




WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)      In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Khan, 2017 ONCA 114

DATE: 20170213

DOCKET: C61451

Doherty, LaForme,
    Pepall, Hourigan & Miller JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Noor Khan

Respondent

John McInnes, for the appellant

David Butt and Maija Martin, for the respondent

Matthew Gourlay and Maya Borooah for the intervener
    Criminal Lawyers Association

Heard: September 20, 2016

On appeal from the judgment of Justice M. Vallee of the
    Superior Court of Justice, dated November 18, 2015, quashing the conviction entered
    by Justice B. Frazer of the Ontario Court of Justice, dated December 16, 2013.

Hourigan J.A.:


I.

Introduction

[1]

The respondent, who was a police officer, was
    convicted of one count of sexual assault. The complainant was a prisoner he was
    transporting to a police station. She alleged that the respondent sexually assaulted
    her while performing searches of her in the back of a police cruiser.

[2]

The summary conviction appeal judge quashed the
    conviction and ordered a new trial on the basis that the trial judge had erred
    in admitting and relying on a prior consistent statement made by the
    complainant.

[3]

In my view, the statement was admissible, and
    was not used by the trial judge for an impermissible purpose. Accordingly, I
    would grant leave to appeal, allow the appeal, and restore the conviction.


II.

Background

[4]

The complainant was arrested while in possession
    of cocaine. The respondent was a uniformed police officer with the York
    Regional Police Service. He was called to the arrest site to transport the
    complainant to the police station. According to the complainant, while she was
    handcuffed behind her back, the respondent opened the back door of the cruiser
    and proceeded to pat down her arms and thighs. A short time later, she says
    that the respondent advised her that he would do another search to ensure she
    did not have any weapons. He turned off the interior dome lights of the
    vehicle, exited the vehicle again and opened the back door. He leaned in and
    again patted down the complainants legs and thighs, but this time he also patted
    down her chest.

[5]

The complainant says that the respondent then
    began to drive toward the police station, but just before getting there, he
    told her that he had to check for weapons again. He exited the cruiser, opened
    the back door and leaned in. This time, the respondent pulled the fabric of the
    complainants tank top away from her chest, and then looked down her top while
    shining a flashlight down it. The complainant told the respondent she was
    uncomfortable, at which point the respondent returned to the drivers seat and
    drove to the police station.

[6]

When the complainant arrived at the police
    station, a female officer, Constable Flint, advised her that only she would
    search her. At this point, the complainant stated, Ive already been searched three
    times, why are they searching me again and became emotional and confused. Constable
    Flint asked her what she meant, to which the complainant responded Ive been
    searched three fucking times. How many times am I going to be searched? Constable
    Flint immediately reported the matter to a staff sergeant, who asked an on-duty
    sexual assault investigator to interview the complainant.

[7]

The respondent was eventually charged with one
    count of sexual assault. At trial, following a
voir dire
, the trial
    judge admitted the complainants statement to Constable Flint, on the basis
    that it was a spontaneous utterance and as a prior statement to assist the
    court with the ultimate credibility of [the complainant]. The trial judge also
    indicated that the statement was admissible under the principled approach to
    the hearsay rule.

[8]

On appeal to the summary conviction appeal
    court, Vallee J. held that the trial judge erred in finding the prior
    consistent statement was admissible under the principled approach to the
    hearsay rule, as it was not necessary because the complainant testified at
    trial. Vallee J. also concluded that the trial judge erred in using the prior
    consistent statement for the truth of its content and further, that he used the
    statement for the impermissible purpose of inferring truth from repetition. She
    referenced the trial judges language that the prior consistent statement
    showed the consistency of [the complainants] complaint and that it assisted
    the court in determining the overall credibility in a positive way. Vallee J.
    quashed the conviction and ordered a new trial.


III.

Parties Positions

[9]

The Crown argues that the trial judge used the
    prior consistent statement for a proper and restrained purpose. The spontaneous
    nature of the initial complaint, and the complainants repetition of the
    essential elements of the allegations provided important context in which to
    assess the complainants credibility. The trial judges reasons as a whole
    reflect a proper use of the statement, having regard to the circumstances in
    which it came out. In this case, the trial judge concluded that the
    circumstances surrounding the initial complaint impacted on the complainants
    credibility in a positive way.

