COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. Ellard, |
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2008 BCCA 341 |
Date: 20080905
Docket: CA033219
Between:
Regina
Respondent
And
Kelly Marie Ellard
Appellant
Restriction on Publication: An order has been made in this case pursuant to s. 110 of the Youth Criminal Justice Act and s. 38 of the Young Offenders Act
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Before: |
The Honourable Mr. Justice Low |
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The Honourable Mr. Justice Chiasson |
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The Honourable Mr. Justice Frankel |
| P.J. Wilson, Q.C. |
Counsel for the Appellant |
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| J.M. Gordon Q.C. and C.A. Murray, Q.C. |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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28 May 2008 |
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Written Submissions Received: |
4 and 8 July 2008 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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5 September 2008 |
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Written Reasons by: |
| The Honourable Mr. Justice Frankel |
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Concurred in by: |
| The Honourable Mr. Justice Chiasson (at p. 42, para. 98) |
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Dissenting Reasons by: |
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The Honourable Mr. Justice Low (at p. 51, para. 126) |
Reasons for Judgment of the Honourable Mr. Justice Frankel:
INTRODUCTION
[1] Fourteen-year-old Reena Virk was brutally beaten and then killed underneath the Craigflower Bridge in Victoria, in the fall of 1997. After being assaulted by a group of eight teenagers under the south end of the bridge, Ms. Virk made her way across the bridge to the north end. There, she was again attacked, and then drowned in the Gorge Waterway.
[2] Six of the teenagers involved in the initial beating of Ms. Virk were convicted in Youth Court on assault-related charges in 1998. They have come to be known as the “Shoreline Six”.
[3] The appellant, Kelly M. Ellard (then 15 years old), and Warren P. Glowatski (then 16 years old), were charged as adults with the second degree murder of Ms. Virk. A judge sitting without a jury convicted Mr. Glowatski of murder in 1999. His appeal was dismissed by this Court: 2001 BCCA 678, 160 C.C.C. (3d) 525. A jury convicted Ms. Ellard of murder in 2000. However, this Court set aside that conviction, and ordered a new trial: 2003 BCCA 68, 172 C.C.C. (3d) 28. The second trial, held in 2004, ended in a mistrial, when the jury was unable to reach a unanimous verdict.
[4] At the third trial in 2005, a jury again convicted Ms. Ellard of murder. She now appeals that conviction. Ms. Ellard submits that her conviction should be set aside and an acquittal entered, because the jury’s verdict is unreasonable, or cannot be supported by the evidence. In the alternative, she seeks a new trial on the basis that the trial judge, Mr. Justice Bauman, as he then was, erred in: (a) failing to give the jury a special caution with respect to the possibility of collusion between various Crown witnesses; and (b) permitting the Crown to re-examine a witness to show that she had made prior statements consistent with her evidence at trial. A fourth ground set out in Ms. Ellard’s factum, alleging that the trial judge erred in not giving the jury a caution with respect to the possibility that the evidence of a particular witness had been affected by police manipulation, was abandoned at the hearing of the appeal.
[5] For the reasons that follow, I have concluded that the trial judge erred in permitting the Crown to elicit evidence of prior consistent statements and in failing to instruct the jury as to their limited use. I would, accordingly, allow the appeal and order a new trial.
GENERAL BACKGROUND
[6] On the evening of Friday, November 14, 1997, Ms. Virk gathered with a number of teenagers between the ages of 13 and 16 years old on the grounds of Shoreline Middle School in Victoria, British Columbia. Some of the teenagers were drinking that night. Eventually, Ms. Virk and others made their way to a spot underneath the south end of the nearby Craigflower Bridge.
[7] Two members of this group, N.C. and M.G.P., bore some animosity towards Ms. Virk. After N.C. stubbed a lit cigarette into Ms. Virk’s forehead a fight broke out. In what can be described as a swarming, Ms. Virk was repeatedly punched and kicked by a number of persons, including Ms. Ellard, Mr. Glowatski, N.C., M.G.P., C.A.K., and G.O. The assault ended when one of those in attendance persuaded the others that Ms. Virk had had enough. The group then dispersed, leaving Ms. Virk alone underneath the bridge.
[8] Some members of the group observed Ms. Virk make her way up the stairs from underneath the bridge with some difficulty. She was last seen alive walking north across the bridge, a route consistent with her intending to catch a bus home.
[9] There is no dispute that Mr. Glowatski followed Ms. Virk to the north end of the bridge, where, in an adjacent park, he again attacked her. What is disputed is whether, as testified to by Mr. Glowatski, Ms. Ellard participated in this second attack, and then dragged Ms. Virk into the waist deep waters of the Gorge Waterway and caused her death by holding her head under water.
