R v Cain, [2017] N.S.J. No 512 (CA – Fichaud):

[39] I adopt the following explanation of the contextual exception from Justice Paciocco’s article which Mr. Cain cites as seminal (above, para. 33). Paciocco, J.A. (as he now is) said:

While the basic rule is simple enough, there are numerous exceptions to that basic rule that complicate the law. An exception, of course, exists where the law permits decision-makers to learn that witnesses have made prior statements consistent with their current testimony. Those exceptions include:
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(4) Prior consistent statements that provide context for admissible state-ments;
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(d) Exception (4) — Prior Consistent Statements that Provide Context for Admissible Statements

The “entire statement rule” can lead to the presentation of prior consistent statements. It holds that where a party proves an admissible statement, this must not be done in a misleadingly selective way. As a matter of fairness, the party proving that statement should not take it out of context — it should prove the entire statement. …

The same principles, therefore, operate where counsel confronts a witness with a prior inconsistent statement. The party launching that challenge should, as a matter of fairness and even ethical obligation, put the entire statement to the witness so that the context of the inconsistencies can be understood, failing which opposing counsel will be permitted to unfold the entire related conversation. Indeed, this tactic can result in related statements being admitted. …

There is nothing, therefore, to prevent a party from pointing to the con-sistency between the prior related statement and the testimony of their wit-ness. This is not done to prove that the witness was being truthful in their testi-mony on those matters — the mere making of prior consistent statements does not prove credibility nor do prior consistent statements of a witness corroborate their in-court testimony. The consistencies are relevant solely to enable the decision-maker to judge whether the relevant statement is really materially inconsistent when looked at as a whole, and to gauge the impact that any dif-ferences in detail should have on the overall credibility and reliability of the witness. In effect, the consistent features of the prior statement do not add af-firmative weight to the party’s scale. They are used simply to knock the “in-consistency” challenge off the opposing party’s scales, or to reduce the weight of those inconsistencies that may remain. [emphasis added]

[48] There is no ground of appeal for unreasonable verdict. The only issue is whether the judge could consider the consistent aspects of her prior statement under the contextual exception.

[49] A judge may fully appraise the Defence’s submission on the impact of the inconsistencies. The judge is not constrained to examine only the extracts cited by the Defence, and precluded from considering the context. Judge Digby performed the decision-maker’s function that Justice Paciocco’s article identifies as within the contextual exception:

The consistencies are relevant solely to enable the decision-maker to judge whether the relevant statement is really materially inconsistent when looked at as a whole, and to gauge the impact that any differences in detail should have on the overall credibility and reliability of the witness. In effect, the consistent features of the prior statement do not add affirmative weight to the party’s scale. They are used simply to knock the “inconsistency” challenge off the opposing party’s scales, or to reduce the weight of those inconsistencies that may remain.

[50] …. . As Justice Paciocco’s article says, “the party providing the statement should not take it out of context — it should prove the entire statement” (above, para. 39). Had the Defence read her only extracts, then on re-direct examination the Crown could have entered other extracts to give proper context. At the end of the day, the trial judge would have the context as a resource to appraise the Defence’s submission on the impact of the inconsistencies.

[51] The judge’s use of the prior statements did not err in law.