R. v. U. (F.J.), [1995] 3 S.C.R. 764
F.J.U. Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. U. (F.J.)
File No.: 24159.
1995: April 26; 1995: October 19.
Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Evidence ‑‑ Prior inconsistent statements ‑‑ Admissibility ‑‑ Accused and complainant making separate statements containing similarities to police ‑‑ Accused and complainant recanting at trial ‑‑ Whether trial judge erred in inviting jury to compare complainant's prior inconsistent statement with accused's statement to police in determining if prosecution had established guilt.
The accused was arrested following a report that he had engaged in sexual activities with his 13-year-old daughter. In the course of being interviewed by the investigating officer, the daughter stated that her father had been having sexual intercourse with her on a regular basis since December 1987 and described various sexual activities. The last time her father had had sex with her was the previous night. The officer then questioned the accused. He admitted that he had had sex with his daughter many times, described the same sexual activities she had described, and stated that the most recent intercourse had been the previous night. The accused was charged with a number of sexual offences. His statement to the police was admitted as Crown evidence through the testimony of two officers. The Crown also called the complainant daughter as a witness. Although she admitted that she had made the allegations against the accused in her statement, the complainant asserted that the allegations of sexual assault were untrue. The accused also testified at trial. While he admitted having made an inculpatory statement to the police, he denied the truth of much of the statement's contents, including his admissions of having engaged in sexual activity with his daughter. The accused was convicted of one count of incest and two counts of sexual touching. The Court of Appeal, in a majority judgment, upheld the conviction. At issue in this appeal is whether the trial judge erred in inviting the jury to compare the complainant's unadopted prior inconsistent statement with the accused's unadopted statement to the police in determining if the prosecution had established guilt.
Held: The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The orthodox rule that prior inconsistent statements are not admissible for the truth of their contents is a particular instance of the rule against admitting hearsay. In recent years, however, this Court's decisions have established that the traditional inflexible approach to the hearsay rule and its exceptions is to be rejected in favour of an approach which allows evidence to be admitted and used substantively when it is shown to be reliable and necessary. Both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case. When the reliability and necessity criteria are met, prior inconsistent statements of witnesses other than the accused are substantively admissible, provided that they would have been admissible as the witness's sole testimony. The gravest danger associated with hearsay evidence, namely the absence of contemporaneous cross‑examination, simply does not exist in the case of prior inconsistent statements because the witness is available for cross‑examination. The other two dangers, absence of an oath and absence of demeanour evidence, can be met through appropriate police procedures and occasionally appropriate substitutes can be found. Finally, the prior statement is necessary evidence when a witness recants.
A threshold of reliability can sometimes be established, in cases where the witness is available for cross‑examination, by a striking similarity between two statements. In order to eliminate, or at least substantially reduce, the likelihood of a similarity between two statements arising through coincidence, the similar factual assertion must be so striking that it is highly unlikely two people would have independently fabricated it. In some cases, the necessary degree of similarity will result from the unique nature of particular factual assertions in both statements. In other situations it may be that the cumulative combination of similar points renders the overall similarity between the two statements sufficiently distinctive to reject coincidence as a likely explanation.
After the calling party invokes s. 9 of the Canada Evidence Act, and fulfils its requirements in the voir dire held under that section, the party must then state its objectives in tendering the statement. If the statement will only be used to impeach the witness, the inquiry ends at this point. If, however, the calling party wishes to make substantive use of the statement, the voir dire must continue so that the trial judge can assess whether a threshold of reliability has been met. The necessity criterion need not be assessed as it is met whenever a witness recants. If the reliability criterion is to be met, in rare cases, by the striking similarity between the statement being assessed and another statement which is already clearly substantively admissible, the trial judge must be satisfied on a balance of probabilities that there are striking similarities between the two statements, and that there was neither reason nor opportunity for the declarants to collude, nor improper influence by interrogators or other third parties. The trial judge must also ascertain that the prior statement relates evidence which would be admissible as the witness's sole testimony. If the trial judge determines that the statement meets the threshold reliability criterion and is thus substantively admissible, he or she must direct the trier of fact to follow a two‑step process in evaluating the evidence. The trier of fact must first be certain that the statement which is being used as a reliability referent was made, without taking into account the prior inconsistent statement under consideration. Once the trier of fact is satisfied that the other statement was made, the trier of fact may compare the similarities between the two statements and, if they are sufficiently striking that it is unlikely that two people would have independently fabricated them, the trier of fact may draw conclusions from that comparison about the truth of the statements.
In this case, the recanting witness was cross‑examined in detail about her reasons for changing her story at a preliminary inquiry, on a voir dire under s. 9 of the Canada Evidence Act, and before the jury. She provided a comprehensive explanation for changing her story which could be assessed by both the trial judge and the jury and therefore eliminates the most important danger of hearsay evidence. The statements made by the accused and by his daughter contained both a significant number of similarities in detail and the strikingly similar assertion that the most recent sexual contact between the two had been the previous evening. As a voir dire was also held with regard to the accused's statement, there was sufficient evidence presented to found a conclusion that the accused and his daughter had neither a reason nor an opportunity to collude, and that the accused was not improperly influenced by the police officers who took his statement. The complainant's statement was therefore substantively admissible at trial. The absence of correct jury instructions does not alter the outcome of this appeal as the statements are so strikingly similar that the jury would inevitably have been satisfied as to their reliability. The objection that the jury instructions left open the possibility that the daughter's statement would be used for the truth of its contents does not arise given the conclusion that the statement was substantively admissible.
Per L'Heureux‑Dubé J.: The complainant's prior inconsistent statement was admissible for the purpose of comparison with the accused's confession, as found by Lamer C.J. The similarities between the two statements need not be "striking", however, before the jury can be permitted to use the prior inconsistent statement for such a purpose. So long as there are significant similarities between the two statements, as there clearly were in this case, a witness's prior inconsistent statement will be admissible for purposes of comparison with an accused's unadopted confession in order to assess the truth of that confession. As found by Lamer C.J., the trial judge adequately instructed the jury in this case concerning the use it could make of the complainant's prior inconsistent statement.
Cases Cited
By Lamer C.J.
Considered: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1 S.C.R. 740; referred to: Mawaz Khan v. R., [1967] 1 All E.R. 80; McFall v. The Queen, [1980] 1 S.C.R. 321; Deacon v. The King, [1947] S.C.R. 531; R. v. Evans, [1993] 3 S.C.R. 653; Wright v. Beckett (1833), 1 M. & Rob. 414, 174 E.R. 143; Attorney General v. Hitchcock (1847), 16 L.J. Ex. 259; McInroy v. The Queen, [1979] 1 S.C.R. 588.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 9 [am. 1994, c. 44, s. 35].