[10]

The Crown also seeks to have this court
    reconsider its endorsement in
R. v. Mackenzie,
2015 ONCA 93, 19 C.R.
    (7th) 150. The Crowns concern is that
Mackenzie
could be interpreted
    as standing for the proposition that where a statement is admitted under the
res
    gestae
exception

to the hearsay rule, but is also a prior
    consistent statement, it cannot be relied upon for the truth of its contents.
    In response to a request made by the Crown, the Chief Justice struck a five-judge
    panel.

[11]

The respondent argues that the trial judge
    relied heavily on the truth of the complainants prior consistent statement
    that she had already been searched three times, when that statement was not
    admissible as an exception to the hearsay rule, or under the principled
    approach to the hearsay rule. The respondent further argues that the statement
    was not admissible pursuant to any recognized exception to the general rule
    that prior consistent statements are inadmissible. The respondent submits that
    the summary conviction appeal court correctly quashed the conviction. Further,
    the respondent submits that the trial judge erred in his analysis of the
    evidence, and that his reasons are inadequate.


IV.

Analysis

[12]

As I will explain below, I am of the view that
    the trial judges reasons, when read as a whole, reflect that the trial judge
    used the prior consistent statement for a limited, permissible purpose.

[13]

The complainants verbal reaction to Constable Flint
    advising her that she would be searched is presumptively inadmissible, because
    it is hearsay, or alternatively, because it is a prior consistent statement.
    The statement, therefore, can only be admissible if it falls within an
    exception to the hearsay rule, or an exception to the prior consistent
    statement rule.

[14]

The trial judge identified three possible routes
    of admissibility for the statement: (i) admission under the traditional hearsay
    exception of
res gestae
or spontaneous utterance; (ii) admission under
    the principled approach to hearsay; and (iii) admission as an exception to the
    rule against prior consistent statements. In my analysis of this issue, I will consider
    all three routes. I will then analyze the permissible use of the statement.

A.

Admissibility

Under the
Res Gestae
Exception

[15]

Res gestae
statements
    are admissible as an exception to the hearsay rule:
R. v. Khan
(1988),
    42 C.C.C. (3d) 197 (Ont. C.A.), affd [1990] 2 S.C.R. 531, at para. 21;
R.
    v. Ratten
, [1972] AC 378 (P.C.), at pp. 389-391. Statements are admitted under
    this exception to the hearsay rule on the basis that the stress or pressure
    under which the statement is made can be said to safely discount the
    possibility of concoction: S. Casey Hill, David M. Tanovich & Louis P.
    Strezos,
McWilliams Canadian Criminal Evidence,
5th ed.

(Toronto:
    Canada Law Book, 2013), at p. 7:120.20.10. The statement should be reasonably
    contemporaneous with the alleged occurrence, although exact contemporaneity is
    not required:
Khan
, at para. 25;
R. v. Dakin
(1995), 80
    O.A.C. 253 (C.A.), at para. 20.

[16]

The trial judge first addressed the
    admissibility of the statement under the traditional exception to the hearsay
    rule of
res gestae
or spontaneous utterance. He concluded that the
    statement had a spontaneous quality and was admissible under this exception,
    and rejected the respondents argument that, due to her life experiences, the
    complainant had the ability to concoct the story of having been searched.

[17]

The summary conviction appeal judge did not
    address this route of admissibility in her reasons, perhaps because the Crown
    conceded before the summary conviction appeal court that the pre-conditions of
    the
res gestae
exception to the hearsay rule were not met in this
    case. Given that concession, this route of admissibility need not be addressed
    further.

B.

