R v Burkhard: The Dangers of Misidentifying Prior Consistent Statements by J Peterson

Prior consistent statements are presumptively inadmissible. There are a number of rationales served by this rule, including protection against fabrication, the danger of statements that cannot be cross-examined, the fallacy that repetition makes a story more trustworthy, and the objective of trial efficiency.[i] However, there are a number of recognized exceptions to this rule including providing a consistent narrative, addressing inconsistencies, and rebutting allegations of recent fabrication.[ii] The rigidity and unnecessary complexity of the rule has led courts to admit and use prior consistent statements for the truth of their contents.[iii] When prior consistent statements are admitted, juries are often warned not to use these statements to prove their truth; however, such warnings are not always required. There is a fine line between the permissible and impermissible uses of prior consistent statements.[iv]

The concerns relating to prior consistent statements do not apply to prior inconsistent statements. Prior inconsistent statements are admitted to impeach a witness’ credibility. Section 9(2) of the Canada Evidence Act allows a party to cross-examine their own witness on prior inconsistent statements in order to ascertain the truth.[v] The differences between prior consistent and prior inconsistent statements are exemplified in the recent Ontario Court of Appeal decision of R v Burkhard.[vi] The case provides guidance on the admissibility of prior statements that contain both inconsistent and consistent facts and the importance of clear jury instructions. The decision also exemplifies a prevalent concern with the admission of prior consistent statements that could suggest the need for a more principled approach.

The facts of this case arise from a home invasion that resulted in the homeowner’s death. Through a complex investigation, police discovered that the homeowner’s employee had orchestrated the home invasion but hired Schindermann and Burkhard to conduct the home invasion. Schindermann told undercover police officers that he and Burkhard entered the victim’s home but that it was Burkhard that stabbed the victim. Burkhard and Schindermann were charged with first degree murder and Schindermann was called as a Crown witness in Burkhard’s trial.

A key issue at trial was the identity of the person who had stabbed the victim. There were multiple inconsistencies between Schindermann’s testimony in court and his statement to undercover police officers. As such, the Crown was permitted to cross-examine Schindermann under section 9(2) of the Canada Evidence Act.[vii] Upon questioning, Schindermann insisted there were no inconsistencies between the two versions. The Crown applied to have the prior statement to police admitted to prove the truth of its contents. Goldstein J stated that “Schindermann’s confession was a prior inconsistent statement” and allowed its admission under the principled hearsay exception.[viii] The jury convicted Burkhard of first-degree murder. On appeal, Burkhard argued that the trial judge erred in admitting Schindermann’s statement by: (1) failing to weigh the probative value against the prejudicial effect; and (2) not recognizing that the statement contained both prior consistent and inconsistent statements. By not removing the consistent statements or warning the jury about their use, the trial judge erred in admitting the entire statement.

Hourigan J.A., writing for the Ontario Court of Appeal, found that Schindermann’s prior statement contained both consistent and inconsistent statements. The consistency went to the main issue at trial which was that Burkhard was the person who stabbed the victim. The admission of this consistent statement created a realistic danger that the jury might rely on this consistency to decide that Schindermann’s testimony was true because it was repeated multiple times. This danger could have been avoided had the prior consistent statements been removed. However, Hourigan J.A. noted that since defence counsel did not raise the issue of prior consistent statements at trial, the trial judge should not be at fault for not removing them. If the consistent statements were to be kept, then the alternative solution was for the judge to provide a clear warning to the jury on the prohibited use of the statement.

The Court of Appeal noted that the jury charge given by Goldstein J reinforced the prohibited line of reasoning by implying that “prior consistency may or may not enhance credibility.”[ix] Goldstein J provided a valid Vetrovec warning regarding Schindermann’s testimony, but this did not address the unique concerns related to the use of prior consistent statements. The Vetrovec warning was not capable of standing in place of clear instruction on the use of prior consistent statements.[x] As such, the appeal was allowed and a new trial was ordered.

Prior consistent statements have caused quite a bit of trouble for appellate-level courts. Between 2018 and 2023, there were 166 appeals on the admissibility of prior consistent statements.[xi] This can be partially attributed to the complexity in differentiating between the permissible and impermissible uses of these statements. In an earlier Ontario Court of Appeal decision, Hourigan J.A. noted that while prior consistent statements can be used to assess a witness’s credibility, they cannot be used to bolster a witness’s credibility.[xii] This created a “distinction without a difference” and further blurred the line between permissible and impermissible use.[xiii]

Some American states have tackled this concern by allowing prior consistent statements of a testifying witness that are admissible for rehabilitative purposes to also be admissible for the truth of their contents.[xiv] This eliminates the concern regarding permissible and impermissible use for this subset of prior consistent statements. However, the US Advisory Committee on Federal Rules of Evidence did not recommend excluding all prior consistent statements from the hearsay rule because it may open the floodgates to “impermissible bolstering” of statements.[xv] 

In Canada, court and practitioners have discussed the application of a principled approach to prior consistent statements that would do away with the rigid and complicated traditional rule.[xvi] Mazzuca suggests a screening mechanism that “require[es] counsel to articulate the relevance and materiality of a prior consistent statement.”[xvii] However, he noted that this would only be effective where the principles behind the exclusionary rule are fully understood.[xviii] Additionally, this suggestion first requires the proper identification of prior consistent statements which was lacking in R v Burkhard.

In this case, the prior consistent statements were overlooked, hidden within the context of the prior inconsistent statements. As a result, their admission was not scrutinized. R v Burkhard serves as a reminder and a forewarning of the diligence required in analyzing the contents of statements. Mischaracterizing a statement leads to unapplied safeguards which are designed to protect the truth-seeking process. While R v Burkhard may not be the case that continues the emerging trend in Canadian evidence law towards a more flexible approach, it is one more case that exemplifies the persistent concern with prior consistent statements.

Endnotes

[i] Sidney N Lederman, Alan W Bryant & Michelle Fuerst, The Law of Evidence in Canada, 6th ed (Toronto: LexisNexis Canada, 2022).

[ii] Ibid.

[iii] Samuel Mazzuca, A Missed Opportunity in R v Langan: Appellate Review of Prior Consistent Statements Post-Khan” (2024) 102:2 Canadian Bar Review 492.

[iv] R v Khan, 2017 ONCA 114 at para 35.

[v] Canada Evidence Act, RSC 1985, c C-5, s 9(2).

[vi] R v Burkhard, 2024 ONCA 353 [Burkhard].

[vii] Canada Evidence Act, RSC 1985, c C-5, s 9(2).

[viii] R v Burkhard, [2019] OJ No 1080, 2019 ONSC 1218.

[ix] R v Burkhard, 2024 ONCA 353 at para 21.

[x] Ibid at para 23.

[xi] Mazzuca, supra note 3 at 500.

[xii] Michael Benedict, “Court’s hearsay exception ruling concerns lawyers Prior consistent statement can be used to assess ‘reliability and credibility’ of even an adult witness, ONCA says” (2017) 36:42 Lawyers Weekly.

[xiii] Ibid.

[xiv] Daniel J. Capra, “Prior Statements of Testifying Witnesses: Drafting Choices to Eliminate or Loosen the Strictures of the Hearsay Rule” (2016) 84:4 Fordham Law Review 1429.

[xv] Ibid at 1444.

[xvi] Mazzuca, supra note 3.

[xvii] Ibid at 494.

[xviii] Ibid at 508.