Criminal Code, R.S.C., 1985, c. C‑46, ss. 151 [rep. & sub. c. 19 (3rd Supp.), s. 1], 155 [am. c. 27 (1st Supp.), s. 21], 159 [rep. & sub. c. 19 (3rd Supp.), s. 5], 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].
Authors Cited
Canada. Law Reform Commission. Report on Evidence. Ottawa: The Commission, 1975.
McCormick on Evidence, vol. 2, 4th ed. By John William Strong, General Editor. St. Paul, Minn.: West Publishing Co., 1992.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 5. Revised by James H. Chadbourn. Boston: Little, Brown, 1974.
APPEAL from a judgment of the Ontario Court of Appeal (1994), 90 C.C.C. (3d) 541, 72 O.A.C. 117, 32 C.R. (4th) 378, dismissing the accused's appeal from his conviction of sexual offences. Appeal dismissed.
Bruce Durno, for the appellant.
Renee M. Pomerance, for the respondent.
The judgment of Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
Lamer C.J. --
I. Introduction
1 This appeal, which comes to this Court as of right based on a dissent in the Ontario Court of Appeal, raises a single issue: when is a witness's prior inconsistent statement substantively admissible? To resolve this issue, this Court must once again consider the hearsay rationale for the orthodox rule regarding prior inconsistent statements and what modifications to that rule are appropriate in light of our reform of the hearsay rule in R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, and R. v. B. (K.G.), [1993] 1 S.C.R. 740.
II. Statement of Facts
2 The appellant, F.J.U., emigrated from Peru to Canada in 1975, shortly after the birth of his daughter J.U. His daughter remained in Peru with her grandmother C.O.-V., the appellant's mother, until December 1987, when they both joined the appellant in Canada. The three shared a residence in Mississauga along with the appellant's brother until the spring of 1988, when C.O.-V. returned to Peru and the appellant and his daughter moved to Brampton. In September 1988, C.O.-V. returned to Canada, and from September 1988 to October 11, 1988 (the date of the appellant’s arrest) she resided with the appellant and J.U. in Toronto.
3 On October 11, 1988, C.O.-V. reported to the police that the appellant had engaged in sexual activities with his daughter. The police went to the U.'s residence, in the company of a Spanish interpreter, and spoke to J.U. The appellant was arrested and taken to the police station. J.U. and her grandmother were taken to the police station in a separate car.
4 After arriving at the police station, J.U. was interviewed by Sergeant Hector Colantoni, the investigating officer. Her grandmother was present during the interview, as was Constable Tom Job, a Spanish-speaking officer who acted as an interpreter when J.U. had difficulty understanding Sergeant Colantoni's questions or responding to them in English. In the course of the interview, J.U. stated that her father had been having sexual intercourse with her on a regular basis since December 1987 when she came to Canada. She told the police that these incidents occurred more frequently after her grandmother had returned to Peru in April 1988, and that between this date and her grandmother’s return to Canada in September 1988 her father had sex with her “almost every day”. She declared that the sexual activity generally took place late at night in her bedroom. She also indicated that on a few occasions the appellant had had her perform oral sex on him, and that on a few other occasions he had performed oral sex on her. In addition, she stated, the appellant "would have sex in my bum many times". The last time her father had had sex with her, she declared, was the previous night (October 10, 1988). J.U. also stated that the appellant had physically assaulted her on two separate occasions, the first time striking her with a length of wire, and the second time punching her in the face. At the appellant's trial, Sergeant Colantoni testified that he had attempted to tape his interview with J.U., but that the tape recorder had malfunctioned and nothing had been recorded. He stated that he had subsequently prepared a summary of J.U.'s anticipated evidence, based in part on notes he had made during the interview and in part on his memory.
5 After interviewing J.U., Sergeant Colantoni proceeded to question the appellant, accompanied by Constable Tony McKenzie. Sergeant Colantoni testified that he took notes and that the interview was not taped. According to Sergeant Colantoni's testimony, the appellant admitted that he had had sex with his daughter “many times”, and also stated that she had performed oral sex on him “two or three times when we lived in Mississauga, but she didn't like it”. He also declared that he had performed oral sex on her “once or twice”. Sergeant Colantoni also testified that the appellant had further admitted to having had anal sex with J.U. “three or four times”, stating that this had taken place most recently “last night” (i.e., October 10, 1988). The appellant also described two incidents in which he had physically assaulted his daughter, stating that on one occasion he had struck her with a wire-reinforced belt, and that on the second occasion he had slapped her in the face. The appellant refused, however, to make a written statement, and indicated that he would not sign anything.
6 The appellant was charged with three counts of sexual interference (s. 151, of the Criminal Code, R.S.C., 1985, c. C-46), one count of incest (s. 155) and one count of anal intercourse (s. 159). The terms of the indictment were particularized as follows:
Count 1: Touching the mouth of J.U. with his penis for a sexual purpose, between September 1 and October 10, 1988, in Toronto.
Count 2: Anal intercourse with J.U. on or about October 10, 1988, in Toronto.
Count 3: Incest with J.U. between September 1 and October 10, 1988, in Toronto.
Count 4: Touching the mouth of J.U. with his penis for a sexual purpose, between September 1, 1987 and August 31, 1988, in Toronto and Mississauga.
Count 5: Touching J.U.'s vagina with his mouth for a sexual purpose, between September 1, 1987 and August 31, 1988, in Toronto and Mississauga.
7 The appellant was tried in the Ontario Court of Justice (General Division) before a jury, with Allen J. presiding. His statement to the police, which Allen J. ruled had been made voluntarily and obtained in accordance with the Canadian Charter of Rights and Freedoms, was admitted as Crown evidence through the testimony of Sergeant Colantoni and Constable McKenzie. The Crown also called J.U. as a witness. Although she admitted that she had made the allegations against the appellant contained in the “will-say” statement that had been drafted by Sergeant Colantoni following his interview with her, J.U. asserted that the allegations of sexual assault were untrue. She maintained, however, that the allegations of non-sexual assault she had made in her statement were true. According to J.U.'s trial testimony, she had lied to the police at the behest of her grandmother, because she was concerned that her father was planning to send her back to Peru to live with her mother. She stated that her grandmother had threatened to commit suicide if J.U. were taken away from her, and had given J.U. instructions about details of the false allegations of sexual misconduct she was to make.
