidence, the 
    most important of which was the evidence of Adrian Harding.

[12]

Mr. Harding testified that prior to the collision in the vehicle he 
    was, in the back left-hand side andTravis [Bateman] was on the right side 
    of mein the rear seatandKenny [Hamilton] was in the passenger.

[13]

He was asked in chief who was in the drivers seat and replied, Stirling
.

[14]

Mr. Harding also stated that after the accident he was located in the, 
    left rear passenger seat.

[15]

On cross-examination he confirmed that he started out in the rear 
    seat of the car.

[16]

As might be expected, Mr. Harding was cross-examined at length about 
    where he had been in the vehicle before the accident and where he was after 
    the collision.

[17]

Concerning the testimony of Mr. Harding, after noting some of the frailties 
    in his evidence the trial judge said at paragraphs 51 and 59 of his reasons 
    for judgment:

He 
    wasfirm in his evidence that when they left he was in the left rear passenger 
    seat behind the driver and to his right was Mr. Bateman. He said the accused 
    drove and Mr. Hamilton was seated in the right front passenger seatIn cross-examination, 
    he was certain that he was seated on the bottom cushion of the rear seat.

. 
    . .

I find there is a consistent pattern of not recalling many details of 
    the driving up to the collision, but of stating clearly he was in the back 
    seat, that Mr. Bateman sat beside him, that Mr. Hamilton was in the front 
    seat, and on a number of occasions that the accused was the driver.

[18]

It was conceded by the appellant that the evidence supported a conclusion 
    that the appellant probably was the driver, that is, that it met the civil 
    standard, but the appellant contends that, in the absence of the evidence 
    of Mr. Harding, the evidence does not lead to that conclusion beyond a reasonable 
    doubt, the criminal law standard.

[19]

The appellant noted that the trial judge was concerned with the credibility 
    of Mr. Harding.  The Court stated in para. 58 of the reasons for judgment:

. . . there are weaknesses in this witnesss testimony.  He clearly was 
    uncomfortable in the courtroom setting and became frustrated with the length 
    of his testimony, including the number and exactitude of the questions.  His 
    evidence in a number of aspects was imprecise and changed from chief to cross-examination. 
    He has no recollection of details I would normally expect him to recall if 
    he remembers who was driving at the time of the collision, including whether 
    the others were consuming alcohol

Prior Consistent Statements

[20]

The question of prior consistent statements arose out of the cross-examination 
    of Mr. Harding.

[21]

Defence counsel questioned him concerning a civil action arising out 
    of the accident that Mr. Harding had initiated against the appellant and noted 
    that for Mr. Harding to succeed in that action, he would be obliged to establish 
    that the appellant was the driver.  Mr. Harding acknowledged the action, but 
    appeared to believe that it was against the appellants insurer. The trial 
    judge made note of this fact in his reasons for judgment.

[22]

Defence counsel also questioned Mr. Harding concerning matters arising 
    out of a drug-related criminal charge and Mr. Hardings breach of an associated 
    recognizance.  He was not charged as a result of the latter and denied the 
    suggestion that his in-court testimony had a relationship to this fact.

[23]

There was a
voir dire
to consider the admissibility of prior 
    consistent statements made by Mr. Harding.

[24]

The following discussion took place during the course of the
voir 
    dire
. Mr. Green was counsel for the appellant.

MR. 
    GREEN:               I  I take it from what my friend's saying that he agrees 
    that statements that are recorded by medical personnel in the records are 
    admissible for the limited purpose of establishing that they were made and 
    not for the truth of the contents, is that correct?

THE 
    COURT:  Yes, with the exception of the statement to 

MR. 
    GREEN:               At the scene.

THE 
    COURT:  -- Smith.

. . .

THE 
    COURT:  Yes.  That's his position 

MR. 
    GREEN:               And that includes all statements in the medical records 
    

THE 
    COURT:  All statement 

MR. 
    GREEN:               -- Attributed to medical 

MR. 
    ROBERTSON:    Yes.

MR. 
    GREEN:               -- personnel, okay?  But consistent and inconsistent, 
    because there's both.

MR. 
    ROBERTSON:    Yes.  Yes.

THE 
    COURT:  Yes, it should be 

MR. 
    ROBERTSON:    Yes, and 

THE 
    COURT:  -- definitely should be both.

MR. 
    GREEN:               All right.  Then  then we have no problem.

THE 
    COURT:  You're agreeable?

MR. 
    GREEN:               I'm agreeable because  yes, for that purpose, then 

. . .

THE COURT:  All right.  On that basis, then, I will, 
    by consent, rule that the prior consistent and inconsistent statements contained 
    in Exhibit 12A with regard to the witness Harding are admissible for the limited 
    purpose of assessing the credibility of his testimony in court, and it  they're 
    admitted for the fact the statements were made, not for their content and 
    truth of --

[25]

The trial judge recapitulated the Crowns and the appellants positions 
    in paras. 9 and 10 of his Ruling on the
voir dire
:

[The 
    Crown]submits the statement at the hospital is admissible, not for the truth 
    of its contents, but solely to bolster the credibility of Mr. Harding and 
    to negate the inference raised in cross-examination that this witness was 
    possibly testifying pursuant to an improper motive, namely the pursuit of 
    a civil claim, and/or the avoidance of criminal responsibility for breaching 
    his recognizance on another matter.

Without conceding an allegation of recent concoction the defence agreed 
    that all previous out-of-court statements made by this witness to emergency 
    personnel at the scene and the hospital are admissible, for the limited purpose 
    of assessing the credibility of Mr. Hardings in-court testimony.

[26]

The trial judge noted that defence counsel stated if there were a jury, 
    he would have opposed the introduction of the statements.  In this Court, 
    counsel asserted that because there was no jury, he did not want to waste 
    a great deal of time arguing about the admissibility of the statements.