[10] Ms. Virk’s disappearance was widely publicized. By the following Monday, November 17, 1997, gossip and rumours about her fate circulated throughout the community, particularly amongst those who had been present when the first assault took place. The student “grapevine” was, to say the least, very active.
[11] On November 22, 1997, the police found some of Ms. Virk’s clothing in the Gorge and, later that day, recovered her body. This discovery attracted considerable media attention. Once again, gossip and rumours as to what had happened circulated through the student “grapevine”.
THE TRIAL
Preliminary Instructions
[12] Before any evidence was called, the trial judge made an opening statement to the jury in which he discussed their respective roles and functions, and provided some preliminary instructions on the law. In the course of discussing how the jurors might decide whether to believe a particular witness, he stated:
Does the witness have any reason to remember the things about which he or she testified? Does the witness seem to be reporting to you what he or she saw or heard, or simply putting together an account based on information obtained from other sources rather than personal observation? Does the witness’s testimony seem reasonable and consistent? Is it similar to or different from what other witnesses say about the same events? Did the witness say or do something different on the earlier occasion?
[Emphasis added.]
Defence Opening Address
[13] The trial judge exercised his discretion to permit Ms. Ellard’s counsel to address the jury immediately following Crown counsel’s opening statement. Defence counsel emphasized that the credibility and reliability of witnesses would be a critical issue in the case. He asked the jury to be alive to the issue of “whether rumour and gossip have had more influence than they should”.
[14] In the course of his remarks, Ms. Ellard’s counsel stated:
Recollection. In this case, because of the passage of time and because of other events, recollection, I suggest, will be even more prominent than real evidence and there are a number of things that you need to assess when a witness testifies before you from recollection. First, has the witness been consistent in her or his recollection? Remember that consistency is the hallmark of truthfulness and reliability. It is the touchstone by which we measure such things. Look for it. Mark it when it’s there and mark it when it’s absent.
[Emphasis added.]
Mid-Trial Instructions
[15] On the third day of the trial, the trial judge instructed the jury on two matters arising out of testimony given by a Crown witness the previous day. The first concerned evidence of statements attributed to Ms. Ellard. The second dealt with the use that can be made of a witness’s prior inconsistent statements. On this latter point, the trial judge stated:
Not every difference or omission is important. You should consider any explanation the witness gives for the differences. You should also consider the fact, nature, and extent of any differences when you decide whether to rely on the witness’s testimony. When you are taking the differences into account, you may use only the testimony given under oath in this trial as evidence of what actually happened. You must not use the earlier statement as evidence of what actually happened unless you conclude that the witness accepted it as true while in the witness box. You, rather, use the evidence given previously to test the reliability of the evidence given by the witness in this courtroom as you estimate or consider it in your final deliberations and even then, as with the evidence of any witness, it is for you to say whether, and how much you will rely on the evidence given by the witness in this courtroom.
[Emphasis added.]
[16] On the fifth day of the trial, the jury asked the trial judge to repeat both instructions, and he did so.
Evidence at Trial
[17] What follows is not intended as an exhaustive summary of all of the evidence tendered by the Crown and defence.
Crown’s Case
[18] The Crown’s case rested principally on the following:
(a) incriminating statements allegedly made by Ms. Ellard to a number of persons;
(b) observations of Ms. Ellard and Mr. Glowatski following Ms. Virk to the north end of the bridge and later returning together to the south end; and
(c) Mr. Glowatski’s testimony.
[19] Needless to say, the credibility and reliability of this evidence was very much in issue. Ms. Ellard’s counsel vigorously cross-examined the Crown’s witnesses, particularly with respect to previous statements they made that were inconsistent with their testimony at the trial. Those cross-examinations were based on statements the witnesses had made to the police and/or evidence they had given in one or more prior judicial proceedings. Those prior proceedings consisted of the Shoreline Six trial, Mr. Glowatski’s preliminary inquiry and trial, and Ms. Ellard’s preliminary inquiry and her two previous trials.
[20] The Crown placed emphasis on evidence that the jacket worn by Ms. Ellard on the night of the murder was found to have encrusted salt water residue at the waist and, to a lesser degree, on the sleeves. This jacket was seized some ten days later.