8 The appellant also testified at trial. While he admitted having made an inculpatory statement to the police, he denied the truth of much of the statement's contents. He testified that the conduct of the police during the interview had brought back memories of his imprisonment and torture by the Peruvian police, and that his resulting fear had led him to make a false confession. He believed that as long as he refused to sign anything his confession could not be used against him.
9 When cross-examined on his statement, the appellant denied having made several of the utterances attributed to him by Sergeant Colantoni and Constable McKenzie. In particular, he denied having told the officers that he had had anal intercourse with his daughter, or telling them that his sexual activity with J.U. was intended to "protect" her from having sex with other people. While he agreed that the remainder of the officers' testimony accurately reflected what he had said to them, he testified that none of his admissions of having engaged in sexual activity with his daughter were true. He confirmed, however, that the portion of his statement describing the two physical assaults on his daughter was true.
10 After deliberating for over nine hours, the jury returned a verdict of not guilty on counts 1 and 2 and guilty on counts 3, 4 and 5. The appellant was sentenced to a term of incarceration of two years less one day, and to a period of probation. The appellant's appeal of his conviction to the Ontario Court of Appeal was dismissed, Houlden J.A. dissenting: (1994), 90 C.C.C. (3d) 541, 72 O.A.C. 117, 32 C.R. (4th) 378.
III. Judgments Below
Ontario Court of Justice (General Division)
11 In the course of charging the jury, Allen J. commenced his discussion of the evidence by making the following observations:
The evidence was relatively brief. It is for you to decide what that evidence establishes, proves to your satisfaction. You are faced with a situation where both [the appellant] and [J.U.] have made statements to the police or utterances to the police. Each of them in turn has for the most part acknowledged having made those utterances which the police officers have recited to you and which they have attributed to [the appellant] or to [J.U.] as the case may be, but now both [the appellant] and [J.U.] say that he or she, as the case may be, was not truthful when speaking with the police officers at the times and places indicated by the police officers.
Allen J. addressed the appellant's inculpatory statement as follows:
What [the appellant] told the police may in your discretion be used by you to establish his guilt on these charges or any one or more of them as you determine. He did testify before you that he did not tell the truth to the police officers when they interviewed him, and he has explained to you or told you his reasons for that absence of truth at that time. He said that that was based on his unfortunate experiences with the police authorities in Peru some several years ago. It is for you to weigh the testimony of the police officers as to [the appellant's] utterances and conduct when interviewed by them. Of course, you must also weigh [the appellant's] testimony before you as to those matters.
I have said it is for you to decide what the evidence was, but as I have understood [the appellant's] evidence, he acknowledges that he made most of the utterances attributed to him by the police, and he does deny having made some of the utterances which the police have recorded and have stated in their testimony to you. If you find that you are satisfied beyond a reasonable doubt that [the appellant] made an utterance to the police officers as they have testified, and if you are satisfied that that utterance was and is true, you will apply that utterance in your deliberations as to his guilt or innocence. If you find that the utterance he made to the police was not true, or if you have a reasonable doubt as to it being true, you will not apply that particular utterance or alleged utterance to your deliberations.
Allen J. then addressed the issue of the appellant's and J.U.'s credibility:
Certainly the contradiction between [the appellant's] utterances to the police and his testimony before you can be applied by you in assessing his credibility as a witness before you. Similarly, you will consider the contradiction between [J.U.'s] utterances to the police and her testimony before you as you assess her credibility as a witness.
Allen J.'s subsequent instruction, advising a comparison between the two statements, led to the division in the Court of Appeal:
You might wish to review [J.U.'s] utterances to the police, those which she acknowledged she had made, and those which you find [the appellant] made to the police. You may find some similarity in details which may assist you in your deliberations. One that comes to my mind as I was reviewing my notes was with reference to the time of the last sexual or alleged sexual activity between the two of them. Each, on the basis of the police testimony, said that that occurred the night before the police interview with them. However, all of that sort of thing is in your domain, and it will be for you to review all of the evidence and look at it very carefully with the benefit of the twelve minds and memories being applied to it.
12 After Allen J. had completed his charge, counsel for the appellant raised several objections, including an objection to the instruction to look for similarities between the complainant's and appellant's unadopted statements. The trial judge, however, chose not to recall the jury. After deliberating for several hours, the jury made the following request:
We would like to see a copy of [the appellant's] statement to police. We would also like to see [J.U.'s] statement to police. What parts of the police statement did [the appellant] deny he said?
Allen J. discussed the matter with counsel and decided to have the court reporter read back the relevant portions of the testimony of the two officers, J.U. and the appellant. Defence counsel observed that his concern that the jury would compare and contrast the statements in an impermissible fashion was coming to fruition.
Court of Appeal for Ontario (1994), 90 C.C.C. (3d) 541
(1) Osborne J.A. (Carthy J.A. concurring)
13 Osborne J.A. reviewed the trial judge's instructions on the use that could be made of the appellant's and J.U.'s prior statements, the objection of defence counsel and the question from the jury. He held that it was reasonable to conclude that the jury did compare the accused's admission and his daughter's prior inconsistent statement but continued (at p. 555):
I think that it is also reasonable to assume that the jury followed the trial judge's clear direction that the complainant's prior inconsistent statement could not be used as proof of the truth of the statement's contents. The critical question is whether, in the circumstances, the trial judge's instruction that the jury could compare the appellant's confession with the complainant's prior inconsistent statement resulted in an impermissible use being made of the complainant's statement.
Citing the decision of the Supreme Court of Canada in B. (K.G.), supra, Osborne J.A. observed that "the rationale for the exclusion of a prior inconsistent statement as evidence of the truth of its contents is the rule against the admission of hearsay evidence" (p. 556). He noted, however, that prior inconsistent statements can be admitted both on the issue of the witness's credibility and when the fact that the statement is made is otherwise relevant. Osborne J.A. referred to the English decision in Mawaz Khan v. R., [1967] 1 All E.R. 80 (P.C.), as an example of a case where the similarity of out-of-court statements was used to draw non-hearsay inferences about something other than credibility. He distinguished the case of McFall v. The Queen, [1980] 1 S.C.R. 321, by noting that in that case the jury had been invited to use the statements of co-accused for their truth, not for the fact that they were made. Continuing, Osborne J.A. declared (at pp. 558-59):
The central question is did the fact that the complainant made her statement (which she admitted in her trial evidence she did make) constitute evidence which is capable of enhancing the likelihood that the appellant's confession was true, notwithstanding his denial of its truth at trial.
. . . Put another way, the fact that the complainant said what she did in her statement adds value to the appellant's confession to the police. The comparison which the jury was invited to make would test the coincidence which is evident from a consideration of the substance of both statements. This analysis does not depend on the truth of the complainant's statement but rather on the fact that she made it.
