R. v. Stirling (B.J.), 2007 BCCA 4

• Judge: Newbury, Levine and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 02, 2007
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 4;(2007), 234 B.C.A.C. 161 (CA)

R. v. Stirling (B.J.) (2007), 234 B.C.A.C. 161 (CA);

    387 W.A.C. 161

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. JA.019

Regina (respondent) v. Beau Jake Stirling (appellant)

(CA033331; 2007 BCCA 4)

Indexed As: R. v. Stirling (B.J.)

British Columbia Court of Appeal

Newbury, Levine and Chiasson, JJ.A.

January 2, 2007.

Summary:

The accused was convicted of two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm arising out of a single vehicle accident. He was acquitted on impaired driving charges. The accused appealed the convictions.

The British Columbia Court of Appeal, Levine, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - Two passengers died and the accused and Harding were injured in a single vehicle accident - The accused was convicted of dangerous driving causing death (two counts) and dangerous driving causing bodily harm - The accused appealed, submitting that the trial judge erred in accepting Harding's evidence that the accused (not Harding) was driving the vehicle - Particularly, the trial judge allegedly erred in relying on Harding's prior consistent statements (statements to medical personnel at the accident scene that the accused was driving) as supporting his credibility at trial, where Harding had a motive to lie (avoid conviction for breach of recognizance and subsequent civil action against the accused) - The British Columbia Court of Appeal held that the prior consistent statements were admissible to assess credibility, where Harding's veracity was challenged because of an alleged motive to fabricate and the prior consistent statements were made before the motive arose - The prior consistent statements were not used for the impermissible purposes of bolstering Harding's trial credibility generally or as confirming or corroborating Harding's in-court testimony - The prior consistent statements were confirmatory only in the sense of rebutting the allegation of recent fabrication - The trial judge did not find the accused to be the driver solely on the basis of Harding's evidence, but on the totality of evidence - See paragraphs 5 to 83.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4375.3 ].

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - [See Criminal Law - Topic 4375.3 ].

Evidence - Topic 1130

Relevant facts - Relevance and materiality - Relevance of evidence offered - Prior consistent statements - [See Criminal Law - Topic 4375.3 ].

Cases Noticed:

R. v. J.A. (2006), 227 B.C.A.C. 119; 374 W.A.C. 119; 209 C.C.C.(3d) 423; 2006 BCCA 258, refd to. [para. 28].

R. v. O'Connor (P.) (1995), 84 O.A.C. 113 (C.A.), refd to. [para. 29].

Di Carlo v. United States of America (1925), 6 F.2d 364 (2nd Cir.), refd to. [para. 33].

R. v. Giraldi (1975), 28 C.C.C.(2d) 248 (B.C.C.A.), refd to. [para. 44].

Nominal Defendant v. Clements (1960), 104 C.L.R. 476 (Aust. H.C.), refd to. [para. 44].

Fox v. General Medical Council, [1960] 3 All E.R. 225 (P.C.), refd to. [para. 47].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 50].

R. v. J.A. (1996), 95 O.A.C. 83; 112 C.C.C.(3d) 528 (C.A.), refd to. [para. 64].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 66].

R. v. H.A. (2006), 228 B.C.A.C. 33; 376 W.A.C. 33; 2006 YKCA 7, refd to. [para. 66].

Flanagan v. Fahy, [1918] 2 I.R. 361, refd to. [para. 96].

Authors and Works Noticed:

MacCrimmon, M.T., Consistent Statements of a Witness (1979), 17 Osgoode Hall L.J. 285, pp. 288, 289, 292, 293 [para. 75].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (2006 Looseleaf Update), pp. 11-20.1, 11-20.2 [para. 39].

Mewett, Alan W., Witnesses (1992), s. 11.2(a) [para. 77].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 315, 319 [para. 40].

Wigmore on Evidence (Chadbourn Rev. 1972), vol. 4, p. 274 [para. 33].

Counsel:

J.W. Green, for the appellant;

T.L. Robertson, Q.C., and M.K. Gill, for the respondent.

This appeal was heard on October 18, 2006, at Vancouver, B.C., before Newbury, Levine and Chiasson, JJ.A., of the British Columbia Court of Appeal.

On January 2, 2007, the judgment of the Court was delivered and the following opinions were filed:

Chiasson, J.A. - see paragraphs 1 to 73;

Newbury, J.A. - see paragraphs 74 to 85;

Levine, J.A., dissenting - see paragraphs 86 to 106.