The Ontario Court of Appeal in Regina v. D.K., 2020 ONCA 79, overturned the accused’s conviction for sexual assault. This is complicated issued that is governed by the (common) law of evidence. Often the principle goes unnoticed when engulfed in the fray of a trial.
In this case, the critical basis of the conviction stemmed from an incident in wherein the defendant had sexual intercourse with his common law partner. During the course of intercourse, it was alleged that the defendant had caused a three (3) centimeter laceration to the inside of her vagina. She was taken to the hospital where the doctor performed surgery to repair the laceration. The defendant was was charged with sexual assault causing bodily harm. The contentious issue, at trial, was whether the complainant had consented to the sexual intercourse. The doctor testified that, when he treated the complainant at the hospital, she said that she was injured during “forced intercourse.” The trial judge found the accused not guilty of sexual assault causing bodily harm, but guilty of the included offence of sexual assault.
The court allowed the accused’s appeal and ordered a new trial on the basis that the trial judge improperly relied on the complainant’s “forced intercourse” utterance, a prior consistent statement, to enhance her credibility relative to the indexed offence. The court noted that prior consistent statements are presumptively inadmissible. Of note, are the Court’s comments governing the applicable guiding principles in law:
 Distinguishing between the permissible and impermissible uses of prior consistent statements is difficult: see Dinardo, at para. 37. This may be particularly the case when applying the narrative as circumstantial evidence exception: see Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed. (Markham, Ontario: LexisNexis, 2018), at p. 448. The changing positions of counsel in this case did not help.
 The party seeking admission of a prior consistent statement should identify the precise basis upon which it should be received: see David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013), 17 Can. Crim. L. Rev. 181, at 215. When addressing the narrative as circumstantial evidence exception, general statements are unhelpful; counsel should articulate exactly how the statement might assist the trier of fact in evaluating testimonial trustworthiness. As Doherty J.A. observed in Khan, at paras. 62 and 64:
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 complainant’s credibility, the party offering the evidence must show how it is relevant to the complainant’s credibility.
It is not enough, however, for the Crown to show that the complainant’s credibility is a material fact. The Crown must also demonstrate how the prior consistent statement can impact positively on the complainant’s credibility. If the Crown’s argument comes down to the suggestion that the consistency between the prior statement and the complainant’s evidence at trial justifies admissibility, the argument fails because consistency on its own provides no insight into credibility. [Emphasis added.]
Similarly, trial judges should also articulate how a prior consistent statement assists in assessing the trustworthiness of a witness’s in-court testimony.
Although the rule against prior consistent statements is subject to a number of exceptions, the complainant’s “forced intercourse” utterance was not admissible under any of these exceptions. The court concluded as follows (at para. 46):
“Considering the trial judge’s reasons as a whole, it appears that the real value derived from her utterance was the repetition of the same allegation made at trial (and to the police). The utterance was not admissible on this basis. This improper use of the utterance permeated the trial judge’s reasons.”
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