[21] Dr. Laurel H. Gray, a forensic pathologist, testified that her examination of Ms. Virk’s body disclosed that she had been severely beaten; her injuries were consistent with her having been repeatedly kicked and punched. Ms. Virk’s facial injuries included a mark on her forehead consistent with a cigarette burn. Dr. Gray’s opinion was that Ms. Virk had been alive when she entered the water. She estimated that death by drowning would not have been instantaneous, and would have taken from three to five minutes.
[22] The Crown called 11 witnesses who recounted statements allegedly made by Ms. Ellard, in which she implicated herself in Ms. Virk’s death. All were teenagers in 1997. According to the witnesses, Ms. Ellard made two statements the night of the murder. She made the other nine statements in the weeks following the murder. Some of these witnesses were members of the Shoreline Six.
[23] One of the statements attributed to Ms. Ellard on the night of the murder occurred during a conversation she had with Robert Harbicht, who was 16 years old at the time. Mr. Harbicht knew Ms. Ellard, but they were not friends. He testified that he encountered Ms. Ellard not far from the bridge as he was walking home at about 11:15 p.m. She asked him for a cigarette because she was “stressed out”. When he asked her why she was “stressed out” she told him words to the effect that “she had got in a fight with a girl, that she held her head underwater”, and that this had happened “on the Gorge”. Ms. Ellard looked “a little wet”, but she was not shivering. Mr. Harbicht said he told his father about the conversation that night. A week later his father sent him to talk to the police.
[24] Chandelle Naysmith gave evidence of another incriminating statement made by Ms. Ellard. Ms. Naysmith, who was 15 years old at the time, was a friend of Ms. Ellard and several members of the Shoreline Six. Ms. Naysmith was not out on the night of November 14, 1997. She first heard about the incident involving Ms. Virk in a telephone conversation with G.O. at around 10:30 that night.
[25] Ms. Naysmith said that Ms. Ellard spoke to her about the incident on the afternoon of November 19, 1997. Ms. Ellard told Ms. Naysmith about the events of November 14, 1997, and took her to the south and north ends of the bridge. In what amounted to a re-enactment, Ms. Ellard related how she, together with Mr. Glowatski and six others, had attacked Ms. Virk at the south end of the bridge. She said that she and Mr. Glowatski then followed Ms. Virk to the north end of the bridge, where they again attacked her. Ms. Ellard described how she and Mr. Glowatski dragged Ms. Virk into the water. Ms. Ellard said she held Ms. Virk’s head under water for ten minutes.
[26] L.B., who had been in a youth detention centre with Ms. Ellard on an unrelated matter in November of 1997, testified that one night, while she was brushing her teeth in a bathroom, Ms. Ellard confessed to the murder, saying that she had held Ms. Virk’s head under water for five minutes. However, Tony Guarascio, a corrections officer at the detention centre called by the Crown, testified, in cross-examination, that L.B. and Ms. Ellard would never have been together in the bathroom described by L.B.
[27] In several of her statements, including the one to Ms. Naysmith, Ms. Ellard described serious injuries inflicted on Ms. Virk that the autopsy performed by Dr. Gray proved did not exist, e.g., a broken arm, a broken leg.
[28] Mr. Glowatski described his involvement in the murder. He testified that, after the initial assault on Ms. Virk, he accompanied Ms. Ellard to the north end of the bridge, as Ms. Ellard said she wanted to see if Ms. Virk was alright. He said that, when they caught up to Ms. Virk, they assaulted her by punching and kicking her until she was unconscious. They then dragged her towards the water. Although Mr. Glowatski stopped at the water’s edge, he said Ms. Ellard pulled Ms. Virk into the water. Mr. Glowatski said that, while standing waist deep in the water, Ms. Ellard held Ms. Virk’s head underwater until she stopped struggling. Mr. Glowatski and Ms. Ellard then walked back to the south end of the bridge.
[29] Defence counsel forcefully cross-examined Mr. Glowatski. He admitted telling more than 144 lies to the police, corrections officials, and at his own trial. He agreed he lied about Ms. Ellard to the police in order to make her look bad, and to push responsibility for Ms. Virk’s murder on her. He further agreed that he repeatedly lied at his own trial in an effort to place responsibility for Ms. Virk’s death solely on Ms. Ellard. Some of the lies he told related to injuries that Mr. Glowatski said Ms. Ellard inflicted on Ms. Virk, such as breaking her arm.
[30] Chelsea D. Green, who had witnessed the initial swarming, testified that, afterwards, she saw Ms. Ellard and Mr. Glowatski standing on the bridge, as if they were going to walk north across it.
[31] Marissa D. Bowles had also been a spectator at the initial swarming. She testified that she saw Ms. Virk come up the stairs and walk north, one-half to three-quarters of the way across the bridge. She said that Ms. Virk was followed a short time later by Ms. Ellard and Mr. Glowatski.