Osborne J.A. also acknowledged that the same thought process could support a finding that the complainant's statement was true, but held that this was a closed avenue of analysis under the hearsay rule.
14 Having earlier rejected the appellant's claim that his statement had been improperly admitted, Osborne J.A. dismissed the appeal.
(2) Houlden J.A. (dissenting)
15 Houlden J.A. dissented on the question of whether the jury should have been invited to compare the complainant's and appellant's unadopted statements for the purpose of assisting them in determining whether the appellant's statement was true. In his view, the most striking similarity between the two statements was the similar assertion that the most recent sexual activity between the appellant and J.U. had occurred on October 10. Observing that the complainant's unadopted statement would be admissible solely for assessing her credibility if the appellant had not also made a statement, Houlden J.A. asked (at p. 544): "Does the fact that the appellant gave a statement to the police and that that statement contains some details similar to those contained in the complainant's statement lead to a different result?" In his view, it did not. He held that the use of the statement sanctioned by the majority in effect means that the truth of the statement is being assessed. In his view, the majority opinion would constitute a shift in the law (at p. 544):
It is not at all uncommon, in my experience, for a prior statement of a witness, which is denied by the witness at the trial, to relate events that are similar to those contained in a confession by the accused. If the trial judge can charge a jury that they can use the assertions in the prior inconsistent statement that are similar to those contained in the confession, to prove the truth of what is contained in the confession, this constitutes a dramatic change in the law, and I know of no authority for it.
In Houlden J.A.'s view, juries would not be able to resist using the witness's unadopted statement for the truth of its contents.
16 Houlden J.A. also held that s. 686(1)(b)(iii) of the Criminal Code could not be applied. He disagreed with Osborne J.A.'s view that the jury would have followed the trial judge's direction that they were not to use the complainant's statement for its truth. In his opinion (at p. 545):
Once the complainant's prior statement was used to prove the truth of what was contained in the appellant's statement, the jury were clearly using the statement to prove the truth of what was contained in the complainant's statement.
17 Houlden J.A. would have allowed the appeal, set aside the conviction and ordered a new trial.
IV. Grounds of Appeal
18 The appellant, who appeals as of right based on the dissent in the Court of Appeal, advances one ground of appeal, namely:
Did the Learned Trial Judge err in inviting the jury to compare the complainant's unadopted prior inconsistent statement with the Appellant's unadopted statement to the police in determining if the prosecution had established guilt?
V. Analysis
19 This case requires us to determine the permissible uses of a witness's prior inconsistent statement when the witness is not the accused and is available for cross-examination. This Court recently addressed the same issue, against a different factual background, in B. (K.G.), supra. In a majority opinion in that case, the orthodox rule regarding permissible uses of prior inconsistent statements was modified to bring it in line with our approach to hearsay outlined in Khan, supra, and Smith, supra. To resolve the issue here, I will review that approach, as well as the specific rationale behind my decision in B. (K.G.). That rationale is equally appropriate here, given the particular circumstances of the case.
A. The Court's Approach to Hearsay
20 Briefly stated, Khan and Smith announced this Court's commitment to ensure that the rule against the admission of hearsay as evidence would be sufficiently flexible to adapt to new situations. The hearsay rule and its rigidly formulated exceptions had become a sometimes illogical and frequently confusing series of pigeon-hole categories. Khan and Smith examined the principles underlying the hearsay rule to ensure that new developments in the evidentiary treatment of hearsay would reflect those tenets.
21 Khan, a case addressing the admissibility of a young child's statement to her mother regarding a sexual assault, enunciated new criteria to be applied generally when considering whether to admit hearsay evidence: reliability and necessity (at p. 542). These criteria reflect the concerns that hearsay is not sufficiently reliable and its reliability cannot be tested, and the position that first-hand evidence is always preferable. McLachlin J. was careful to state that neither of these criteria is characterized by absolute parameters. As the goal of our modifications of the principles governing hearsay has been to end the rigid artifice of pigeon-hole exceptions, it is important that new criteria remain flexible. In Khan, McLachlin J. said that "[n]ecessity for these purposes must be interpreted as `reasonably necessary'" (p. 546). She dealt with reliability as follows (at p. 547):
Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable.
In Smith, supra, writing for a unanimous Court, I confirmed that Khan had expressed the new broadly applicable approach to assessing the admissibility of hearsay evidence (at p. 932):
. . . Khan should not be understood as turning on its particular facts, but, instead, must be seen as a particular expression of the fundamental principles that underlie the hearsay rule and the exceptions to it. What is important, in my view, is the departure signalled by Khan from a view of hearsay characterized by a general prohibition on the reception of such evidence, subject to a limited number of defined categorical exceptions, and a movement towards an approach governed by the principles which underlie the rule and its exceptions alike.
My decision in B. (K.G.), as well as this ruling, are applications of the Khan and Smith principles to the particular branch of the hearsay rule which traditionally prevented the substantive admission of witnesses' prior inconsistent statements.
B. The Orthodox Rule Regarding Prior Inconsistent Statements
22 This Court first adopted the rule that prior inconsistent statements are only admissible to impeach credibility in Deacon v. The King, [1947] S.C.R. 531. Rand J. expressed it thus (at pp. 537-38):
That such statements generally are limited to credibility and cannot be used as evidence of the truth of the facts to which they relate, is well established: Rex v. Dibble (1908), 1 Cr. A.R. 155, Rex v. Harris (1927), 20 Cr. A.R. 144, Rex v. Francis & Barber, [1929] 3 D.L.R. 593. It is quite true that it may be difficult to dissociate the matters of such statements from the facts brought before the jury by the witness and to nullify the influence they may have on the minds of the jurors in dealing with the evidence as a whole; but anything short of this would expose a person to a fabricated account of events, too dangerous to risk. But the whole field of cross-examination, in the discretion of the court, is opened and the matters of the statement can thus be brought within the test of the testimonial response of the witness. This might be taken as a reason for leaving all the facts, including the statement, to the consideration of a jury, but the long experience of the courts is against it.
As I emphasized in B. (K.G.), the orthodox rule regarding prior inconsistent statements is a particular instance of the rule against admitting hearsay. Hearsay is inadmissible as evidence because its reliability cannot be tested.