[27]

Counsel for the appellant stated that he was not alleging recent fabrication 
    and did not argue recent fabrication in his submissions at the end of the 
    trial, but conceded that the door may have been opened to the suggestion of 
    recent fabrication. The trial judge concluded his comments on the prior consistent 
    statements stating in paras. 13 and 14 of his Ruling on the
voir dire
:

While 
    all of the out-of-court statements are admitted by consent for the sole purpose 
    of assessing credibility, presumably along the lines identified by Mr. Justice 
    Weiler in
R. v. OConnor
[(1995), 100 C.C.C. (3d) 285 (Ont. C.A.)], 
    I am satisfied these statements are also admissible to rebut the allegations 
    of bias raised in cross-examination.

All of these statements . . . were made before the triggering 
    event of speaking to a lawyer concerning a possible civil claim, or being 
    caught allegedly in breach of a court ordered recognizance.

Discussion

[28]

Subject to exceptions, prior consistent statements are inadmissible 
    (
R. v. Aksidan
(2006), 209 C.C.C. (3d) 423, 2006 BCCA 258).

[29]

In
OConnor
, Weiler J.A. stated at 302:

I am in agreement with Finlayson J.A. that the effect of the cross-examination 
    . . . gave rise to the inference that the complainant had fabricated her evidence 
    . . . .

[30]

She also agreed with Mr. Justice Goodman that the statements were admissible 
    to rebut any adverse inference from the complainants alleged silence.  Goodman 
    J.A. held that the statements were not admissible on the basis of the exception 
    to the rule against prior consistent statements.

[31]

Finlayson J.A. provided a detailed analysis of the relevant facts and 
    of the law.

[32]

He noted at 294:  [t]he law does not require that an allegation of 
    recent fabrication be made explicitly:  the court can look at all the circumstances 
    of the case.

[33]

His Lordship commented on the nature and effect of an allegation of 
    recent fabrication at 295:

. . . an allegation of recent fabrication is no more than an allegation 
    that the complainant has made up a false story to meet the exigencies of the 
    case.  The word recent means that the complainants evidence has been invented 
    or fabricated after the events in question and thus is a recent invention 
    or fabrication. . .

and continued quoting from

Di Carlo v. U.S.
, 
    6 F. 2d 364 (2nd Cir. 1925) at 366, cited in
Wigmore on Evidence in 
    Trials at Common Law
, (Chadbourne rev.) vol. 4 (Toronto:  Little, 
    Brown and Company, 1972) at 274:

. . . when the veracity of a witness is subject to challenge because of 
    motive to fabricate, it is competent to put in evidence statements made by 
    him consistent with what he says on the stand, made before the motive arose.

[34]

In the result, Finlayson J.A. concluded at 296 that the trial judge 
    was correct to use the statements, . . . in assessing the credibility of 
    the [complainant].

[35]

I am satisfied that the prior consistent statements of Mr. Harding 
    were properly admitted in this case.  The remaining issue is the use the trial 
    judge made of the statements.

[36]

The appellant contends that, . . . the trial judge erred in law in 
    relying on prior consistent statements when assessing the credibility and 
    reliability of the witness Harding and asserts that, [t]he law is clear 
    that a witnesss prior consistent statements may not be adduced for the purpose 
    of bolstering the credibility of the witness.

[37]

The Crown states, [t]he jurisprudence is overwhelmingly clear that 
    the credibility of a witness may be bolstered by proof of a prior consistent 
    statement if the cross-examiner has attacked the witnesss testimony as a 
    recent fabrication.

[38]

While it is clear that a prior consistent statement can be used to 
    meet or rebut specifically the alleged in-court fabrication, the extent to 
    which the evidence is at large or can support more generally the credibility 
    of the witness is a subject for debate.

[39]

A concise statement of the basic proposition is found in para. 11:40.10.10 
    at page 11-20.2 of The Honourable Mr. Justice S. Casey Hill
et al
,
McWilliams Canadian Criminal Evidence
,
4th ed. (Aurora:  
    Canada Law Book, 2006):


When an allegation of
recent
fabrication 
    or invention is made, the party calling the witness is permitted to rebut 
    the suggestion by showing that at some earlier time, the witness made a statement 
    to the same effect  . . .

[Emphasis in the original.]

The authors also have this to say at page 11-20.1:

The statement is not admitted for the truth of its contents. It is admitted 
    to rebut an allegation that the witnesss testimony may have been fabricated 
    or affected by an improper motiveWhen such an allegation is made,
the 
    credibility of the witness can be bolstered
by a prior consistent statement 
    . . . (emphasis added)

[40]

In John Sopinka, Sidney N. Lederman & Alan W. Bryant,
The 
    Law of Evidence in Canada
, 2nd ed. (Toronto:  Butterworths, 1999) 
    at 315 under the heading Evidence to Rebut Allegations of Recent Fabrication 
    by the Witness, the evidence is described as, . . .
confirmatory evidence
of credibility (emphasis added).  The authors also state at 319: [t]he prior 
    consistent statement is admissible to rebut the suggestion that the witnesss 
    testimony was a recent fabrication, and, thus, is relevant to credibility.

[41]

The Crown says that it does not seek to support the use of the evidence 
    to support Mr. Hardings overall credibility, but is using it only in the 
    context of Mr. Hardings evidence identifying the appellant as the driver. 
     Of course, the case pivots on Mr. Hardings evidence that he was in the back 
    left seat of the vehicle and the appellant was driving.

[42]

The appellant asserts that Mr. Harding was not a believable witness 
    and queries why he could remember where he was sitting in the car when he 
    could remember almost nothing else either at all or accurately.  In final 
    argument before the trial judge counsel said:

How come he cant recall . . . anything with any clarity about 
    the evening . . .  Other than that hes certain that he was in the left rear 
    seat at all times.  Is there a reason why . . .  Well, I mean, the answers 
    obvious, in my respectful submission.

[43]

It may be this comment that led the trial judge to state in para. 57 
    of the reasons for judgment:  [c]ounsel submitted that the court should consider 
    possible motives for his concocting his evidence.

[44]

This Court considered prior consistent statements in
R. v. Giraldi
(1975), 28 C.C.C. (2d) 248 (B.C.C.A.).  The judgment of the Court 
    was given by Mr. Justice McFarlane.  He quoted extensively from the judgment 
    of the High Court of Australia in
The Nominal Defendant v. Clements
(1960), 104 C.L.R. 476 and stated at 252, I find the reasoning of the Judges 
    in this case [compelling].

