R. v. U. (F.J.)

R. v. U. (F.J.)
Collection
Supreme Court Judgments
Date
1995-10-19
Report
[1995] 3 SCR 764
Case number
24159
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 24159
Decision Content
R. v. U. (F.J.), [1995] 3 S.C.R. 764
F.J.U. Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. U. (F.J.)
File No.: 24159.
1995: April 26; 1995: October 19.
Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Evidence ‑‑ Prior inconsistent statements ‑‑ Admissibility ‑‑ Accused and complainant making separate statements containing similarities to police ‑‑ Accused and complainant recanting at trial ‑‑ Whether trial judge erred in inviting jury to compare complainant's prior inconsistent statement with accused's statement to police in determining if prosecution had established guilt.
The accused was arrested following a report that he had engaged in sexual activities with his 13-year-old daughter. In the course of being interviewed by the investigating officer, the daughter stated that her father had been having sexual intercourse with her on a regular basis since December 1987 and described various sexual activities. The last time her father had had sex with her was the previous night. The officer then questioned the accused. He admitted that he had had sex with his daughter many times, described the same sexual activities she had described, and stated that the most recent intercourse had been the previous night. The accused was charged with a number of sexual offences. His statement to the police was admitted as Crown evidence through the testimony of two officers. The Crown also called the complainant daughter as a witness. Although she admitted that she had made the allegations against the accused in her statement, the complainant asserted that the allegations of sexual assault were untrue. The accused also testified at trial. While he admitted having made an inculpatory statement to the police, he denied the truth of much of the statement's contents, including his admissions of having engaged in sexual activity with his daughter. The accused was convicted of one count of incest and two counts of sexual touching. The Court of Appeal, in a majority judgment, upheld the conviction. At issue in this appeal is whether the trial judge erred in inviting the jury to compare the complainant's unadopted prior inconsistent statement with the accused's unadopted statement to the police in determining if the prosecution had established guilt.
Held: The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The orthodox rule that prior inconsistent statements are not admissible for the truth of their contents is a particular instance of the rule against admitting hearsay. In recent years, however, this Court's decisions have established that the traditional inflexible approach to the hearsay rule and its exceptions is to be rejected in favour of an approach which allows evidence to be admitted and used substantively when it is shown to be reliable and necessary. Both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case. When the reliability and necessity criteria are met, prior inconsistent statements of witnesses other than the accused are substantively admissible, provided that they would have been admissible as the witness's sole testimony. The gravest danger associated with hearsay evidence, namely the absence of contemporaneous cross‑examination, simply does not exist in the case of prior inconsistent statements because the witness is available for cross‑examination. The other two dangers, absence of an oath and absence of demeanour evidence, can be met through appropriate police procedures and occasionally appropriate substitutes can be found. Finally, the prior statement is necessary evidence when a witness recants.
A threshold of reliability can sometimes be established, in cases where the witness is available for cross‑examination, by a striking similarity between two statements. In order to eliminate, or at least substantially reduce, the likelihood of a similarity between two statements arising through coincidence, the similar factual assertion must be so striking that it is highly unlikely two people would have independently fabricated it. In some cases, the necessary degree of similarity will result from the unique nature of particular factual assertions in both statements. In other situations it may be that the cumulative combination of similar points renders the overall similarity between the two statements sufficiently distinctive to reject coincidence as a likely explanation.
After the calling party invokes s. 9 of the Canada Evidence Act , and fulfils its requirements in the voir dire held under that section, the party must then state its objectives in tendering the statement. If the statement will only be used to impeach the witness, the inquiry ends at this point. If, however, the calling party wishes to make substantive use of the statement, the voir dire must continue so that the trial judge can assess whether a threshold of reliability has been met. The necessity criterion need not be assessed as it is met whenever a witness recants. If the reliability criterion is to be met, in rare cases, by the striking similarity between the statement being assessed and another statement which is already clearly substantively admissible, the trial judge must be satisfied on a balance of probabilities that there are striking similarities between the two statements, and that there was neither reason nor opportunity for the declarants to collude, nor improper influence by interrogators or other third parties. The trial judge must also ascertain that the prior statement relates evidence which would be admissible as the witness's sole testimony. If the trial judge determines that the statement meets the threshold reliability criterion and is thus substantively admissible, he or she must direct the trier of fact to follow a two‑step process in evaluating the evidence. The trier of fact must first be certain that the statement which is being used as a reliability referent was made, without taking into account the prior inconsistent statement under consideration. Once the trier of fact is satisfied that the other statement was made, the trier of fact may compare the similarities between the two statements and, if they are sufficiently striking that it is unlikely that two people would have independently fabricated them, the trier of fact may draw conclusions from that comparison about the truth of the statements.