[32] Ms. Ellard’s counsel challenged the accuracy and reliability of Ms. Bowles’s recollection of events. She was cross-examined on the statement she gave to the police on November 24, 1997, two days after Ms. Virk’s body had been recovered. At the time she gave this statement, Ms. Bowles was under oath to tell the truth. In her statement, she told the police that she had last seen Ms. Virk underneath the south end of the bridge, and had said nothing about seeing Ms. Virk crossing the bridge followed by Mr. Glowatski and Ms. Ellard. The cross-examination included the following exchange:
Q So you were specifically talking to [the police officer] about where [Mr. Glowatski and Ms. Ellard] were and you didn’t say, “I saw them go across the bridge,” right?
A No.
Q And the odd thing about it, would you agree with me, Marissa, is that you say, “I didn’t know then, but I do now?” Do you see that?
A Yes.
Q Okay, and that was the 24th of November, right?
A Yes.
Q And that’s after you know that [Ms. Virk’s] been found in the Gorge, right?
A Yes.
Q And you know that [Mr. Glowatski] and [Ms. Ellard] have been arrested for her murder, right?
A Yes.
Q And you are making an assumption that they went across the bridge; is that fair?
A No.
Q You were told through rumours and things at school where they went, right?
A Yes.
Q Okay, and so when you say, “I didn’t know where they were, but I do now,” you’re referring to things you’ve heard other people tell you, again, right?
A Yes.
Q Not an independent memory of where they went, right?
A I remember seeing them go across the bridge.
Q Then why didn’t you tell the police that?
A I don’t know.
Q You didn’t think it was important in a murder investigation to tell them that you saw the girl that ended up dead going across the bridge and you saw these two following her?
A I didn’t say it at the time, no.
Q Well, I know you didn’t say it. You didn’t think it was important?
A Not at the time, no.
Q Not only did you not say it, you told the police you didn’t know where they were, right?
A Yes.
Q And you told the police the last time you saw [Ms. Virk] she was down in the mud, right?
A Yes.
Q And that was the truth, wasn’t it?
A At the time, yes.
[Emphasis added.]
[33] Ms. Bowles was also cross-examined on testimony she gave at Mr. Glowatski’s trial in 1999, and in proceedings in 2000. Although the nature of the 2000 proceedings is not mentioned in the transcript of Ms. Bowles’s cross-examination, it would appear that counsel was referring to Ms. Bowles’s evidence at Ms. Ellard’s first trial.
[34] Defence counsel put to Ms. Bowles the fact that, while her current evidence was that she had watched Ms. Virk walk one-half to three-quarters of the way across the bridge, her evidence at Mr. Glowatski’s trial in 1999 was that she had been able to see Ms. Virk for only ten feet:
Q So back in 1999 you said you saw [Ms. Virk] go about 10 feet, right?
A Yes.
Q You agree?
A Yes.
Q Okay, and that was under oath?
A Yes.
Q And that was true?
A Yeah, it was an estimate.
Q Well, you told the truth then, right?
A Yes.
Q Okay, and it was much closer to the time that we’re talking about here today than we are today, right?
A Yes.
Q Okay, and you say today that you also saw [Ms. Ellard] and [Mr. Glowatski] go – yesterday you told us three quarters of the way across that bridge?
A Yes.
Q In the dark?
A Yes.
Q But you can’t remember what [Ms. Ellard] was wearing?
A No.
Q What about [Mr. Glowatski]?
A White jeans.
Q So in 1997 – or 1999 you can see only 10 feet, but you can see half to three quarters of the way across the bridge today in your memory?
A It was an – it was an estimate at the time.
[35] At the end of Ms. Bowles’s cross-examination, she was questioned again about the contaminating effect of the gossip and rumours that had been rampant amongst her peers regarding what had happened to Ms. Virk. Ms. Ellard’s counsel would later refer to this effect as “changing memories” beneficial to the prosecution:
Q Okay, so on November 24th, then, you told the police the last time you saw [Ms. Virk] she was down in the mud, right?
A Yes.
Q And that’s what you recall 10 days after the event, right?
A Yes.
Q You didn’t tell the police that [Ms. Ellard] and [Mr. Glowatski] followed her, right?
A Yes.
Q You didn’t tell the police that you had actually seen [Ms. Virk] herself on the bridge, right?
A Yes.
Q You didn’t tell the police that [Mr. Glowatski] had gone to [Syreeta Hartley’s] the next day to wash his clothes, right?
