Prior Consistent Statements: Was it Spontaneous?

Joseph Neuberger & Diana Davison

In the recent decision of R. v. R.A., 2024 ONCA 696, the Ontario Court of Appeal addressed the improper use of prior consistent statements for the truth of their contents as an exception to the rule against out-of-court hearsay statements in a sexual interference/sexual assault trial.

In this case, the accused’s stepdaughter had texted her mother alleging that R.A. had touched her inappropriately while her mother was at work. The mother then returned home when she was able to read the message and confronted the accused. He denied that any touching or kissing had taken place, and the daughter later apologized for making the accusation. Much later, the complainant told a teacher that she had been touched inappropriately and it resulted in police involvement.

The Court of Appeal found that the trial judge had erred when he determined that the text message was a spontaneous utterance and could thus be used for the truth of its contents. In part, the judge had erroneously stated that there was agreement between all parties that the message was sent immediately after the alleged sexual touching. Importantly, the Court of Appeal said at para 39 that “[t]he trial judge did not turn his mind to the risk of ‘bootstrapping.’”

Second, the only evidence as to the spontaneity of this text message came from the complainant alone, who was alleged by the appellant to have entirely fabricated it. Accordingly, this was not a straightforward application of the hearsay exception. In many other spontaneous utterance cases the occurrence of the alleged event that triggered the utterance is also supported by some other, independent evidence (e.g., physical injuries, a death, other eyewitnesses, etc.). Moreover, and relatedly, the statement in this case is a text message that is devoid of any context and was not introduced at trial as an exhibit. The trial judge thus could not examine the exact contents of that message, or the data that would provide information as to when the message was sent to Y.A.

To clarify this point, the decision cites an article written by Justice Paciocco as a professor when he said that “the ‘bootstrapping’ label is usually reserved to circular arguments in which a questionable piece of evidence ‘picks itself up by its own bootstraps’ to fit within an exception. For example, a party claims it can rely on a hearsay statement because the statement was made under such pressure or involvement that the prospect of concoction can fairly be disregarded, but then relies on the contents of the hearsay statement to prove the existence of that pressure or involvement.” [Emphasis in original]

Additionally, the complainant’s evidence was that the message was sent very early after her mother left the home and yet she also said that the message was sent shortly before her mother returned home. There was contradictory evidence about the timing of when the message was sent that the trial judge failed to grapple with.

Ultimately the Court of Appeal determined that “[i]n sum, the trial judge’s reasons disclose palpable and overriding error and errors in law. On this record, there was very little that could be said to support the spontaneity of the text message other than the complainant’s evidence that she had sent it after she had been touched. Consequently, the trial judge’s ruling on admissibility cannot stand. The text message was inadmissible because it was hearsay and a prior consistent statement.”

Increasing exceptions to the use of hearsay evidence have made this a very complicated area of law that needs to be navigated carefully before such evidence is introduced at trial. In this appeal the Crown argued that the error was minimal as the text message could be used as “narrative as circumstantial evidence.” While that was a possible use of the message, the Court of Appeal rejected it since the judge clearly went much further with the weight placed upon it, saying:

I am not persuaded by the respondent’s alternative argument that this ground can be dismissed because the text message was admissible as narrative as circumstantial evidence. Plainly, the trial judge did not admit the text message as an exception to the rule prohibiting prior consistent statements, nor did he simply admit the text message for the purpose of looking at the circumstances of the text message in assessing the complainant’s credibility. The trial judge explicitly said, “ordinarily, the text message would not be admissible for the truth of its contents as it is a prior consistent statement” and then went on to stress “in this case, however, I admit it for the truth of its contents as a spontaneous utterance”.

It is important that the question of how prior consistent statements can be used be addressed as early as possible at trial before the evidence is introduced. There remains a risk that the trier of fact may assume the truth of a statement simply because it was repeated. Spontaneous utterances can carry some weight, but the question of spontaneity remains a burden to prove before the statement can be deemed admissible.