23 In addition to impeaching credibility, under the orthodox rule a prior inconsistent statement can be used if the fact that it was made has some probative value in and of itself. This "non-hearsay" use of what would otherwise be hearsay was considered at length in R. v. Evans, [1993] 3 S.C.R. 653. In that case, statements made to witnesses that an individual had a pregnant dog and was in the chain-link fencing business were considered admissible. Whether the statements were true was irrelevant; the probative value came from the fact that the accused also had these characteristics. Sopinka J. stated (at pp. 662-63):
Quite apart from the truth of the contents, the statements have some probative value on the issue of identity. On the issue of identity, the fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations . . . .
. . . The statement has probative value without assuming the truth of the statement because the mere fact that it was made tells us something relevant about the declarant that connects him to the accused.
While Evans did not deal specifically with a prior inconsistent statement, the rule it enunciates applies to all statements which would be disallowed under the hearsay rule if tendered for the truth of their contents.
24 The Crown in this case did not assert that the daughter's statement was admissible for the truth of its contents on the basis of the B. (K.G.) modification to the orthodox rule, which I will discuss below. Accordingly, the case was argued in this Court, as in the court below, under the orthodox rule. The Crown took the position that the trial judge's instruction to the jury to compare the daughter's statement to the accused's did not require that the daughter's statement be true. The fact that the daughter made a statement with certain striking similarities to her father's admission was asserted to be probative on the issue of whether his statement was true, regardless of whether her statement was true. This reasoning was accepted by the majority of the Court of Appeal (per Osborne J.A.), which stated (at p. 559):
When the appellant's admissions to a significant degree mirror the allegations made by the complainant, as they did here, it seems to me to follow that the fact that the appellant's confession was as similar as it was to the complainant's allegations of sexual misconduct, is evidence which increases the likelihood that the appellant's confession was true. Put another way, the fact that the complainant said what she did in her statement adds value to the appellant's confession to the police. The comparison which the jury was invited to make would test the coincidence which is evident from a consideration of the substance of both statements. This analysis does not depend on the truth of the complainant's statement but rather on the fact that she made it.
I acknowledge that one could resort to the same thought process to support a finding that the complainant's statement was true. That, however, is a closed avenue of analysis as the complainant's statement is not admissible as proof of the truth of what she said in it. The hearsay rule forecloses that use of her prior inconsistent statement. [Emphasis in original.]
25 Under this reasoning, the prior inconsistent statement, which according to the hearsay rule cannot be relied upon for its truth, is used to bolster the inference that the accused's admission is true. However, with respect, it seems obvious that if the admission is true, the prior inconsistent statement must therefore also be true. In other words, it is impossible to undertake the chain of reasoning accepted by the majority in the court below without also inferring that the daughter's prior inconsistent statement is true. This was precisely the basis of Houlden J.A.'s dissenting opinion. He stated (at p. 544):
Osborne J.A., while acknowledging that the prior inconsistent statement of the complainant could not be used by the jury to prove the truth of its contents, is of the opinion that it could be used to prove the truth of what was contained in the appellant's statement. With respect, I do not agree. By using the statement in that fashion, the prior inconsistent statement of the complainant is, in effect, being used to prove the truth of what is contained in the complainant's statement.
Referring to the chain of reasoning which Osborne J.A. had suggested was permissible, he continued (at p. 544):
. . . when the members of the jury compare the two statements, I do not believe that they will be able to prevent themselves from travelling that prohibited avenue.
26 With respect to Osborne J.A., I am in agreement with Houlden J.A.'s assessment of the chain of reasoning proposed by the majority. The principle that a statement which would be hearsay if tendered for the truth of its contents is admissible for proof that it was made, provided that the fact it was made is probative, remains valid. Nonetheless, its application in this particular case is inappropriate because every scenario in which the daughter's prior inconsistent statement is probative leads necessarily to some inference about whether it is true.
27 Having reached this conclusion however, with respect, I am not prepared to agree with Houlden J.A.'s proposed resolution of the case. As I detailed in my judgment in B. (K.G.), supra, the orthodox rule against the substantive use of prior inconsistent statements has been harshly criticized as unnecessarily rigid in light of the evidentiary dangers against which the hearsay rule aims to provide protection. Before discussing how I apply the rationale underlying B. (K.G.) to this case, I will briefly restate the essential points of that judgment to emphasize their continued importance.
C. The Rationale of the R. v. B. (K.G.) Decision
28 In my majority decision in B. (K.G.), supra, I reviewed the history and development of the orthodox rule against substantive use of prior inconsistent statements, the hearsay rationale underlying the rule, and the gradual erosion of the rule. The objective of this review was to demonstrate the logic of reforming the orthodox rule to make our treatment of witnesses' prior inconsistent statements consistent with our rulings on hearsay in Khan, supra, and Smith, supra. These steps are equally important in my analysis here and I will, therefore, recapitulate the essential points. The orthodox rule is a particular branch of the hearsay rule because the dangers it aims to minimize are precisely those which the hearsay rule is aimed at: the absence of an oath; the inability of the trier of fact to assess the demeanour of the declarant as the statement is made; and the lack of contemporaneous cross-examination. Academic commentators have criticized the orthodox rule primarily on the basis that the risks associated with hearsay are ill-founded or non-existent when the recanting witness is on the stand.
29 The orthodox rule that prior inconsistent statements are not admissible for the truth of their contents was first stated in Wright v. Beckett (1833), 1 M. & Rob. 414, 174 E.R. 143. Challenges to it, on the basis that when a witness is present to be cross-examined the trier of fact should be free to decide which version of their story is preferable, date at least from Attorney General v. Hitchcock (1847), 16 L.J. Ex. 259. The rule was first adopted, unanimously, by this Court in Deacon v. The King, supra. The only hint of dissension respecting the orthodox rule in Canada was contained in the reasons of Estey J. in McInroy v. The Queen, [1979] 1 S.C.R. 588. While Estey J. rejected the orthodox rule on the narrow basis of the proper interpretation of s. 9(2) of the Canada Evidence Act, R.S.C. 1970, c. E-10 (now R.S.C., 1985, c. C-5), he reviewed the hearsay rationale of the rule and noted its weakness given that the declarant is on the stand available for cross-examination. Since McInroy, the orthodox rule was not challenged directly in this Court in any case prior to B. (K.G.).
30 In my view, the most serious of the hearsay dangers is the absence of contemporaneous cross-examination. In B. (K.G.) the central question to be answered was whether the absence of contemporaneous cross-examination was a sufficient reason to exclude the statement from the jury as substantive evidence. I concluded that it was not. I also noted that law reformers on the bench, in legislatures, and on law reform commissions, have often sought to modify the orthodox rule. In particular, it has been abandoned in most jurisdictions in the United States.