A No.
Q But at that time you knew that [Mr. Glowatski] had done that, right?
A Yes.
Q And you knew, you’ll say now, that you saw [Ms. Ellard] and [Mr. Glowatski] go across the bridge?
A Yes.
Q And you knew that the last time you saw [Ms. Virk] she was actually walking across the bridge?
A Yes.
Q So why didn’t you tell the police any of these things on November 24th?
A I don’t know.
Q You don’t know? I’m going to suggest to you, Ms. Bowles, it’s because you didn’t actually see [Mr. Glowatski] and [Ms. Ellard] walk across that bridge and that that is something that you’ve constructed over time from all the other things you’ve heard. Is that possible?
A No.
Q Well, what did you mean, then, when you said to the police, “I didn’t know where she was then, but I do now,” or, “I didn’t know where they were then but I do now?” What did that mean?
A I don’t know.
[Emphasis added.]
[36] Based on this closing line of cross-examination, Crown counsel applied for leave to re-examine Ms. Bowles to elicit that she had previously testified to having seen Ms. Virk walking north on the bridge. However, counsel did not articulate with clarity the basis on which this proposed re-examination should be permitted. Over the objection of Ms. Ellard’s counsel, the trial judge ruled that such re-examination was permissible because the defence had alleged that Ms. Bowles’s evidence on this point was a “recent fabrication”: 2005 BCSC 1085. Following this, Ms. Bowles stated that she previously testified to having seen Ms. Virk crossing the bridge at the Shoreline Six trial (on February 10, 1998), at Mr. Glowatski’s trial (on April 15, 1999), and at Ms. Ellard’s previous trials.
[37] C.A.K. and G.O., who had both participated in the initial assault on Ms. Virk, testified that, as they were being driven home that night by G.O.’s mother, they saw Ms. Ellard and Mr. Glowatski together, walking south across the bridge. G.O.’s mother, L.S.E., testified that she saw two people walking south on the bridge, but could not tell who they were. As G.O. had died prior to this trial, her evidence was tendered by playing the tape recording of the testimony she gave at Ms. Ellard’s first trial.
Defence Case
[38] Ms. Ellard’s case rested not only on an attack on the Crown’s evidence implicating her in Ms. Virk’s death, but also on the position that it was more likely that N.C. and/or M.G.P. were involved in the second attack with Mr. Glowatski. The evidence given by the principal defence witnesses is described below.
[39] Barry D. Hartwell testified as to the ill will between M.G.P., Ms. Virk, and Ms. Ellard. He said that, on the day before Ms. Virk was killed, M.G.P. had asked him to assist her in assaulting Ms. Virk, but that he did not want to get involved. Mr. Hartwell further stated that, on the night Ms. Virk was killed, he saw M.G.P., who had cuts and bruises on her left hand. M.G.P. told him that she had come directly to his place “after beating [Ms. Virk] unconscious in the gorge”.
[40] Ms. Ellard’s stepmother, Karen R. Ellard, testified that Ms. Ellard arrived home at approximately 11:30 p.m. on November 14, 1997. Mrs. Ellard and a friend were in a hot tub. Mrs. Ellard said that Ms. Ellard changed into shorts and a t-shirt (i.e., her usual sleeping attire) before coming out to the hot tub to say hello. Although Mrs. Ellard thought that it was too cold for this attire, she said Ms. Ellard did not appear cold, and that her skin colour was normal.
[41] Mrs. Ellard described an experiment she conducted on December 12, 1997, attempting to duplicate the conditions on November 14, 1997. She said that she walked waist-deep into the waters of the Gorge, and remained there for three minutes. She then walked home. During this walk she was cold and shivering. When she got home and took off her wet jeans, her legs were bright red. They were still red after she had showered.
[42] B.E.M. had been in prison with Mr. Glowatski. He testified to conversations in which Mr. Glowatski complained that two girls involved in Ms. Virk’s killing had “walked free”. B.E.M. said that Mr. Glowatski had mentioned the girls’ names. Although he could not recall the names, he said that Ms. Ellard’s name was not mentioned as one of those involved. He said that Mr. Glowatski would refer to Ms. Ellard in highly disparaging terms.
[43] Michelle D. Coté testified regarding conversations she had with M.G.P. on November 15, 1997, which could be interpreted as an admission by M.G.P. that she and N.C. killed Ms. Virk.
