The perils of prior consistent statements

R v Picard, 2025 ONCA 417: Another reminder of the pitfalls of prior consistent statement evidence and a helpful summary of when they can exceptionally be admitted to rebut allegations of recent fabrication.

In this murder case, police received an anonymous letter purporting to be from the real killer’s girlfriend. It included details only known to investigators-but was received *after* the accused had the opportunity to review initial disclosure. The Crown tendered the letter at trial, arguing that the accused had used his knowledge of disclosure to write the letter to mislead the police away from him. The trial judge reluctantly admitted this evidence because trial counsel wanted it in.

No doubt trial counsel made this admission because they had a card up their sleeve: the accused had given an exculpatory version to his first lawyer, including some details discussed in the anonymous letter, *before* he ever received disclosure. But what trial counsel thought was an ace turned out to be a 2: most of the first lawyer’s evidence was excluded as a prior consistent statement ineligible for admission to rebut recent fabrication. The accused was convicted and the appeal dismissed.

It’s very tough being a trial lawyer. This was undoubtedly a tactical call: trial counsel did not seek a pre-trial ruling on admissibility to preserve the element of surprise and bait the Crown into tendering the anonymous letter. But when you don’t seek pre-trial rulings on admissibility, you risk a mid-trial ruling that blows up your trial strategy completely. Worse yet, the trial judge’s balancing of probative value and prejudicial effect is owed deference and unlikely to be disturbed on appeal.

Had trial counsel sought a conditional ruling on admissibility before the trial started, they might have lost the element of surprise, and the Crown might not have rendered this letter. But I can’t help but think they’d have been in a better position than the way things played out here.