Moving Towards a More Principled Approach to Prior Consistent Statements: R v Downey
Prior Consistent Statements: Downey
The difficulty in relation to the admission of prior consistent statements has been emphasized in R v Downey<1>, ["Downey"] a recent Nova Scotia Court of Appeal decision. A review of the case reveals the dangers of rigidly relying on the traditional rules and exceptions approach governing the substantive use of prior consistent statements [“PCS”].
Much of the jurisprudence on PCS has focused on limiting the oath-helping nature of the evidence and cautioning juries as to the proper and prohibited use of the statement. <2> Under the current approach, PCS are presumptively inadmissible. The rationale behind this exception is that these statements are often self-serving, irrelevant, or unreliable, thus lacking probative value. <3>The common law has long recognized that some PCS may, by the force of certain surrounding circumstances, attain probative value. Consequently, several exceptions have developed which allow the introduction of PCS when tendered for some other admissible purpose. <4>
The identification evidence exception permits the admission of PCS relating to the identification of an accused.<5> This generally applies only after a witness identifies the accused in court; thereafter, the Crown is permitted to introduce evidence that the witness had previously identified the accused. Thus, the evidence may be used to bolster the reliability of a witness’ in-court identification, but not to demonstrate the truth of its contents or to corroborate the in-court identification. Recently, the Ontario Court of Appeal has attempted to revamp the admissibility framework of PCS to bring it closer to the broader considerations of relevance, materiality and probative value.<6> The SCC, however, has continued to uphold the traditional approach to PCS. <7>
The decision in R v Downey highlights the complexity and confusion in this area of law. Jason Downey faced 28 charges, including three counts of attempted murder, that stemmed from a break-in and shooting at a Nova Scotia home in 2014. The principal issue at trial was whether the Crown had proven beyond a reasonable doubt that Downey was the shooter. The case was tried by Wood J., sitting without a jury. The Crown’s case against Downey relied almost entirely on the identification testimony of one of the victims, Ashley MacLean.
After the shooting, MacLean told a paramedic and a police officer that Downey was the person who had shot her. At trial, MacLean reaffirmed this prior identification of Downey as the shooter. Both the paramedic and the officer also testified to MacLean’s identification. In regard to this evidence, Wood J. held at para 33: “This statement by Ms. MacLean cannot be used to make her identification of Mr. Downey more reliable; saying the same thing more than once does not make it more or less accurate.” Having given no weight to MacLean’s testimony, Wood J. was not satisfied that Downey was the masked intruder who shot the occupants and acquitted him on all charges.<8> The Crown appealed that verdict saying, inter alia, that the trial judge erred in law by ignoring relevant evidence and by subjecting the evidence to a piecemeal assessment.
On appeal, Saunders J.A., writing for the majority, examined whether the trial judge’s acquittal of the accused was reasonable given the treatment of MacLean’s PCS. Justice Saunders found that the trial judge erred in not finding any probative value in MacLean’s repeated declarations when introduced for determining the reliability of a witness’ in-court identification. Saunders J.A. relied on Justice Doherty’s reasons in R v Tat<9> [“Tat”] to show that PCS do have probative value. In this context, PCS can strengthen the value of the identification in court by showing that the witness “identified the accused before the sharpness of his recollection was dimmed by time” and before the witness “was aware that the accused was the person under suspicion by the police [at para 86].” Thus, PCS are helpful in establishing the continuity of an in-court identification, neutralizing the concern that the identification occurred for the first time in the suggestive environment of a courtroom.<10>
Justice Saunders found that MacLean's statements to the paramedic and the police officer fell squarely within a situation in which out-of-court identification evidence is admissible due to its probative value as in Tat [at para 88]. Saunders J.A. held that this error of law imposed an impossibly high burden of proof upon the Crown by subjecting MacLean to a criminal standard when the correct approach would have only required that the trial judge be “left with a reasonable doubt about the respondent's guilt, based on the whole of the evidence [at para 119].” Having found that the trial judge’s analysis was flawed, the Court allowed the appeal and ordered a new trial.
The approach taken by trial judges to evidence “must be correct in law so as to ensure that the final step in the process, the weighing of the evidence, is not flawed.”<11> This case demonstrates that when judges rigidly apply such complex and confusing rules, the rules themselves can become an obstacle in the pursuit of the objectives they are intended to serve. The trial judge’s error comes not only from overlooking relevant case law, but also from not being able to see past the rules and to recognize and apply the principles underlying the rules of evidence. In this case, applying the presumption against the admissibility of PCS with such rigidity impeded the truth finding process and resulted in further harm to MacLean. Trial judges sitting alone should heed this caution, as the law of evidence must always operate as a tool in the pursuit of truth and fairness.
Justice Doherty’s approach, now affirmed by Justice Saunders in Downey, invites a re-examination of the law relating to the admissibility of a PCS, so that this area too may move towards a more principled approach.<12> While a principled approach may not be any easier to apply, it is much more likely to focus the minds of judges on “exactly what the evidence is said to do and the ability of the evidence to further that stated purpose.”<13> Perhaps the principled approach will serve to reduce the confusion and complexity. However, this will not happen “unless the courts adopt that approach wholeheartedly, replacing rules with principles rather than layering the latter on top of the former.” <14>