[44] Michel B. Ducharme, a scientist with a Ph.D. in physiology, was qualified to give opinion evidence as to the effect of cold water on the human body. He conducted two “cold water simulations” in a climatic chamber in March 2005, using young women with body characteristics similar to those of Ms. Ellard. The jury was shown video recordings of those simulations. In both videos, the young women manifested the effects of exposure to cold.
Defence Jury Address
[45] One of the themes of defence counsel’s closing address was that the jury could not have confidence in the truthfulness and/or reliability of the testimony of many of the Crown’s witnesses, particularly Mr. Glowatski, and those who attributed incriminating statements to Ms. Ellard. Focusing on the gossip and rumours that had circulated in the days prior to and after the recovery of Ms. Virk’s body, and the inconsistencies in the various accounts given by some of the witnesses, he stated:
One of the truly remarkable things about this trial is the memory changes you’ve heard about. And one of the things you have to consider when you assess a witness is whether the witness has a good memory. Were witnesses reporting to you what they actually heard, what they saw, or are they simply putting together some account from what other people told them? You have to think about that.
And later:
Are these witnesses reporting their personal observations or are they simply putting together stuff they got from others? There’s a couple of odd things, you know. Look at Chandelle Naysmith and her close friend, [M.G.P.]. They talked about this at great length at the donut shop. [M.G.P.] said they did it once. Chandelle said they did it twice.
[46] With respect to Ms. Bowles, defence counsel said, “I wouldn’t call her a liar, but can you have any trust in what she remembers anymore”. He went on to refer to the fact that she testified to a number of things not mentioned in her statement to the police, a statement made when events were much fresher in her mind.
[47] However, defence counsel did describe Mr. Glowatski as “a liar”, referring, in particular, to the fact that some of what he had said about the injuries inflicted on Ms. Virk had not been borne out by Dr. Gray’s examination of her body.
Crown Jury Address
[48] Crown counsel asked the jury to accept the testimony of the witnesses implicating Ms. Ellard, notwithstanding counsel’s acknowledgment that there were inconsistencies in this evidence. In urging the jury to accept as truthful the various incriminating statements attributed to Ms. Ellard, Crown counsel stated:
In summary, with regards to the “talk” evidence, while all a bit different, all are consistent. Kelly Ellard was telling all of these people that she killed Reena Virk. Think about some of the detail, detail only the killer would know, or killers in this case, the hairy bum, the landmarks. While all different, all chillingly the same. And these people that came to tell you about it, is it something you’d think they’d forget? They told you not. It’s not everyday somebody confesses murder to you. That’s what they told you.
[49] With respect to Ms. Ellard having followed Ms. Virk to the north end of the bridge, the Crown relied on the combined evidence of Mr. Glowatski, Ms. Green, and Ms. Bowles:
So what do we have there? We have three witnesses that say that Kelly Ellard went over the bridge with Warren Glowatski.
Jury Charge
[50] At the outset of his charge, the trial judge told the jury the instructions he had given them at the beginning and during the course of the trial with respect to the law, and in relation to the rules of evidence, still applied. In discussing how the jurors should assess the evidence of the witnesses he stated, in part:
Did the witness seem to be reporting to you what he or she saw or heard, or is he or she simply putting together an account based on information obtained from other sources rather than personal observation? Did the witness’ testimony seem reasonable and consistent? Is it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion? Do any inconsistencies in the witness’ evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different or because he or she failed to mention something? Is there any explanation for it, that is, the inconsistency? Does the explanation make sense?
[Emphasis added.]
[51] The trial judge reviewed the testimony of each witness in some detail. The summary of Ms. Bowles’s evidence concluded as follows:
Again, she agreed that she told police on November 24 that she last saw Reena Virk, she was down in the mud, that she did not tell police that Kelly Ellard and Warren Glowatski followed her across the bridge, that she did not tell police that Warren Glowatski washed his clothes the next day, at Syreeta Hartley’s. She didn’t know why she didn’t tell the police these things. She denied that it was because she did not see them and constructed them over time from what she heard.
On re-examination, she was asked if she gave evidence at the Shoreline Six trial and in other proceedings involving Kelly Ellard. She said that she did and that each time she testified to the effect that she saw Reena Virk going across the bridge that night.
[Emphasis added.]
[52] In instructing the jury on how to approach the evidence of the several statements in which Ms. Ellard allegedly implicated herself in Ms. Virk’s death, the trial judge stated:
You recall that the alleged statements made by the accused, Kelly Ellard, to the various witnesses who testified in this trial were summaries of verbal statements. The alleged statements were not a verbatim record of the questions asked and the answers given by Ms. Ellard. It is, therefore, quite possible that these summaries of what the accused allegedly said to these witnesses were innocently distorted.
