R v Untinen 2017 BCCA 320 : A Principled Approach Towards the Admissibility of Prior Consistent Statements
Motivated by more recent decisions of other provincial appellate courts, Fitch J.A. of the British Columbia Court of Appeal abandons past decisions of his own court in a decision which both reaffirms and enriches the truth-seeking function of a criminal trial. Amongst other factors, prior consistent statements are presumptively inadmissible due to their unreliability. The rationale being that a story is not made more trustworthy the more times it is repeated.
Notwithstanding past rulings of the British Columbia Court of Appeal in R v Aksidan 1 and R v S (KP) 2, this shift towards a principled approach to the law of evidence ultimately leads to consistencies between a witness’s videotaped statement and trial testimony to assess a witness’s credibility and reliability being admitted as evidence.
Resulting from related incidents which occurred during the night of March 16, 2014 and into the morning of the 17th of March, 2014, the accused was convicted of one count of unlawful confinement and two counts of sexual assault causing bodily harm. In May 2014, the complainant, P.A., was diagnosed by her family physician with Wernicke-Korsakoff Syndrome (WKS), a progressive form of dementia. People who suffer from this syndrome experience a variety of difficulties relating to memory. Symptoms of WKS may include: amnesia for certain events that occur after the onset of the disorder; hallucinations; and confabulation.
It is unclear based on the evidence whether the recent trauma was a trigger for the onset of this syndrome, and the court is cautious not to speculate. In closing submissions, counsel for the appellant argued that the complainant's memory impairment was such that "she's probably not being untruthful it just doesn't happen to be the truth." Counsel for the accused cited two grounds of appeal in order to overturn the 2015 trial decision. The first ground of appeal was that the trial judge erred in concluding from the evidence of the complainant’s family physician that the complainant’s cognitive functioning was at a “much higher level” at the time of her video-recorded statement. The second ground of appeal was that the trial judge also erred by concluding that the complainant’s video statement could be used to “corroborate” her trial testimony. In regards to the first ground of appeal, as sufficient evidence existed at trial, Fitch J.A. demonstrated a high level of deference to the trial judge’s conclusion that the complainant’s level of cognitive functioning was considerably higher when the video statement was taken in contrast to her testimony at trial. Following the resolution of the first ground, much of Fitch J.A.’s analysis focuses on the trial judge’s decision to compare the complainant’s video statement with her trial testimony in order to ultimately rule out the possibility of confabulation, a common symptom of the complainant’s psychopathology.
Fitch J.A. acknowledges that it is well-established that a video-recorded statement admitted pursuant to ss. 715.1 or 715.2 of the Criminal Code “cannot bolster or corroborate the truthfulness of the complainant's trial testimony simply because it is consistent with that testimony.” However, in keeping with the goal of truth-seeking, Fitch J.A. echoes commentary provided in The Law of Evidence in Canada which clarifies “the primary goal is to create a record of what is probably the best recollection of the events in order to arrive at an honest and complete account of the witness’ story”.3
Where circumstances warrant, an out-of-court video statement can often provide important context aiding a judge or jury’s evaluation of a witness’s credibility.
Upholding the trial judge’s decision of allowing the video statement to be admitted buttresses the core principle of the search for truth. In this case, where the complainant’s mental health demonstrated major signs of erosion between the time of the video statement and her in court testimony, the admittance of the video statement provided probative value towards the search for truth. For the above reasons, Fitch J.A ruled that in the cases of R v Aksidan and R v S (KP), the declarations that no use can be made of consistencies between a complainant's video-recorded statement and in-court testimony should no longer be followed in the future.
Another potential concern underlying Fitch J.A.’s decision to uphold the admittance of the video statement as evidence could be his awareness of the potential for the trial process to further victimize a victim of crime. The complainant’s depreciated mental health became clear at the time of trial evidenced by the difficulties she experienced in communicating her testimony. This provides a prime example of the need for flexibility in line with a principled approach to the law of evidence as opposed to the rigidity inherent to a rule based approach. Given the degenerative nature of the complainant’s mental health, compounded by the sexual and violent nature of the acts committed against her, applying the presumption against the admissibility of prior consistent statements with such rigidity would only cause further harm to the complainant in this case.
Often with a principled approach to the law of evidence comes inevitable complexity. The greatest use of flexibility is the allowance for discretion on the part of the judge, and the ability to logically apply the law on a case-by-case basis. The nuances which arise based on the context of each case can lead to judges having a much wider breadth of discretion than if they were to solely mechanically apply and follow rigid frameworks of rules where the outcomes of each case may be more certain. Despite this uncertainty and judges’ lack of desire to wield this open-ended discretion, it should be evident that when laws become devoid of reason they are no longer fulfilling the objective they were once implemented to serve.
1 R v Aksidan, 2006 BCCA 258, 2006 CarswellBC 1273
2 R v S (KP), 2007 BCCA 397, 2007 CarswellBC 1730
3 Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, eds, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3d ed (Markham: LexisNexis Canada, 2009) at 427-428.