On June 1 Justice Stromberg-Stein rendered a short decision on the admissibility of a statement by one of the defendant's in the high-profile kidnapping case of R. v. Poon and Wong. When arrested, Mr. Poon said to the police, "can you protect my family? They know where I live." At trial, the defence of duress was asserted. That is, Mr. Poon testified that he was forced by threats of serious violence to participate in the kidnapping. In support of this position, the defence wished to elicit from Mr. Poon his earlier statement to police. But Justice Stromberg-Stein refused to allow Mr. Poon to testify about the statement. She noted that the defence is generally not permitted to lead the defendant's out of court statements in evidence, and that in addition prior consistent statements by a witness are usually inadmissible. The statements at issue in Poon and Wong fell into both categories and were thus excluded from evidence. Mr. Poon was convicted of the charge in July.
Poon and Wong is an interesting decision because it illustrates the complex interplay between two rules of evidence. To begin with there is the hearsay rule. Hearsay statements are statements made out of court, which one party seeks to use for the truth of their contents. They are usually inadmissible because of reliability concerns, especially where the person who made the statement is not subject to cross-examination. Yet there are a number of exceptions to the hearsay rule. One applies to out of court statements by the accused if, and only if, the statements are led in evidence by the prosecution. This exception is based on the notion that the accused cannot be heard to complain about the reliability of a statement that emanated from his or her own mouth, or about the inability to cross-examine himself or herself. Because the exception to the hearsay rule applies only for the Crown, the accused usually cannot lead his own out of court statement in evidence. It should be added, however, that where the Crown leads an out of court statement by the accused, the statement is admissible for all purposes and can be used by the accused as part of the defence. We thus have a situation, at first blush nonsensical but on further reflection capable of finding support in the policies underlying the hearsay rule, where the exact same statement is admissible if led by the Crown but is not admissible at the behest of the defence.
The other rule that comes into play in Poon and Wong is the rule against prior inconsistent statements. This rule prevents a party from leading evidence as to an earlier out of court statement that is consistent with the testimony of its witness. The prohibition is based on a number of concerns, including the fact that such prior statements often add little to the trial, thus wasting time, and can be easily manufactured. Again, there are exceptions to the rule against prior consistent statements, most especially where the other party alleges that the witness' testimony was fabricated after a particular point in time, and the prior statement is made before that time. But the "recent fabrication" exception did not apply to Mr. Poon's statement and thus the basic rule of inadmissibility applied.
The rules of evidence are stacked against defence counsel who wishes to lead a prior statement by a testifying defendant. But some avenues of admissibility can be found in various exceptions to the hearsay and/or prior consistent statement rules. The recent fabrication exception has already been mentioned. There is also an exception for statements made in stolen property cases, called the doctrine of recent possession. Further exceptions include the statement of intent or mind exception and the so-called principled exceptions to the hearsay rule. Also of interest is an emerging area of case law, evident mostly in Ontario, that allows an accused to lead evidence of consciousness of innocence. In some circumstances a statement to police might fall within this category of admissibility.
If neither these nor any other exceptions apply, is an injustice being done? Should the prohibition on prior consistent statements by an accused by removed, at least where the accused testifies and thus the Crown is not put at a disadvantage by reason of not being able to cross-examine on the statement? Perhaps. But the flip side to admitting all such statements at the suit of the accused may be that the failure to make a statement on arrest also becomes admissible. At the moment, the failure to make a statement is not admissible against an accused, the result of Canada's robust right to silence. But in the U.K. the right to silence has been curtailed and the failure to talk to police can in some circumstances be led by the prosecution to help prove guilt. This is not to say that modifying the hearsay and prior consistent statement rules to fit the Poon and Wong type of situtation necessarily requires modification of the right to silence. But the risk of such happening would no doubt be very real. And, for the accused at least, it is not a trade-off worth pursuing.
To read the Poon and Wong judgment click here.
A good starting point for defence counsel who seeks to lead evidence of a prior statement to police is R. v. Liu (2003), 172 C.C.C. (3d) 79 (Ont. S.C.J.), which unfortunately is not available on line absent a Quicklaw account. Liu must however be read alongside the 2005 decision of R. v. Monk . Monk is relied on in Poon and Wong, and it shows that the B.C. Court of Appeal is not likely to extend the scope of Liu anytime soon. To read Monk click here.
For the Canadian leading case on hearsay, R. v. Starr, click here.
For a recent B.C. case on the rule against prior consistent statements, R. v. Aksidan, which was argued and won by our very own Matthew Nathanson, and is relied upon in Poon and Wong, click here.
Finally, for the latest word on the right to silence from the Supreme Court of Canada, in R. v. Turcotte, click here.