I want to emphasize that it is up to you to decide how much weight or importance, if any, you should give to these statements or any part of them, if you decide that the statements were made.
[Emphasis added.]
[53] Noting that most of the principal witnesses in the trial had been cross-examined on statements they had made to the police and/or their testimony in previous proceedings, the trial judge instructed the jury with respect to the use that it could make of prior inconsistent statements:
Common sense tells you that when a witness says one thing in the witness box, but has said something quite different on an earlier occasion, this may reduce the value of his or her evidence.
In particular, if a person has previously lied under oath, that is a serious matter and it may well taint all of that witness’s testimony in your minds.
Not every difference or omission is important. You should consider any explanation the witness gave for the differences. You should also consider the fact, nature and extent of any differences when you decide whether to rely on the witness’s testimony.
When you are taking the differences into account, you may only use the testimony given under oath in this trial as evidence of what actually happened. You must not use the earlier statement as evidence of what actually happened unless you conclude that the witness accepted it as true while in the witness box. Even then, as with the evidence of any witness, it is for you to say whether or how much you will rely on it.
[54] The trial judge gave the jury a “Vetrovec warning” with respect to the testimony of Mr. Glowatski: R. v. Vetrovec, [1982] 1 S.C.R. 811. The jurors were told to approach Mr. Glowatski’s evidence “with the greatest of care and caution”, and that it would be dangerous to found a conviction on his evidence unless it was supported by other evidence they accepted. The trial judge mentioned Ms. Bowles’s testimony with respect to Ms. Ellard and Mr. Glowatski following Ms. Virk across the bridge as potentially confirmatory evidence. The jury was similarly warned to be cautious of L.B.’s evidence.
[55] The trial judge related the respective positions of the parties to the jury. At the hearing of the appeal we were advised by counsel that, at the request of the trial judge, these portions of the charge were, in fact, written by trial counsel. With respect to Ms. Ellard, the trial judge stated, in part:
The position of the defence is that the recollections on which the Crown case is based are simply not supported by the real evidence you’ve heard. As to the confessions attributed to Ms. Ellard, they all contain allegations originated by Warren Glowatski which the forensic pathologist has proven to be false. Although Glowatski has now abandoned these allegations as lies, they are still being advanced as the truth by witnesses like Chandelle Naysmith, [C.A.K.], Jodene Rogers and others.
The defence questions the reliability of witnesses who gave one version of events in their original statements and another version later. In particular, the evidence given by Chelsea Green seven-and-a-half years after the fact, and Melissa [sic] Bowles about seeing Kelly Ellard on the bridge was very different from what they originally told the police. Likewise, the evidence of Candace Tanner about seeing wet pants is, in the defence submission, directly contrary to what she told the police seven years before.
The defence asks how it can be possible that every single new or improved memory in the case is a memory, which assists the Crown.
[Emphasis added.]
[56] At the conclusion of the charge, Ms. Ellard’s counsel, in the absence of the jury, asked the trial judge to instruct the jury on two points relating to the evidence. The trial judge did so. Ms. Ellard’s counsel did not ask for an instruction on the possibility of collusion between various Crown witnesses, or with respect to Ms. Bowles’s prior consistent statements.
Jury Questions
[57] On the second day of its deliberations, the jury sent a note to the trial judge asking to hear portions of the testimony of Mr. Harbicht and Ms. Bowles again. That note read:
1) WE WOULD LIKE TO HEAR ROB HARBICHT TESTIMONY FROM WHERE HE ANSWERS QUESTIONS ABOUT CONVERSATION WITH [MS. ELLARD] – WHAT WORDS HE RECALLS SHE SAID
2) WE WOULD ALSO LIKE TO HEAR MARISSA BOWLES ALL TESTIMONY RELATING TO SEEING [MS. VIRK] COMING UP THE STAIRS AND SEEING [MR. GLOWATSKI] + [MS. ELLARD] CROSS THE BRIDGE
[58] After consulting with counsel, the trial judge advised the jurors that it would be necessary for them to listen to the tape recordings of all the evidence of these witnesses. After the tapes were played in open court, the jury again retired to consider its verdict.
[59] Three day later, the jury found Ms. Ellard guilty of second degree murder.