Admissibility of the Statement Under the Principled Approach

[18]

An excited utterance can also satisfy the
    principled approach to the hearsay rule. The two requirements for the admission
    of a hearsay statement under the principled approach are reliability and
    necessity:
R v. Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at para.
    21. The reliability of the statement comes from the absence of an opportunity
    to concoct a story. As for necessity, where, as in this case, the witness
    testifies, the objection to hearsay statements arising from the absence of an
    opportunity to cross-examine is negated. More fundamentally though, as pointed
    out by Justice Paciocco in The Perils and Potential of Prior Consistent
    Statements: Lets Get It Right (2013) 17 Can. Crim. L. Rev. 181 [Paciocco], at
    pp. 192-193:

... [T]he necessity component [of the basic hearsay
    principles] performs a best evidence function. It exists to ensure that if it
    is possible to present better evidence in the form of in-court testimony,
    parties should not be permitted to resort to hearsay proof...There are times,
    however, when hearsay evidence is expressed under circumstances that yield tremendously
    helpful criteria for evaluating the reliability or credibility of a factual
    claim.

[19]

The trial judge concluded that, by virtue of its
    spontaneity, the statement was reliable, and that it met the necessity
    requirement. The trial judge based his conclusion that the statement was
    necessary on the fact that there had been a direct attack on [the
    complainants] credibility by way of an allegation of complete fabrication and
    her professed lapses of memory or gaps of memory with respect to portions of
    her evidence.

[20]

The summary conviction appeal court held that
    necessity was not met in this case because the witness testified. The summary
    conviction appeal judge stated, at para. 12:

Necessity is a component of the hearsay analysis along with
    reliability. It often involves a recanting, dead or absconding witness who
    made the prior consistent statement. If the witness does not attend at
    trial, it may be necessary to admit the prior consistent statement to obtain
    the evidence. Here, the complainant did give evidence at trial, so it was
    not necessary to admit the prior consistent statement in order to obtain the
    evidence.

[21]

As noted above, the necessity requirement under
    the principled approach does not require that the witness be absent or unable
    to give evidence. Rather, the necessity requirement can be satisfied where the
    witness is unable to give a full and frank account of the events, or where the
    witness has difficulty recalling significant details of the event:
Khan
;
R. v. M.C.
, 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 56.

[22]

That being said, the trial judges analysis of
    necessity was problematic. While lapses in memory can, in some circumstances,
    satisfy the necessity requirement under the principled approach, an attack on a
    witnesss credibility generally does not satisfy the necessity requirement of
    the principled approach.

[23]

Although not for the reason identified by the
    summary conviction appeal judge, I am of the view that necessity was not met,
    and thus the statement is not properly admitted under the principled approach.
    The complainant testified consistently about the essential parts of the
    allegations. Whatever lapses may have existed in her memory, they did not go to
    the essential details of the allegation that she had been previously searched
    numerous times. The record does not establish that the complainant was unable
    or unwilling to give a full account of events, or could not recall significant
    details of the event. The necessity component of the principled approach to
    hearsay is not satisfied.

[24]

Therefore, the statement is also not admissible
    for the truth of its contents under the principled approach to hearsay. What
    remains is whether the statement is admissible as an exception to the general
    rule against the admission of prior consistent statements.

C.

Admissibility as an Exception to the Rule Against Prior Consistent
    Statements

[25]

Prior consistent statements are presumptively
    inadmissible because they lack probative value:
R. v. Stirling
, 2008
    SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7. The fact that someone said the same
    thing on a prior occasion to what he/she has said in court is, generally
    speaking, not probative of whether the witness is offering truthful testimony
    in court. It would be self-serving to allow a witness to buttress his or her
    own testimony with her own prior statements.

[26]

As Watt J.A. noted in
M.C.
,

at
    para. 59, citing Paciocco, at p. 184, prior consistent statements are an
    amalgam of two elements  the hearsay element and the declaration element. The
    hearsay rule takes care of the hearsay element. The prior consistent statement
    rules generally exclude the declaration element. Where admissible, the
    declaration element is proof that a statement was made, and allows a trier of
    fact to derive appropriate inferences from the fact and context in which the
    statement was made: Paciocco, at p. 184.

[27]

The common law recognizes a number of exceptions
    to the basic rule that prior consistent statements are inadmissible. When a
    prior consistent statement is admissible pursuant to one of these exceptions,
    it is admissible for limited purposes, and those purposes differ among
    exceptions.

[28]

For example, where a prior consistent statement
    is admitted to rebut an allegation of recent fabrication, it is admitted solely
    to provide a direct response to the suggestion that the witness concocted
    allegations after a triggering event. The statement is not admitted for the
    truth of its contents, but only to show that the details were not added after
    the point in time suggested by opposing counsel.

