R. v. Stirling

Bastarache J.

1 The appellant, Mr. Stirling, appeals his convictions on two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The convictions arose out of a single-vehicle accident in which two of the car’s occupants were killed and two others, including Mr. Stirling, were seriously injured. The primary issue before the trial judge was whether the Crown had established that the appellant, and not the other survivor of the accident, Mr. Harding, was driving the vehicle when the crash occurred. The trial judge ultimately concluded that Mr. Stirling was the driver. He based this finding on a number of pieces of evidence, including the testimony of Mr. Harding, who stated that Mr. Stirling had been driving.

2During the cross-examination of Mr. Harding, counsel for the appellant questioned the witness about a pending civil claim he had launched against Mr. Stirling as the driver of the vehicle and about several drug-related charges against Mr. Harding which had recently been dropped. All parties agreed that this line of questioning raised the possibility that Mr. Harding had motive to fabricate his testimony and, following a voir dire, the judge admitted several prior consistent statements which served to rebut that suggestion.

3The appellant argues on appeal that although the trial judge was correct in admitting the prior consistent statements for the purpose of refuting the suggestion of recent fabrication, he erroneously considered them for the truth of their contents. He says that because Mr. Harding’s evidence was a “condition precedent” to conviction, this error is significant and a new trial ought to be ordered. Mr. Stirling argues that the following passages indicate that the trial judge misused the prior consistent statements: In weighing and considering all of his evidence, with the benefit of his many previous statements, I find there is a consistent pattern of not recalling many details of the driving up to the collision, but of stating clearly he was in the back seat, that Mr. [Bateman] sat beside him, that Mr. [Hamilton] was in the front seat, and on a number of occasions that the accused was the driver. In my view, the previous inconsistencies as to other details are understandable given the circumstances in which he gave many of the previous statements, including the fact that while at the hospital he was under the influence of medication and/or suffering from serious injury, along with the other effects of a terrible collision, including the death of two friends. . . . Since the day of the collision, Mr. [Harding] has consistently placed the two deceased in these seats. This out‑of‑court testimony, while not evidence, supports the credibility of his in‑court testimony to this effect. Importantly, Mr. [Harding] took this position long before the experts conducted their analysis. ([2005] B.C.J. No. 1575 (QL) (sub nom. R. v. B.J.S.), 2005 BCPC 274, at paras. 59 and 95)

4In my view, this appeal ought to be dismissed. Although the passages above contain some ambiguous comments about the use the trial judge made of the prior consistent statements, these remarks must be read in the context of the reasons as a whole. It is clear from this judgment that the trial judge was very aware of the limited use of the prior consistent statements, and he correctly instructed himself on this point repeatedly. Analysis

5It is well established that prior consistent statements are generally inadmissible (R. v. Evans, [1993] 2 S.C.R. 629; R. v. Simpson, [1988] 1 S.C.R. 3; R. v. Béland, [1987] 2 S.C.R. 398). This is because such statements are usually viewed as lacking probative value and being self‑serving (Evans, at p. 643). There are, however, several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence (Evans, at p. 643; Simpson, at pp. 22-23). Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made — it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance” (Evans, at p. 643). It is also not necessary that a fabrication be particularly “recent”, as the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred (R. v. O’Connor (1995), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95). Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose.

6In this case, the parties do not dispute that the trial judge was correct to admit Mr. Harding’s prior consistent statements. The cross‑examination of this witness included questions about both a civil lawsuit he had pending against Mr. Stirling as the driver of the vehicle and the relationship between his testimony and criminal charges against him which had recently been dropped. Given these questions, it was appropriate for the judge to admit statements made prior to the launching of the civil suit and prior to the dropping of the charges because these statements, if consistent with the in-court testimony, could demonstrate that Mr. Harding’s evidence was not motivated by either of these factors.

