COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Rahmani,

2007
          BCCA 6

Date: 20070102

Docket: CA31900

Between:

Regina

Respondent

And

Kianosh
    Rahmani

Appellant

Before:

The
          Honourable Madam Justice Huddart

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Lowry

M.
          Tammen

Counsel for the Appellant

M.
          Ainslie

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver
,
British Columbia

8 November 2006

Place
          and Date of Judgment:

Vancouver
,
British Columbia

2 January 2007

Written
          Reasons by
:

The
          Honourable Mr. Justice Hall

Concurred
          in by:

The
          Honourable Madam Justice Huddart
The Honourable Mr. Justice Lowry

Reasons
    for Judgment of the Honourable Mr. Justice Hall:

[1]

The appellant Kianosh Rahmani appeals from the decision of Brown J.
    pronounced April 14, 2004 dismissing his appeal from a conviction of sexual
    assault registered against him by a
Provincial Court
judge
    in 2002.  The offence was alleged to have occurred at Burnaby on February
    3, 2000.  The Crown had proceeded summarily on the charge.

[2]

The complainant, who was aged 21, had recently moved to
Vancouver
where she
    was residing with her mother around Christmas of 1999.  She was a native of
    Alberta originally and at the time she became involved with the appellant
    she was not particularly familiar with Vancouver
and surrounding municipalities.  She testified that on the evening of
January 31, 2000 when she
    first met the appellant she had been waiting for her mother to meet her in
    the area of Robson Street in Vancouver.  The complainant and the appellant
    were not known to each other before this evening.

[3]

The case seems factually a bit out of the ordinary.  The complainant,
    as she waited to meet her mother, was looking at shops on
Robson Street
.  She
    said that she was standing outside a shop having a smoke.  It was a rainy
    evening.  The appellant, according to her, approached her and offered to let
    her shelter under his umbrella.  Later the two went together to a shop and
    then were together for a time at a restaurant where they had something to
    drink.  The complainant said that she had some difficulty getting access to
    a washroom at this location and, at the suggestion of the appellant, they
    went together to an office building nearby where the appellant said he worked.
    The complainant said that the appellant made an unwanted advance to her at
    this building but she demurred and they left the premises.  She said that
    thereafter she joined her mother and left the presence of the appellant.
    During the time the two had spent together on the evening of January 31, 2000,
    they had exchanged phone numbers.  The complainant testified that she received
    a number of phone calls from the appellant between that date and the date
    of the incident, importuning her to go out with him.  She initially refused
    but she eventually agreed to meet with him on the evening of February 2.
    She said that after they met they went to a place in Kitsilano she described
    as a combination pub and coffee shop.  The complainant said that they remained
    there for a couple of hours and that she had more than one alcoholic drink
    at this establishment.

[4]

The appellant generally agreed with the narrative of the complainant
    as to how he met her but he denied making any improper advances to her at
    the office building where they attended on the first evening they met.  He
    said that at one point during that evening when they were together in his
    car he did massage one of her hands because she had complained of having cold
    hands.  He testified, contrary to her evidence, that she was the one who contacted
    him later, asking that they get together.  He agreed that on February 2, 2000
    he did phone her and ask her to go out with him and they went together to
    a place on West Broadway where they had some drinks.  He said that while they
    were at this place he massaged her hand and placed his hand on her legs for
    a time.

[5]

Both parties agreed that when they left the restaurant they went to
    a beach area where they sat in a car and talked for a time.  The appellant
    said that the complainant suggested at this point that they should go to a
    hotel.  The complainant said that she told him that she didn't want to go
    to a hotel but rather wanted to go home.  She then described driving about
    streets that she was not familiar with in the car of the appellant and said
    that eventually they got to a hotel.  She said she agreed to go with him to
    a room in that hotel.  The hotel was located near Boundary Road on the border
    between Vancouver
and
Burnaby.

[6]

It was common ground that there was some difficulty with the television
    in the room that they were in at the hotel and a request was made to have
    someone come to the room to fix the television.  The handyman that came to
    the room testified that when he was in the room the two individuals were fully
    dressed but the complainant might have been partially covered by a bedspread.
    He said that he noted nothing unusual about the demeanour of the complainant
    at this time.  He said that at some time between 2:00 and 3:00 a.m.
he observed the male leave the room to return after a short time.  He
    thought that it was around
4:00
    a.m. when he saw both parties leave the room and depart the premises.  Around
    5:45 a.m. police attended at the hotel and sealed the room to conduct an investigation.
    A room clerk testified that the appellant rented the room at around 1:30 a.m.
    and checked out at about 4:30 a.m.  He testified that about an hour after
    the man checked in he came to the front desk looking for a condom and the
    clerk directed him to a nearby store.  The appellant said he did not go to
    that store but drove to another store he knew not far distant.

[7]

On the subject of what occurred inside the hotel room, there was considerable
    divergence between the evidence of the complainant and the evidence of the
    appellant.  The complainant testified that after they entered the hotel room,
    the appellant suggested they watch a pornographic movie but she objected to
    this and ultimately another type of movie was selected by her.  The complainant
    said that he offered her money for sex but she refused.  She testified that
    she did allow him to massage her feet but when he attempted to kiss her feet,
    she objected.  Thereafter she described an assault on her person where the
    appellant was endeavouring to remove her clothing and she said she resisted.
    She narrated how he partially succeeded in removing her clothing and she said
    that to preserve herself she then asked him to get a condom before proceeding
    further.  He agreed to this suggestion.  She testified that he then left the
    room taking with him her purse containing her identification, money and her
    cell phone.  She said that he shortly returned and again proceeded to assault
    her.  She said that he put his finger and his penis in her vagina, that he
    withdrew and ejaculated over the area of her lower abdomen.  This was her
    evidence:

Q
    How long did he have his penis inside your vagina?

A
    Not for very long, for maybe a couple of minutes.

Q
    What happened at the end of that couple of minutes?

A
    Then he ended up pulling out and, like, finishing all over my stomach and
    the bed covers and

Q
    When you say finished, you mean ejaculating?

A
    Yes.

Q
    So did he actually put a condom on?

A          No.

She testified that thereafter the appellant suggested
    that they go to sleep but that she demanded that she be driven home.  Eventually
    he agreed to this and they left the hotel and she was driven back to her residence.
    She then phoned the police and attended for a medical examination by a physician.

[8]

The appellant gave a very different narrative of events in the hotel
    room.  He said that they were having what he thought were amicable relations
    but that at one point she said words to the effect, "What's the deal?"
    He took this to be a demand for money and he indicated that he was unwilling
    to pay when he was out on a date.  He said that at one point the complainant
    demanded that he get a condom and he left the room and got some condoms.
    He denied taking the purse of the complainant on this occasion.  His recollection
    was that when he went outside he found her purse in the car and he brought
    it to the room when he returned.  He said that when he returned he did not
    use the condom and that he could not get an erection.  He said that the complainant
    attempted to assist him in getting an erection.  He testified he had a partial
    erection and then ejaculated onto her abdominal area.  He denied using any
    forcible tactics on the complainant and he denied that he had sexual intercourse
    with the complainant.  He agreed that after the sexual activity between him
    and the complainant finished the complainant asked to be driven home and he
    complied with her request.

[9]

There was no way that the narratives of events in the room given respectively
    by the complainant and the appellant could stand together.  The complainant
    narrated a tale of sexual assault and the appellant narrated a tale of generally
    consensual relations between himself and the complainant.  A physician who
    examined the complainant gave evidence indicative of the circumstance that
    the complainant did have sexual intercourse with someone around that time.
    It was suggested to the complainant in cross-examination that she was not
    telling the truth and that she had every opportunity to leave the room when
    the appellant left the room to get a condom.  The following is a portion of
    the cross-examination by counsel for the defence:

Q
    Why didn't you simply leave or go to the front desk and talk to the desk clerk
    and say, "Look, I've got a problem with this guy.  Will you keep an eye
    on me while we wait for him to come back?"

A
    Because I  at the time I didn't think that it was  I thought I could handle
    the situation.  I thought that this was not  I didn't know what to say.
    What am I supposed to tell a stranger that a guy  like, it just doesn't make
    sense.  I was scared but that maybe crossed my mind, but I didn't even  but
    I didn't think to call.  Like, it went through my mind but I thought that

Q
    You just told us

A          -- maybe he was outside listening, or maybe
    he would come back as I was doing it, so I was frozen.

[10]

The appellant denied forcing himself upon the complainant and he denied
    that he had sexual relations with her in the nature of sexual intercourse.
    The trial judge believed the evidence of the complainant and did not accept
    the evidence of the appellant and she found the appellant guilty as charged.
    He was given a conditional sentence.  He appealed to the summary conviction
    appeal court and Brown J. dismissed his appeal.

[11]

Counsel for the appellant submitted that the summary conviction appeal
    court judge erred in failing to find the trial judge had wrongly shifted the
    burden of proof on to the appellant and had applied differing standards of
    scrutiny to the evidence given respectively by the appellant and the complainant.
    Reference was made to a number of authorities from the Ontario Court of Appeal:
R. v. C.(J.)
(2000), 145 C.C.C. (3d) 197 (Ont.
C.A.
);
R. v.
    F.(J.)
(2003), 177 C.C.C. (3d) 1 (Ont. C.A.); and
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.).