[45]

A number of propositions flow from the reasoning of the High Court: 
     whether there has been an assertion of fabrication is determined from the 
    circumstances of the case; an appeal court should give considerable weight 
    to a trial judges conclusion that the evidence is properly admissible; the 
    prior consistent statement must rationally tend to answer the attack on the 
    witnesss evidence.

[46]

At 252, McFarlane J.A. quoted from the High Courts decision as follows:

. . . There must be an imputation . . . that the witness is not speaking 
    from his own recollection . . . but is recounting a story subsequently made 
    up by him . . . the statement which it is sought to use to dispel this imputation 
    must be made in such circumstances that it logically does so.

There 
    is an apparent direct relationship between the impuned evidence and the prior 
    consistent statement.

[47]

The Privy Council in
Fox v. General Medical Council
, 
    [1960] 3 All E.R. 225 commented to like effect, albeit perhaps more expansively, 
    at 230:

The purpose of such evidence of a witnesss previous statements 
    is and can only be to support his credit, when his veracity has been impugned, 
    by showing a consistency in his account which adds some probative value to 
    his evidence in the box.

The 
    evidence concerning which the comment was made was described by the Privy 
    Council as confirmatory evidence.

[48]

A recent consideration of prior consistent statements by this Court 
    was in
Aksidan
, to which I now turn.

[49]

The case involved a charge of sexually assaulting an eleven-year old 
    girl.  She made a videotaped statement, which was dealt with
inter alia
as a prior consistent statement.

[50]

The appellant submitted that, . . . a prior consistent statement . 
    . . cannot be used to bolster the complainants credibility.  Mr. Justice 
    Smith agreed and, referring to
R. v. Beland
, [1987] 2 S.C.R.

398, stated in para. 18, [e]vidence of a witnesss past consistent statements 
    may not be adduced to bolster the credibility of the witness and in para. 
    22, . . . in using the complainants videotaped statement to bolster her 
    in-court testimony, the trial judge transgressed the rule that prohibits the 
    introduction of prior consistent statements for that purpose.

[51]

Mr. Justice Smith also said in para. 21:

. . . even where this exception is applicable, the prior consistent statement 
    is relevant only to the credibility or reliability of the in-court testimony 
    of the witness.  It may be used to rebut the allegation of recent fabrication 
    and thus rehabilitate the witnesss credibility but it may not be used for 
    its truth or as confirmatory of the in-court testimony of the witness, since 
    it is hearsay for those purposes . . .

[52]

The appellant relies on the use by the Court of the word bolster, 
    which also was used by the trial judge in the present case.

[53]

There is a danger in seeking to confine the application of rules of 
    evidence, which must be administered in many diverse factual contexts, to 
    the use of specific descriptive words.

[54]

The word bolster used as a verb, as defined in
The Concise 
    Oxford English Dictionary
, 11th ed., means support, or strengthen. 
     In
The Random House Dictionary of the English Language
, 1973, 
    bolster used as a verb means, add to, support, or uphold.

[55]

Placed into the context of the case before him, the use of the word 
    bolster by Mr. Justice Smith was directed to strengthening or adding to 
    the in-court testimony.  As such it was consonant with the comments of the 
    editors of
McWilliams Canadian Criminal Evidence
as noted previously.

[56]

Prior consistent statements cannot add to or strengthen the weight 
    of the evidence of a witness.  They do not independently confirm that evidence, 
    but they are confirmatory in the sense that the in-court testimony is not 
    a recent fabrication, that is, the suggestion of recent fabrication having 
    been rebutted, the in-court testimony stands for whatever it is worth.  This 
    conclusion is consonant with the observations of Mr. Justice Smith and with 
    the previous authorities to which I have referred (
Fox v. General Medical 
    Council
;
McWilliams Canadian Criminal Evidence; The Law of 
    Evidence in
Canada
).

[57]

Although the trial judge stated that he based his decision
inter 
    alia
on all of Mr. Hardings prior inconsistent and consistent statements, 
    his specific use of the latter is in the context of the evidence of the Crowns 
    accident reconstruction expert, whose evidence the trial judge accepted over 
    the evidence of the appellants reconstruction expert.  Specifically, that 
    evidence concerned the location of the other two passengers in the vehicle.  
    The trial judge stated in paras. 94 and 95 of his reasons for judgment:

All 
    of the expert evidence supports a finding the two deceased were on the right 
    side of the vehicle.  Based on Mr. Harpers evidence [the Crowns expert], 
    I find as a fact that Mr. Bateman was in the right rear seat and Mr. Hamilton 
    in the right front seat.  This is strong support for the credibility and reliability 
    of Mr. Hardings statement as to the position of the occupants.

Since the day of the collision, Mr. Harding has consistently 
    placed the two deceased in these seats.  This out-of-court testimony,
while 
    not evidence
, supports the credibility of his in-court testimony
to 
    this effect . . .
Mr. Harding took this position long before the experts 
    conducted their analysis. [Emphasis added.]

[58]

As noted, the trial judge also referred generally to the out-of-court 
    statements of Mr. Harding.

[59]

In para. 53 of his reasons for judgment he stated:

. . . I also ruled and heard by consent a prior consistent statement 
    on the basis it could also be considered in assessing the credibility and 
    reliability of this witness's evidence.  I have considered these previous 
    statements for that purpose alone.

and in para. 59:

In weighing and considering all of his evidence, with 
    the benefit of his many previous statements, I find there is a consistent 
    pattern of not recalling many details of the driving up to the collision, 
    but of stating clearly he was in the back seat, that Mr. Bateman sat beside 
    him, that Mr. Hamilton was in the front seat, and on a number of occasions 
    that the accused was the driver.  In my view, the previous inconsistencies 
    as to other details are understandable given the circumstances in which he 
    gave many of the previous statements, including the fact that while at the 
    hospital he was under the influence of medication and/or suffering from serious 
    injury, along with the other effects of a terrible collision, including the 
    death of two friends.