7However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness’s story did not change as a result of a new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”; see also J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313. This case illustrates the importance of this point. The fact that Mr. Harding reported that the appellant was driving on the night of the crash before he launched the civil suit or had charges against him dropped does not in any way confirm that that evidence is not fabricated. All it tells us is that it wasn’t fabricated as a result of the civil suit or the dropping of the criminal charges. There thus remains the very real possibility that the evidence was fabricated immediately after the accident when, as the trial judge found, “any reasonable person would recognize there was huge liability facing the driver” (Ruling on voir dire, June 21, 2005, at para. 24). The reality is that even when Mr. Harding made his very first comments about who was driving when the accident occurred, he already had a visible motive to fabricate — to avoid the clear consequences which faced the driver of the vehicle — and this potential motive is not in any way rebutted by the consistency of his story. It was therefore necessary for the trial judge to avoid using Mr. Harding’s prior statements for the truth of their contents.

8It is clear from the reasons of the trial judge that he was aware of the limited value of Mr. Harding’s prior statements. Not only did he acknowledge that this witness had a motive to fabricate immediately after the accident occurred (and thus before any statements were made about who was driving), but he also stated explicitly, on several occasions, that he had not considered the statements for the truth of their contents: Prior inconsistent statements and any previous consistent statements admitted to rebut an allegation of recent fabrication and bias are not evidence as to the truth of their contents. . . . I also ruled and heard by consent a prior consistent statement on the basis it could also be considered in assessing the credibility and reliability of this witness’s evidence. I have considered these previous statements for that purpose alone. . . . Since the day of the collision, Mr. [Harding] has consistently placed the two deceased in these seats. This out-of-court testimony, while not evidence, supports the credibility of his in-court testimony to this effect. (B.J.S., at paras. 38, 53 and 95) While all of the out-of-court statements are admitted by consent for the sole purpose of assessing credibility, . . . I am satisfied these statements are also admissible to rebut the allegations of bias raised in cross-examination. . . . The prospect of accepting all, some, or none of Mr. Harding’s evidence remains open to me. However, at this stage in the proceeding I am not satisfied there is no possibility of concoction or distortion, and for that reason I am not admitting the statement to Mr. Smith for the truth of its contents. As with all other out-of-court statements made by Mr. Harding to emergency personnel, it is admissible for the purpose of assisting me in assessing the credibility of Mr. Harding’s testimony at the end of the trial. (Ruling on voir dire, at paras. 13, 27 and 28)

9Levine J.A., dissenting at the Court of Appeal, found that, notwithstanding these passages and the fact that the reasons in this case “are, as a whole, almost a textbook example of a thorough, careful consideration of the evidentiary and legal rules” ((2007), 234 B.C.A.C. 161, 2007 BCCA 4, at para. 103), the trial judge erred by using the prior consistent statements to bolster Mr. Harding’s “general” credibility and by using his out-of-court statements for the truth of their contents. The appellant encourages this Court to agree with these findings.

10In my view, the submission that the trial judge erroneously used the prior consistent statements to bolster Harding’s “general” credibility must fail. As has been discussed, prior consistent statements have the impact of removing a potential motive to lie, and the trial judge is entitled to consider removal of this motive when assessing the witness’s credibility.

11Courts and scholars in this country have used a variety of language to describe the way prior consistent statements may impact on a witness’s credibility where they refute suggestion of an improper motive. Both the Nova Scotia Court of Appeal and the Alberta Court of Appeal refer to the “bolstering” of the witness’s credibility (R. v. Schofield (1996), 148 N.S.R. (2d) 175, at para. 23; R. v. R. (J.) (2000), 84 Alta. L.R. (3d) 92, 2000 ABCA 196, at para. 8), a term which is also used in the leading text of Sopinka, Lederman and Bryant, at p. 314. The Ontario Court of Appeal recently found that these statements are capable of “strengthening” credibility (R. v. Zebedee (2006), 211 C.C.C. (3d) 199, at para. 117), while the British Columbia Court of Appeal has referred to their ability to “rehabilitate” credibility (R. v. Aksidan (2006), 209 C.C.C. (3d) 423, 2006 BCCA 258, at para. 21). This Court has found that the statements can be admitted “in support of” the witness’s credibility (Evans, at p. 643). What is clear from all of these sources is that credibility is necessarily impacted — in a positive way — where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.

