R. v. De Jaeger, 2014 NUCJ 08

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. De Jaeger, 2014 NUCJ 08 (No.3) Date: 20140319 Docket: 07-13-85; 07-13-95; 08-02-27 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Eric Jose De Jaeger ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): Doug Curliss Q.C.

Barry Nordin Counsel (Accused): Malcolm Kempt Location Heard: Iqaluit, Nunavut Date Heard: March 18, 2014 Matters: Application to call rebuttal evidence to rebut allegation of recent fabrication REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way.

I. INTRODUCTION [ 1 ] The Crown brings an application to call rebuttal evidence in the form of a prior consistent statement made by a complainant in a sexual assault allegation. II. DISCLOSURE AND PRIOR CONSISTENT STATEMENT [ 2 ] Z.N. testified in cross-examination1 that she first recalled the alleged abuse by the Defendant when a nephew disclosed to her some 12 years ago that he had been sexually abused by the Defendant.

It was this sudden disclosure that caused Z.N. to recover memories of the events associated with the alleged rape by the Defendant. [ 3 ] Z.N. says that she tried to encourage her nephew to report the abuse to the RCMP. Her nephew was reluctant to do so. In an effort to support her nephew emotionally, Z.N. says that she disclosed her own alleged abuse to this nephew. Fearing that this “secret” might be leaked to others within her family, Z.N. later decided that she had to confide in her spouse.

The spouse to this point knew nothing about Z.N.’s alleged trauma. [ 4 ] Z.N. did disclose the alleged abuse to her spouse giving brief details of the rape. It is this prior consistent statement by Z.N., as recalled by the spouse, that the Crown now wishes to admit into evidence. Z.N.’s own complaint to the RCMP was made many years later. Z.N. says that she made the complaint after learning that her nephew had committed suicide. Z.N. hoped that in coming forward with this complaint she could help other survivors of sexual abuse. III.

DEFENCE POSITION [ 5 ] The Defence in cross-examination has challenged Z.N.’s evidence on the basis that the complaint of sexual assault has been fabricated. In argument the Defence alleges that the initial disclosure to the nephew was fabricated, and that the later statement to the spouse is, for this reason, inadmissible to support the credibility of the complainant. IV. THE RULE AGAINST PRIOR CONSISTENT STATEMENTS [ 6 ] The common law rules of evidence do not generally permit a party to prove that at some point prior to testifying a witness has made statements consistent with their present testimony.

The credibility of a witness’s statement in court is not enhanced because the same statement has been made on an earlier occasion. Repetition does not lend either strength or credibility to the matter being asserted. Consistency is not a quality that readily distinguishes truth from falsehood. A concocted statement that is repeated on one or more earlier occasions remains concocted. The law does not countenance the reception of self-serving evidence because nothing is usually proved by it. V. THE EXCEPTION [ 7 ] A prior consistent statement is exceptionally admissible to refute an allegation of fabrication.

This is so only in circumstances where the timing of the making of the earlier statement proves that the statement under attack predated the point in time where the version of events was allegedly fabricated. The probative value of the prior consistent statement does not turn on the fact that it is consistent. Its probative value is derived from the fact that the timing of the prior consistent statement logically demonstrates that the version testified to and under attack is not new. [ 8 ] To give an example: Y is charged with sexual assault upon the infant Z. X and Y had been in a relationship together.

Following a difficult separation, X and Y become embroiled in a custody dispute for control of the infant Z. X is called to testify for the Crown on the sexual assault trial. X says that she had observed Y sexually abusing the infant Z. Y alleges in cross-examination that X fabricated this evidence out of spite in order to gain the upper hand in the custody dispute. [ 9 ] Evidence of a prior consistent statement made by X to a close friend before the parties separated and before the custody battle started would be admissible to rebut the allegation of fabrication made by Y.

This is so because the earlier statement was made at a time that predated the existence of any potential motive by Y to fabricate the allegation of sexual abuse. It is only in this limited way that the prior consistent statement can be said to lend support to Y’s credibility. VI. ANALYSIS [ 10 ] The Defence argues that the prior consistent statement should not be admitted because this statement was made after the alleged fabrication by the complainant. The Defence argues that under these circumstances the statement made to the spouse is properly characterized as self-serving.

The Defence argument is premised upon the submission that the alleged fabrication preceded the making of the disclosure to the spouse and not after. [ 11 ] Given that the consistent statement tendered by the Crown followed after the alleged fabrication relied upon by the Defence, this Court finds that the statement made to the spouse does not assist in logically rebutting the Defence allegation that the memory allegedly recovered by the complainant was a fabrication done to support the nephew. For this reason, the Court declines to allow the prior consistent statement into evidence.

[ 12 ] This ruling is a provisional ruling only. [ 13 ] A close review of this complainant’s cross-examination does not suggest that Defence was restricting its allegation of fabrication to the initial disclosure by Z.N. The Defence in cross-examination expressly alleges that the complainant was motivated to fabricate the allegations after learning about other victims and seeing the accused on TV and in the news.

The complainant was not exposed to the TV and other news sources regarding other allegations against this Defendant until long after she was informed by her nephew of his abuse and then disclosed her own abuse to her spouse. [ 14 ] The Court’s ruling against admissibility of the prior consistent statement tendered by the Crown turns upon the Defence position taken in argument that the only allegation of fabrication relied upon relates to the initial disclosure made by Z.N. to the nephew.

In the event that the Defence chooses to shift its position in final argument, to suggest that other forces later in life may have further induced this complainant to fabricate her account of the incident to the police years later, the Court will immediately reconsider its ruling. [ 15 ] Any attempt by Defence to argue that there were two separate motives to fabricate, one that arose when Z.N. received the disclosure from her nephew and the second when Z.N. was exposed to media coverage of the alleged abuse, will cause this Court to immediately revisit its ruling and declare the prior consistent statement admissible for the limited purpose of rehabilitating this complainant. [ 16 ] The Court would move to do so under the authority of R v R(J), 2000 ABCA 196 .

In this case the Alberta Court of Appeal ruled that where there are alleged to be two events driving the fabrication, consistent statements made prior to the first alleged fabrication and subsequent to the first alleged fabrication but prior to the second alleged fabrication may both be admissible. Dated at the City of Iqaluit this 19th day of March, 2014. ____________________ Justice R.

Kilpatrick Nunavut Court of Justice 1 Transcripts of Proceedings (December 10, 2013), vol 17, at 1233-1244. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------