[29]

Other recognized exceptions include admitting
    prior consistent statements as pure narrative evidence, and narrative as
    circumstantial evidence: Paciocco, at p. 182.

[30]

As pure narrative, prior consistent statements
    carry no weight because they are tendered simply to give the background to
    explain how the complaint came to be before the court. This court described the
    pure narrative exception in
R. v. F. (J.E.)
(1993), 16 O.R. (3d) 1
    (C.A.), as allowing the decision-maker to understand the chronological
    cohesion of the case. The statement is not used to prove the truth of its
    contents, nor are there any inferences arising that would make the case of one
    person more compelling than that of another. It is merely an aid in
    understanding the case as a whole.

[31]

But sometimes the circumstances surrounding the
    making of the prior consistent statement are such that the statement assists in
    assessing the reliability and credibility of a witnesss in-court testimony,
    giving prior consistent statements admitted as narrative a more substantive
    use:
R. v. Dinardo
, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at
    para. 39;
R. v. Evans
, [1993] 2 S.C.R. 629, at para. 32. This is
    referred to as narrative as circumstantial evidence.

[32]

In
R. v. G.C
, 2006 CarswellOnt 3413
    (C.A.), at para. 22, Rouleau J.A. identified the limited way in which prior
    consistent statements can be used to assist the trier of fact in assessing the
    cogency, and therefore the reliability and credibility, of a witness:

In cases involving sexual assault of young children, the courts
    recognize the difficulty in the victim providing a full account of events. In
    appropriate cases, the way the complaint comes forth can, by adding or
    detracting from the logical cogency of the childs evidence, be a useful tool
    in assisting the trial judge in the assessment of the childs truthfulness.

[33]

While Rouleau J.A. was discussing the use of
    prior consistent statements to assess the reliability and credibility of young
    children, there is no reason why the principle should be so restricted. In the
    appropriate case, prior consistent statements can be useful tools in assisting
    a trial judge in the assessment of the truthfulness or reliability of the
    declarant, whatever their age:
M.C
., at para. 66;
R. v. Curto
,
    2008 ONCA 161, 230 C.C.C. (3d) 145, at para. 37

[34]

As this court noted in
Curto
, at para.
    34, it will not always be necessary to know why or how the case came to the
    attention of the police, however, the fact that a statement was made, and the
    context in which the statement is made can be probative and help in assessing a
    witnesss credibility.

[35]

The line between the permissible and
    impermissible uses of prior consistent statements is a fine one, as noted by
    the Supreme Court of Canada. In
Dinardo,
the prior consistent
    statements of an intellectually disabled complainant were, at trial, used to
    corroborate her in-court testimony. The Quebec Court of Appeal held that the
    trial judge erred in using the complainants prior consistent statements to
    corroborate her evidence that the crime had been committed. The Supreme Court
    of Canada agreed and highlighted the distinction between the permissible and
    impermissible use of prior consistent statements. Charron J. stated, at para.
    37:

In some circumstances, prior consistent statements may be
    admissible as part of the narrative. Once admitted, the statements may be used
    for the limited purpose of helping the trier of fact to understand how the
    complainants story was initially disclosed. The challenge is to distinguish
    between using narrative evidence for the impermissible purpose of
    confirm[ing] the truthfulness of the sworn allegation and using narrative
    evidence for the permissible purpose of showing the fact and timing of a
    complaint,
which may then assist the trier of fact in the
    assessment of the truthfulness or credibility
 [Emphasis added.]

[36]

Charron J. cited this courts decision in
G.C
.,
    in which Rouleau J.A. stated, at para. 20:

the evidence of prior complaint cannot be used as a form of
    self-corroboration to prove that the incident in fact occurred. It cannot be
    used as evidence of the truth of its contents. However, the evidence can be
    supportive of the central allegation in the sense of creating a logical
    framework for its presentation [] and can be used in assessing the
    truthfulness of the complainant.