[60]

The trial judge did not base his finding that the appellant was the 
    driver of the vehicle solely on the evidence of Mr. Harding and he did not 
    accept Mr. Hardings evidence on the point solely on the basis of Mr. Harding's 
    prior consistent statements.  The trial judge looked at the totality of the 
    evidence and he did so with a complete recognition of the frailties of the 
    evidence of Mr. Hardings testimony.

[61]

The matters he considered included:  a statement that the accused made 
    to a friend, which the trial judge recognized had to be put into context and 
    given appropriate weight; the type of injuries suffered by the appellant and 
    Mr. Harding and the extent to which those injuries could relate to their respective 
    positions in the vehicle; the expert evidence concerning the damage to the 
    vehicle and the location of the two deceased in it.

[62]

I am satisfied that the trial judge used the prior consistent statements 
    of Mr. Harding correctly.  He was entitled to consider them to rebut the suggestion 
    of recent fabrication and in his assessment of the credibility of Mr. Harding.

[63]

An allegation of recent fabrication is an allegation that goes to the 
    heart of a witnesss credibility.  It suggests that the witness is lying. 
     In this case, the proposition was that the witness was lying when he said 
    the appellant was driving because the assertion was a recent fabrication required 
    to be consistent with the position Mr. Harding had to take to win a civil 
    lawsuit and to avoid the consequences of failing to meet a recognizance.  The 
    prior consistent statements rebutted that contention.  The judge then was 
    free to consider Mr. Hardings in-court testimony in light of the evidence 
    overall and he did so.  Part of that assessment was the fact that Mr. Hardings 
    statements concerning the location of the occupants of the car was not a recent 
    fabrication.

[64]

I am satisfied that the trial judge did not use the prior consistent 
    statements of Mr. Harding to add weight to or to strengthen his in-court testimony.  
    In the words of the Ontario Court of Appeal in
R. v. A. (J.)
(1996), 112 C.C.C. (3d) 528 at 536, the prior consistent statements of Mr. 
    Harding were not used, . . . as a form of self-corroboration.  The trial 
    judge correctly, in my view, took the statements into account as rebutting 
    the suggestion of recent fabrication and to that extent as evidence relevant 
    to the credibility of Mr. Hardings evidence concerning the location of the 
    occupants of the vehicle.

Speculation, conjecture and misapprehending evidence

[65]

The appellant contends that, but for Mr. Hardings evidence that the 
    appellant was the driver, there could be no sustainable conviction.  It is 
    asserted that looking at the evidence as a whole, Mr. Hardings identification 
    evidence is not credible and that the trial judge committed reversible error 
    by accepting that evidence.

[66]

The appellant acknowledges the very high threshold he must meet to 
    convince this Court that it should intervene. (See:
R. v. Gagnon
, 
    [2006] 1 S.C.R. 621, 2006 SCC 17 at paras. 19 and 20;
R. v. H.A.
, 
    2006 YKCA 7 at para. 23.)

[67]

In this Court, counsel for the appellant reviewed extensively weaknesses 
    in the testimony of Mr. Harding and the trial judges rejection of the evidence 
    of Mr. Chartrand, another Crown witness.  He also dealt with the reconstruction 
    evidence and evidence concerning the location of Mr. Harding immediately after 
    the accident.

[68]

An examination of the transcript of the defence submission to the trial 
    judge shows that these matters were canvassed extensively by the defence at 
    trial.

[69]

In his reasons for judgment, the trial judge carefully reviewed all 
    of these issues.  As noted, he was very alive to the weaknesses in Mr. Hardings 
    evidence.  He dealt extensively with the evidence of Mr. Chartrand and provided 
    reasons why he rejected that evidence, as he was entitled to do.  The evidence 
    of people who attended at the scene of the accident concerning the location 
    of Mr. Harding was examined and the trial judge considered carefully the evidence 
    of the reconstruction experts.

[70]

I am not prepared to interfere with his conclusions on these points.

[71]

In his conclusions at paras. 96-98 of his reasons for judgment, the 
    trial judge confirmed again that he had taken into account the weaknesses 
    in Mr. Hardings evidence, the expert opinion of Mr. Harper and the evidence 
    overall concerning the identification of the driver.  He stated that he was 
    satisfied beyond a reasonable doubt that the appellant was the driver.

[72]

I am satisfied that on a fair reading of the trial judges reasons 
    for judgment and a consideration of the evidence there is no basis on which 
    this Court should intervene.

[73]

I would dismiss this appeal.

The 
    Honourable Mr. Justice Chiasson

Reasons 
    for Judgment of the Honourable Madam Justice Newbury:

[74]

I agree that this appeal must be dismissed, but I wish to express my 
    own reasons for doing so.

[75]

I begin by noting that, as Professor M. T. MacCrimmon writes in Consistent 
    Statements of a Witness

, (1979) 17
Osgoode Hall L.J
. 
    285, the general rule against the admissibility of prior consistent out-of-court 
    statements of a witness has remained virtually unchanged since 1794, has 
    been abolished in civil proceedings in the United Kingdom, and has been the 
    subject of criticism both by the Law Reform Commission of Canada and the Ontario 
    Law Reform Commission.  The rule appears to be based not so much on principle 
    (that such statements are likely to be self-serving and may be fabricated) 
    as on considerations of judicial economy.  Professor MacCrimmon states:

. 
    . . The proposition that parties are so biased in their own favour that their 
    testimony is of no value has been discredited for over a hundred years.  The 
    disqualification of witnesses because of interest was abolished in 1851.  
    In any event, it should also be noted that, even if the consistent statement 
    were fabricated, the prior statement and the in-court testimony would be substantially 
    identical.  The declarant would be subjected to contemporaneous cross-examination 
    on the in-court statement and to subsequent cross-examination on the prior 
    statement, unless the prior statement was proved by a third party and it was 
    impossible to recall the declarant.