In this case, the recanting witness was cross‑examined in detail about her reasons for changing her story at a preliminary inquiry, on a voir dire under s. 9 of the Canada Evidence Act , and before the jury. She provided a comprehensive explanation for changing her story which could be assessed by both the trial judge and the jury and therefore eliminates the most important danger of hearsay evidence. The statements made by the accused and by his daughter contained both a significant number of similarities in detail and the strikingly similar assertion that the most recent sexual contact between the two had been the previous evening. As a voir dire was also held with regard to the accused's statement, there was sufficient evidence presented to found a conclusion that the accused and his daughter had neither a reason nor an opportunity to collude, and that the accused was not improperly influenced by the police officers who took his statement. The complainant's statement was therefore substantively admissible at trial. The absence of correct jury instructions does not alter the outcome of this appeal as the statements are so strikingly similar that the jury would inevitably have been satisfied as to their reliability. The objection that the jury instructions left open the possibility that the daughter's statement would be used for the truth of its contents does not arise given the conclusion that the statement was substantively admissible.
Per L'Heureux‑Dubé J.: The complainant's prior inconsistent statement was admissible for the purpose of comparison with the accused's confession, as found by Lamer C.J. The similarities between the two statements need not be "striking", however, before the jury can be permitted to use the prior inconsistent statement for such a purpose. So long as there are significant similarities between the two statements, as there clearly were in this case, a witness's prior inconsistent statement will be admissible for purposes of comparison with an accused's unadopted confession in order to assess the truth of that confession. As found by Lamer C.J., the trial judge adequately instructed the jury in this case concerning the use it could make of the complainant's prior inconsistent statement.
Cases Cited
By Lamer C.J.
Considered: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1 S.C.R. 740; referred to: Mawaz Khan v. R., [1967] 1 All E.R. 80; McFall v. The Queen, [1980] 1 S.C.R. 321; Deacon v. The King, [1947] S.C.R. 531; R. v. Evans, [1993] 3 S.C.R. 653; Wright v. Beckett (1833), 1 M. & Rob. 414, 174 E.R. 143; Attorney General v. Hitchcock (1847), 16 L.J. Ex. 259; McInroy v. The Queen, [1979] 1 S.C.R. 588.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 9 [am. 1994, c. 44, s. 35].
Criminal Code, R.S.C., 1985, c. C‑46, ss. 151 [rep. & sub. c. 19 (3rd Supp.), s. 1 ], 155 [am. c. 27 (1st Supp.), s. 21 ], 159 [rep. & sub. c. 19 (3rd Supp.), s. 5 ], 686(1)(b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].
Authors Cited
Canada. Law Reform Commission. Report on Evidence. Ottawa: The Commission, 1975.
McCormick on Evidence, vol. 2, 4th ed. By John William Strong, General Editor. St. Paul, Minn.: West Publishing Co., 1992.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 5. Revised by James H. Chadbourn. Boston: Little, Brown, 1974.
APPEAL from a judgment of the Ontario Court of Appeal (1994), 90 C.C.C. (3d) 541, 72 O.A.C. 117, 32 C.R. (4th) 378, dismissing the accused's appeal from his conviction of sexual offences. Appeal dismissed.
Bruce Durno, for the appellant.
Renee M. Pomerance, for the respondent.
The judgment of Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
Lamer C.J. --
I. Introduction
1 This appeal, which comes to this Court as of right based on a dissent in the Ontario Court of Appeal, raises a single issue: when is a witness's prior inconsistent statement substantively admissible? To resolve this issue, this Court must once again consider the hearsay rationale for the orthodox rule regarding prior inconsistent statements and what modifications to that rule are appropriate in light of our reform of the hearsay rule in R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, and R. v. B. (K.G.), [1993] 1 S.C.R. 740.
II. Statement of Facts
2 The appellant, F.J.U., emigrated from Peru to Canada in 1975, shortly after the birth of his daughter J.U. His daughter remained in Peru with her grandmother C.O.-V., the appellant's mother, until December 1987, when they both joined the appellant in Canada. The three shared a residence in Mississauga along with the appellant's brother until the spring of 1988, when C.O.-V. returned to Peru and the appellant and his daughter moved to Brampton. In September 1988, C.O.-V. returned to Canada, and from September 1988 to October 11, 1988 (the date of the appellant’s arrest) she resided with the appellant and J.U. in Toronto.