[37]

In this case, while the trial judge did not
    expressly refer to the narrative as circumstantial evidence exception, it is
    clear from his reasons that it was through this lens that he considered the
    admissibility of the complainants statement. The trial judge stated:

Having touched on the issue of an allegation of fabrication by
    the defence, I would also admit the statement as a prior statement of [the
    complainant] as relevant and capable of assisting the trier of fact in
    determining a fact in issue and the credibility of [the complainant], it having
    been put squarely in issue that she fabricated her evidence.

Such admission has the capacity to impact positively, where
    admission of the statement directly addresses the allegation of fabrication, as
    but one factor to be taken into account as part of the larger assessment of
    credibility.

[38]

The summary conviction appeal judge addressed
    the admissibility of the statement as a prior consistent statement very
    briefly, stating at para. 14:

[] In
Khan
, the court does address circumstances in
    which a prior consistent statement may be admissible; however, these relate to
    cases involving child complainants and the evidentiary challenges associated
    with their testimony []

[39]

The summary conviction appeal judge also failed
    to address the basis upon which the trial judge admitted the statement as a
    prior consistent statement, which, in large part, drove the courts ultimate
    conclusion that the statement was misused. In particular, and as noted above,
    in some cases a prior statement has independent cogency, and is not used merely
    to support the testimony of the witness by duplication. A prior consistent
    statement can be used not to corroborate the evidence of the witness, but to
    provide the surrounding circumstances and context to evaluate the credibility
    and reliability of the witnesss in-court testimony:
F. (J.E.)
at para
    89.

[40]

It is the declaration part of the prior
    consistent statement that is relevant and leads to permissible circumstantial
    inferences. Given the circumstances in which the complainant made her statement
    in this case, the trial judge did not err in admitting the statement under the narrative
    as circumstantial evidence exception to the prior consistent statement rule.

D.

Use of the Statement

[41]

Although the statement was admissible under the
    narrative as circumstantial evidence exception to the rule against prior
    consistent statements, such evidence cannot be used for the prohibited
    inference that consistency enhances credibility, or the incorrect conclusion that
    the simple making of a prior consistent statement corroborates in-court
    testimony: Paciocco, at p. 199.

[42]

The summary conviction appeal judge concluded
    that the trial judge had used the prior consistent statement in this
    impermissible way, stating at para. 15:

The trial judge used the prior consistent statement for the
    truth of its contents.  This is highlighted where he states that it showed
    the consistency of her complaint and it assisted the court in determining
    the overall credibility in a positive way.  The trial judge appears to
    have relied on the prior consistent statement as a foundational pillar for his
    decision.  The use of the prior consistent statement in this way
    illustrates the reasons why a prior consistent statement is presumptively inadmissible. 
    Just because a witness says the same thing twice does not mean that she is more
    likely to be telling the truth. The trial judge made an error in the
    treatment of an important piece of evidence which appears to have informed his
    conclusion.

[43]

In my view, taking the reasons as a whole, the
    trial judge used the prior consistent statement for the permissible purpose of
    evaluating the context in which the initial complaint arose, in particular the
    fact and timing of the complaint, and the spontaneous nature in which it came
    out, in order to assist him in assessing the truthfulness of the complainants
    in-court testimony. While some of the trial judges language was not ideal, his
    phraseology must be put in context. In referring to the consistency of her
    complaint, the trial judge stated:

[The statements] spontaneity and the context in which it was
    made, are capable of, and do support her credibility and the consistency of her
    complaint. In short, the court finds her evidence credible.

In the courts view, the spontaneity of that statement is
    compelling, and also assists the court in determining the overall credibility
    of [the complainant], and impacts upon her credibility in a positive way.

[44]

The trial judge properly placed the prior
    consistent statement on the scale in assessing the credibility of the
    complainants in-court testimony by considering the circumstances in which she
    made her initial complaint to Constable Flint. To this extent, the prior
    consistent statement does add to the credibility of the complainants in-court
    testimony and had probative value beyond mere repetition. It was evidence of
    the sequence and timing of events and the emotional state of the complainant at
    the time of the utterance, and assisted the trial judge in evaluating the
    credibility of the complainants in-court testimony. The trial judges use of
    the prior consistent statement was proper.

E.