[12]

It was also submitted that there was error on the part of the trial
    judge in relying on the demeanour of the complainant and in deciding her evidence
    was generally credible before undertaking a full consideration of the evidence
    of the appellant to determine if his evidence should be believed or if it
    raised reasonable doubt as to his guilt.  While the appellant was not represented
    by counsel before the summary conviction appeal court, Brown J. did deal with
    the question of the treatment of the evidence of the appellant and the complainant
    by the trial judge:

[26]
    Mr. Rahmani says that the trial judge failed to properly consider his evidence.
    First, he says that she gave too much weight to the repairmans evidence as
    to where the complainant was seated.  Secondly, he says that his comment that
    [the complainant] was paranoid was not intended to discredit the complainant.
    Third, he says that his recollection of her clothing should not be faulted
    given that the event occurred two years before his testimony.  Fourth, he
    argues that the trial judges conclusion that his evidence that the complainant
    suggested that they go to a hotel had no air of reality, disregards the evidence
    of each of them that there were joking comments made about staying in a hotel.
    Fifth, he says that the trial judge assessed the complainants evidence based
    solely on demeanour, and, having found from the complainants demeanour that
    she was a reliable witness, the trial judge then fell into the error of discrediting
    his evidence and the evidence in support of his story, thereby shifting the
    burden to the accused.

[27]
    There is no basis for concluding that the trial judge based her conclusions
    solely on demeanour or shifted the burden to the accused.  The only reference
    made by the trial judge to demeanour is at paragraph 11 where the trial judge
    notes that [the complainant] was a credible witness and gave her evidence
    largely unprompted.  Her demeanour was appropriate.

[28]
    The trial judge refers extensively to the other evidence, that which supports
    the complainants evidence and that which supports Mr. Rahmanis evidence.
    She also indicates those portions which are not consistent and provides her
    reasons for not accepting Mr. Rahmanis testimony.  Her reference to the other
    evidence is appropriate.

[29]      I am not able to conclude that the verdict in this case was
    either unreasonable or unsupported by the evidence.  Essentially Mr. Rahmani
    is asking me, as the appeal judge, to review the evidence and reach different
    conclusions with respect to credibility than did the court below.

[13]

Of course, if a trial judge applies a different standard for assessing
    the evidence of a complainant and an accused person or casts a burden on an
    accused person, that can constitute a legal error.  Examples of this error
    in approach were found in both the cases of
R. v. C.(J.)
and
R. v. Howe
.  In the case of
R. v. Howe
, Doherty
    J.A. sounded this cautionary note when an argument of this sort is raised:

¶ 58     Counsel
    submits that the reasons of the trial judge reveal a second error. He contends
    that the trial judge applied a higher standard of scrutiny in his assessment
    of the appellant's evidence and credibility than he did when considering the
    evidence and credibility of Ms. K.

¶
    59     This argument or some variation on it is common on appeals from conviction
    in judge alone trials where the evidence pits the word of the complainant
    against the denial of the accused and the result turns on the trial judge's
    credibility assessments. This is a difficult argument to make successfully.
    It is not enough to show that a different trial judge could have reached a
    different credibility assessment, or that the trial judge failed to say something
    that he could have said in assessing the respective credibility of the complainant
    and the accused, or that he failed to expressly set out legal principles relevant
    to that credibility assessment. To succeed in this kind of argument, the appellant
    must point to something in the reasons of the trial judge or perhaps elsewhere
    in the record that make it clear that the trial judge had applied different
    standards in assessing the evidence of the appellant and the complainant.

[14]

In that case, the Court concluded that the trial judge had erred in
    failing to factor into an assessment of credibility of the complainant any
    recognition that there was a basis in the evidence to find that the complainant
    had a motive to falsely accuse the appellant.  The judge had also found that
    significant parts of the complainant's evidence were untrue but had failed
    to consider that circumstance in the assessment of her evidence.  The case
    of
Howe
is factually rather different from the instant case
    where it is not apparent on the face of the evidence that the complainant
    in this case would have had any particular motive to make up stories about
    the appellant.

[15]

Another case in which a flawed analysis by a trial judge concerning
    credibility issues led to an order for a new trial was the case of
R.
    v. C.(J.)
.  In that case the issue was consent or no consent to sexual
    activity.  In the present case, the appellant asserts consent on the part
    of the complainant to certain sexual activity but denies that there was any
    actual sexual intercourse.  It was found by the Ontario Court of Appeal in
R. v. C.(J.)
that the trial judge had overemphasized minor inconsistencies
    in the evidence of the appellant and had failed to consider that much of the
    physical evidence gave was more supportive of the version of events of the
    appellant than that of the complainant.  In that case Charron J.A. said at
    para. 9:

I agree with the appellant's contention that the trial judge's approach
    to the appellant's evidence was fundamentally flawed.  The main error lies
    in the fact that the trial judge totally rejected the appellant's testimony
    on the sole basis that, in his view, it was internally inconsistent, a basis
    that cannot reasonably be supported on the evidence.  Having thus rejected
    the appellant's testimony in its totality from the start, the trial judge
    then failed to properly assess it in the light of other evidence that supported
    the appellant's version of events.

[16]

It was also found that the judge had fallen into error in finding that
    a lack of recollection on certain events could provide a basis for the total
    rejection of evidence of the appellant on matters that the appellant did recall,
    particularly on the crucial issue of consent.  Charron J.A. said that the
    judge apparently treated inconsistencies in the complainant's evidence in
    a more benign fashion than inconsistencies in the evidence of the appellant
    despite the fact that the physical evidence seemed to be supportive in many
    instances of the version of events given by the appellant.  Thus, the judge
    was found to have applied differing standards to the evidence of the parties.
    A similar complaint is advanced here on behalf of the appellant.

[17]

In the present case, the physical evidence appears to be supportive
    of the version of events given by the complainant.  Dr. Jurenka said in her
    evidence:

A
    At the enteritis, which is the entrance to the vagina, if you think of the
    vagina facing you as a clock, then between the four and the eight o'clock
    position, positions, there were four, I believe, I would have to refer to
    my notes, but four small half-centimetre, linear, areas of uptake of the Toluidene
    blue.

Q
    And what did that indicate to you?

A
    Those were consistent with minor tears to the entritis or entrance of the
    vagina.

Q
    Now, were those tears on the outside of the vagina, or were they actually
    within the vaginal opening?

A          They were just within the vaginal opening.

This case factually seems rather the reverse of the case
    of
R. v. C.(J.)
because here the appellant testified there was
    no actual sexual intercourse.  The trial judge found that the medical evidence
    was consistent with the evidence of the complainant and inconsistent with
    the testimony of the appellant.  The key finding of the trial judge was that
    she did not accept the evidence of the appellant that any sexual activity
    was consensual.  She found that his evidence, in light of the medical evidence,
    did not raise a reasonable doubt.  The trial judge referred to the case of
R. v. W.(D.)
, [1991] 1 S.C.R. 742 and correctly formulated the
    approach to be taken in a case where credibility is in issue.  Her conclusion,
    based on the evidence that she accepted, was that the Crown had proven beyond
    a reasonable doubt that the appellant was guilty of assault as charged.

[18]

While the complainant might well have approached someone at the hotel
    rather than remaining in the room after the appellant left to obtain condoms,
    she explained why she failed to do so and the explanation was accepted by
    the trial judge.  Although counsel for the appellant submits that this conduct
    of the complainant should have led the trial judge to scrutinize her evidence
    more vigorously, the judge was entitled to accept the explanation given by
    the complainant.  The problem that lay at the heart of this case, from the
    perspective of the appellant, was that his evidence simply did not square
    with the physical evidence.  The trial judge was correct when she stated that
    the physical evidence tended to support the evidence of the complainant and
    tended not to support the evidence of the appellant.  The trial judge observed
    that it seemed out of accord with reality that the complainant would have
    suggested out of the blue to the appellant, whom she had only just very recently
    met, that they go to a hotel.  That observation has the ring of common sense
    to it and it was open to the trial judge to make it.  The trial judge did
    not overlook matters such as the fingerprint of the appellant on the clock,
    which she observed could have been supportive of some of his evidence.  Rather
    than applying a different standard to the evidence of the complainant and
    the appellant, it seems to me that the trial judge applied an even-handed
    approach to the evidence of both participants in her review of the evidence.
     That in essence appears to have been the conclusion of Brown J.

[19]

Brown J. quite properly rejected the invitation of the appellant to
    retry the case and to "reach different conclusions with respect to credibility
    than did the court below".  Counsel for the appellant has said everything
    that can usefully be argued on behalf of the appellant but I am not persuaded
    that the learned summary conviction appeal court judge erred as suggested.
    I am not of the view that it has been demonstrated that there was any error
    in the approach taken to the evidence by the trial judge.  Brown J. gave careful
    consideration to the argument that the trial judge erred in her assessment
    of the evidence and rejected this submission.  I am not of the view that any
    error has been demonstrated in the decision of Brown J. and I would dismiss
    this appeal.

The
    Honourable Mr. Justice Hall

I agree:

The Honourable Madam Justice Huddart

I agree:

The Honourable
    Mr. Justice Lowry


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Stirling
,

2007
          BCCA 4

Date: 20070102

Docket: CA033331

Between:

Regina

Respondent

And

Beau
    Jake Stirling

Appellant

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

The
          Honourable Mr. Justice Chiasson

J.W.
          Green

Counsel for the Appellant

T.L.
          Robertson, Q.C. and M. K. Gill

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver
,
British Columbia

18 October 2006

Place
          and Date of Judgment:

Vancouver
,
British Columbia

2 January 2007

Written
          Reasons by
:

The
          Honourable Mr. Justice Chiasson

Concurring
          reasons in the result by:

The
          Honourable Madam Justice Newbury (p. 20, para. 74)

Dissenting
          Reasons by:

The
          Honourable Madam Justice Levine (p. 27, para. 86)

Reasons
    for Judgment of the Honourable Mr. Justice Chiasson:

Background

[1]

The appellant appeals his conviction on two counts of criminal negligence
    causing death and one count of criminal negligence causing bodily harm.

[2]

Although the appellant also was charged with a number of impaired driving
    offences, he was acquitted on them.

[3]

The convictions arose out of a single-vehicle accident, which occurred
    at approximately 4:00 a.m. on July 16, 2003 in View Royal, a suburb of Victoria,
    British Columbia.