A 
    more substantial objection is that in most cases a prior consistent statement, 
    although logically relevant on the issue of the credibility of the witness, 
    is of slight probative value.  The in-court testimony based on the present 
    memory of the witness on subject to contemporaneous cross-examination is usually 
    better evidence than the prior statement.  A minority of the English Law Reform 
    Committee that recommended the provisions of the
Civil Evidence Act 1968
were of the opinion that admission of out-of-court statements when the declarant 
    is a witness was a departure from the best evidence principle for which 
    there is no sufficient justification.  If the previous statement is consistent 
    with what the witness says in court, it is of little value; 

While it is more likely that a witness who is truthful 
    will make a consistent statement than a witness who is untruthful, evidence 
    that is logically relevant, such as a consistent statement, may not be legally 
    relevant.  The courts do not always distinguish between evidence that is inadmissible 
    because it is logically relevant and evidence that is logically relevant but 
    inadmissible on a policy ground, e.g., that it would confuse the issues, waste 
    time or be prejudicial.  Consistent statements have been deemed to be legally 
    irrelevant not because they are logically irrelevant, but because their slight 
    probative value does not justify the danger of a multiplication of issues 
    and a waste of time.  Sellers L.J. in
Corke v. Corke and Cooke
concluded:  
    Whether or not the rule is strictly logical, it is one which keeps the evidence 
    to the main issues .  [At 288-9.]

The rule continues to be applied in Canada notwithstanding 
    perceived logical deficiencies and despite the criticism that juries may not 
    appreciate the distinction between using prior consistent statements as positive 
    or substantive evidence at trial, and using them, where an exception to the 
    rule applies, only for the purpose of assessing the credibility of the witness 
    in court.  (See especially MacCrimmon at 292-3.)

[76]

The exception to the rule at issue in this case applies where there 
    is an allegation that the witness has been influenced by bias or some other 
    improper motive in giving his or her testimony in court.  In such circumstances, 
    a consistent statement made before the improper influence arose will be logically 
    probative in that it may imply that the in-court testimony is free of such 
    motive.  Thus in
Fox v. General Medical Council
[1960] 3 All 
    E.R. 225 (J.C.P.C.), Lord Radcliffe gave as an example of the bias exception 
    the case of a witness who testified that a will was forged.  In cross-examination, 
    it was suggested he was biased because there was enmity between him and the 
    beneficiary of the propounded will.  Lord Radclilffe stated:

He [the witness] was allowed to call confirmatory evidence 
    to show that, before the cause of this enmity had arisen, he had told a third 
    party the story he was now telling.  In that situation, the issue raised by 
    the cross-examination was clearly defined; a recent invention due to a specified 
    cause, and, if the witness could show that his account had been the same before 
    the cause existed, he was certainly adding a relevant fact in support of his 
    credibility.  [At 231, noted by MacCrimmon,
supra,
at 296-7.]

[77]

Both Alan Mewitt at s. 11.2(a) of his text
Witnesses

(1992) and Sopinka, Lederman and Bryant in
The Law of Evidence

in Canada
(1999) at 314-9 confirm that prior consistent statements 
    are admissible to rebut allegations of recent fabrication or bias.  Sopinka
et al
. state at 308 that the purpose of such evidence is generally 
    limited to
bolstering
the witness credibility by showing consistency 
    with his or her testimony, and is not evidence of the truth of the earlier 
    assertion.  (My emphasis.)  It was the absence of the bias exception, or 
    any of the other exceptions to the general rule against the admissibility 
    of prior consistent statements, that led this court in
R. v. Aksidan
(2006) 209 C.C.C. (3d) 423, 2006 BCCA 258 to rule that a videotaped statement 
    given by a child witness who testified to the same effect at trial, had been 
    improperly admitted.  Summarizing Professor Wigmores description of the rule, 
    Smith J.A. for the Court noted at para. 25 that . . . a prior statements 
    consistency with in-court testimony does not make it more likely that the 
    in-court testimony is true  the witness may just as well be consistently 
    lying as consistently telling the truth.

[78]

Turning to the case at bar, I agree with my colleague Mr. Justice Chiasson 
    that the suggestions made by defence counsel in cross-examining Mr. Harding 
    were capable of raising an imputation of bias or improper motive arising out 
    of Mr. Hardings civil claim against Mr. Stirling and his dealings with the 
    Crown in relation to a drug charge that had been brought against Mr. Harding.  
    Although I suppose it might have been argued that an improper motive arose 
    immediately upon the occurrence of the accident, the trial judge at para. 
    14 of his ruling on the
voir dire
stated that the statements in question 
    had been made
before the triggering event
of speaking to a lawyer 
    concerning a possible civil claim, or being caught allegedly in breach of 
    a court-ordered recognizance.  (Emphasis mine.)  Even at trial, Mr. Harding 
    did not seem to appreciate that his civil suit was being brought against the 
    appellant rather than against I.C.B.C.  In these circumstances, I agree with 
    Mr. Justice Chiasson that Mr. Hardings prior consistent statements became 
    admissible to rebut the imputation of improper motive.

[79]

The more difficult question is whether the trial judge used the statements 
    properly or whether he used them as positive evidence  effectively to corroborate 
    Mr. Hardings testimony at trial.  As MacCrimmon states,
supra
, at 
    293, . . . consistency is not corroboration.  Did the trial judge so err?

[80]

It is true that a reading of para. 95 of the trial judges reasons 
    alone may give rise to some uncertainty on this question.  There he stated:

Since the day of the collision, Mr. Harding has consistently 
    placed the two deceased in these seats.  This out-of-court testimony, while 
    not evidence, supports the credibility of his in-court testimony to this effect.  
    Importantly, Mr. Harding took this position long before the experts conducted 
    their analysis.

Although the words while not evidence, supports the 
    credibility of his in-court testimony to this effect indicate that the trial 
    judge was clearly aware of the limited purpose for which the prior consistent 
    statements could be used, his reference to the fact that Mr. Harding had taken 
    this position before the experts conducted their analysis is problematical.  
    Surely the point was that he had taken that position before he had spoken 
    to a lawyer about a civil action against the appellant and before the deal 
    (as such there was) with the police on the drug charge.  (That the trial judge 
    appreciated this is apparent from his finding regarding the triggering event 
    quoted above.)  More importantly, as has been stated, mere consistency in 
    past out-of-court statements may not be used as tending to prove they are 
    true.

