Prior Consistent Statements: Their Use in a Courtroom for Both Defence and Crown Purposes

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1 January 2013 Criminal Justice Section Prior Consistent Statements: Their Use in a Courtroom for Both Defence and Crown Purposes Grace Hession David 1 1. Introduction During the early morning hours of October 9, 1994 Windsor police attended and assisted with some very unsettling events in an apartment building in that city. Dennis James Edgar and his girlfriend had begun an alcohol and cocaine binge the day before, and the culmination of the party had turned ugly when it moved to the bathroom of Edgar s apartment. Fearful neighbours had called the police and upon the arrival of the authorities, a barricade was under way in the bathroom. When the police were able to gain entry to the bathroom, they found the deceased, the accused, and two knives. The accused was promptly arrested for murder and shortly thereafter, in increments, he proceeded to issue three sets of statements that, although odd, did support a defence of self-defence. The three statements are reviewed in detail by Sharpe J.A. in his ruling which held that the statements - in their entirety were admissible 2. This was the second appeal, and Sharpe J.A. stepped outside of the traditional rule against the admissibility of prior consistent statements. He ruled that utterances issued upon arrest or upon first confrontation with the crime, are admissible, not strictly for the truth of their contents but as evidence of the reaction of the accused which goes to the credibility of the accused and may count as circumstantial evidence on the issue of guilt or innocence. All of this follows, of course, as long as the accused takes the stand in his/her own defence and exposes the statements to the test of cross-examination. Sharpe J.A. was careful to circumscribe his ruling within the four corners of the set of facts before the court. 1 Grace Hession David, Assistant Crown Attorney, Special Fraud Prosecutions, Toronto The views expressed herein are personal and are not meant to bind or represent those of the Ministry of the Attorney General of Ontario in any way. 2 R. v. Edgar, 2010 ONCA 529 (Ont. C.A.); application for leave to appeal dismissed, March 31, 2011 (Le Bel, Deschamps and Charron JJ.) In the first appeal, counsel for the appellant had conceded that the first two statements were self-serving and inadmissible. However, he successfully argued that edited portions of the first two statements should have been admitted to the jury because they went to the issue of the appellant s state of mind and capacity to form a criminal intent. Defence counsel also tried to admit the third statement on the basis that it was admissible pursuant to the exception to the rule against prior consistent statements on the grounds of recent fabrication. The Court of Appeal did not admit the third statement because recent fabrication had not been alleged by the Crown. Therefore, on the first appeal only portions of the first two statements and none of the third statement was deemed appropriate for a jury. (First appeal: R. v. Edgar (2000), 142 C.C.C. (3d) 401)

2 2 2. The Old School Approach Before we focus on the ruling in Edgar and the use that can now be made of it, it is helpful to review and note the established law against the admissibility of self serving statements. In R. v. Campbell 3, a person accused of murdering his wife attempted to introduce at his trial exculpatory statements he had made to border officials shortly after the incident. Campbell s defence counsel argued that the utterances should have been admissible under the recent fabrication exception to the rule against prior consistent statements. Counsel further guaranteed that the statements could be tested through cross examination because he undertook to call his client at the trial. Justice Martin held that the trial judge was correct in refusing to admit the utterances to the border officials because of two separate but important rules of evidence: 1. The rule which precludes the admission of prior self-serving statements of an accused from other witnesses because it is total hearsay; and 2. The rule which forbids any witness from repeating prior statements concerning the matter before the Court and made to other persons not before the Court on the grounds that such evidence is lacking in probative value. Martin J.A. noted however, that both of the above rules of evidence were subject to numerous exceptions, one of the most prominent being an allegation of recent fabrication. In the Campbell case, Martin J.A. noted that a simple undertaking on the part of counsel to call his client was not sufficient to warrant the admissibility of such statements. Without some evidence to rest a finding that recent fabrication was a live issue, a mistrial could result if the evidence was admitted without a proper foundation. Martin J.A. noted that recent fabrication may become operative from the circumstances of the case, the evidence of the witnesses who have been called and the conduct of a trial. 