Reconsideration of
Mackenzie

[45]

In
Mackenzie,
the court concluded that
    the trial judge erred in the way he used the complainants prior consistent
    statements to police officers and her daughter about an assault committed on
    her by her boyfriend. The trial judge indicated, at para. 127, that he had
    looked for, and found, corroboration of the complainants allegations in her
    statements to her daughter and the officers. He also concluded, at para. 116,
    that the complainant was consistent in describing what happened because she
    told essentially the same things to Sergeant Pulfer, Constable Deschamps and
    again in the police audio-video interrogation.

[46]

In concluding that the trial judge erred in his
    use of the prior consistent statements, this court made the following comments,
    at paras. 10-12:

the trial judge relied upon certain statements admitted, in
    some cases at least, as part of the
res gestae,
as confirmation of the
    complainants account.

The relevant evidence was provided by the complainants
    daughter and several police witnesses who, as I have said, responded to the 911
    call. The daughters evidence was proffered by the Crown under the common law
res
    gestae
exception and admitted on that basis.
To the extent that the
    statements coincided with the complainants trial evidence, they were prior
    consistent statements not admissible for their truth, and thus not capable of
    providing substantive support for the complainants testimony.
Their use
    however, was not so limited. [Emphasis added.]



The evidence upon which (the trial judge) relied as
    confirmation consisted of an amalgam of inadmissible opinion and of evidence of
    the complainants statements that was properly admissible for one purpose, but
    not for that purpose used by the trial judge.

[47]

The Crown argues that the courts comments in
Mackenzie
could be interpreted as meaning that statements admitted under the
res
    gestae
exception to the hearsay rule are not capable of providing
    substantive support for consistent testimony.

[48]

Given that in this case the
res gestae
exception to the hearsay rule is not operative, the issue of the suggested
    interpretation of
Mackenzie
raised by the Crown is not relevant to the
    present analysis.

[49]

I will state that I do not interpret the comments
    in
Mackenzie
in the same manner as the Crown. In my view, the cited
    passage stands for the correct principle that a prior consistent statement that
    is admitted under the
res gestae
hearsay exception will have limited
    permissible uses. For example,
there is no added value
    in the fact that the same statement was repeated; the value, if any, comes from
    the context and circumstances in which the admissible hearsay statement was
    made:
Paciocco, at pp. 192-194. I do not view the courts
    comments in
Mackenzie
as inconsistent with this well-established law.

F.

Other Arguments Raised by the Respondent

[50]

The respondent submits the trial judge
    misapprehended the evidence against the respondent by failing to consider
    inconsistencies in the complainants testimony, and by misstating the evidence
    regarding the precise areas of her body that were searched.

[51]

I would not accede to these arguments. The trial
    judge carefully reviewed the complainants evidence and he acknowledged that
    there were minor inconsistencies. Ultimately he found her to be a credible
    witness. There is no basis for appellate interference with that finding. To the
    extent that the trial judge may have misstated the evidence by failing to
    reference the fact that the respondent also rubbed the complaints thighs during
    the second search, I do not find that omission to be a palpable and overriding
    error. Indeed, the exclusion of a reference to the rubbing of the complainants
    thighs, if anything, inured to the benefit of the respondent.

[52]

The respondent submits that the trial judges
    reasons were insufficient. I disagree. In my view, the reasons are sufficient
    to fulfill their threefold functions: (i) they explain the verdict; (ii) they provide
    public accountability; and (iii) they permit effective appellate review:
R.
    v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15. Moreover, when the
    respondents submissions regarding the reasons are examined, they amount to
    nothing more than a complaint that the trial judge did not reference each of
    his arguments. A trial judge is not obliged to refer to every item of evidence
    or every argument raised in his/her reasons:
Dinardo
, at para. 30.

[53]

The respondent also seeks to appeal his sentence
    in this court. However, we have no jurisdiction to consider his sentence
    appeal, as the conviction was quashed by the summary conviction appeal court,
    and that court never determined the sentence appeal.

[54]

Finally, the respondent submits that this is one
    of those rare cases where it is appropriate to order the Attorney General of
    Ontario to pay the legal fees and disbursements of the respondent, pursuant to
    s. 684 and s. 826 of the
Criminal Code
. I would reject this request.