3 On October 11, 1988, C.O.-V. reported to the police that the appellant had engaged in sexual activities with his daughter. The police went to the U.'s residence, in the company of a Spanish interpreter, and spoke to J.U. The appellant was arrested and taken to the police station. J.U. and her grandmother were taken to the police station in a separate car.
4 After arriving at the police station, J.U. was interviewed by Sergeant Hector Colantoni, the investigating officer. Her grandmother was present during the interview, as was Constable Tom Job, a Spanish-speaking officer who acted as an interpreter when J.U. had difficulty understanding Sergeant Colantoni's questions or responding to them in English. In the course of the interview, J.U. stated that her father had been having sexual intercourse with her on a regular basis since December 1987 when she came to Canada. She told the police that these incidents occurred more frequently after her grandmother had returned to Peru in April 1988, and that between this date and her grandmother’s return to Canada in September 1988 her father had sex with her “almost every day”. She declared that the sexual activity generally took place late at night in her bedroom. She also indicated that on a few occasions the appellant had had her perform oral sex on him, and that on a few other occasions he had performed oral sex on her. In addition, she stated, the appellant "would have sex in my bum many times". The last time her father had had sex with her, she declared, was the previous night (October 10, 1988). J.U. also stated that the appellant had physically assaulted her on two separate occasions, the first time striking her with a length of wire, and the second time punching her in the face. At the appellant's trial, Sergeant Colantoni testified that he had attempted to tape his interview with J.U., but that the tape recorder had malfunctioned and nothing had been recorded. He stated that he had subsequently prepared a summary of J.U.'s anticipated evidence, based in part on notes he had made during the interview and in part on his memory.
5 After interviewing J.U., Sergeant Colantoni proceeded to question the appellant, accompanied by Constable Tony McKenzie. Sergeant Colantoni testified that he took notes and that the interview was not taped. According to Sergeant Colantoni's testimony, the appellant admitted that he had had sex with his daughter “many times”, and also stated that she had performed oral sex on him “two or three times when we lived in Mississauga, but she didn't like it”. He also declared that he had performed oral sex on her “once or twice”. Sergeant Colantoni also testified that the appellant had further admitted to having had anal sex with J.U. “three or four times”, stating that this had taken place most recently “last night” (i.e., October 10, 1988). The appellant also described two incidents in which he had physically assaulted his daughter, stating that on one occasion he had struck her with a wire-reinforced belt, and that on the second occasion he had slapped her in the face. The appellant refused, however, to make a written statement, and indicated that he would not sign anything.
6 The appellant was charged with three counts of sexual interference (s. 151 , of the Criminal Code, R.S.C., 1985, c. C-46 ), one count of incest (s. 155 ) and one count of anal intercourse (s. 159 ). The terms of the indictment were particularized as follows:
Count 1: Touching the mouth of J.U. with his penis for a sexual purpose, between September 1 and October 10, 1988, in Toronto.
Count 2: Anal intercourse with J.U. on or about October 10, 1988, in Toronto.
Count 3: Incest with J.U. between September 1 and October 10, 1988, in Toronto.
Count 4: Touching the mouth of J.U. with his penis for a sexual purpose, between September 1, 1987 and August 31, 1988, in Toronto and Mississauga.
Count 5: Touching J.U.'s vagina with his mouth for a sexual purpose, between September 1, 1987 and August 31, 1988, in Toronto and Mississauga.
7 The appellant was tried in the Ontario Court of Justice (General Division) before a jury, with Allen J. presiding. His statement to the police, which Allen J. ruled had been made voluntarily and obtained in accordance with the Canadian Charter of Rights and Freedoms , was admitted as Crown evidence through the testimony of Sergeant Colantoni and Constable McKenzie. The Crown also called J.U. as a witness. Although she admitted that she had made the allegations against the appellant contained in the “will-say” statement that had been drafted by Sergeant Colantoni following his interview with her, J.U. asserted that the allegations of sexual assault were untrue. She maintained, however, that the allegations of non-sexual assault she had made in her statement were true. According to J.U.'s trial testimony, she had lied to the police at the behest of her grandmother, because she was concerned that her father was planning to send her back to Peru to live with her mother. She stated that her grandmother had threatened to commit suicide if J.U. were taken away from her, and had given J.U. instructions about details of the false allegations of sexual misconduct she was to make.