[4]

The accident, which accurately has been described as horrific, occurred
    when the appellants 1963 Chevrolet Impala, while partially out of control
    and travelling at approximately 115 km/h, struck a cement utility pole.  Prior
    to the collision the vehicle had been travelling approximately 135  140 km/h
    in a residential area in which the posted speed limit was 50 km/h.

[5]

As the vehicle entered a left bend in the road, it began to yaw,
    that is, as the tires lost traction, the car began to slip sideways.

[6]

At the time of the accident, there were four men in the car:  Travis
    Bateman, Kenneth Hamilton, Adrian Harding and the appellant.

[7]

The right side of the vehicle hit the cement pole and the two passengers
    on that side of the vehicle, Messrs. Bateman and Hamilton, were killed.  Mr.
    Harding and the appellant were injured seriously.

[8]

The issue which gives rise to this appeal is the identity of the driver
    of the vehicle.

[9]

The appellant stated the issue for this Court as:

Did
    the trial judge err in law in the course of assessing the credibility and
    reliability of the witness Adrian Harding when he:

i)          found that  previous consistent statements
    supported the credibility and reliability of the witness;

ii)         drew inferences based on conjecture and speculation
    when assessing the credibility and reliability of the witness; and

iii)
    misapprehended relevant evidence, and drew inferences based on conjecture
    and speculation in rejecting the evidence of Gary Chartrand.

[10]

It is the position of the appellant that he, . . . could only be convicted
    in this case if the trial judge accepted the evidence of Adrian Harding that
    the appellant was driving the car at the time of the accident.  The appellant
    asserts:

The
    Crown relied on five sources of evidence in arguing it had proven beyond
    a reasonable doubt that the appellant was driving at the time of the accident:

i)          Adrian Hardings evidence;

ii)
    Crown accident reconstruction experts;

iii)         statements allegedly made by the appellant
    to a witness, Shayla Richdale;

iv)
    the appellants failure to respond to a question from an ambulance attendant
    as to who was driving; and

v)         the appellant was the registered owner of the car.

[11]

The appellant takes no exception to the trial judges treatment of
    items iv) and v), but says, [t]he convictions in this case depend upon the
    trial judges treatment of the remaining three sources of evidence, the
    most important of which was the evidence of Adrian Harding.

[12]

Mr. Harding testified that prior to the collision in the vehicle he
    was, in the back left-hand side andTravis [Bateman] was on the right side
    of mein the rear seatandKenny [Hamilton] was in the passenger.

[13]

He was asked in chief who was in the drivers seat and replied, Stirling
.

[14]

Mr. Harding also stated that after the accident he was located in the,
    left rear passenger seat.

[15]

On cross-examination he confirmed that he started out in the rear
    seat of the car.

[16]

As might be expected, Mr. Harding was cross-examined at length about
    where he had been in the vehicle before the accident and where he was after
    the collision.

[17]

Concerning the testimony of Mr. Harding, after noting some of the frailties
    in his evidence the trial judge said at paragraphs 51 and 59 of his reasons
    for judgment:

He
    wasfirm in his evidence that when they left he was in the left rear passenger
    seat behind the driver and to his right was Mr. Bateman. He said the accused
    drove and Mr. Hamilton was seated in the right front passenger seatIn cross-examination,
    he was certain that he was seated on the bottom cushion of the rear seat.

.
    . .

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.

[18]

It was conceded by the appellant that the evidence supported a conclusion
    that the appellant probably was the driver, that is, that it met the civil
    standard, but the appellant contends that, in the absence of the evidence
    of Mr. Harding, the evidence does not lead to that conclusion beyond a reasonable
    doubt, the criminal law standard.

[19]

The appellant noted that the trial judge was concerned with the credibility
    of Mr. Harding.  The Court stated in para. 58 of the reasons for judgment:

. . . there are weaknesses in this witnesss testimony.  He clearly was
    uncomfortable in the courtroom setting and became frustrated with the length
    of his testimony, including the number and exactitude of the questions.  His
    evidence in a number of aspects was imprecise and changed from chief to cross-examination.
    He has no recollection of details I would normally expect him to recall if
    he remembers who was driving at the time of the collision, including whether
    the others were consuming alcohol

Prior Consistent Statements

[20]

The question of prior consistent statements arose out of the cross-examination
    of Mr. Harding.

[21]

Defence counsel questioned him concerning a civil action arising out
    of the accident that Mr. Harding had initiated against the appellant and noted
    that for Mr. Harding to succeed in that action, he would be obliged to establish
    that the appellant was the driver.  Mr. Harding acknowledged the action, but
    appeared to believe that it was against the appellants insurer. The trial
    judge made note of this fact in his reasons for judgment.

[22]

Defence counsel also questioned Mr. Harding concerning matters arising
    out of a drug-related criminal charge and Mr. Hardings breach of an associated
    recognizance.  He was not charged as a result of the latter and denied the
    suggestion that his in-court testimony had a relationship to this fact.

[23]

There was a
voir dire
to consider the admissibility of prior
    consistent statements made by Mr. Harding.

[24]

The following discussion took place during the course of the
voir
    dire
. Mr. Green was counsel for the appellant.

MR.
    GREEN:               I  I take it from what my friend's saying that he agrees
    that statements that are recorded by medical personnel in the records are
    admissible for the limited purpose of establishing that they were made and
    not for the truth of the contents, is that correct?

THE
    COURT:  Yes, with the exception of the statement to

MR.
    GREEN:               At the scene.

THE
    COURT:  -- Smith.

. . .

THE
    COURT:  Yes.  That's his position

MR.
    GREEN:               And that includes all statements in the medical records

THE
    COURT:  All statement

MR.
    GREEN:               -- Attributed to medical

MR.
    ROBERTSON:    Yes.

MR.
    GREEN:               -- personnel, okay?  But consistent and inconsistent,
    because there's both.

MR.
    ROBERTSON:    Yes.  Yes.

THE
    COURT:  Yes, it should be

MR.
    ROBERTSON:    Yes, and

THE
    COURT:  -- definitely should be both.

MR.
    GREEN:               All right.  Then  then we have no problem.

THE
    COURT:  You're agreeable?

MR.
    GREEN:               I'm agreeable because  yes, for that purpose, then

. . .

THE COURT:  All right.  On that basis, then, I will,
    by consent, rule that the prior consistent and inconsistent statements contained
    in Exhibit 12A with regard to the witness Harding are admissible for the limited
    purpose of assessing the credibility of his testimony in court, and it  they're
    admitted for the fact the statements were made, not for their content and
    truth of --

[25]

The trial judge recapitulated the Crowns and the appellants positions
    in paras. 9 and 10 of his Ruling on the
voir dire
:

[The
    Crown]submits the statement at the hospital is admissible, not for the truth
    of its contents, but solely to bolster the credibility of Mr. Harding and
    to negate the inference raised in cross-examination that this witness was
    possibly testifying pursuant to an improper motive, namely the pursuit of
    a civil claim, and/or the avoidance of criminal responsibility for breaching
    his recognizance on another matter.

Without conceding an allegation of recent concoction the defence agreed
    that all previous out-of-court statements made by this witness to emergency
    personnel at the scene and the hospital are admissible, for the limited purpose
    of assessing the credibility of Mr. Hardings in-court testimony.

[26]

The trial judge noted that defence counsel stated if there were a jury,
    he would have opposed the introduction of the statements.  In this Court,
    counsel asserted that because there was no jury, he did not want to waste
    a great deal of time arguing about the admissibility of the statements.

[27]

Counsel for the appellant stated that he was not alleging recent fabrication
    and did not argue recent fabrication in his submissions at the end of the
    trial, but conceded that the door may have been opened to the suggestion of
    recent fabrication. The trial judge concluded his comments on the prior consistent
    statements stating in paras. 13 and 14 of his Ruling on the
voir dire
:

While
    all of the out-of-court statements are admitted by consent for the sole purpose
    of assessing credibility, presumably along the lines identified by Mr. Justice
    Weiler in
R. v. OConnor
[(1995), 100 C.C.C. (3d) 285 (Ont. C.A.)],
    I am satisfied these statements are also admissible to rebut the allegations
    of bias raised in cross-examination.

All of these statements . . . were made before the triggering
    event of speaking to a lawyer concerning a possible civil claim, or being
    caught allegedly in breach of a court ordered recognizance.

Discussion

[28]

Subject to exceptions, prior consistent statements are inadmissible
    (
R. v. Aksidan
(2006), 209 C.C.C. (3d) 423, 2006 BCCA 258).

[29]

In
OConnor
, Weiler J.A. stated at 302:

I am in agreement with Finlayson J.A. that the effect of the cross-examination
    . . . gave rise to the inference that the complainant had fabricated her evidence
    . . . .

[30]

She also agreed with Mr. Justice Goodman that the statements were admissible
    to rebut any adverse inference from the complainants alleged silence.  Goodman
    J.A. held that the statements were not admissible on the basis of the exception
    to the rule against prior consistent statements.

[31]

Finlayson J.A. provided a detailed analysis of the relevant facts and
    of the law.

[32]

He noted at 294:  [t]he law does not require that an allegation of
    recent fabrication be made explicitly:  the court can look at all the circumstances
    of the case.

[33]

His Lordship commented on the nature and effect of an allegation of
    recent fabrication at 295:

. . . an allegation of recent fabrication is no more than an allegation
    that the complainant has made up a false story to meet the exigencies of the
    case.  The word recent means that the complainants evidence has been invented
    or fabricated after the events in question and thus is a recent invention
    or fabrication. . .

and continued quoting from

Di Carlo v. U.S.
,
    6 F. 2d 364 (2nd Cir. 1925) at 366, cited in
Wigmore on Evidence in
    Trials at Common Law
, (Chadbourne rev.) vol. 4 (Toronto:  Little,
    Brown and Company, 1972) at 274:

. . . when the veracity of a witness is subject to challenge because of
    motive to fabricate, it is competent to put in evidence statements made by
    him consistent with what he says on the stand, made before the motive arose.

