SUPREME
COURT OF CANADA
Between:
Beau
Jake Stirling
Appellant
v.
Her
Majesty the Queen
Respondent
Coram: McLachlin
C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and
Rothstein JJ.
Reasons
for Judgment:
(paras. 1 to
17)
|
Bastarache J. (McLachlin C.J. and Binnie,
LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
|
______________________________
R. v. Stirling, [2008] 1 S.C.R. 272, 2008 SCC 10
Beau Jake Stirling Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Stirling
Neutral citation: 2008 SCC 10.
File No.: 31795.
2007: December 10; 2008: March 14.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Criminal law — Evidence — Prior consistent statements
— Witness — Accused convicted of criminal negligence causing death and criminal
negligence causing bodily harm — Witness who was in car at time of accident
testifying that accused was driver of vehicle — Witness’s prior consistent
statements admitted into evidence to rebut allegation of recent fabrication —
Whether trial judge used statements for truth of their contents and to support
credibility of witness.
As a result of a single‑vehicle accident that
killed two people and seriously injured the accused and H, the accused was
convicted of criminal negligence causing death and criminal negligence causing
bodily harm. The main issue before the trial judge was whether the accused,
and not H, was the driver of the vehicle at the time of the accident. A
certain line of questioning during H’s cross‑examination raised the
possibility that he had motive to fabricate his testimony. Following a voir
dire, the trial judge admitted into evidence several prior consistent
statements of H to rebut the suggestion of recent fabrication. The majority of
the Court of Appeal upheld the convictions; the dissenting judge would have
ordered a new trial on the basis that the trial judge used the prior consistent
statements to bolster the general credibility of the witness and for the truth
of their contents.
Held: The appeal
should be dismissed.
As an exception to the general exclusionary rule, prior
consistent statements can be admitted where, as here, it has been suggested
that a witness has recently fabricated portions of his evidence. Although
these statements have probative value where they can illustrate that the
witness’s story was the same even before a motivation to fabricate arose, any
admitted prior consistent statements should not be assessed for the truth of
their contents. It is impermissible to assume that because a witness has made
the same statement in the past, he is more likely to be telling the truth.
However, prior consistent statements may impact positively on the witness’s
credibility where admission of such statements removes a motive of
fabrication. It is permissible for this factor to be taken into account as
part of the larger assessment of credibility. [5] [7] [11]
In this case, H’s prior consistent statements were not
used for an inappropriate purpose. While the trial judgment contains some
ambiguous comments about the use the trial judge made of these statements, when
these remarks are read in the context of the reasons as a whole, it is clear
that the trial judge was aware of the limited use which could be made of H’s
prior statements. H’s testimony was important to the accused’s convictions but
the convictions did not turn solely on a finding of credibility. The trial
judge identified numerous other pieces of evidence supporting a conclusion that
the accused was driving the vehicle on the night of the accident. [4] [13] [16]
Cases Cited
Referred to: 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; R. v. O’Connor (1995), 100 C.C.C.
(3d) 285; R. v. Divitaris (2004), 188 C.C.C. (3d) 390; R. v.
Schofield (1996), 148 N.S.R. (2d) 175; R. v. R. (J.) (2000), 84 Alta.
L.R. (3d) 92, 2000 ABCA 196; R. v. Zebedee (2006), 211 C.C.C. (3d) 199; R.
v. Aksidan (2006), 209 C.C.C. (3d) 423, 2006 BCCA 258; R. v. Davis,
[1999] 3 S.C.R. 759; R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17.
Authors Cited
Sopinka, John, Sidney N.
Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed.
Markham, Ontario: Butterworths, 1999.
APPEAL from a judgment of the British Columbia Court of
Appeal (Newbury, Levine and Chiasson JJ.A.) (2007), 234 B.C.A.C. 161, 387
W.A.C. 161, 215 C.C.C. (3d) 208, 41 M.V.R. (5th) 17, [2007] B.C.J. No. 3
(QL), 2007 CarswellBC 5, 2007 BCCA 4, upholding the convictions entered by
Quantz Prov. Ct. J., [2005] B.C.J. No. 1575 (QL) (sub nom. R. v. B.J.S.),
2005 BCPC 274. Appeal dismissed.
John Green, for the
appellant.
Terrence L. Robertson, Q.C., and Mandeep K. Gill, for the respondent.
The judgment of the Court was delivered by
[1]
Bastarache J. — 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.
[2]
During 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.
[3]
The 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)
[4]
In 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
[5]
It 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.
[6]
In 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.
[7]
However, 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.
[8]
It 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)
[9]
Levine 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.
[10]
In 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.
[11]
Courts 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.
[12]
It 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.
[13]
I 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.
[14]
In 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.
[15]
Although 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.
[16]
I 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
[17]
For the reasons above, I would dismiss this appeal.
Appeal dismissed.
Solicitors for the appellant: Green & Helme, Victoria.
Solicitors for the respondent: Harper Grey, Vancouver.