4 Without a doubt, once the issue is engaged, counsel is entitled to probe it in crossexamination of the Crown witnesses and examine the accused in chief with respect to the previous statements. However, a simple undertaking to call one s client is not enough to introduce such evidence. This is because an accused person is always free, and must always remain free at any point in the trial, to change his instructions to counsel and to cloak himself with the right to silence and not take the stand in his own defence if he wishes. Of course, the other traditional reasons that preclude the admission of unsworn consistent statements of an accused person in a trial is the risk of self-serving fabrication 5, the potential of the infringement of the collateral issue rule 6 and the conflict with the rule against oath-helping A Welcome Shift in the Law In the Campbell case, counsel tried unsuccessfully to introduce previous consistent statements of his client through the exception of recent fabrication. But this is not the only traditional exception to the rule. As Canadian law developed over the years, there were at least three other fact 3 R. v. Campbell, [1977] O.J. No (Ont. C.A.) Martin J.A. 4 Supra, footnote 3, at para [47]. 5 As per R. v. Béland, [1987] 2 S.C.R. 398; and R. v. Hardy (1794), 24 St. Tr See Béland at p See Béland at pp

3 3 circumstances that would allow defence counsel to introduce prior consistent statements from their clients: State of Mind: As in the first instance in R. v. Edgar 8 where the first two utterances were seen to be somewhat incoherent. In the first appeal, Charron J.A. (as she then was), ruled that counsel ought to have been able to introduce edited portions of the statements to support the defence of automatism because they went to the accused s state of mind. Mixed Statements: This occurs in situations where the Crown seeks to introduce a statement that contains both inculpatory and exculpatory content. In such situations, the Crown may tender the statement. The inculpatory element is designated as evidence of an utterance against interest and the exculpatory element is deemed to be evidence of a prior consistent statement in favour of the accused. 9 Part of the Res Gestae: This is the situation where the statement actually forms a part of the incident that gives rise to the charges before the courts 10. We are told by our own Supreme Court that the list of the exceptions is not exhaustive and the rule against their admission is not inflexible 11. In fact, Sharpe J.A. in the Edgar second appeal agreed that the hearsay rationale that would preclude the admission of prior consistent statements of an accused evaporates when the accused person takes the stand. He also noted that such statements, if they have probative value, should only be excluded if there are sound reasons of law and policy to do so. In fact, he urgently recommended the repeal of the blanket exclusionary rule : [72] I conclude, therefore, that it is open to a trial judge to admit an accused s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence. [Emphasis added] Before we leave Edgar, it is salient to note that in that case there were three sets of statements that the Court of Appeal ruled were admissible prior consistent statements. The first two sets of utterances were given very shortly after the incident, and while the Mr. Edgar was in the presence of the police in the wagon tunnel at the police station and then again in a Windsor police jail cell after having just been charged with murder. The third statement was given some four hours later while he was at the hospital. This statement was much more lucid than the two first sets of statements and it was completely exculpatory. As Sharpe J.A. noted, the caselaw in England and 8 R. v. Edgar (2000), 142 C.C.C. (3d) R. v. Rojas, [2008] 3 S.C.R. 111 at para [37]. 10 R. v. Graham, [1974] S.C.R. 206; R. v. Risby, [1978] 2 S.C.R R. v. Simpson, [1988] 1 S.C.R. 3 at p