[55]

The discretionary awarding of costs in this
    manner is very rare, and is generally restricted to situations where the Crown
    is appealing a summary conviction matter in order to settle a point of law. In
    those cases, it is the public at large who are the beneficiaries of the
    litigation, so it makes good sense that the individual litigant should not bear
    the costs of the litigation:
R. v. Trask,
[1987] 2 S.C.R. 304. That is
    not this case. This judgment applies well-established legal principles to the
    facts of this case. Consequently, this is not one of those very rare cases
    where a costs award is appropriate.


V.

Disposition

[56]

I would grant leave to the Crown to appeal,
    allow the appeal, restore the conviction entered at trial, and remit the
    sentence appeal to the summary conviction appeal court for determination.

C.W. Hourigan J.A.

I agree H.S. LaForme
    J.A.

I agree S.E. Pepall
    J.A.

I agree B.W. Miller
    J.A.


Doherty J.A. (Concurring):

[57]

I agree with Justice Hourigans proposed
    disposition of the appeal.  I write separately to outline the approach I
    suggest should be taken in determining the admissibility of a prior consistent
    statement.

[58]

The admissibility of prior consistent statements
    is governed by what I would describe as the traditional common law model.  We
    are told that prior consistent statements are presumptively inadmissible
    subject to a series of discrete exceptions.  Admissibility depends on whether
    the proffered evidence fits into any of the pre-existing exceptions.  This
    approach, once common to most evidentiary rules, most notably the rules
    governing hearsay evidence, has to a large extent been abandoned in favour of a
    principled-based approach to admissibility.

[59]

The admissibility of a prior consistent statement,
    like the admissibility of other forms of evidence, turns on the relevance,
    materiality and probative value of the evidence.
[1]
When a prior consistent statement is tendered, the admissibility inquiry should
    focus on these broader considerations rather than the technicalities of
    established exceptions.  This change in focus would not produce any significant
    change in the circumstances in which the prior statement would be admitted. 
    The existing exceptions are to a large extent a product of the application of
    the broader principles underlying the admissibility of evidence.  An approach
    which looks to broader principles would, however, require counsel and the trial
    judge to come to grips with the precise use of and value of the evidence of the
    prior consistent statement in the specific circumstances of the case.  I think
    an approach based on the broader principles is much more likely to focus the
    minds of counsel and the trial judge on exactly what the evidence is said to do
    and the ability of the evidence to further that stated purpose.  Instead of
    broad statements such as the evidence goes to credibility, the principled
    approach should produce reasons explaining exactly how the evidence, in the
    circumstances of the case, goes to credibility.

[60]

When a party tenders a prior consistent
    statement, the court must first determine the purpose for which that evidence
    is tendered.  If the evidence is tendered for its truth, in this case to prove
    that the complainant was in fact searched three times before she was to be
    searched at the police station, the evidence must qualify for admissibility
    under the controlling hearsay principles.  My colleague has referred to those
    principles (see paras. 15-24).

[61]

If the prior consistent statement is not offered
    for the truth of its contents, the threshold admissibility question remains the
    same  for what purpose is the evidence offered?  That purpose must be one
    which can properly be the subject matter of evidence in the proceedings.  In
    other words, the purpose must have relevance to a material issue in the
    proceeding.

[62]

Once the purpose for offering the evidence is
    identified, the party tendering the evidence must show that it has some
    probative value in respect of the purpose for which it is offered.  For
    example, if it is said that the evidence of the prior consistent statement is
    relevant to the complainants credibility, the party offering the evidence must
    show how it is relevant to the complainants credibility.

[63]

The operation of the approach I have outlined
    can be described by reference to one of the most common situations in which a
    prior consistent statement is tendered at trial.  The Crown may seek to elicit
    evidence of a statement made by a complainant to the police shortly after an
    alleged assault.  That statement may be consistent with the complainants trial
    testimony.  When the statement is offered, the first question in the
    evidentiary inquiry must be  for what purpose is the evidence offered?  If the
    Crown argues that the statement is admissible to prove as true the contents of
    the statement, the Crown must establish that the statement is admissible
    hearsay.

