Prior Consistent Statements and the Rules of Evidence

Joseph A. Neuberger

In the recent decision of R. v. B.B., 2024 ONCA 788 the Ontario Court of Appeal clarified two important rules of evidence in a sexual assault trial.

The primary successful ground of appeal was related to a rule named after the case of Browne v. Dunn which requires defence to put to a complainant what their alternate theory of the case is. Mainly, this involves suggesting that the evidence the accused is going to testify is the truth. This rule is in place to create fairness in the trial so that a complainant/witness has the chance to respond to the suggestion of what the defence theory will be.

In B.B. the Court confirmed that the defence is not obligated to put every aspect of the defendant’s narrative to a witness, particularly when it is clear that the complainant will deny any knowledge of alternate facts. At paragraph 9 it is explained:

The rule in Browne v. Dunn is rooted in considerations of fairness. As a matter of fairness, proposed contradictory evidence should be put to a witness so that the witness has an opportunity to explain and respond. However, it is not an inflexible or absolute rule and “counsel must not feel obliged to slog through a witness’s evidence-in-chief, putting him on notice of every detail that the defence does not accept”.

Secondarily, although the case was sent back to retrial on the first ground, the Court of Appeal also clarified that prior consistent statements need to be vetted carefully prior to trial in terms of what value the statements have and thus how to be used at trial.. Prior consistent statements are out of court statements made by a complainant asserting that the offence was committed. Such statements can have varying content such as details of the allegations or simply a bar assertion about the statement.

The danger of these statements is that it tends to create the impression that the more times someone has made an allegation the more likely it is to be true. This is false. A person can tell a lie or convey a misunderstanding multiple times and it does nothing to tell the trier of fact whether or not the statement is true. A lie remains a lie no matter how many times it is told.

Importantly, it is more common for prior consistent statements to be led as Crown evidence against an accused and in B.B. the Court made it clear that prosecutors must bring a pretrial application to determine if such statements can be used and, if so, to what extent they may considered.

The Court of Appeal noted at paragraph 19 that:

In this case, the Crown adduced the complainant’s prior consistent statements without seeking an advance ruling on their admissibility, and without articulating the purposes for which it proposed to have them admitted into evidence. Neither counsel then made submissions to the trial judge about how the jury should be instructed about the proper and improper uses of these statements.

This case is a good reminder to prosecutors that they must canvass admissible evidence just as the defence is required to do. It is also a good reminder to defence lawyers that they need to be aware and address improper use of evidence proffered by the Crown and be wary of how that type of evidence can or cannot be used.

Sexual assault trials are very complicated and it is important to have a lawyer who is an expert in the rules of evidence and familiar with the burdens of evidence in this particular type of defence.

Neuberger & Partners LLP specializes in sexual assault defences and has been recognized by the Law Society of Ontario as an expert in sexual assault law.