4 4 Canada lends much support to the notion that if there is probative value in a spontaneous exculpatory statement made by an accused person either when confronted with an accusation or upon arrest, then it should be admissible. And in his review of the law, it was clear that the thread of continuity in most of the leading cases was premised upon the fact that when an accused is prepared to testify and face cross-examination then the rationale for the exclusionary rule is tempered and the issue of fabrication should take a back seat: 12 [69] I am also of the opinion that too much is easily made of the risk of fabrication. To assert blindly that all statements made by an accused person upon arrest are fatally tainted with self-interest and the motivation to lie assumes guilt and runs counter to the presumption of innocence: The risk of fabrication can be dealt with more directly and precisely through crossexamination and by looking to the degree of spontaneity the proffered statement exhibits. Statements that are lacking in spontaneity may be either excluded or, in the case of doubt, made the subject of an instruction to the jury as to weight by the trial judge. 3. The Ontario Court of Appeal Considers the Issue Again Eight months after the Edgar decision, the Ontario Court of Appeal released its decision in R. v. Badhwar 13. In this case, Badhwar denied being a participant in a street race that resulted in the death of an innocent driver on Highway 400 just north of Toronto. Badhwar was charged with criminal negligence causing death while street racing and failing to stop at the scene of an accident. Two others, who were similarly charged, plead guilty to criminal negligence causing death and were sentenced to 30 months imprisonment. From the beginning, Badhwar denied that he was part of the street race between the other two individuals. He testified at his trial that following the accident, he stopped his vehicle and stayed at the scene of the accident for 20 to 25 minutes but left the scene because some of the onlookers were shouting racial slurs at him. Later in the evening, Badhwar was contacted by a police officer and asked to attend the police station - which he did. Some five hours after the incident, he then provided an hour long statement to the police which was completely exculpatory. At the commencement of his trial, Badhwar did not want the Crown to lead his statement and argued that it had been taken in violation of his s.10(b) rights. The statement was valuable to the Crown because it contained an admission that Badhwar was the driver of the green Honda that was alleged to have been street racing. However, half way through the trial, Badhwar sought permission from the trial judge to cross examine one of the arresting officers with respect to his exculpatory statement. He undertook to take the stand in his defence if permission to explore his statements through the officers was granted. The trial judge refused the request relying on the traditional application of the law, this being before the release of the second Edgar appeal decision. Badhwar was convicted and appealed his conviction on other grounds but Moldaver J.A. s (as he then was) interpretation of Edgar is interesting. 12 See R. v. Toten (1993), 14 O.R. (3d) 225 (C.A.) Doherty J.A. at p. 267; R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.) Doherty J.A. at para [183]; R. v. Small, [1991] O.J. No (Ont. Ct. Gen. Div.) Forestell J. at paras [39]-[40]; R. v. Rozich (1979), 10 C.R. (3d) 364 (Que. S.C.) Hugessen A.C.J.S.C. at p. 370; R. v. Liu (2003), 172 C.C.C. (3d) 79 (Ont. S.C.) aff d (2004), 190 C.C.C. (3d) 233 (Ont. C.A.); R. v. Burton, [2000] O.J. No (Ont. S.C.J.). 13 R. v. Badhwar, 2011 ONCA

5 5 Moldaver J.A. interpreted the admission of the statements in Edgar to be based on their spontaneity. In order to justify the admission of the third statement which was made four hours later and while Mr. Edgar was much more lucid, Moldaver J.A. focused on Sharpe J.A. s interpretation that the third statement was really a continuation of the first two. 14 Moldaver J.A. upheld the trial judge s exclusion of Badhwar s statement on the ground that it was not spontaneous since it was given five hours after the incident. To Moldaver J.A., the lack of spontaneity also went to the probative value of the statement even though such statements are not to be considered for the truth of their contents but as evidence of the reaction of the accused upon first being charged or accused of the offence. In the second Edgar appeal decision the main concern of the Court was properly whether or not the accused was prepared to take the stand and face cross-examination. In Badhwar, the focus seems to have shifted as to whether the accused had made a spontaneous statement. 