8 The appellant also testified at trial. While he admitted having made an inculpatory statement to the police, he denied the truth of much of the statement's contents. He testified that the conduct of the police during the interview had brought back memories of his imprisonment and torture by the Peruvian police, and that his resulting fear had led him to make a false confession. He believed that as long as he refused to sign anything his confession could not be used against him.
9 When cross-examined on his statement, the appellant denied having made several of the utterances attributed to him by Sergeant Colantoni and Constable McKenzie. In particular, he denied having told the officers that he had had anal intercourse with his daughter, or telling them that his sexual activity with J.U. was intended to "protect" her from having sex with other people. While he agreed that the remainder of the officers' testimony accurately reflected what he had said to them, he testified that none of his admissions of having engaged in sexual activity with his daughter were true. He confirmed, however, that the portion of his statement describing the two physical assaults on his daughter was true.
10 After deliberating for over nine hours, the jury returned a verdict of not guilty on counts 1 and 2 and guilty on counts 3, 4 and 5. The appellant was sentenced to a term of incarceration of two years less one day, and to a period of probation. The appellant's appeal of his conviction to the Ontario Court of Appeal was dismissed, Houlden J.A. dissenting: (1994), 90 C.C.C. (3d) 541, 72 O.A.C. 117, 32 C.R. (4th) 378.
III. Judgments Below
Ontario Court of Justice (General Division)
11 In the course of charging the jury, Allen J. commenced his discussion of the evidence by making the following observations:
The evidence was relatively brief. It is for you to decide what that evidence establishes, proves to your satisfaction. You are faced with a situation where both [the appellant] and [J.U.] have made statements to the police or utterances to the police. Each of them in turn has for the most part acknowledged having made those utterances which the police officers have recited to you and which they have attributed to [the appellant] or to [J.U.] as the case may be, but now both [the appellant] and [J.U.] say that he or she, as the case may be, was not truthful when speaking with the police officers at the times and places indicated by the police officers.
Allen J. addressed the appellant's inculpatory statement as follows:
What [the appellant] told the police may in your discretion be used by you to establish his guilt on these charges or any one or more of them as you determine. He did testify before you that he did not tell the truth to the police officers when they interviewed him, and he has explained to you or told you his reasons for that absence of truth at that time. He said that that was based on his unfortunate experiences with the police authorities in Peru some several years ago. It is for you to weigh the testimony of the police officers as to [the appellant's] utterances and conduct when interviewed by them. Of course, you must also weigh [the appellant's] testimony before you as to those matters.
I have said it is for you to decide what the evidence was, but as I have understood [the appellant's] evidence, he acknowledges that he made most of the utterances attributed to him by the police, and he does deny having made some of the utterances which the police have recorded and have stated in their testimony to you. If you find that you are satisfied beyond a reasonable doubt that [the appellant] made an utterance to the police officers as they have testified, and if you are satisfied that that utterance was and is true, you will apply that utterance in your deliberations as to his guilt or innocence. If you find that the utterance he made to the police was not true, or if you have a reasonable doubt as to it being true, you will not apply that particular utterance or alleged utterance to your deliberations.
Allen J. then addressed the issue of the appellant's and J.U.'s credibility:
Certainly the contradiction between [the appellant's] utterances to the police and his testimony before you can be applied by you in assessing his credibility as a witness before you. Similarly, you will consider the contradiction between [J.U.'s] utterances to the police and her testimony before you as you assess her credibility as a witness.
Allen J.'s subsequent instruction, advising a comparison between the two statements, led to the division in the Court of Appeal:
You might wish to review [J.U.'s] utterances to the police, those which she acknowledged she had made, and those which you find [the appellant] made to the police. You may find some similarity in details which may assist you in your deliberations. One that comes to my mind as I was reviewing my notes was with reference to the time of the last sexual or alleged sexual activity between the two of them. Each, on the basis of the police testimony, said that that occurred the night before the police interview with them. However, all of that sort of thing is in your domain, and it will be for you to review all of the evidence and look at it very carefully with the benefit of the twelve minds and memories being applied to it.