[81]

However, two other statements of the trial judge lead me to conclude 
    that he was aware of the restriction on his use of the prior consistent statements 
    and did not go beyond that restriction.  First, at para. 53 of his reasons, 
    he stated:

I also ruled and heard by consent a prior consistent statement on the basis 
    it could also be considered in assessing the credibility and reliability of 
    this witnesss evidence.
I have considered these previous

statements 
    for that purpose alone
.  Briefly, these statements are as follows: . . 
    .

[My emphasis.]

The Court then went on to refer to various weaknesses 
    in Mr. Hardings testimony, concluding at paras. 59-60 that Mr. Harding had 
    attended to court and honestly gave his recollection of events as he best 
    recalls them.

[82]

Further, in his ruling on the
voir dire
, the trial judge dealt 
    more specifically with the limited purpose for which the statements became 
    admissible.  At paras. 9-14, he reasoned:

. 
    . . [The Crown] now submits that the statement at the hospital is admissible, 
    not for the truth of its contents,
but solely to bolster the credibility 
    of Mr. Harding and to negate the inference raised in cross-examination that 
    this witness was possibly testifying pursuant to an improper motive
, namely 
    the pursuit of a civil claim, and/or the avoidance of criminal responsibility 
    for breaching his recognizance on another matter.

Without conceding an allegation of recent concoction the defence 
    agreed that all previous out-of-court statements made by this witness to emergency 
    personnel at the scene and the hospital are admissible, for the limited purpose 
    of assessing the credibility of Mr. Hardings in-court testimony.

. . .

While all of the out-of-court statements are admitted by consent for the sole 
    purpose of assessing credibility, presumably along the lines identified by 
    . . . Justice Weiler in
R. v. OConnor
100 C.C.C. 3(rd) p. 285, I am 
    satisfied these statements are also admissible
to rebut the allegations 
    of bias raised in cross-examination
.

[Emphasis added.]

[83]

Considering all of these comments as a whole, I am not persuaded that 
    the trial judge used the prior consistent statements as evidence, i.e., 
    as substantive evidence corroborating Mr. Hardings in-court testimony. With 
    all due respect to the views of Madam Justice Levine on this question, I conclude 
    that he used the statements in the manner he said (at para. 53 of his reasons 
    and in his ruling in the
voir dire
) he was using them  i.e., only 
    to assess the credibility of Mr. Harding at trial.  Nor do I regard his use 
    of the word bolster at para. 9 of his ruling in the
voir dire
as 
    a concern in this case.  As Mr. Justice Chiasson points out, the authors of
McWilliams on Canadian Criminal Evidence
(4th ed., 2006) themselves 
    state that where an allegation of improper motive on the part of a witness 
    is made, the credibility of the witness can be
bolstered
by a prior 
    consistent statement . . .  (My emphasis.)  I have also noted the use of 
    the term bolstering in this context by Sopinka
et al
.  Thus, with 
    all due respect to this courts comment in
Aksidan
, supra,
the rule remains that where prior consistent statements are being admitted 
    under the bias exception, they may be used to rebut an allegation of recent 
    fabrication and to rehabilitate the credibility of the witness.  They may 
    not be used to confirm or corroborate the truth of the in-court testimony 
    of the witness, as Smith J.A. stated at para. 21 of
Aksidan
.  
    Again, I emphasize that in that case, no imputation of recent fabrication 
    or improper motive had been made against the witness.

[84]

With respect to the other grounds of appeal raised by the appellant, 
    I agree with the conclusions of my colleague, Mr. Justice Chiasson.

[85]

I would dismiss the appeal.

The Honourable
Madam Justice Newbury

Reasons for Judgment of the Honourable Madam Justice 
    Levine:

[86]

I have had the privilege of reading in draft form the reasons for judgment 
    of each of my colleagues, Madam Justice Newbury and Mr. Justice Chiasson. 
    For the reasons that follow, I take a different view of the treatment by the 
    trial judge of the prior consistent statements of the witness for the Crown, 
    Mr. Harding, on the issue of the identification of the appellant as the driver 
    of the vehicle at the time of the accident, which leads me to conclude that 
    the appeal should be allowed and a new trial ordered.

[87]

There are two issues that arise with respect to Mr. Hardings prior 
    consistent statements: admissibility and use.

[88]

In
R. v. Aksidan
, 2006 BCCA 258, Smith J.A. summarized 
    the rule of evidence that excludes prior consistent statements (at paras. 
    18-19):

Evidence 
    of a witness's past consistent statements may not be adduced to bolster the 
    credibility of the witness: see
R. v. Beland
, [1987] 2 S.C.R. 398. 
    At p. 409, McIntyre J., who gave the reasons for the majority, cited the judgment 
    of Martin J.A., for the court, in
R. v. Campbell
(1977), 38 C.C.C. 
    (2d) 6 (Ont. C.A.) at p. 18, where that learned jurist explained that self-serving 
    statements elicited from another party are hearsay, and that self-serving 
    statements repeated by the witness lack probative value in support of the 
    witness's credibility. At p. 410, McIntyre J. said,

Wigmore, 
    [
Wigmore on Evidence
(Chadbourne rev., 1972)] vol. 4, at p. 255, para. 
    1124, describes the rule in these terms:

When 
    the witness has merely testified on direct examination, without any impeachment, 
    proof of consistent statements is unnecessary and valueless. The witness is 
    not helped by it; for, even if it is an improbable or untrustworthy story, 
    it is not made more probable or more trustworthy by any number of repetitions 
    of it. Such evidence would ordinarily be cumbersome to the trial and is ordinarily 
    rejected.

