Nowlin

Narrative Continued.

Narrative as an exception to the Rule Against Prior Consistent Statements• General PCS rule: inadmissible• Why? Witnesses are called to testify as

to what they remember concerning the fact-in-issue at the time of testimony. The fact that they told the same or a similar story to someone before is seen as nothing more than oath-helping – ie. an attempt by the examiner-in-chief to bolster the testimony of their own witness solely through PCS’s.

PCS Rule: Per the Experts

PCS rule

• A rule that operates only against the examiner-in-chief.

• Part of the broader Rule against Oath-Helping.

F.(J.E.)

• Suggests an exception to the rule to deal with the “vexing” problem of child sexual assault complaints – ie. they take a long time to come to Court because of the nature of the relationship and often family dynamics.

• In this case, the Crown sought to introduce evidence of prior complaints to others prior to the complaint to the police.

• The Court in F.(J.E.) referred to George. In George, the Court allowed in the fact, but not the details, of a complaint made by a young woman to her parents about being sexually assaulted by her cousin, to explain why the parents would confront the cousin. The court implied that the evidence could not be used to bolster the credibility of the complainant, but could otherwise consider the conduct of the girl in making such a complaint. [n.b. then what is its purpose?]

Awkward Logic?

Quote Continued

• In Jones, the Crown was allowed to lead evidence from the mother of a young complainant concerning the fact of the complaint to her, to explain that she then called the police. It was not admissible to show “consistency of conduct.”

F.(J.E.)

• While recognizing that evidence of PCS’s are usually excluded for reasons of lack of probative value and superfluousness, the Court pointed out that such evidence can become relevant where it provides evidence of “chronological cohesion” to the broader narrative or case of the Crown, particularly where it eliminates “distracting gaps” from the case.

F.(J.E.)

Nowlin

• F.(J.E.) certainly attempts to extend the meaning of narrative, beyond “background”, beyond “same transaction” evidence.

• Really beyond chronological cohesion evidence too in the sense of its use to bolster the credibility of the complainant.

Nowlin

• Other Courts of Appeal have been very critical of this approach.

• Essentially using “narrative” as meaning post-offence conduct by complainants to demonstrate that they acted in a way that shows their original allegation to be truthful.

Nowlin

Nowlin: Continued

Nowlin

• It appears that F.(J.E.) has inspired greater evidential use of the narrative evidence concept as a logistical tool in accomodating the evidentiary complexities of intra-familial abuse, but, as a consequence, raises more evidential problems than its solves.

Nowlin: Does it Bring us Closer to the Truth?

• He questions this assertion, and further questions whether ever increasing forays into the personal histories of witnesses can survive a cost-benefit analysis.

Narrative Admissibility based on the “Crown obligation to present the Whole Picture”

• Mentioned in F.(J.E.) as a justification for such evidence:

Nowlin

Nowlin: Continued