12 After Allen J. had completed his charge, counsel for the appellant raised several objections, including an objection to the instruction to look for similarities between the complainant's and appellant's unadopted statements. The trial judge, however, chose not to recall the jury. After deliberating for several hours, the jury made the following request:
We would like to see a copy of [the appellant's] statement to police. We would also like to see [J.U.'s] statement to police. What parts of the police statement did [the appellant] deny he said?
Allen J. discussed the matter with counsel and decided to have the court reporter read back the relevant portions of the testimony of the two officers, J.U. and the appellant. Defence counsel observed that his concern that the jury would compare and contrast the statements in an impermissible fashion was coming to fruition.
Court of Appeal for Ontario (1994), 90 C.C.C. (3d) 541
(1) Osborne J.A. (Carthy J.A. concurring)
13 Osborne J.A. reviewed the trial judge's instructions on the use that could be made of the appellant's and J.U.'s prior statements, the objection of defence counsel and the question from the jury. He held that it was reasonable to conclude that the jury did compare the accused's admission and his daughter's prior inconsistent statement but continued (at p. 555):
I think that it is also reasonable to assume that the jury followed the trial judge's clear direction that the complainant's prior inconsistent statement could not be used as proof of the truth of the statement's contents. The critical question is whether, in the circumstances, the trial judge's instruction that the jury could compare the appellant's confession with the complainant's prior inconsistent statement resulted in an impermissible use being made of the complainant's statement.
Citing the decision of the Supreme Court of Canada in B. (K.G.), supra, Osborne J.A. observed that "the rationale for the exclusion of a prior inconsistent statement as evidence of the truth of its contents is the rule against the admission of hearsay evidence" (p. 556). He noted, however, that prior inconsistent statements can be admitted both on the issue of the witness's credibility and when the fact that the statement is made is otherwise relevant. Osborne J.A. referred to the English decision in Mawaz Khan v. R., [1967] 1 All E.R. 80 (P.C.), as an example of a case where the similarity of out-of-court statements was used to draw non-hearsay inferences about something other than credibility. He distinguished the case of McFall v. The Queen, [1980] 1 S.C.R. 321, by noting that in that case the jury had been invited to use the statements of co-accused for their truth, not for the fact that they were made. Continuing, Osborne J.A. declared (at pp. 558-59):
The central question is did the fact that the complainant made her statement (which she admitted in her trial evidence she did make) constitute evidence which is capable of enhancing the likelihood that the appellant's confession was true, notwithstanding his denial of its truth at trial.
. . . Put another way, the fact that the complainant said what she did in her statement adds value to the appellant's confession to the police. The comparison which the jury was invited to make would test the coincidence which is evident from a consideration of the substance of both statements. This analysis does not depend on the truth of the complainant's statement but rather on the fact that she made it.
Osborne J.A. also acknowledged that the same thought process could support a finding that the complainant's statement was true, but held that this was a closed avenue of analysis under the hearsay rule.
14 Having earlier rejected the appellant's claim that his statement had been improperly admitted, Osborne J.A. dismissed the appeal.
(2) Houlden J.A. (dissenting)
15 Houlden J.A. dissented on the question of whether the jury should have been invited to compare the complainant's and appellant's unadopted statements for the purpose of assisting them in determining whether the appellant's statement was true. In his view, the most striking similarity between the two statements was the similar assertion that the most recent sexual activity between the appellant and J.U. had occurred on October 10. Observing that the complainant's unadopted statement would be admissible solely for assessing her credibility if the appellant had not also made a statement, Houlden J.A. asked (at p. 544): "Does the fact that the appellant gave a statement to the police and that that statement contains some details similar to those contained in the complainant's statement lead to a different result?" In his view, it did not. He held that the use of the statement sanctioned by the majority in effect means that the truth of the statement is being assessed. In his view, the majority opinion would constitute a shift in the law (at p. 544):
It is not at all uncommon, in my experience, for a prior statement of a witness, which is denied by the witness at the trial, to relate events that are similar to those contained in a confession by the accused. If the trial judge can charge a jury that they can use the assertions in the prior inconsistent statement that are similar to those contained in the confession, to prove the truth of what is contained in the confession, this constitutes a dramatic change in the law, and I know of no authority for it.
In Houlden J.A.'s view, juries would not be able to resist using the witness's unadopted statement for the truth of its contents.
16 Houlden J.A. also held that s. 686(1) (b)(iii) of the Criminal Code could not be applied. He disagreed with Osborne J.A.'s view that the jury would have followed the trial judge's direction that they were not to use the complainant's statement for its truth. In his opinion (at p. 545):
Once the complainant's prior statement was used to prove the truth of what was contained in the appellant's statement, the jury were clearly using the statement to prove the truth of what was contained in the complainant's statement.