[34]

In the result, Finlayson J.A. concluded at 296 that the trial judge
    was correct to use the statements, . . . in assessing the credibility of
    the [complainant].

[35]

I am satisfied that the prior consistent statements of Mr. Harding
    were properly admitted in this case.  The remaining issue is the use the trial
    judge made of the statements.

[36]

The appellant contends that, . . . the trial judge erred in law in
    relying on prior consistent statements when assessing the credibility and
    reliability of the witness Harding and asserts that, [t]he law is clear
    that a witnesss prior consistent statements may not be adduced for the purpose
    of bolstering the credibility of the witness.

[37]

The Crown states, [t]he jurisprudence is overwhelmingly clear that
    the credibility of a witness may be bolstered by proof of a prior consistent
    statement if the cross-examiner has attacked the witnesss testimony as a
    recent fabrication.

[38]

While it is clear that a prior consistent statement can be used to
    meet or rebut specifically the alleged in-court fabrication, the extent to
    which the evidence is at large or can support more generally the credibility
    of the witness is a subject for debate.

[39]

A concise statement of the basic proposition is found in para. 11:40.10.10
    at page 11-20.2 of The Honourable Mr. Justice S. Casey Hill
et al
,
McWilliams Canadian Criminal Evidence
,
4th ed. (Aurora:
    Canada Law Book, 2006):

When an allegation of
recent
fabrication
    or invention is made, the party calling the witness is permitted to rebut
    the suggestion by showing that at some earlier time, the witness made a statement
    to the same effect  . . .

[Emphasis in the original.]

The authors also have this to say at page 11-20.1:

The statement is not admitted for the truth of its contents. It is admitted
    to rebut an allegation that the witnesss testimony may have been fabricated
    or affected by an improper motiveWhen such an allegation is made,
the
    credibility of the witness can be bolstered
by a prior consistent statement
    . . . (emphasis added)

[40]

In John Sopinka, Sidney N. Lederman & Alan W. Bryant,
The
    Law of Evidence in Canada
, 2nd ed. (Toronto:  Butterworths, 1999)
    at 315 under the heading Evidence to Rebut Allegations of Recent Fabrication
    by the Witness, the evidence is described as, . . .
confirmatory evidence
of credibility (emphasis added).  The authors also state at 319: [t]he prior
    consistent statement is admissible to rebut the suggestion that the witnesss
    testimony was a recent fabrication, and, thus, is relevant to credibility.

[41]

The Crown says that it does not seek to support the use of the evidence
    to support Mr. Hardings overall credibility, but is using it only in the
    context of Mr. Hardings evidence identifying the appellant as the driver.
     Of course, the case pivots on Mr. Hardings evidence that he was in the back
    left seat of the vehicle and the appellant was driving.

[42]

The appellant asserts that Mr. Harding was not a believable witness
    and queries why he could remember where he was sitting in the car when he
    could remember almost nothing else either at all or accurately.  In final
    argument before the trial judge counsel said:

How come he cant recall . . . anything with any clarity about
    the evening . . .  Other than that hes certain that he was in the left rear
    seat at all times.  Is there a reason why . . .  Well, I mean, the answers
    obvious, in my respectful submission.

[43]

It may be this comment that led the trial judge to state in para. 57
    of the reasons for judgment:  [c]ounsel submitted that the court should consider
    possible motives for his concocting his evidence.

[44]

This Court considered prior consistent statements in
R. v. Giraldi
(1975), 28 C.C.C. (2d) 248 (B.C.C.A.).  The judgment of the Court
    was given by Mr. Justice McFarlane.  He quoted extensively from the judgment
    of the High Court of Australia in
The Nominal Defendant v. Clements
(1960), 104 C.L.R. 476 and stated at 252, I find the reasoning of the Judges
    in this case [compelling].

[45]

A number of propositions flow from the reasoning of the High Court:
     whether there has been an assertion of fabrication is determined from the
    circumstances of the case; an appeal court should give considerable weight
    to a trial judges conclusion that the evidence is properly admissible; the
    prior consistent statement must rationally tend to answer the attack on the
    witnesss evidence.

[46]

At 252, McFarlane J.A. quoted from the High Courts decision as follows:

. . . There must be an imputation . . . that the witness is not speaking
    from his own recollection . . . but is recounting a story subsequently made
    up by him . . . the statement which it is sought to use to dispel this imputation
    must be made in such circumstances that it logically does so.

There
    is an apparent direct relationship between the impuned evidence and the prior
    consistent statement.

[47]

The Privy Council in
Fox v. General Medical Council
,
    [1960] 3 All E.R. 225 commented to like effect, albeit perhaps more expansively,
    at 230:

The purpose of such evidence of a witnesss previous statements
    is and can only be to support his credit, when his veracity has been impugned,
    by showing a consistency in his account which adds some probative value to
    his evidence in the box.

The
    evidence concerning which the comment was made was described by the Privy
    Council as confirmatory evidence.

[48]

A recent consideration of prior consistent statements by this Court
    was in
Aksidan
, to which I now turn.

[49]

The case involved a charge of sexually assaulting an eleven-year old
    girl.  She made a videotaped statement, which was dealt with
inter alia
as a prior consistent statement.

[50]

The appellant submitted that, . . . a prior consistent statement .
    . . cannot be used to bolster the complainants credibility.  Mr. Justice
    Smith agreed and, referring to
R. v. Beland
, [1987] 2 S.C.R.

398, stated in para. 18, [e]vidence of a witnesss past consistent statements
    may not be adduced to bolster the credibility of the witness and in para.
    22, . . . in using the complainants videotaped statement to bolster her
    in-court testimony, the trial judge transgressed the rule that prohibits the
    introduction of prior consistent statements for that purpose.

[51]

Mr. Justice Smith also said in para. 21:

. . . even where this exception is applicable, the prior consistent statement
    is relevant only to the credibility or reliability of the in-court testimony
    of the witness.  It may be used to rebut the allegation of recent fabrication
    and thus rehabilitate the witnesss credibility but it may not be used for
    its truth or as confirmatory of the in-court testimony of the witness, since
    it is hearsay for those purposes . . .

[52]

The appellant relies on the use by the Court of the word bolster,
    which also was used by the trial judge in the present case.

[53]

There is a danger in seeking to confine the application of rules of
    evidence, which must be administered in many diverse factual contexts, to
    the use of specific descriptive words.

[54]

The word bolster used as a verb, as defined in
The Concise
    Oxford English Dictionary
, 11th ed., means support, or strengthen.
     In
The Random House Dictionary of the English Language
, 1973,
    bolster used as a verb means, add to, support, or uphold.

[55]

Placed into the context of the case before him, the use of the word
    bolster by Mr. Justice Smith was directed to strengthening or adding to
    the in-court testimony.  As such it was consonant with the comments of the
    editors of
McWilliams Canadian Criminal Evidence
as noted previously.

[56]

Prior consistent statements cannot add to or strengthen the weight
    of the evidence of a witness.  They do not independently confirm that evidence,
    but they are confirmatory in the sense that the in-court testimony is not
    a recent fabrication, that is, the suggestion of recent fabrication having
    been rebutted, the in-court testimony stands for whatever it is worth.  This
    conclusion is consonant with the observations of Mr. Justice Smith and with
    the previous authorities to which I have referred (
Fox v. General Medical
    Council
;
McWilliams Canadian Criminal Evidence; The Law of
    Evidence in
Canada
).

[57]

Although the trial judge stated that he based his decision
inter
    alia
on all of Mr. Hardings prior inconsistent and consistent statements,
    his specific use of the latter is in the context of the evidence of the Crowns
    accident reconstruction expert, whose evidence the trial judge accepted over
    the evidence of the appellants reconstruction expert.  Specifically, that
    evidence concerned the location of the other two passengers in the vehicle.
    The trial judge stated in paras. 94 and 95 of his reasons for judgment:

All
    of the expert evidence supports a finding the two deceased were on the right
    side of the vehicle.  Based on Mr. Harpers evidence [the Crowns expert],
    I find as a fact that Mr. Bateman was in the right rear seat and Mr. Hamilton
    in the right front seat.  This is strong support for the credibility and reliability
    of Mr. Hardings statement as to the position of the occupants.

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 . . .
Mr. Harding took this position long before the experts
    conducted their analysis. [Emphasis added.]

[58]

As noted, the trial judge also referred generally to the out-of-court
    statements of Mr. Harding.

[59]

In para. 53 of his reasons for judgment he stated:

. . . 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.

and in para. 59:

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.

[60]

The trial judge did not base his finding that the appellant was the
    driver of the vehicle solely on the evidence of Mr. Harding and he did not
    accept Mr. Hardings evidence on the point solely on the basis of Mr. Harding's
    prior consistent statements.  The trial judge looked at the totality of the
    evidence and he did so with a complete recognition of the frailties of the
    evidence of Mr. Hardings testimony.

[61]

The matters he considered included:  a statement that the accused made
    to a friend, which the trial judge recognized had to be put into context and
    given appropriate weight; the type of injuries suffered by the appellant and
    Mr. Harding and the extent to which those injuries could relate to their respective
    positions in the vehicle; the expert evidence concerning the damage to the
    vehicle and the location of the two deceased in it.

[62]

I am satisfied that the trial judge used the prior consistent statements
    of Mr. Harding correctly.  He was entitled to consider them to rebut the suggestion
    of recent fabrication and in his assessment of the credibility of Mr. Harding.

[63]

An allegation of recent fabrication is an allegation that goes to the
    heart of a witnesss credibility.  It suggests that the witness is lying.
     In this case, the proposition was that the witness was lying when he said
    the appellant was driving because the assertion was a recent fabrication required
    to be consistent with the position Mr. Harding had to take to win a civil
    lawsuit and to avoid the consequences of failing to meet a recognizance.  The
    prior consistent statements rebutted that contention.  The judge then was
    free to consider Mr. Hardings in-court testimony in light of the evidence
    overall and he did so.  Part of that assessment was the fact that Mr. Hardings
    statements concerning the location of the occupants of the car was not a recent
    fabrication.

