Admission of prior consistent statements

R. v. Kailayapillai, 2013 ONCA 248 holds:

[57]       In Edgar, this court extended the principled approach to the admissibility of hearsay evidence to prior consistent statements made by an accused:  see Benjamin L. Berger, "Reasoning with Inferences:  Themes from Prior Consistent Statements and Trace Evidence" (2012) 92 CR (6^th) 254.  Instead of determining the admissibility of prior consistent statements by reference to a series of specific exceptions, e.g. to rebut an allegation of recent fabrication, Sharpe J.A., at para. 72, described a broader basis for the potential admissibility of such statements:

I conclude that it is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination.  As the English cases cited above hold, the statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence), but is evidence of the reaction of the accused which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence.  [Emphasis added.]

[58]       As my colleague explains, an accused's prior consistent statement can be characterized as the accused's "reaction" when confronted with an allegation.  As a matter of common sense and human experience, one's reaction to an allegation may assist in determining the truth of that allegation.  Similarly, where one's reaction takes the form of a statement, the consistency between that statement and one's trial testimony can enhance the credibility of the trial testimony.

[59]       Not all reactions to allegations have probative value.  The English cases relied on in Edgar refer to statements made by an accused "when first taxed with incriminating facts".  Edgar itself refers to statements that are "spontaneous" and made "upon arrest or when first confronted with an accusation". 

[60]       The probative value of the accused's prior consistent statement under theEdgar analysis lies in its ability to truly reflect the individual's honest and genuine reaction to the allegation.  Statements made in circumstances where it cannot be said that the statement reflects an honest reaction do not have probative value.  The circumstances surrounding the making of the statement are crucial to the determination of admissibility under the Edgar analysis.

[61]       Statements made by an accused long after he or she has had the opportunity to reflect on the situation and consider his or her response to an allegation do not provide the kind of spontaneous response capable of giving a true reflection of the accused's reaction to the allegation.  In R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129, at paras. 20-21, the court said:

Whatever else may be said about it, it [the statement] can hardly be characterized as spontaneous.  The appellant had five hours to consider his position and "think things out" before going to the police station.  He also had the opportunity to speak to his friends after the accident, either directly or by cell phone, before speaking to the police. 

In these circumstances, if the trial judge had the benefit of Edgar, I believe he would have excluded the appellant's statement for lack of spontaneity…

[62]       In this case, the trial judge had no evidence upon which to evaluate the spontaneity of the appellant's statement, or to determine whether the statement was made when the appellant was first confronted with the accusation.  The record was silent on these matters and everything else surrounding the making of the statement.