12It is therefore not entirely accurate to submit, as the appellant contends, that prior consistent statements cannot be used to “bolster” or “support” the credibility of a witness generally. This argument attempts to insulate the impact of the prior consistent statements from the remainder of the credibility analysis and suggests that “general” credibility can somehow be hived off from the specific credibility question to which the statements relate. Such a fine parsing of the notion of credibility is impractical and artificial. Further, while it would clearly be an error to conclude that because someone has been saying the same thing repeatedly their evidence is more likely to be correct, there is no error in finding that because there is no evidence that an individual has a motive to lie, their evidence is more likely to be honest.

13I also do not agree that paras. 59 and 95 of the trial judge’s reasons indicate clearly that he used Mr. Harding’s prior consistent statements for an inappropriate purpose. The precise meaning of these passages is ambiguous, and that ambiguity must be resolved by looking at the remainder of the judgment. As this Court held in R. v. Davis, [1999] 3 S.C.R. 759, at para. 103, it is inappropriate for an appellate court to read a single passage out of context, and the reasons as a whole must be evaluated in order to determine whether an error has occurred: Read out of context, these comments suggest that the trial judge may have reversed the burden of proof. However, in my view, this is simply plucking colloquial elements of the trial judge’s thorough reasons. I agree with Green J.A., who held at p. 316: It is not sufficient to “cherry pick” certain infelicitous phrases or sentences without enquiring as to whether the literal meaning was effectively neutralized by other passages. This is especially true in the case of a judge sitting alone where other comments made by him or her may make it perfectly clear that he or she did not misapprehend the import of the legal principles involved. As McLachlin J. said in [R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 737]: “[t]he fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence.” See also R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at paras. 19-20.

14In this case, the entirety of the reasons indicate that the trial judge was aware of the limited use which could be made of Mr. Harding’s prior consistent statements, and I am not convinced that paras. 59 and 95, when read in the context of the remainder of the judgment, demonstrate an error.

15Although I agree with the appellant that Mr. Harding’s testimony was important to the convictions, I find it significant that despite the fragmented nature of this witness’s memory, the trial judge doubted only the reliability of his evidence, not his credibility. At para. 60 of his reasons, the judge stated: “I am satisfied [that Mr. Harding] attended to court and honestly gave his recollection of events as he best recalls them. My concern is not with his credibility, but with the reliability of his evidence.” This statement suggests that the trial judge’s conclusion about Mr. Harding’s credibility was not contingent upon an erroneous use of the prior consistent statements.

16I also agree with the respondent’s submission that the conviction did not turn solely on Mr. Harding’s testimony, and I find it relevant that the trial judge identified numerous other pieces of evidence supporting a conclusion that the appellant was driving the vehicle on the night of the accident. These included the fact that Mr. Stirling was the registered owner of the vehicle; the fact that Mr. Stirling stated to Shayla Richdale that he had killed his two best friends; and the expert evidence of Mr. Harper, which found that Mr. Stirling’s injuries were consistent with him being the driver, while Mr. Harding’s injuries were consistent with him being the passenger in the rear backseat of the car. In fact, both the experts of the Crown and the defence agreed on the location of the deceased passengers on reconstructing the accident. In my view, these additional pieces of evidence indicate that this is not a case where the outcome turned solely on a finding of credibility. Conclusion

17For the reasons above, I would dismiss this appeal. Appeal dismissed. Solicitors for the appellant: Green & Helme, Victoria. Solicitors for the respondent: Harper Grey, Vancouver.