A MISSED OPPORTUNITY IN R V LANGAN

APPELLATE REVIEW OF PRIOR CONSISTENT STATEMENTS POST-KHAN

Abstract

The traditional rule against prior consistent statements continues to be mired in rigidity and unnecessary complexity. The courts continue to admit and use prior consistent statements for the truth of their content and by extension, for the impermissible purpose of bolstering a witness’s credibility. Juries continue to be improperly instructed on the proper uses and misuses of such statements. Despite warnings from provincial appellate courts across the country, counsel continue to tender prior consistent statements without articulating a precise basis upon which they should be admitted. This article attempts to shed light on this issue by reviewing appellate caselaw in the post-Khan era. In R v Khan, the concurring set of reasons put forth a framework for replacing the traditional rule with a principled approach to admissibility. Yet, the courts have been reluctant to embrace this principled approach. The Supreme Court of Canada had an opportunity to directly deal with this issue in R v Langan, however, it decided to sidestep this issue entirely. This article assesses the impacts of this decision and further argues that adopting a principled approach would ease many of the common issues with which courts struggle when assessing the admissibility and use of prior consistent statements.