Criminal Law: Prior Inconsistent Statements

R. v. Smith, 2020 BCCA 271, 2021 SCC 16 (39401) 

Brown J.: “We would allow the appeal, set aside the order for a new trial and restore the respondent’s conviction for sexual assault, substantially for the reasons of Dickson J.A. In particular, we agree with Dickson J.A. that the trial judge’s failure to deal properly with the prior inconsistent statements does not mean that she failed to consider or give effect to them (R. v. Burns, [1994] 1 S.C.R. 656, at p. 665). Further, and even if the trial judge did not consider the statements in assessing the complainant’s credibility and reliability, that error did not cause a miscarriage of justice. Determining whether a misapprehension of evidence has caused a miscarriage of justice requires that the appellate court assess the nature and extent of the error and its significance to the verdict (R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221). It is a stringent standard, met only where the misapprehension could have affected the outcome (R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 7). While testimonial inconsistencies may be relevant when assessing a witness’s credibility and reliability, only some are of such significance that failing to consider them will meet this standard. In this case, we agree with Dickson J.A. that the inconsistencies — assuming they are inconsistencies — between the complainant’s statements to her friend shortly after the assault and her trial testimony are not significant. While it may have been preferable for the trial judge to address them, her failure to do so does not cast doubt on her assessment of the complainant’s credibility and reliability or the safety of the conviction. Consequently, the threshold for a miscarriage of justice has not been met.”