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The Risks of “Narrative as Circumstantial Evidence”

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Joseph A. Neuberger, Neuberger & Partners LLP

Criminal Lawyers

 

In a recent BC sexual assault appeal, R. v. N.P., 2021 BCCA 25, the Crown conceded that a retrial was warranted after the trial judge improperly used prior consistent statements to corroborate the complainant’s testimony.

The Court of Appeal issued their decision, elaborating on how “narrative as circumstantial evidence” should be properly used at trial. This exception may form an admissible purpose but can also lead to misuse if the proper uses are not outlined during submissions or by holding a voir dire regarding admissibility at the time the prior statement is introduced.

In the case of N.P., the Crown conceded that “the prior consistent statements of [the complainant] should not have been entered into evidence or considered by the trial judge in assessing her credibility or corroborating her testimony. The only relevance these statements could have had was to support the ‘prohibited inference that repetition enhances truthfulness.’”

The use and misuse of prior consistent statements is a constant issue in the appellate courts and the Supreme Court recently declined the opportunity to provide further guidance in R. v. Langan, 2020 SCC 33.

The most often cited reference regarding the permitted and prohibited uses of prior consistent statements is Justice David Paciocco’s article, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2012) 17 Can Crim L Rev 181. In that article, Justice Paciocco advises that the growing jurisprudence warrants focusing less on admissibility arguments and more focus on how much weight can be placed on a prior statement and for what limited purposes.

The nature of prior consistent statements, even where they are permitted, allows for improper bolstering of a complainant’s credibility and this improper usage may not always be articulated by the judge in the decision. The case of N.P. is a timely reminder that both the prosecutor and defence counsel should be alive to the dangers and articulate their concerns in a timely manner during the course of the trial.

Clearly it is better to address these concerns at the time of the trial instead of in a court of appeal.

 

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