[64]

I am satisfied that the trial judge did not use the prior consistent
    statements of Mr. Harding to add weight to or to strengthen his in-court testimony.
    In the words of the Ontario Court of Appeal in
R. v. A. (J.)
(1996), 112 C.C.C. (3d) 528 at 536, the prior consistent statements of Mr.
    Harding were not used, . . . as a form of self-corroboration.  The trial
    judge correctly, in my view, took the statements into account as rebutting
    the suggestion of recent fabrication and to that extent as evidence relevant
    to the credibility of Mr. Hardings evidence concerning the location of the
    occupants of the vehicle.

Speculation, conjecture and misapprehending evidence

[65]

The appellant contends that, but for Mr. Hardings evidence that the
    appellant was the driver, there could be no sustainable conviction.  It is
    asserted that looking at the evidence as a whole, Mr. Hardings identification
    evidence is not credible and that the trial judge committed reversible error
    by accepting that evidence.

[66]

The appellant acknowledges the very high threshold he must meet to
    convince this Court that it should intervene. (See:
R. v. Gagnon
,
    [2006] 1 S.C.R. 621, 2006 SCC 17 at paras. 19 and 20;
R. v. H.A.
,
    2006 YKCA 7 at para. 23.)

[67]

In this Court, counsel for the appellant reviewed extensively weaknesses
    in the testimony of Mr. Harding and the trial judges rejection of the evidence
    of Mr. Chartrand, another Crown witness.  He also dealt with the reconstruction
    evidence and evidence concerning the location of Mr. Harding immediately after
    the accident.

[68]

An examination of the transcript of the defence submission to the trial
    judge shows that these matters were canvassed extensively by the defence at
    trial.

[69]

In his reasons for judgment, the trial judge carefully reviewed all
    of these issues.  As noted, he was very alive to the weaknesses in Mr. Hardings
    evidence.  He dealt extensively with the evidence of Mr. Chartrand and provided
    reasons why he rejected that evidence, as he was entitled to do.  The evidence
    of people who attended at the scene of the accident concerning the location
    of Mr. Harding was examined and the trial judge considered carefully the evidence
    of the reconstruction experts.

[70]

I am not prepared to interfere with his conclusions on these points.

[71]

In his conclusions at paras. 96-98 of his reasons for judgment, the
    trial judge confirmed again that he had taken into account the weaknesses
    in Mr. Hardings evidence, the expert opinion of Mr. Harper and the evidence
    overall concerning the identification of the driver.  He stated that he was
    satisfied beyond a reasonable doubt that the appellant was the driver.

[72]

I am satisfied that on a fair reading of the trial judges reasons
    for judgment and a consideration of the evidence there is no basis on which
    this Court should intervene.

[73]

I would dismiss this appeal.

The
    Honourable Mr. Justice Chiasson

Reasons
    for Judgment of the Honourable Madam Justice Newbury:

[74]

I agree that this appeal must be dismissed, but I wish to express my
    own reasons for doing so.

[75]

I begin by noting that, as Professor M. T. MacCrimmon writes in Consistent
    Statements of a Witness

, (1979) 17
Osgoode Hall L.J
.
    285, the general rule against the admissibility of prior consistent out-of-court
    statements of a witness has remained virtually unchanged since 1794, has
    been abolished in civil proceedings in the United Kingdom, and has been the
    subject of criticism both by the Law Reform Commission of Canada and the Ontario
    Law Reform Commission.  The rule appears to be based not so much on principle
    (that such statements are likely to be self-serving and may be fabricated)
    as on considerations of judicial economy.  Professor MacCrimmon states:

.
    . . The proposition that parties are so biased in their own favour that their
    testimony is of no value has been discredited for over a hundred years.  The
    disqualification of witnesses because of interest was abolished in 1851.
    In any event, it should also be noted that, even if the consistent statement
    were fabricated, the prior statement and the in-court testimony would be substantially
    identical.  The declarant would be subjected to contemporaneous cross-examination
    on the in-court statement and to subsequent cross-examination on the prior
    statement, unless the prior statement was proved by a third party and it was
    impossible to recall the declarant.

A
    more substantial objection is that in most cases a prior consistent statement,
    although logically relevant on the issue of the credibility of the witness,
    is of slight probative value.  The in-court testimony based on the present
    memory of the witness on subject to contemporaneous cross-examination is usually
    better evidence than the prior statement.  A minority of the English Law Reform
    Committee that recommended the provisions of the
Civil Evidence Act 1968
were of the opinion that admission of out-of-court statements when the declarant
    is a witness was a departure from the best evidence principle for which
    there is no sufficient justification.  If the previous statement is consistent
    with what the witness says in court, it is of little value;

While it is more likely that a witness who is truthful
    will make a consistent statement than a witness who is untruthful, evidence
    that is logically relevant, such as a consistent statement, may not be legally
    relevant.  The courts do not always distinguish between evidence that is inadmissible
    because it is logically relevant and evidence that is logically relevant but
    inadmissible on a policy ground, e.g., that it would confuse the issues, waste
    time or be prejudicial.  Consistent statements have been deemed to be legally
    irrelevant not because they are logically irrelevant, but because their slight
    probative value does not justify the danger of a multiplication of issues
    and a waste of time.  Sellers L.J. in
Corke v. Corke and Cooke
concluded:
    Whether or not the rule is strictly logical, it is one which keeps the evidence
    to the main issues .  [At 288-9.]

The rule continues to be applied in Canada notwithstanding
    perceived logical deficiencies and despite the criticism that juries may not
    appreciate the distinction between using prior consistent statements as positive
    or substantive evidence at trial, and using them, where an exception to the
    rule applies, only for the purpose of assessing the credibility of the witness
    in court.  (See especially MacCrimmon at 292-3.)

[76]

The exception to the rule at issue in this case applies where there
    is an allegation that the witness has been influenced by bias or some other
    improper motive in giving his or her testimony in court.  In such circumstances,
    a consistent statement made before the improper influence arose will be logically
    probative in that it may imply that the in-court testimony is free of such
    motive.  Thus in
Fox v. General Medical Council
[1960] 3 All
    E.R. 225 (J.C.P.C.), Lord Radcliffe gave as an example of the bias exception
    the case of a witness who testified that a will was forged.  In cross-examination,
    it was suggested he was biased because there was enmity between him and the
    beneficiary of the propounded will.  Lord Radclilffe stated:

He [the witness] was allowed to call confirmatory evidence
    to show that, before the cause of this enmity had arisen, he had told a third
    party the story he was now telling.  In that situation, the issue raised by
    the cross-examination was clearly defined; a recent invention due to a specified
    cause, and, if the witness could show that his account had been the same before
    the cause existed, he was certainly adding a relevant fact in support of his
    credibility.  [At 231, noted by MacCrimmon,
supra,
at 296-7.]

[77]

Both Alan Mewitt at s. 11.2(a) of his text
Witnesses

(1992) and Sopinka, Lederman and Bryant in
The Law of Evidence

in Canada
(1999) at 314-9 confirm that prior consistent statements
    are admissible to rebut allegations of recent fabrication or bias.  Sopinka
et al
. state at 308 that the purpose of such evidence is generally
    limited to
bolstering
the witness credibility by showing consistency
    with his or her testimony, and is not evidence of the truth of the earlier
    assertion.  (My emphasis.)  It was the absence of the bias exception, or
    any of the other exceptions to the general rule against the admissibility
    of prior consistent statements, that led this court in
R. v. Aksidan
(2006) 209 C.C.C. (3d) 423, 2006 BCCA 258 to rule that a videotaped statement
    given by a child witness who testified to the same effect at trial, had been
    improperly admitted.  Summarizing Professor Wigmores description of the rule,
    Smith J.A. for the Court noted at para. 25 that . . . a prior statements
    consistency with in-court testimony does not make it more likely that the
    in-court testimony is true  the witness may just as well be consistently
    lying as consistently telling the truth.

[78]

Turning to the case at bar, I agree with my colleague Mr. Justice Chiasson
    that the suggestions made by defence counsel in cross-examining Mr. Harding
    were capable of raising an imputation of bias or improper motive arising out
    of Mr. Hardings civil claim against Mr. Stirling and his dealings with the
    Crown in relation to a drug charge that had been brought against Mr. Harding.
    Although I suppose it might have been argued that an improper motive arose
    immediately upon the occurrence of the accident, the trial judge at para.
    14 of his ruling on the
voir dire
stated that the statements in question
    had been made
before the triggering event
of speaking to a lawyer
    concerning a possible civil claim, or being caught allegedly in breach of
    a court-ordered recognizance.  (Emphasis mine.)  Even at trial, Mr. Harding
    did not seem to appreciate that his civil suit was being brought against the
    appellant rather than against I.C.B.C.  In these circumstances, I agree with
    Mr. Justice Chiasson that Mr. Hardings prior consistent statements became
    admissible to rebut the imputation of improper motive.

[79]

The more difficult question is whether the trial judge used the statements
    properly or whether he used them as positive evidence  effectively to corroborate
    Mr. Hardings testimony at trial.  As MacCrimmon states,
supra
, at
    293, . . . consistency is not corroboration.  Did the trial judge so err?

[80]

It is true that a reading of para. 95 of the trial judges reasons
    alone may give rise to some uncertainty on this question.  There he stated:

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.

Although the words while not evidence, supports the
    credibility of his in-court testimony to this effect indicate that the trial
    judge was clearly aware of the limited purpose for which the prior consistent
    statements could be used, his reference to the fact that Mr. Harding had taken
    this position before the experts conducted their analysis is problematical.
    Surely the point was that he had taken that position before he had spoken
    to a lawyer about a civil action against the appellant and before the deal
    (as such there was) with the police on the drug charge.  (That the trial judge
    appreciated this is apparent from his finding regarding the triggering event
    quoted above.)  More importantly, as has been stated, mere consistency in
    past out-of-court statements may not be used as tending to prove they are
    true.