In 
    addition to the objections based on hearsay and lack of probative value, McIntyre 
    J. noted (at p. 410) the danger that such self-serving statements could be 
    readily manufactured for later use at the trial. He concluded (at pp. 410-11) 
    that, except in the case of well-recognized exceptions, such as to rebut an 
    allegation of recent fabrication or to show physical, mental or emotional 
    condition, evidence of prior consistent statements should be rejected because

. 
    . . [t]o do otherwise is to open the trial process to the time-consuming and 
    confusing consideration of collateral issues and to deflect the focus of the 
    proceedings from their fundamental issue of guilt or innocence.

[89]

As my colleagues have set out in their reasons, in this case the statements 
    were properly admitted under another exception to the general rule that prior 
    consistent statements are not admissible.  Defence counsel suggested in cross-examination 
    that Mr. Harding identified the appellant as the driver for an improper motive; 
    that is, to support Mr. Hardings civil action for damages and because of 
    a deal made with the Crown on a drug charge after the accident.  The statements 
    were made before either of those matters arose, and were therefore admissible 
    to rebut the suggestion that Mr. Harding had fabricated his identification 
    evidence at trial to further his personal interest.

[90]

The authorities most commonly discuss the admissibility of prior consistent 
    statements, as an exception to the general rule that they are not admissible, 
    where there is an allegation of recent fabrication.  The authorities cited 
    in my colleagues reasons demonstrate that the exception is not limited to 
    those circumstances, but also applies where the allegation is of fabrication 
    for an improper motive: see
R. v. OConnor
(1995), 100 C.C.C. 
    (3d) 285 (
per
Finlayson J.A. at 294-296, Goodman J.A. at 301-302, Weiler 
    J.A. at 302-303) (Ont. C.A.),
Fox v. General Medical Council
, 
    [1960] 3 All E.R. 225 at 230 (C.A.), and Sopinka, Lederman and Bryant,
The 
    Law of Evidence in Canada
, 2nd ed. (Toronto: Butterworths, 1999) at 315. 
    These authorities all support the trial judges ruling to admit the prior 
    consistent statements into evidence in this case.

[91]

The issue that causes me to disagree with my colleagues is the use 
    of the statements by the trial judge in assessing the evidence of Mr. Harding 
    at the trial.  I am of the view that the proper use of prior consistent statements 
    admitted to rebut an allegation of fabrication for an improper motive is limited 
    to rebutting that allegation, and not to bolster or support the credibility 
    of the witness generally. There may be a fine line between these two uses, 
    which is difficult to articulate. What is absolutely clear from the authorities 
    is that in no case may prior consistent statements be used for anything other 
    than assessing the credibility of the witness. In particular, they may not 
    be used to confirm the truth of the witness in-court testimony. In my opinion, 
    Smith J.A. in
Aksidan
reflected both of these limits when he 
    said (at para. 21):

In any event, even where this exception is 
    applicable, the prior consistent statement is relevant only to the credibility 
    or reliability of the in-court testimony of the witness.
It may be used 
    to rebut the allegation of recent fabrication and thus rehabilitate the witness's 
    credibility but it may not be used for its truth or as confirmatory of the 
    in-court testimony of the witness
, since it is hearsay for those purposes: 
    see
R. v. W.(G.)
(1998), 18 C.R. (5th) 379 paragraph 43 (Nfld. C.A.); 
    Sopinka, Lederman, and Bryant,
The Law of Evidence in Canada
, 2d ed. 
    (Toronto and Vancouver: Butterworths, 1999), p. 319, s. 7.16.

[Underlining 
    added.]

[92]

The trial judges ruling on the
voir dire
and his reasons for 
    judgment indicate that he was aware that prior consistent statements could 
    be used only for a limited purpose.  In spite of that, he exceeded the limit 
    in both ways described above.  He used the statements to bolster Mr. Hardings 
    credibility generally, not just for the purpose of rebutting the allegation 
    of improper motive, and he used them to confirm the truth of Mr. Hardings 
    in-court testimony.

[93]

In his ruling on the
voir dire
, the trial judge articulated 
    his view of the limited purpose for which the statements could be used.  He 
    said (at paras. 9, 10, and 13):

. 
    . . It now submits that the statement at the hospital is admissible, not for 
    the truth of its contents, but solely to bolster the credibility of Mr. Harding 
    and to negate the inference raised in cross-examination that this witness 
    was possibly testifying pursuant to an improper motive, namely the pursuit 
    of a civil claim, and/or the avoidance of criminal responsibility for breaching 
    his recognizance on another matter.

Without conceding an allegation of recent concoction 
    the defence agreed that all previous out-of-court statements made by this 
    witness to emergency personnel at the scene and the hospital are admissible, 
    for the limited purpose of assessing the credibility of Mr. Hardings in-court 
    testimony.

. . .

While all of the out-of court statements are admitted 
    by consent for the sole purpose of assessing credibility, presumably along 
    the lines identified by Mr. Justice Weiler in
R. v. OConnor
100 C.C.C. 
    3(rd) p. 285, I am satisfied these statements are also admissible to rebut 
    the allegations of bias raised in cross-examination.

[94]

In these paragraphs, the trial judge appears to say that the prior 
    consistent statements could be used for two purposes:  to rebut the inference 
    of improper motive
and

to assess the credibility of the witness. 
     Of course, when the inference of improper motive is rebutted because it is 
    shown that the witness made a statement consistent with his testimony before 
    the motive arose, the witness credibility is thereby bolstered.  In that 
    respect, the statement is used to assess, and bolster, the credibility of 
    the witness.  But it is not appropriate to use the statement further to assess 
    the witness credibility in general; for example, to conclude that because 
    the witness made statements before the trial that are consistent with his 
    testimony at the trial, he is more likely to be a person who tells the truth.

[95]

An allegation of improper motive reduces the witness credibility in 
    a specific way, suggesting fabrication for a specific purpose.  The prior 
    consistent statement is admitted to balance the assessment  to show that 
    the allegation is wrong  the statement was not made for the specific purpose 
    alleged.  Once the statement is applied for that purpose, it has no further 
    probative value.  The witness credibility must then be assessed using the 
    tools normally available to the trier of fact.

