Percy Lewis Cain v. Her Majesty the Queen

(N.S.) (Criminal) (As of Right)

(Publication ban in case)


Criminal law - Evidence, Admissibility - Criminal law - Evidence - Admissibility - Prior consistent statement - Whether trial judge committed error of law as to use of prior consistent statements of the complainant.


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The appellant was charged with sexually assaulting the complainant. During the cross-examination of Crown witnesses at trial, the defence introduced the contents of the complainant’s statements to the police on the evening of the assault and then challenged the complainant with inconsistencies between the statements and her testimony. The trial judge convicted the appellant, finding that the inconsistencies involved only peripheral circumstances while the complainant’s relation of the central facts was consistent, and that the inconsistencies did not impair the complainant’s reliability with respect to the sexual assault.

The appellant appealed his conviction, arguing that the trial judge’s use of the complainant’s statements to the police infringed the rule against prior consistent statements, and that the trial judge erred in using the prior consistent statement to confirm the in-court testimony of the complainant. The majority in the Court of Appeal dismissed the appeal, holding that the trial judge could consider the degree of consistency between the complainant’s prior statements and her testimony on the central facts, based on the contextual exception which permits a trial judge to fully appraise submissions by the defence that inconsistencies are material. Scanlan J.A., dissenting, would have allowed the appeal, set aside the conviction and ordered a new trial. He was of the view that the trial judge improperly used the complainant’s prior consistent statements to corroborate her in-court testimony.