17 Houlden J.A. would have allowed the appeal, set aside the conviction and ordered a new trial.
IV. Grounds of Appeal
18 The appellant, who appeals as of right based on the dissent in the Court of Appeal, advances one ground of appeal, namely:
Did the Learned Trial Judge err in inviting the jury to compare the complainant's unadopted prior inconsistent statement with the Appellant's unadopted statement to the police in determining if the prosecution had established guilt?
V. Analysis
19 This case requires us to determine the permissible uses of a witness's prior inconsistent statement when the witness is not the accused and is available for cross-examination. This Court recently addressed the same issue, against a different factual background, in B. (K.G.), supra. In a majority opinion in that case, the orthodox rule regarding permissible uses of prior inconsistent statements was modified to bring it in line with our approach to hearsay outlined in Khan, supra, and Smith, supra. To resolve the issue here, I will review that approach, as well as the specific rationale behind my decision in B. (K.G.). That rationale is equally appropriate here, given the particular circumstances of the case.
A. The Court's Approach to Hearsay
20 Briefly stated, Khan and Smith announced this Court's commitment to ensure that the rule against the admission of hearsay as evidence would be sufficiently flexible to adapt to new situations. The hearsay rule and its rigidly formulated exceptions had become a sometimes illogical and frequently confusing series of pigeon-hole categories. Khan and Smith examined the principles underlying the hearsay rule to ensure that new developments in the evidentiary treatment of hearsay would reflect those tenets.
21 Khan, a case addressing the admissibility of a young child's statement to her mother regarding a sexual assault, enunciated new criteria to be applied generally when considering whether to admit hearsay evidence: reliability and necessity (at p. 542). These criteria reflect the concerns that hearsay is not sufficiently reliable and its reliability cannot be tested, and the position that first-hand evidence is always preferable. McLachlin J. was careful to state that neither of these criteria is characterized by absolute parameters. As the goal of our modifications of the principles governing hearsay has been to end the rigid artifice of pigeon-hole exceptions, it is important that new criteria remain flexible. In Khan, McLachlin J. said that "[n]ecessity for these purposes must be interpreted as `reasonably necessary'" (p. 546). She dealt with reliability as follows (at p. 547):
Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable.
In Smith, supra, writing for a unanimous Court, I confirmed that Khan had expressed the new broadly applicable approach to assessing the admissibility of hearsay evidence (at p. 932):
. . . Khan should not be understood as turning on its particular facts, but, instead, must be seen as a particular expression of the fundamental principles that underlie the hearsay rule and the exceptions to it. What is important, in my view, is the departure signalled by Khan from a view of hearsay characterized by a general prohibition on the reception of such evidence, subject to a limited number of defined categorical exceptions, and a movement towards an approach governed by the principles which underlie the rule and its exceptions alike.
My decision in B. (K.G.), as well as this ruling, are applications of the Khan and Smith principles to the particular branch of the hearsay rule which traditionally prevented the substantive admission of witnesses' prior inconsistent statements.
B. The Orthodox Rule Regarding Prior Inconsistent Statements
22 This Court first adopted the rule that prior inconsistent statements are only admissible to impeach credibility in Deacon v. The King, [1947] S.C.R. 531. Rand J. expressed it thus (at pp. 537-38):
That such statements generally are limited to credibility and cannot be used as evidence of the truth of the facts to which they relate, is well established: Rex v. Dibble (1908), 1 Cr. A.R. 155, Rex v. Harris (1927), 20 Cr. A.R. 144, Rex v. Francis & Barber, [1929] 3 D.L.R. 593. It is quite true that it may be difficult to dissociate the matters of such statements from the facts brought before the jury by the witness and to nullify the influence they may have on the minds of the jurors in dealing with the evidence as a whole; but anything short of this would expose a person to a fabricated account of events, too dangerous to risk. But the whole field of cross-examination, in the discretion of the court, is opened and the matters of the statement can thus be brought within the test of the testimonial response of the witness. This might be taken as a reason for leaving all the facts, including the statement, to the consideration of a jury, but the long experience of the courts is against it.
As I emphasized in B. (K.G.), the orthodox rule regarding prior inconsistent statements is a particular instance of the rule against admitting hearsay. Hearsay is inadmissible as evidence because its reliability cannot be tested.