[64]

If the Crown does not suggest that the evidence
    is admissible to prove the truth of its contents, the Crown must identify some
    other purpose for which the statement is offered.  The Crown may argue that the
    prior consistent statement supports the complainants credibility.  Clearly,
    the complainants credibility is material to the proceeding and is properly the
    subject matter of evidence at trial.  It is not enough, however, for the Crown
    to show that the complainants credibility is a material fact.  The Crown must
    also demonstrate how the prior consistent statement can impact positively on
    the complainants credibility.  If the Crowns argument comes down to the
    suggestion that the consistency between the prior statement and the
    complainants evidence at trial justifies admissibility, the argument fails
    because consistency on its own provides no insight into credibility.  To know
    that the complainant made a statement that is consistent with his evidence at
    some earlier point in time simply does not assist in the assessment of his
    credibility.

[65]

The prior consistent statement can, however,
    become relevant to credibility if the assumed facts change somewhat.  If the
    defence challenged the complainants credibility, claiming he had fabricated
    the allegation after being confronted by his boyfriend about his relationship
    with the accused, evidence that the complainant made a prior consistent
    statement before his boyfriend confronted him, would support the complainants
    credibility.  The prior statement would support the complainants credibility,
    not because it is consistent with his testimony, but because it refutes the
    defence claim that the complainant fabricated a false allegation in response to
    being confronted by his boyfriend.  By neutralizing the reason advanced by the
    defence for the fabrication of the allegation, the evidence has the effect of
    supporting the complainants credibility.

[66]

The trial judge held that the complainants
    prior consistent statement to Constable Flint that she had been searched three
    times was relevant in that it assisted in assessing the complainants
    credibility.  I think he was right.  On the approach I have set out above, the
    reasoning goes as follows.

[67]

I begin with the substance of the complainants
    evidence.  She testified that she was searched by the respondent three times in
    the police cruiser.  The first two searches did not concern her.  The
    complainant was unfamiliar with police practices and assumed that the
    respondent was following established procedures.  During the third search, the
    respondent shone a flashlight down her shirt and looked at her breasts.  The
    complainant told the officer that this made her uncomfortable and he stopped.

[68]

On the complainants evidence, she did not know
    if the respondents actions constituted a sexual assault.  She had no intention
    of alleging that the respondent had sexually assaulted her, or complaining
    about his behaviour when she arrived at the police station.  In her testimony,
    the complainant presented as a reluctant complainant who had done nothing to
    initiate the allegations against the respondent and was testifying only because
    she had been subpoenaed.  On her evidence, the police initiated the sexual
    assault investigation and carried it forward to trial.

[69]

The complainant was vigorously cross-examined. 
    In that cross-examination, the defence alleged that the complainant had
    fabricated the allegations, and that the respondent had not searched her at all
    in the vehicle.  During cross-examination, counsel suggested to the complainant
    various reasons she might have to fabricate the allegations.

[70]

The complainants evidence that she did not
    complain about the respondents conduct at the police station and that it was
    the police who initiated the sexual assault investigation in response to her
    comment that she had been searched three times, was consistent with and
    therefore tended to confirm her trial evidence to the effect that she was a
    disinterested, reluctant complainant with no real interest in the outcome of
    the trial.  If the trial judge accepted that the complainant did not initiate
    the allegation and was disinterested in pursuing it, that finding could
    reasonably make her evidence describing the events in the police car more
    credible.  Also, if the trial judge accepted that the complainant had not been
    the one to make the sexual allegation and had not pursued that allegation, the
    defence suggestion that she had fabricated the allegation would have no force.

[71]

In my view, the evidence of the complainants
    interaction with the police at the station, including what she said to
    Constable Flint, was relevant to a proper assessment of her credibility.  It
    was therefore admissible even if it was a prior consistent statement.

[72]

I agree with my colleagues proposed
    disposition.

Doherty J.A.

Released: February 13, 2017





[1]

There are exclusionary rules that have nothing to do with the
    relevance and materiality of the proffered evidence, e.g. claims based on
    privilege.  All evidence tendered by the Crown is also subject to an overriding
    authority to exclude Crown evidence where its prejudicial effect outweighs its
    probative value.  The approach I outline is not intended to undercut any of
    these exclusionary rules.  For my present purposes, I assume none apply here.