[96]

The authorities cited do not discuss this limit on the use of prior 
    consistent statements in expressly these terms, but in their description on 
    the limited use of such statements they are consistent with my opinion.  In
Fox
(at 231), for example, Lord Radcliffe discussed as an example 
    of the application of the rule, the case of
Flanagan v. Fahy
, 
    [1918] 2 I.R. 361:

There a witness who had testified 
    to the forging of a will was cross-examined to the effect that he had invented 
    his story because of enmity between him and the accused, the beneficiaries 
    under the propounded will.  He was allowed to call confirmatory evidence to 
    show that, before the cause of this enmity had arisen, he had told a third 
    party the story he was now telling.  In that situation,
the issue raised 
    by the cross-examination was clearly defined; a recent invention due to a 
    specified cause, and, if the witness could show that his account had been 
    the same before the cause existed, he was certainly adding a relevant fact 
    in support of his credibility
.

[Underlining added.]

[97]

In his reasons for judgment, the trial judge referred several times 
    to Mr. Hardings prior consistent statements and their use.

[98]

In instructing himself on the assessment of the evidence of witnesses, 
    he said (at para. 38): . . . any previous consistent statements admitted 
    to rebut an allegation of recent fabrication and bias are not evidence as 
    to the truth of their contents.

[99]

In his discussion of Mr. Hardings evidence, he said (at para. 53):

Mr. Harding was also cross-examined as to prior inconsistent 
    statements.  I also ruled and heard by consent a prior consistent statement 
    on the basis it could also be considered in assessing the credibility and 
    reliability of this witnesss evidence.  I have considered these previous 
    statements for that purpose alone.

[100]

The trial judge summarized (at paras. 54 and 55) the circumstances 
    giving rise to the allegations of improper motive in Mr. Hardings evidence 
     his civil claim for damages resulting from the accident, and the drug charge 
    not proceeding. He said (at para. 57):

It is the position of the defence that Mr. Hardings 
    evidence should be given no weight.  Counsel submitted that the court should 
    consider possible motives for his concocting his evidence.

[101]

The trial judge summarized his assessment of Mr. Hardings evidence 
    (at paras. 59-60):

In weighing and considering all of his evidence, with the benefit of his 
    many previous statements, I find there is a consistent pattern of not recalling 
    many details of the driving up to the collision, but of

stating 
    clearly he was in the back seat, that Mr. Bateman sat beside him, that Mr. 
    Hamilton was in the front seat, and on a number of occasions that the accused 
    was the driver
.  In my view, the previous inconsistencies 
    as to other details are understandable given the circumstances in which he 
    gave many of the previous statements, including the fact that while at the 
    hospital he was under the influence of medication and/or suffering from serious 
    injury, along with the other effects of a terrible collision, including the 
    death of two friends.

I 
    am satisfied he attended to court and honestly gave his recollection of events 
    as he best recalls them.  My concern is not with his credibility, but with 
    the reliability of his evidence.  This is due not so much to prior inconsistencies, 
    but the inherent weaknesses in what he said on the witness stand, that is, 
    the frailties and gaps in his evidence and the inconsistencies between what 
    he said in chief and in cross.  He was, at times, a malleable witness, although 
    never with regard to the position of the occupants in the vehicle.  However, 
    I have considered his evidence in the context of all the evidence, including 
    the expert opinions as to the occupant dynamics.  I will return to Mr. Harding's 
    evidence later in my reasons.

[Underlining 
    added.]

[102]

After analyzing the other evidence  the experts opinions, the appellants 
    failure to respond to the ambulance attendant when the attendant asked who 
    the driver was, and the appellants statements to Ms. Richdale  the trial 
    judge summarized his findings of fact and inferences from all of the evidence 
    in his Conclusions and Decision.  Concerning Mr. Hardings evidence, he 
    said (at para. 95):

Since the day of the collision, Mr. Harding has consistently 
    placed the two deceased in these seats.  This out-of-court testimony, while 
    not evidence, supports the credibility of his in-court testimony to this effect. 
     Importantly, Mr. Harding took this position long before the experts conducted 
    their analysis.

[103]

The trial judges reasons for judgment are, as a whole, almost a textbook 
    example of a thorough, careful consideration of the evidentiary and legal 
    rules he was to follow in assessing the evidence and making findings as to 
    the guilt or innocence of the appellant.  Despite my criticisms of the articulation 
    in his reasons on the
voir dire
of the limited use of prior consistent 
    statements, I would not, on that basis, conclude that the appeal should be 
    allowed.  In his conclusions in paras. 59 and 95, however, the trial judge 
    failed to follow his own instructions concerning the use he could make of 
    Mr. Hardings prior consistent statements, and clearly considered them for 
    the truth of their contents.

[104]

When he said (at para. 59) that Mr. Hardings statements showed 
a 
    consistent pattern
of stating clearly . . . that the accused was the driver 
    and (at para. 95) that Mr. Harding has
consistently
placed the two 
    deceased in these seats.  This evidence . . . supports the credibility of 
    his in-court testimony to this effect, the trial judge must be taken to be 
    saying that because the prior statements are consistent with his in-court 
    testimony, it is more likely that Mr. Hardings in-court testimony is true. 
     This is the very use of prior consistent statements that is prohibited.

[105]

Mr. Hardings testimony was pivotal to the appellants conviction, 
    and Mr. Hardings credibility was in doubt throughout.  This critical error 
    in the trial judges assessment of Mr. Hardings credibility undermines the 
    result of the trial.  It is impossible to say what his conclusion about Mr. 
    Hardings credibility would have been had he not considered the prior consistent 
    statements for their truth and as confirmation, in effect, of Mr. Hardings 
    in-court testimony.  Nor is it possible to say that the result of the trial 
    would have been the same if the trial judge had come to a different conclusion 
    about the credibility, and therefore the reliability and weight, of Mr. Hardings 
    evidence.  That evidence was properly considered as it related to all of the 
    other evidence.  It is not possible on appellate review to separate or ignore 
    it and consider just the other evidence, and to conclude that there would 
    be no miscarriage of justice if the conviction were upheld.

[106]

I would therefore allow the appeal, set aside the conviction, and order 
    a new trial.



The Honourable Madam Justice Levine


