Prior consistent statements

The use of prior consistent statements at trial is problematic. Generally such statements are not admissible to bolster the credibility of a witness. However, as seen in today's decision in R. v. Bisson, 2010 ONCA 556 where such statements are used to explain prior inconsistent statements they are admissible.

This is hard to follow unless the prior consistent statements are excluded to boost credibility but allowed merely to neutralise otherwise credible inconsistent statements.

The Court holds:

[25]     It is well-established that prior consistent statements are generally inadmissible because they are viewed as lacking probative value and are self-serving: R. v. Stirling, [2008] 1 S.C.R. 272, at para. 5.  Had the trial judge considered the complainant's out-of-court statements to Mr. Bisson, to the nurse, or to the police, as confirming her version of the events, this would indeed be an error. 

[26]     However, the trial judge did not, in my view, use the out-of-court statements in this way.  Rather, read in context, the trial judge's review of the complainant's statements appear to have been considered as part of the narrative recounted by the complainant.  At no point does the trial judge indicate that he is relying on these statements for the truth of their contents or that they formed part of his decision to prefer the complainant's evidence as to what happened on the night in question to that of the appellant. I therefore do not agree with the summary conviction appeal judge's finding that "the trial judge ... used [the complainant's] out-of-court statements to improperly bolster her credibility." 

[27]     In my view, the trial judge properly considered the complainant's explanation for her inconsistent statements to the police and then tested her version of events in a number of ways including the extent to which it was corroborated by the testimony of others.  He chose to accept that "she said nothing happened, not because it was true, but because she did not want to involve the police.  She wasn't satisfied in her own mind that she wanted to put herself and Justin Bisson through this ordeal, she did not know what to do so she was trying to do nothing."  He went on to say that the complainant's explanation for the apparent inconsistency "makes sense".  "It fits with a reasonable understanding of human nature; she was conflicted not over what happened, but what to do about it."