[81]

However, two other statements of the trial judge lead me to conclude
    that he was aware of the restriction on his use of the prior consistent statements
    and did not go beyond that restriction.  First, at para. 53 of his reasons,
    he stated:

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 witnesss evidence.
I have considered these previous

statements
    for that purpose alone
.  Briefly, these statements are as follows: . .
    .

[My emphasis.]

The Court then went on to refer to various weaknesses
    in Mr. Hardings testimony, concluding at paras. 59-60 that Mr. Harding had
    attended to court and honestly gave his recollection of events as he best
    recalls them.

[82]

Further, in his ruling on the
voir dire
, the trial judge dealt
    more specifically with the limited purpose for which the statements became
    admissible.  At paras. 9-14, he reasoned:

.
    . . [The Crown] now submits that the statement at the hospital is admissible,
    not for the truth of its contents,
but solely to bolster the credibility
    of Mr. Harding and to negate the inference raised in cross-examination that
    this witness was possibly testifying pursuant to an improper motive
, namely
    the pursuit of a civil claim, and/or the avoidance of criminal responsibility
    for breaching his recognizance on another matter.

Without conceding an allegation of recent concoction the defence
    agreed that all previous out-of-court statements made by this witness to emergency
    personnel at the scene and the hospital are admissible, for the limited purpose
    of assessing the credibility of Mr. Hardings in-court testimony.

. . .

While all of the out-of-court statements are admitted by consent for the sole
    purpose of assessing credibility, presumably along the lines identified by
    . . . Justice Weiler in
R. v. OConnor
100 C.C.C. 3(rd) p. 285, I am
    satisfied these statements are also admissible
to rebut the allegations
    of bias raised in cross-examination
.

[Emphasis added.]

[83]

Considering all of these comments as a whole, I am not persuaded that
    the trial judge used the prior consistent statements as evidence, i.e.,
    as substantive evidence corroborating Mr. Hardings in-court testimony. With
    all due respect to the views of Madam Justice Levine on this question, I conclude
    that he used the statements in the manner he said (at para. 53 of his reasons
    and in his ruling in the
voir dire
) he was using them  i.e., only
    to assess the credibility of Mr. Harding at trial.  Nor do I regard his use
    of the word bolster at para. 9 of his ruling in the
voir dire
as
    a concern in this case.  As Mr. Justice Chiasson points out, the authors of
McWilliams on Canadian Criminal Evidence
(4th ed., 2006) themselves
    state that where an allegation of improper motive on the part of a witness
    is made, the credibility of the witness can be
bolstered
by a prior
    consistent statement . . .  (My emphasis.)  I have also noted the use of
    the term bolstering in this context by Sopinka
et al
.  Thus, with
    all due respect to this courts comment in
Aksidan
, supra,
the rule remains that where prior consistent statements are being admitted
    under the bias exception, they may be used to rebut an allegation of recent
    fabrication and to rehabilitate the credibility of the witness.  They may
    not be used to confirm or corroborate the truth of the in-court testimony
    of the witness, as Smith J.A. stated at para. 21 of
Aksidan
.
    Again, I emphasize that in that case, no imputation of recent fabrication
    or improper motive had been made against the witness.

[84]

With respect to the other grounds of appeal raised by the appellant,
    I agree with the conclusions of my colleague, Mr. Justice Chiasson.

[85]

I would dismiss the appeal.

The Honourable
Madam Justice Newbury

Reasons for Judgment of the Honourable Madam Justice
    Levine:

[86]

I have had the privilege of reading in draft form the reasons for judgment
    of each of my colleagues, Madam Justice Newbury and Mr. Justice Chiasson.
    For the reasons that follow, I take a different view of the treatment by the
    trial judge of the prior consistent statements of the witness for the Crown,
    Mr. Harding, on the issue of the identification of the appellant as the driver
    of the vehicle at the time of the accident, which leads me to conclude that
    the appeal should be allowed and a new trial ordered.

[87]

There are two issues that arise with respect to Mr. Hardings prior
    consistent statements: admissibility and use.

[88]

In
R. v. Aksidan
, 2006 BCCA 258, Smith J.A. summarized
    the rule of evidence that excludes prior consistent statements (at paras.
    18-19):

Evidence
    of a witness's past consistent statements may not be adduced to bolster the
    credibility of the witness: see
R. v. Beland
, [1987] 2 S.C.R. 398.
    At p. 409, McIntyre J., who gave the reasons for the majority, cited the judgment
    of Martin J.A., for the court, in
R. v. Campbell
(1977), 38 C.C.C.
    (2d) 6 (Ont. C.A.) at p. 18, where that learned jurist explained that self-serving
    statements elicited from another party are hearsay, and that self-serving
    statements repeated by the witness lack probative value in support of the
    witness's credibility. At p. 410, McIntyre J. said,

Wigmore,
    [
Wigmore on Evidence
(Chadbourne rev., 1972)] vol. 4, at p. 255, para.
    1124, describes the rule in these terms:

When
    the witness has merely testified on direct examination, without any impeachment,
    proof of consistent statements is unnecessary and valueless. The witness is
    not helped by it; for, even if it is an improbable or untrustworthy story,
    it is not made more probable or more trustworthy by any number of repetitions
    of it. Such evidence would ordinarily be cumbersome to the trial and is ordinarily
    rejected.

In
    addition to the objections based on hearsay and lack of probative value, McIntyre
    J. noted (at p. 410) the danger that such self-serving statements could be
    readily manufactured for later use at the trial. He concluded (at pp. 410-11)
    that, except in the case of well-recognized exceptions, such as to rebut an
    allegation of recent fabrication or to show physical, mental or emotional
    condition, evidence of prior consistent statements should be rejected because

.
    . . [t]o do otherwise is to open the trial process to the time-consuming and
    confusing consideration of collateral issues and to deflect the focus of the
    proceedings from their fundamental issue of guilt or innocence.

[89]

As my colleagues have set out in their reasons, in this case the statements
    were properly admitted under another exception to the general rule that prior
    consistent statements are not admissible.  Defence counsel suggested in cross-examination
    that Mr. Harding identified the appellant as the driver for an improper motive;
    that is, to support Mr. Hardings civil action for damages and because of
    a deal made with the Crown on a drug charge after the accident.  The statements
    were made before either of those matters arose, and were therefore admissible
    to rebut the suggestion that Mr. Harding had fabricated his identification
    evidence at trial to further his personal interest.

[90]

The authorities most commonly discuss the admissibility of prior consistent
    statements, as an exception to the general rule that they are not admissible,
    where there is an allegation of recent fabrication.  The authorities cited
    in my colleagues reasons demonstrate that the exception is not limited to
    those circumstances, but also applies where the allegation is of fabrication
    for an improper motive: see
R. v. OConnor
(1995), 100 C.C.C.
    (3d) 285 (
per
Finlayson J.A. at 294-296, Goodman J.A. at 301-302, Weiler
    J.A. at 302-303) (Ont. C.A.),
Fox v. General Medical Council
,
    [1960] 3 All E.R. 225 at 230 (C.A.), and Sopinka, Lederman and Bryant,
The
    Law of Evidence in Canada
, 2nd ed. (Toronto: Butterworths, 1999) at 315.
    These authorities all support the trial judges ruling to admit the prior
    consistent statements into evidence in this case.

[91]

The issue that causes me to disagree with my colleagues is the use
    of the statements by the trial judge in assessing the evidence of Mr. Harding
    at the trial.  I am of the view that the proper use of prior consistent statements
    admitted to rebut an allegation of fabrication for an improper motive is limited
    to rebutting that allegation, and not to bolster or support the credibility
    of the witness generally. There may be a fine line between these two uses,
    which is difficult to articulate. What is absolutely clear from the authorities
    is that in no case may prior consistent statements be used for anything other
    than assessing the credibility of the witness. In particular, they may not
    be used to confirm the truth of the witness in-court testimony. In my opinion,
    Smith J.A. in
Aksidan
reflected both of these limits when he
    said (at para. 21):

In any event, even where this exception is
    applicable, the prior consistent statement is relevant only to the credibility
    or reliability of the in-court testimony of the witness.
It may be used
    to rebut the allegation of recent fabrication and thus rehabilitate the witness's
    credibility but it may not be used for its truth or as confirmatory of the
    in-court testimony of the witness
, since it is hearsay for those purposes:
    see
R. v. W.(G.)
(1998), 18 C.R. (5th) 379 paragraph 43 (Nfld. C.A.);
    Sopinka, Lederman, and Bryant,
The Law of Evidence in Canada
, 2d ed.
    (Toronto and Vancouver: Butterworths, 1999), p. 319, s. 7.16.

[Underlining
    added.]

[92]

The trial judges ruling on the
voir dire
and his reasons for
    judgment indicate that he was aware that prior consistent statements could
    be used only for a limited purpose.  In spite of that, he exceeded the limit
    in both ways described above.  He used the statements to bolster Mr. Hardings
    credibility generally, not just for the purpose of rebutting the allegation
    of improper motive, and he used them to confirm the truth of Mr. Hardings
    in-court testimony.

[93]

In his ruling on the
voir dire
, the trial judge articulated
    his view of the limited purpose for which the statements could be used.  He
    said (at paras. 9, 10, and 13):

.
    . . It now submits that the statement at the hospital is admissible, not for
    the truth of its contents, but solely to bolster the credibility of Mr. Harding
    and to negate the inference raised in cross-examination that this witness
    was possibly testifying pursuant to an improper motive, namely the pursuit
    of a civil claim, and/or the avoidance of criminal responsibility for breaching
    his recognizance on another matter.