31 In my analysis in B. (K.G.), I next proceeded to construct a reformed rule concerning prior inconsistent statements based on the principles set down in Khan, supra, and Smith, supra. These cases established that the traditional inflexible approach to the hearsay rule and its exceptions, which relied on fitting different types of evidence into rigid categories or pigeon-holes, was to be rejected in favour of an approach which would allow evidence to be admitted and used substantively when it is shown to be reliable and necessary (at p. 783):
I am of the view that evidence of prior inconsistent statements of a witness other than an accused should be substantively admissible on a principled basis, following this Court's decisions in Khan and Smith. However, it is clear that the factors identified in those cases -- reliability and necessity -- must be adapted and refined in this particular context, given the particular problems raised by the nature of such statements.
I concluded that when the reliability and necessity criteria were met, prior inconsistent statements of witnesses other than the accused are substantively admissible, provided that they would have been admissible as the witness's sole testimony.
32 While the ultimate reliability of the statement and the weight to attach to it are to be determined by the trier of fact, the judge will always be required to make a threshold determination of reliability. I suggested that the best way to ensure reliability would be to ensure that the statement had been given under oath, solemn affirmation or solemn declaration, made after a warning that the witness would be amenable to prosecution for lying. However, I clearly stated (at p. 792):
. . . I do not wish to create technical categorical requirements duplicating those of the old approach to hearsay evidence. It follows from Smith that there may be situations in which the trial judge concludes that an appropriate substitute for the oath is established and that notwithstanding the absence of an oath the statement is reliable. Other circumstances may serve to impress upon the witness the importance of telling the truth, and in so doing provide a high degree of reliability to the statement. While these occasions may not be frequent, I do not foreclose the possibility that they might arise under the principled approach to hearsay evidence.
I continued by stating that the objection regarding inability to observe the witness making the prior statement is met when the earlier statement is videotaped in its entirety. I stated, however, that this requirement was not absolute and that "it may be possible that the testimony of an independent third party who observes the making of the statement in its entirety could, in exceptional circumstances, also provide the requisite reliability with respect to demeanour evidence" (p. 794). Finally, with regard to the most serious hearsay danger, the lack of contemporaneous cross-examination, I held that this was the most easily remedied of all dangers, given that the witness was on the stand at trial.
33 The above considerations, confronting the dangers associated with hearsay evidence, all contribute to ensuring the evidence is reliable. The second factor guiding admissibility of hearsay outlined in Khan and Smith is necessity. In the case of prior inconsistent statements, the evidence is considered necessary because evidence of the same value could not otherwise be obtained.
34 In sum, I held in B. (K.G.) that the gravest danger associated with hearsay evidence simply does not exist in the case of prior inconsistent statements because the witness is available for cross-examination. The other two dangers, absence of an oath and absence of demeanour evidence, can be met through appropriate police procedures and occasionally appropriate substitutes can be found. Finally, the prior statement is necessary evidence when a witness recants. The trial judge must make a threshold assessment of reliability at a voir dire; however, the ultimate determinations of how reliable the prior inconsistent statement is and what weight it should have remain with the trier of fact.
35 Khan and Smith establish that hearsay evidence will be substantively admissible when it is necessary and sufficiently reliable. Those cases also state that both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case and ensuring that our new approach to hearsay does not itself become a rigid pigeon-holing analysis. My decision in B. (K.G.) is an application of those principles to a particular branch of the hearsay rule, the rule against the substantive admission of prior inconsistent statements. The primary distinction between B. (K.G.), on the one hand, and Khan and Smith, on the other, is that in B. (K.G.) the declarant is available for cross-examination. This fact alone goes part of the way to ensuring that the reliability criterion for admissibility is met. The case at bar differs from B. (K.G.) only in terms of available indicia of reliability. Necessity is met here in the same way it was met in B. (K.G.): the prior statement is necessary because evidence of the same quality cannot be obtained at trial. For that reason, assessing the reliability of the prior inconsistent statement at issue here is determinative.
D. Assessing the Reliability of Prior Inconsistent Statements
(1) The Reliability Risks
36 As I discussed at length in B. (K.G.), there are primarily three concerns about the reliability of hearsay: (i) it is not subject to contemporaneous cross-examination; (ii) it is not given under oath; and (iii) the trier of fact does not have an opportunity to observe the declarant making the statement. In B. (K.G.), I considered appropriate substitutes for the latter two reliability concerns, in light of my conclusion that cross-examination of a recanting witness at trial was an almost perfect substitute for contemporaneous cross-examination. I emphasize here that all three of these criteria, together, go to the question of reliability.
37 Criticism of the orthodox rule against prior inconsistent statements has focused primarily on the fact that the declarant is available at trial to be cross-examined and absence of cross-examination is the most important risk underlying the hearsay rule. Wigmore links cross-examination to the theory underlying the hearsay rule:
The fundamental test, shown by experience to be invaluable, is the test of cross-examination. The rule [against hearsay], to be sure, calls for two elements, cross-examination proper, and confrontation; but the former is the essential and indispensable feature, the latter is only subordinate and dispensable.
1. The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination .... It is sufficient here to note that the hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination:
. . .
In the preceding passages, the testing required by the hearsay rule is spoken of as cross-examination under oath. But it is clear beyond doubt that the oath, as thus referred to, is merely an incidental feature customarily accompanying cross-examination, and that cross-examination is the essential and real test required by the rule. [Emphasis in original.]
(Wigmore on Evidence, vol. 5 (Chadbourn Rev. 1974), §1362, at pp. 3 and 10.)
The importance of cross-examination to assuring that evidence which would otherwise be hearsay is acceptable is also emphasized in the Law Reform Commission of Canada's Report on Evidence (1975). Commenting on the recommendation that prior statements, both consistent and inconsistent, be substantively admissible, the Report states (at p. 70):
. . . if a witness is on the stand and can be cross-examined about a prior statement made by him, there is little reason not to accord this statement the same status as one made by him on the witness stand. In many instances the prior statement will have been made under circumstances that tend to render it more reliable than statements made by him on the witness stand. It might have been made when his memory of the event was fresher, and before he was influenced by the parties or subsequent events. In any case if the prior statement is inconsistent with the witness' present testimony, the witness will have the opportunity of denying it or explaining the inconsistencies. If the prior statement is consistent with the witness' present testimony, the cross-examiner will be able to explore the circumstances surrounding the making of the prior statement to reveal the weight that should be given to it.