23 In addition to impeaching credibility, under the orthodox rule a prior inconsistent statement can be used if the fact that it was made has some probative value in and of itself. This "non-hearsay" use of what would otherwise be hearsay was considered at length in R. v. Evans, [1993] 3 S.C.R. 653. In that case, statements made to witnesses that an individual had a pregnant dog and was in the chain-link fencing business were considered admissible. Whether the statements were true was irrelevant; the probative value came from the fact that the accused also had these characteristics. Sopinka J. stated (at pp. 662-63):
Quite apart from the truth of the contents, the statements have some probative value on the issue of identity. On the issue of identity, the fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations . . . .
. . . The statement has probative value without assuming the truth of the statement because the mere fact that it was made tells us something relevant about the declarant that connects him to the accused.
While Evans did not deal specifically with a prior inconsistent statement, the rule it enunciates applies to all statements which would be disallowed under the hearsay rule if tendered for the truth of their contents.
24 The Crown in this case did not assert that the daughter's statement was admissible for the truth of its contents on the basis of the B. (K.G.) modification to the orthodox rule, which I will discuss below. Accordingly, the case was argued in this Court, as in the court below, under the orthodox rule. The Crown took the position that the trial judge's instruction to the jury to compare the daughter's statement to the accused's did not require that the daughter's statement be true. The fact that the daughter made a statement with certain striking similarities to her father's admission was asserted to be probative on the issue of whether his statement was true, regardless of whether her statement was true. This reasoning was accepted by the majority of the Court of Appeal (per Osborne J.A.), which stated (at p. 559):
When the appellant's admissions to a significant degree mirror the allegations made by the complainant, as they did here, it seems to me to follow that the fact that the appellant's confession was as similar as it was to the complainant's allegations of sexual misconduct, is evidence which increases the likelihood that the appellant's confession was true. Put another way, the fact that the complainant said what she did in her statement adds value to the appellant's confession to the police. The comparison which the jury was invited to make would test the coincidence which is evident from a consideration of the substance of both statements. This analysis does not depend on the truth of the complainant's statement but rather on the fact that she made it.
I acknowledge that one could resort to the same thought process to support a finding that the complainant's statement was true. That, however, is a closed avenue of analysis as the complainant's statement is not admissible as proof of the truth of what she said in it. The hearsay rule forecloses that use of her prior inconsistent statement. [Emphasis in original.]
25 Under this reasoning, the prior inconsistent statement, which according to the hearsay rule cannot be relied upon for its truth, is used to bolster the inference that the accused's admission is true. However, with respect, it seems obvious that if the admission is true, the prior inconsistent statement must therefore also be true. In other words, it is impossible to undertake the chain of reasoning accepted by the majority in the court below without also inferring that the daughter's prior inconsistent statement is true. This was precisely the basis of Houlden J.A.'s dissenting opinion. He stated (at p. 544):
Osborne J.A., while acknowledging that the prior inconsistent statement of the complainant could not be used by the jury to prove the truth of its contents, is of the opinion that it could be used to prove the truth of what was contained in the appellant's statement. With respect, I do not agree. By using the statement in that fashion, the prior inconsistent statement of the complainant is, in effect, being used to prove the truth of what is contained in the complainant's statement.
Referring to the chain of reasoning which Osborne J.A. had suggested was permissible, he continued (at p. 544):
. . . when the members of the jury compare the two statements, I do not believe that they will be able to prevent themselves from travelling that prohibited avenue.
26 With respect to Osborne J.A., I am in agreement with Houlden J.A.'s assessment of the chain of reasoning proposed by the majority. The principle that a statement which would be hearsay if tendered for the truth of its contents is admissible for proof that it was made, provided that the fact it was made is probative, remains valid. Nonetheless, its application in this particular case is inappropriate because every scenario in which the daughter's prior inconsistent statement is probative leads necessarily to some inference about whether it is true.
27 Having reached this conclusion however, with respect, I am not prepared to agree with Houlden J.A.'s proposed resolution of the case. As I detailed in my judgment in B. (K.G.), supra, the orthodox rule against the substantive use of prior inconsistent statements has been harshly criticized as unnecessarily rigid in light of the evidentiary dangers against which the hearsay rule aims to provide protection. Before discussing how I apply the rationale underlying B. (K.G.) to this case, I will briefly restate the essential points of that judgmen