Without conceding an allegation of recent concoction
    the defence agreed that all previous out-of-court statements made by this
    witness to emergency personnel at the scene and the hospital are admissible,
    for the limited purpose of assessing the credibility of Mr. Hardings in-court
    testimony.

. . .

While all of the out-of court statements are admitted
    by consent for the sole purpose of assessing credibility, presumably along
    the lines identified by Mr. Justice Weiler in
R. v. OConnor
100 C.C.C.
    3(rd) p. 285, I am satisfied these statements are also admissible to rebut
    the allegations of bias raised in cross-examination.

[94]

In these paragraphs, the trial judge appears to say that the prior
    consistent statements could be used for two purposes:  to rebut the inference
    of improper motive
and

to assess the credibility of the witness.
     Of course, when the inference of improper motive is rebutted because it is
    shown that the witness made a statement consistent with his testimony before
    the motive arose, the witness credibility is thereby bolstered.  In that
    respect, the statement is used to assess, and bolster, the credibility of
    the witness.  But it is not appropriate to use the statement further to assess
    the witness credibility in general; for example, to conclude that because
    the witness made statements before the trial that are consistent with his
    testimony at the trial, he is more likely to be a person who tells the truth.

[95]

An allegation of improper motive reduces the witness credibility in
    a specific way, suggesting fabrication for a specific purpose.  The prior
    consistent statement is admitted to balance the assessment  to show that
    the allegation is wrong  the statement was not made for the specific purpose
    alleged.  Once the statement is applied for that purpose, it has no further
    probative value.  The witness credibility must then be assessed using the
    tools normally available to the trier of fact.

[96]

The authorities cited do not discuss this limit on the use of prior
    consistent statements in expressly these terms, but in their description on
    the limited use of such statements they are consistent with my opinion.  In
Fox
(at 231), for example, Lord Radcliffe discussed as an example
    of the application of the rule, the case of
Flanagan v. Fahy
,
    [1918] 2 I.R. 361:

There a witness who had testified
    to the forging of a will was cross-examined to the effect that he had invented
    his story because of enmity between him and the accused, the beneficiaries
    under the propounded will.  He was allowed to call confirmatory evidence to
    show that, before the cause of this enmity had arisen, he had told a third
    party the story he was now telling.  In that situation,
the issue raised
    by the cross-examination was clearly defined; a recent invention due to a
    specified cause, and, if the witness could show that his account had been
    the same before the cause existed, he was certainly adding a relevant fact
    in support of his credibility
.

[Underlining added.]

[97]

In his reasons for judgment, the trial judge referred several times
    to Mr. Hardings prior consistent statements and their use.

[98]

In instructing himself on the assessment of the evidence of witnesses,
    he said (at para. 38): . . . any previous consistent statements admitted
    to rebut an allegation of recent fabrication and bias are not evidence as
    to the truth of their contents.

[99]

In his discussion of Mr. Hardings evidence, he said (at para. 53):

Mr. Harding was also cross-examined as to prior inconsistent
    statements.  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 witnesss evidence.  I have considered these previous
    statements for that purpose alone.

[100]

The trial judge summarized (at paras. 54 and 55) the circumstances
    giving rise to the allegations of improper motive in Mr. Hardings evidence
     his civil claim for damages resulting from the accident, and the drug charge
    not proceeding. He said (at para. 57):

It is the position of the defence that Mr. Hardings
    evidence should be given no weight.  Counsel submitted that the court should
    consider possible motives for his concocting his evidence.

[101]

The trial judge summarized his assessment of Mr. Hardings evidence
    (at paras. 59-60):

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.

I
    am satisfied he 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 is due not so much to prior inconsistencies,
    but the inherent weaknesses in what he said on the witness stand, that is,
    the frailties and gaps in his evidence and the inconsistencies between what
    he said in chief and in cross.  He was, at times, a malleable witness, although
    never with regard to the position of the occupants in the vehicle.  However,
    I have considered his evidence in the context of all the evidence, including
    the expert opinions as to the occupant dynamics.  I will return to Mr. Harding's
    evidence later in my reasons.

[Underlining
    added.]

[102]

After analyzing the other evidence  the experts opinions, the appellants
    failure to respond to the ambulance attendant when the attendant asked who
    the driver was, and the appellants statements to Ms. Richdale  the trial
    judge summarized his findings of fact and inferences from all of the evidence
    in his Conclusions and Decision.  Concerning Mr. Hardings evidence, he
    said (at para. 95):

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.

[103]

The trial judges reasons for judgment are, as a whole, almost a textbook
    example of a thorough, careful consideration of the evidentiary and legal
    rules he was to follow in assessing the evidence and making findings as to
    the guilt or innocence of the appellant.  Despite my criticisms of the articulation
    in his reasons on the
voir dire
of the limited use of prior consistent
    statements, I would not, on that basis, conclude that the appeal should be
    allowed.  In his conclusions in paras. 59 and 95, however, the trial judge
    failed to follow his own instructions concerning the use he could make of
    Mr. Hardings prior consistent statements, and clearly considered them for
    the truth of their contents.

[104]

When he said (at para. 59) that Mr. Hardings statements showed
a
    consistent pattern
of stating clearly . . . that the accused was the driver
    and (at para. 95) that Mr. Harding has
consistently
placed the two
    deceased in these seats.  This evidence . . . supports the credibility of
    his in-court testimony to this effect, the trial judge must be taken to be
    saying that because the prior statements are consistent with his in-court
    testimony, it is more likely that Mr. Hardings in-court testimony is true.
     This is the very use of prior consistent statements that is prohibited.

[105]

Mr. Hardings testimony was pivotal to the appellants conviction,
    and Mr. Hardings credibility was in doubt throughout.  This critical error
    in the trial judges assessment of Mr. Hardings credibility undermines the
    result of the trial.  It is impossible to say what his conclusion about Mr.
    Hardings credibility would have been had he not considered the prior consistent
    statements for their truth and as confirmation, in effect, of Mr. Hardings
    in-court testimony.  Nor is it possible to say that the result of the trial
    would have been the same if the trial judge had come to a different conclusion
    about the credibility, and therefore the reliability and weight, of Mr. Hardings
    evidence.  That evidence was properly considered as it related to all of the
    other evidence.  It is not possible on appellate review to separate or ignore
    it and consider just the other evidence, and to conclude that there would
    be no miscarriage of justice if the conviction were upheld.

[106]

I would therefore allow the appeal, set aside the conviction, and order
    a new trial.

The Honourable Madam Justice Levine


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

R. v. TGN,

2007 BCCA 2

Date: 20070102

Dockets: CA034011,
    CA034023, CA034025

Between:

Regina

Respondent

And

Docket: CA034011

T.G.N.

Docket: CA034023

D.T.A.

Docket: CA034025

M.G.Q.

Appellants

(
Youth Criminal
    Justice Act
)

Before:

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Low

A. S. Roth

Counsel for the Appellant

TGN

S. J.
Narbonne

Counsel for the Appellant

DTA

S. M. Merrick

Counsel for the Appellant

MGQ

M.
Brundrett

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British
          Columbia

1 December 2006

Place and Date of Judgment:

Vancouver, British
          Columbia

2 January 2007

Written Reasons by
:

The Honourable Mr. Justice Mackenzie

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Low

Reasons for Judgment of the Honourable
    Mr. Justice Mackenzie:

[1]

This
    appeal is from conviction for attempted robbery on the ground that the trial
    judge erred in admitting under the principled exception to the hearsay rule
    a prior statement of the witness, Troy Mason, implicating the three appellants
    in the offence.  The Crown accepts that the convictions must be set aside
    if the trial judge erred in admitting the statement for the truth of its contents.

[2]

The
    Crown alleged that the three young appellants with a fourth individual attempted
    to rob an elderly man, Armand
Leblond
, at his residence
    in Terrace B.C. on 5 March 2004.  The fourth individual was acquitted
    on a no evidence motion at trial.  The three appellants were convicted
    of attempted robbery and acquitted on the break and enter charge.  Mr.
    Mason was not charged.

[3]

Mr.
Leblond
testified that two young men entered his residence
    when he answered a knock on his door.  One said:  This is a hold-up.
    Mr.
Leblond
backed up to the kitchen table, picked
    up a chair and swung it at the head of the first person to enter the premises.
    That person went backwards against the other one and they both ran out.
    Mr.
Leblond
shut and locked the door with the assistance
    of another occupant, Mr.
Doell
.  Mr.
Doell
looked out a window and saw four individuals leaving the house and going down
    the driveway.  He saw a fifth person waiting on the street at the end
    of the driveway.

[4]

The
    police were called.  They set up a perimeter and followed tracks in recent
    snow from the edge of the perimeter to a residence on Pine Street.  The
    house was put under surveillance.  The snow was too disturbed to trace
    any tracks from the perimeter to the
Leblond
residence.
    Eventually the police entered the house on Pine Street and arrested five individuals
    including the three appellants and Mason.  They were taken to the Terrace
    RCMP Detachment shortly before midnight.  Mason was separated from the
    others.

[5]

At
    about 7 am Mason was taken by Const. Craig to an interview room where he gave
    a videotaped statement.  In it he stated: that he went to Mr.
Leblonds
residence with the three appellants and a fifth
    individual; that the others intended to rob Mr.
Leblond
who one of the group believed to be a bootlegger; that he held back and D.T.A.
    and M.G.Q. were the two who entered the residence; and that afterward, they
    told him that D.T.A. had been hit over the head by the old guy.

[6]

Neither
    Mr.
Leblond
nor Mr.
Doell
was able to identify any of the individuals involved.  A neighbour who
    also saw five individuals in the vicinity also could not identify them.
The Crowns case hinged on Masons evidence of identification.

[7]

At
    trial, when Mason was called by the Crown he recanted the statement.
    The Crown was given leave to cross-examine but without effect. Crown counsel
    then applied to have the statement admitted as substantive evidence, relying
    on the principled exception to the hearsay rule for prior inconsistent statements
    of a witness as explained in
R. v. B. (K.G.)
, [1993] 1 S.C.R.
    740.