38 When a witness takes the stand at a trial and, under oath, gives a different version of the story than one previously recorded, doubt is cast on the credibility of the witness and on the truth of both versions of the story. This is what effective cross-examiners hope to achieve. In discussing Rule 801(d)(1) of the American Federal Rules of Evidence, which states that a prior inconsistent statement given under oath and subject to cross-examination is not hearsay, McCormick comments on the value of cross-examination in this situation:
The witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common law practice of cross-examination and re-examination was invented to explore. The reasons for the change of face, whether forgetfulness, carelessness, pity, terror, or greed, may be explored by the two questioners in the presence of the trier of fact, under oath, casting light on which is the true story and which the false. It is hard to escape the view that evidence of a prior inconsistent statement, when declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony. In addition, allowing it as substantive evidence pays a further dividend in avoiding a limiting instruction quite unlikely to be heeded by a jury.
(McCormick on Evidence (4th ed. 1992), at p. 120.)
39 Cross-examination alone, therefore, goes a substantial part of the way to ensuring that the reliability of a prior inconsistent statement can be adequately assessed by the trier of fact. In B. (K.G.), I wrote that prior inconsistent statements subject to cross-examination, made under oath and videotaped would be substantively admissible because each of the hearsay dangers would be addressed. I also, however, indicated that in certain particular circumstances a prior inconsistent statement could be admitted even in the absence of an oath and a video record, although not in the absence of cross-examination. In my assessment, this is one of the cases where there are sufficient circumstantial guarantees of reliability that the statement of the complainant ought to have been admitted for the truth of its contents.
(2) Beyond B. (K.G.)
40 In addition to the situations I described in B. (K.G.), a threshold of reliability can sometimes be established, in cases where the witness is available for cross-examination, by a striking similarity between two statements. When two statements contain similar assertions of fact, one of the following must be true:
1. The similarity is purely coincidental.
2. The similarity is the result of collusion between the two declarants, before one or both of their statements were made.
3. The second declarant knew of the contents of the first statement, and based his or her statement in whole or in part on this knowledge.
4. The similarity is due to the influence of third parties, such as an interrogator, who affected the contents of one or both of the statements.
5. The similarity occurred because the two declarants were both referring to an actual event -- that is, they were both telling the truth.
The first four explanations are, of course, equally consistent with the similar portions of the statement being true or false. It becomes possible to conclude that the similar portions of the statements are true only when it can be established that none of the first four alternatives are likely, and that the fifth option is thus the only likely explanation. Consequently, striking similarities between two statements will only enhance the likelihood that either of the statements is reliable when there is a basis for rejecting as unlikely all the alternative explanations.
41 In order to eliminate, or at least substantially reduce, the likelihood of a similarity between two statements arising through coincidence, the similar factual assertion must be so striking that it is highly unlikely two people would have independently fabricated it. If the similarities between two statements are not sufficiently striking, comparing them will not provide the circumstantial guarantee of trustworthiness necessary to meet the threshold requirement of reliability since coincidence will not have been ruled out as an explanation. In some cases, the necessary degree of similarity will result from the unique nature of particular factual assertions in both statements. In other situations, while there may not be any points of similarity that are sufficiently striking to render coincidence unlikely when viewed standing alone, it may be that the cumulative combination of similar points renders the overall similarity between the two statements sufficiently distinctive to reject coincidence as a likely explanation.
42 In general, it will only be possible to reject the possibility that the second statement was tainted by outside influence or collusion if the statements were made in circumstances providing sufficient guarantees against the possibility of collusion by the declarants, prior knowledge of the first statement by the second declarant, or influence by the interrogator or some other third party. In cases involving an accused's purely incriminatory statement, the prospect of there having been collusion between the accused and the other declarant will tend to be remote, unless there is evidence indicating that the accused had a reason to conspire with a witness to falsely incriminate himself or herself. In other situations, however, it may not be possible to rule out the possibility of collusion -- for example, an accused might make a statement that is partly inculpatory and partly exculpatory and then attempt to argue that similarities with a witness's exculpatory statement justify substantively admitting the witness's statement.
43 To eliminate the possibility that the second declarant's statement was influenced by prior knowledge of the first declarant's statement, there must ordinarily be evidence that the two declarants did not have an opportunity for communication prior to the making of the second statement, as well as evidence that the second declarant did not have access to a record of the contents of the first statement. Similarly, to remove the possibility of suggestion by the interrogator, it will generally be necessary to have evidence of how the interviews were conducted -- whether the interrogator knew of the first statement or asked leading questions, and so on. If the second statement was videotaped or audiotaped, there will ordinarily be sufficient evidence for a judge or jury to determine if the similar portions of the statement were really the product of the declarant's own mind rather than third party suggestion. If no taped record is available, the testimony of persons present during the making of the second statement may suffice to eliminate the possibility of similarities between the two statements at issue having arisen as a result of outside suggestion.
44 When these circumstances exist in the case of a prior inconsistent statement being compared to another statement which is already substantively admissible, and when the declarant is available for cross-examination, the trial judge may rule the prior inconsistent statement meets the threshold of reliability to be substantively admissible. The ultimate determination of whether the prior inconsistent statement is credible or reliable as proof of its contents rests, of course, with the trier of fact.
45 I anticipate that instances of statements so strikingly similar as to bolster their reliability will be rare. In keeping with our principled and flexible approach to hearsay, other situations may arise where prior inconsistent statements will be judged substantively admissible, bearing in mind that cross-examination alone provides significant indications of reliability. It is not necessary in this case to decide if cross-examination alone provides an adequate assurance of threshold reliability to allow substantive admission of prior inconsistent statements.
E. The Voir Dire
46 I set out the proper procedure for the voir dire in my reasons in B. (K.G.), at pp. 799-804. After the calling party invokes s. 9 of the Canada Evidence Act, and fulfils its requirements in the voir dire held under that section, the party must then state its objectives in tendering the statement. If the statement will only be used to impeach the witness, the inquiry ends at this point. If, however, the calling party wishes to make substantive use of the statement, the voir dire must continue so that the trial judge can assess whether a threshold of reliability has been met. The necessity criterion need not be assessed as it is met whenever a witness recants. The first factor contributing to reliability is the cross-examination of the witness. If the witness provides an explanation for changing his or her story, the trier of fact will be able to assess both versions of the story, as well as the explanation. However, where a witness does not recall making an earlier statement, or refuses to answer questions, the trial judge should take into account that this may impede the jury's ability to assess the ultimate reliability of the statement.
47 If the additional indicia of reliability I specified in B. (K.G.) are present, an oath or affirmation following a warning of penal consequences for lying, and a videotape of the statement, the reliability assessment can be relatively easily made. If the reliability criterion is to be met, in rare cases, by the striking similarity between the statement being assessed and another statement which is already clearly substantively admissible, the trial judge must be satisfied on a balance of probabilities that there are striking similarities between the two statements, and that there was neither reason nor opportunity for the declarants to collude and no improper influence by interrogators or other third parties.