15 As we all know, all of the wrongfully convicted in Canada have given exculpatory statements when first confronted with the allegations against them but those statements never made it in as evidence in their trials. For example, David Milgaard was first interviewed by the police a full month after the murder of Gail Miller 16. When Milgaard was first confronted with the sparse allegations against him from Albert Shorty Cadrain he had had over thirty days to think things through but this lack of spontaneity would not have affected his denial one bit. David Milgaard was interviewed again in connection with the case on April 18, Once again, he gave an exculpatory statement which the jury never heard about, along with a hair sample, a blood sample and a saliva sample. The focus of the trial however, was the statements from his two travelling companions, Ronald Wilson and Nichol John, that were cooked up with some assistance and pressure from the investigating authorities months after his two exculpatory statements and just days before his arrest on May 30, In the case of Guy Paul Morin he was first targeted as the weird-type guy neighbour next door to the Jessops when the distressed parents met with the police on February 14, This was four and a half months after the child went missing and a good month and a half after her body was found. 17 The authorities first approached Mr. Morin with the intention of taking a statement from him on February 22, 1985 but the Commissioner of the Inquiry into the wrongful conviction found as a finding of fact that Mr. Morin was already a suspect although there was not a shred of evidence to back up this suspicion. Aside from some items in the interview that the police found odd the statement and all others that followed it were absolute denials of guilt. Once again, spontaneity or the lack thereof, had nothing to do with Morin s denials. Mr. Morin was interviewed again on the day of his arrest. On page 26 of the Executive Summary, the Commission on Proceedings Involving Guy Paul Morin reported the following: 14 Supra, footnote 2 at para [76]. 15 Justice of Appeal Moldaver found comfort in the fact that the statement given by Badhwar contained nothing that he did not tell the jury in his testimony. He was satisfied that the verdict would not have differed had Mr. Badhwar been able to have the statement admitted in his trial. Badhwar was convicted in his trial on the strength of the eyewitness evidence. 16 Gail Miller was raped and murdered by Larry Fisher during the early morning hours of January 31, David Milgaard was implicated by his travelling companion Albert Shorty Cadrain on March 2, Milgaard was first questioned by police and denied involvement in the matter on March 3, See Commission of Inquiry Into the Wrongful Conviction of David Milgaard: Final Report at 17 Christine Jessop went missing on October 3, 1984 and her body was found on December 31,

6 6 The Arrest April 22, 1985 Detective Fitzpatrick and Inspector Shephard arrested Guy Paul Morin in the evening of April 22, Over the next six hours he repeatedly protested his innocence. At the second trial, the defence sought to introduce in evidence the statements made by Morin at the time of his arrest, both in the car and at the station. The statements were ruled inadmissible as self-serving. The Commissioner s recommendations address the admissibility of such statements at the instance of the defence. And on page 27 of those Recommendations we have: Recommendation 77: Admissibility of exculpatory statement upon arrest The Government of Canada should consider a legislative amendment permitting the introduction of an exculpatory statement made by the accused upon arrest, at the instance of the defence, where the accused testifies at trial. In Edgar, Justice of Appeal Sharpe made reference to this recommendation. One of the prime goals of both Crown Attorneys and defence lawyers should be to prevent miscarriages of justice and wrongful convictions. It would seem that denials of guilt may have some probative value if they are relatively spontaneous and if they can be tested through cross-examination. A strong warning from a trial judge to the trier of fact with respect to the exact use that can be given with respect to these utterances is what is required. As cited in paragraph [72] of the Edgar decision above, it is clear that the statements do not go in strictly for the truth of their contents but are to be considered by the trier of fact in their analysis of the totality of the evidence and as evidence of the reaction of the accused person when first confronted with the allegations. Crowns do not need to be fearful of this development in the law since proper instructions from a judge on the law will allow these utterances to be considered within the whole of the evidence. Crowns may always cross examine an accused person with respect to any inconsistencies between the statement and the testimony given at trial. These statements will either bear up under cross-examination or they will be shown to be as unhelpful to the accused person as they once seemed helpful. If trials are to really be a search for the truth, then such statements should be admissible. 6