[8]

The
    trial judge conducted a
voir
dire
to determine admissibility.  Mason testified that he was drunk and had
    no recollection of the events of the evening.  He recalled making a statement
    to the police but he said that everything in it was false.  He said he
    gave the statement because he was afraid that the police would keep him in
    custody if he did not tell them what they wanted to hear.  The trial
    judge described Mason as one of the most unsatisfactory witnesses [he] had
    the unfortunate duty to have in [his] court and he was satisfied that, almost
    without exception, everything [Mason] said in [his] courtroom was a lie.
    However, he concluded that Masons statement met the
B. (K.G.)
requirements of necessity and reliability and admitted it for the truth of
    its contents.

[9]

The
    three appellants testified and denied any attempt to rob Mr.
Leblond
.  The trial judge found their evidence was not
    credible and convicted them of attempted robbery.

[10]

The
    admissibility of Masons statement is the sole issue on this appeal.
    Necessity is conceded and the issue turns on reliability.  The trial
    judge accepted that the test was whether, on the balance of probabilities,
    the statement had sufficient indicia of reliability to be admissible as if
    it had been given by Mason in evidence under oath.

[11]

The
    statement was taken by Const. Craig several hours after Mason had been arrested.
    The trial judge accepted that the police were not able to interview Mason
    earlier because they were otherwise engaged on a busy night.  Constable
    Craig had established a rapport with Mason as a result of earlier contacts
    and the trial judge was satisfied that Masons statement was voluntary and
    not made as a result of threats or inducements.  All five individuals
    had been held separately from the time of their arrest until they were released
    and Mason had no contact with any of them between the time of arrest and his
    statement.  The statement was videotaped.  The statement was accepted
    to have been made voluntarily, in the sense that it was not obtained as a
    result of threats or inducements.

[12]

In
    his ruling that the statement was admissible the trial judge emphasized its
    reference to one of the appellants being hit over the head with a chair by
    the old guy.  He concluded that the statement had the necessary reliability
    because the chair incident was sufficiently distinct that Mason could not
    have made it up; a participant in the attempted robbery must have told Mason
    about it.  The appellants contend that it was a reversible error for
    the trial judge to use the extrinsic evidence of the chair incident on the
voir
dire
to confirm the statements reliability
    for the purpose of determining its admissibility.  In this Court, they
    relied on
R. v. Starr
, [2000] 2 S.C.R. 144.  After the
    hearing of the appeal, the Supreme Court of Canada delivered reasons in
R.
    v.
Khelawon
, 2006 SCC 57 directing (at
para
.
    93) that
Starr
should no longer be followed as limiting the
    consideration of relevant extrinsic evidence on the question of admissibility.
Khelawon
is conclusive against
    the appellants on the issue of any error in principle on the trial judges
    consideration of the
Leblond
and
Doell
evidence concerning the chair incident in determining
    threshold admissibility on the
voir
dire
.
    There remains an issue as to whether the trial judge misapprehended its significance
    on the issue of threshold reliability.

[13]

Khelawon
reaffirmed the general principle
    that hearsay evidence is presumptively inadmissible because of the difficulty
    of testing the reliability of the
declarants
assertion.
    It is only admissible under the principled exception to the hearsay rule if
    it can satisfy the twin tests of necessity and reliability.  Under our
    adversary system cross-examination is the primary means of testing reliability
    but it is not an absolute requirement if the ultimate objective of a fair
    trial can be met by other means.  The right to make a full answer and
    defence must be balanced with the interest of society in finding the truth.
    Threshold reliability turns on whether there are adequate substitutes for
    the traditional evidentiary safeguards

[14]

The
    question that confronts us is whether the trial judge erred in concluding
    that the statement had sufficient circumstantial reliability to overcome the
    presumption against hearsay admissibility, keeping in mind that the issue
    of threshold reliability is distinct from the question of ultimate reliability
    to be determined by the
trier
of fact.  The
    issues are distinct even where, as here, the trial is before a judge alone.

[15]

The
    trial judge considered that the facts had parallels with the facts of
B. (K.G.)
.
    In that case four individuals were present when the victim was fatally stabbed
    by one of them, and three gave statements that it was the fourth person, the
    accused, who had the knife.  Each of the three recanted their statements
    at trial.  Lamer C.J., for the majority of the Supreme Court, decided
    that admissibility would depend on indicia of reliability that would substitute
    for the lack of an oath or affirmation in court, lack of contemporaneous cross-examination,
    and the inability of the
trier
of fact to observe
    the demeanour of the witness at the time the prior statement was made.
    Here the statement was videotaped and the trial judge was able to view Masons
    demeanour.  He noted that all three of the
B. (K.G.)
witnesses
    were suspects and had motives to misrepresent the facts.  The statements
    were not made on oath or affirmation.

[16]

In
Khelawon
,
Charron
J. viewed the availability of the
declarants
as
    the most important contextual factor supporting threshold reliability in
B.
    (K.G.)
.  The question is whether the
trier
of fact will be in a position to rationally evaluate the evidence.  [
para
76]  The three witnesses
    in
B. (K.G.)
recanted their prior statements in testimony the
    trial judge rejected as not credible.  The Supreme Court concluded that
    notwithstanding that the witnesses were lying, it was open to the trial judge
    to compare their testimony with their prior statements for the purpose of
    determining whether the prior statements were sufficiently reliable to be
    admissible.  The Court repeated this passage from the opinion of Lamer
    C.J. in
B. (K.G.)
(at
para
79):

In
    considering what would constitute an adequate substitute in respect of the
    prior inconsistent statement, he concluded (at pp. 795-96) that there will
    be "sufficient circumstantial guarantees of reliability" to render
    such statements substantively admissible where

(
i
)

the
          statement is made under oath or solemn affirmation following a warning
          as to the existence of sanctions and the significance of the oath or
          affirmation, (ii) the statement is videotaped in its entirety, and (iii)
the opposing party ... has a full opportunity to cross-examine the
          witness respecting the statement ...
Alternatively, other circumstantial
          guarantees of reliability may suffice to render such statements substantively
          admissible, provided that the judge is satisfied that the circumstances
          provide adequate assurances of reliability in place of those which the
          hearsay rule traditionally requires.[emphasis added].

[17]

In
    this case, any full opportunity to cross-examine was completely frustrated.
     There was no meaningful comparison between different accounts because
    Mason denied any knowledge of the facts, apart from a grudging concession
    that he had given a statement to the police, which he asserted was completely
    false.  In these circumstances, the presumption of inadmissibility can
    only be overcome if the circumstances demonstrate a degree of reliability
    that it can be admitted into evidence in the search for truth without undermining
    the integrity of the trial process that normally depends on the right of an
    accused to test the evidence against him through cross-examination.

[18]

The
    trial judge concluded that the reliability of the statement was confirmed
    by the references to the chair incident.  There was no error in principle
    in comparing the statement with the evidence of Mr.
Leblond
and Mr.
Doell
, but I think he misapprehended the
    importance of the comparison.  It does not confirm features of Masons
    statement that were essential to a conviction.  It confirms that Mason
    was probably one of a group of five individuals in the vicinity of the attempted
    robbery but it does nothing to confirm the identity of the two individuals
    who entered the
Leblond
residence.  That was
    critical to at least one of the three appellants who did not enter the
Leblond
residence.  Moreover, the statement is entirely
    self-serving in its assertion that there was a common intention of the others
    to rob Mr.
Leblond
, but he was not a party to that
    agreement and counselled against it.

[19]

Apart
    from the limited significance of the comparison, the trial judge had only
    the videotape of the statement.  He was able to assess Masons demeanour
    during the interview, but there was no contemporaneous cross-examination or
    equivalent testing of Masons account. Masons intransigent recantation insulated
    the statement from any meaningful test of its reliability at trial, apart
    from the demonstration of Masons total unreliability as a witness.

[20]

Mason
    was under arrest when he gave the statement and, as the interviewing officer
    pointed out to him, he was 18 and potentially facing adult consequences;
    the stakes for him were higher than for the others.  Mason was released
    from custody shortly after the statement was taken and he was never charged.
    He had a strong motive to misrepresent the facts to exculpate
himself
by incriminating the others.  His interest in
    misrepresenting facts to exculpate
himself
was obviously
    strong.

[21]

In
B. (K.G.)
there were three witnesses and three prior statements
    which provided a basis for comparison.  The statements were taken independently
    from the three witnesses in circumstances that underlined the duty to tell
    the truth, and they were consistent on the essential facts.  The witnesses
    were potential suspects but they were not under arrest and gave statements
    voluntarily in the presence of their parents and in one case a lawyer.  Here
    there is only one
declarant
who had no credibility
    as a witness and whose prior statement lacks confirmation on facts essential
    to a conviction.  To admit the statement under the principled exception
    the trial judge had to overcome the presumption against admissibility in circumstances
    where he must attribute credibility to a
declarant
totally lacking in credibility as a witness on an assessment of demeanour
    in the absence of contemporaneous cross-examination and worthless evidence
    at trial.  In my view, he misapprehended the extent of confirmation to
    be derived from the chair incident and in that respect fell into error.  Overall
    I do not think that the trial judge was in a position to rationally evaluate
    the evidence in terms of its reliability on facts essential to a conviction
    and therefore the presumption against admissibility could not be overcome.
    In my view, the statement could not be relied upon in the search for truth
    and the integrity of the trial process was compromised by its admission.  I
    would allow the appeals accordingly.

[22]

As the Crowns case
    depended on the admissibility of the statement, no point would be served by
    directing a new trial.  I would set aside the convictions and direct
    that acquittals be entered.

The Honourable Mr. Justice Mackenzie

I Agree:

The
Honourable

Mr. Justice Donald

I Agree:

The
Honourable

Mr.
    Justice Low