48 At this stage, the trial judge need only be convinced on a balance of probabilities that the statement is likely to be reliable, as this is the normal burden of proof resting upon a party seeking to admit evidence. The trial judge must also ascertain at this stage that the prior statement relates evidence which would be admissible as the witness's sole testimony.
49 I would also highlight here the proviso I specified in B. (K.G.) that the trial judge must be satisfied on the balance of probabilities that the statement was not the product of coercion of any form, whether involving threats, promises, excessively leading questions by the investigator or other person in a position of authority, or other forms of investigatory misconduct.
50 The trial judge at this stage is not making a final determination about the ultimate reliability and credibility of the statement. The trial judge need not be satisfied that the prior statement is true and should be believed in preference to the witness's current testimony.
51 If the trial judge determines that the statement meets the threshold reliability criterion and is thus substantively admissible, he or she must direct the trier of fact to follow a two-step process in evaluating the evidence. The trier of fact must first be certain that the statement which is being used as a reliability referent was made, without taking into account the prior inconsistent statement under consideration. Once the trier of fact is satisfied that the other statement was made, the trier of fact may compare the similarities between the two statements and, if they are sufficiently striking that it is unlikely that two people would have independently fabricated them, the trier of fact may draw conclusions from that comparison about the truth of the statements.
52 Finally, where the trial judge finds that the statement is not sufficiently reliable to be used substantively, it may still, of course, be used to impeach credibility or for the fact that it was made. In other words, the orthodox rule will still apply if the minimum reliability threshold is not met.
F. Application to This Appeal
53 In this case, the recanting witness was cross-examined in detail about her reasons for changing her story at a preliminary inquiry, on a voir dire under s. 9 of the Canada Evidence Act, and before the jury. She provided a comprehensive explanation for changing her story which could be assessed by both the trial judge and the jury and therefore eliminates the most important danger of hearsay evidence. The statements made by the accused and by his daughter contained both a significant number of similarities in detail and the strikingly similar assertion that the most recent sexual contact between the two had been the previous evening. As a voir dire was also held with regard to the accused's statement, there was also sufficient evidence presented to found a conclusion that the accused and his daughter had neither a reason nor an opportunity to collude, and that the accused was not improperly influenced by the police officers who took his statement. On the basis of all these factors, I conclude that her statement was, therefore, substantively admissible at trial.
54 The jury was not, of course, instructed in accordance with the procedures I have set out here. Nonetheless, the statements in question are so strikingly similar that I am satisfied that had the instruction been given, the jury would inevitably have been satisfied as to their reliability on the basis which I have outlined above. In these circumstances, the absence of a specific instruction in this regard did not occasion any wrong or miscarriage of justice. The objection that the jury instructions left open the possibility that the daughter's statement would be used for the truth of its contents does not arise given my conclusion that the statement was substantively admissible.
55 Accordingly, I would dismiss the appeal.
The following are the reasons delivered by
56 L'Heureux-Dubé J. -- The appellant was charged with having committed a number of sexual offences against his daughter, the complainant. He was tried before a judge and jury and convicted of one count of incest and two counts of sexual touching. He was sentenced to two years less a day of incarceration, and to a period of probation. The appellant appealed to the Ontario Court of Appeal, a majority of which (Houlden J.A. dissenting) dismissed the appeal: (1994), 90 C.C.C. (3d) 541, 72 O.A.C. 117, 32 C.R. (4th) 378. It is from this decision that the appellant appeals to this Court as of right.
57 As the Chief Justice points out, the sole ground of appeal raised by the appellant concerns a prior inconsistent statement made by the complainant to the police. Prior to trial, the complainant told the police that the appellant had, since mid-December 1987, regularly engaged in a variety of sexual acts with her. In her statement, she described these acts and when they had occurred. These descriptions were similar to those contained in a confession the appellant made to the police following his arrest. At trial, the complainant acknowledged making her pre-trial statement, but testified that these allegations concerning the relevant sexual encounters were false. Similarly, the appellant acknowledged making most of the statements attributed to him by police. However, he too testified that his statements regarding the relevant sexual encounters were false. Specifically, he claimed to have made them up due to his fear of the police.
58 The question raised on this appeal is twofold. First, was the complainant's prior inconsistent statement admissible for the purpose of comparison with the appellant's unadopted confession in order to determine whether the unadopted confession was to be believed? Second, did the charge to the jury adequately explain the use which could be made of the complainant's prior inconsistent statement?
59 As regards the first issue, I agree with the Chief Justice that, in the case at hand, the complainant's prior inconsistent statement was admissible for the purpose of comparison with the appellant's confession. However, unlike my colleague, I do not believe that the similarities between the two statements must be "striking" before the jury can be permitted to use the prior inconsistent statement for this purpose. In my view, so long as there are significant similarities between the two statements, as there clearly were in this case, a witness's prior inconsistent statement will be admissible for purposes of comparison with an accused's unadopted confession in order to assess the truth of that confession. In this respect, I adopt the following statement by Osborne J.A. at the Court of Appeal (at p. 559 C.C.C.):
The appellant's confession and the complainant's statement concerned the same events. They were made separately, in circumstances which militated against joint fabrication. Each statement referred to relevant, and personal, events in generally similar terms. Both statements referred to two incidents of non-sexual assault. Both statements referred to sexual intercourse having taken place on the night before the statements were made. In the circumstances, only the appellant and the complainant would have had knowledge of the relevant events. When the appellant's admissions to a significant degree mirror the allegations made by the complainant, as they did here, it seems to me to follow that the fact that the appellant's confession was as similar as it was to the complainant's allegations of sexual misconduct, is evidence which increases the likelihood that the appellant's confession was true. Put another way, the fact that the complainant said what she did in her statement adds value to the appellant's confession to the police. The comparison which the jury was invited to make would test the coincidence which is evident from a consideration of the substance of both statements. This analysis does not depend on the truth of the complainant's statement but rather on the fact that she made it. [Underlining added; italics in original.]
60 As to the second issue raised by this appeal, the adequacy of the jury charge, I agree with the Chief Justice that the trial judge adequately instructed the jury concerning the use it could make of the complainant's prior inconsistent statement and would, accordingly, dispose of the appeal as suggested by the Chief Justice.
Appeal dismissed.
Solicitor for the appellant: Bruce Durno, Toronto.
Solicitor for the respondent: Renee M. Pomerance, Toronto.