ANALYSIS
Unreasonable Verdict
[60] In advancing her argument that the jury’s verdict was unreasonable, Ms. Ellard relies on s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, which provides that an appellate court may set aside a verdict of guilty “on the ground that it is unreasonable or cannot be supported by the evidence”. In her factum, Ms. Ellard lists the following “considerations” as reasons why her conviction should be set aside, and an acquittal entered:
A. Every ‘confession’ proffered by the Crown was suspect …;
B. The Crown’s chief witness was an incorrigible liar with an agenda to see [Ms. Ellard] convicted;
C. The most important observations from witnesses supporting the Crown case were suspect …;
D. The bulk of the evidence was corrupted and contaminated by gossip and rumour rampant among the Crown’s witnesses;
E. [Mr. Glowatski’s] description of how [Ms. Virk] was drowned did not accord with the evidence;
F. [Mr. Glowatski’s] description of [Ms. Ellard’s] conduct at critical times did not accord with the evidence;
G. Other individuals, particularly [M.G.P.], had destroyed evidence, made damning admissions, and had motive to harm [Ms. Virk];
H. [Ms. Ellard] was without any motive to murder [Ms. Virk];
I. Credible evidence existed to suggest that [Ms. Ellard] did not do what the Crown alleged.
[61] Madam Justice Arbour discussed s. 686(1)(a)(i) in detail in R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15. She summarized how this provision is to be applied in her judgment in the companion case of R. v. A.G., [2000] 1 S.C.R. 439, 2000 SCC 17:
6 … The proper test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered” (Yebes, supra, at p. 185). In embarking on the exercise mandated by s. 686(1)(a)(i) of the Criminal Code, the reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one. Inevitably the verdict will be one that was open to the jury, in the sense that it was not an error of law for the trial judge to leave it to the jury for consideration. Moreover, it is not sufficient for the reviewing judge to simply take a different view of the evidence than the jury did. The appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence. This is what must now be done in this case.
More recently, in R. v. Lai, 2006 BCCA 368, (sub nom. R. v. Chao) 229 B.C.A.C. 236, Madam Justice Ryan stated:
[62] The question then is reduced to whether there was a body of evidence upon which a properly instructed jury acting judicially could have reasonably reached the conclusion that it did in the case at bar. In examining the strength of the evidence through the lens of judicial experience, we must ask as well whether the evidence is of such a troubling nature that we must set aside convictions based upon it.
[62] In applying the test, it is important to keep in mind that it involves a judicial assessment of “the cumulative effect of all the evidence”, not a “piecemeal evaluation”: R. v. Robinson, 2003 BCCA 353, 176 C.C.C. (3d) 23, at para. 40. It is also important to keep in mind that “the question is not whether a conviction was the only reasonable verdict, but whether it was a reasonable verdict”: R. v. Portillo (2003), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 51; see also R. v. Swanson, 2003 BCCA 108, 179 B.C.A.C. 63, at para. 19.
[63] The assessment of the reasonableness of a jury verdict proceeds on the basis that the jury was properly instructed. In the context of this case, this means, in particular, that the jurors received appropriate directions with respect to what was clearly a critical issue at the trial, the assessment of the credibility and reliability of the Crown’s witnesses. These directions included a strong caution with respect to the evidence of Mr. Glowatski, the only person to connect Ms. Ellard directly to Ms. Virk’s death and, by his own admission, a perjurer.
[64] There is no question that the jury was faced with a difficult task. The trial concerned an event that was several years old; one that had taken place when many of the witnesses were teenagers. Several witnesses had participated in some way in the events leading to Ms. Virk’s death. The student “grapevine” had been rampant with gossip and rumours, and Ms. Virk’s death had been reported in the media. Many witnesses had made statements to the police, or given evidence in previous proceedings, inconsistent with their testimony at the trial.
[65] The cross-examination of some of the Crown’s witnesses elicited explanations for why their statements to the police and/or previous evidence differed from their testimony at trial. Many witnesses stated they had an independent memory of the events, and that they were able to distinguish between their firsthand knowledge, and what they had heard from others.
[66] As has been said many times, jurors have the unique advantage of seeing and hearing the witnesses. They are in the best position to decide whether to accept all, some, or none of a witness’s evidence. In R. v. Sidhu, 2004 BCCA 59, 183 C.C.C. (3d) 199 (at paras. 53, 54), Madam Justice Prowse noted, with reference to R. v. François, [1994] 2 S.C.R. 827, that inconsistency or a motive to concoct do not preclude a jury from accepting the evidence of a witness whose credibility and/or reliability has been challenged. Accordingly, as Madam Justice McLachlin, as she then was, observed in François (at 837), “[a] verdict of guilty based on such evidence may well be both reasonable and lawful”. It is only when an appellant can show that a jury’s findings with respect to credibility and/or reliability cannot be supported by any reasonable view of the evidence that a verdict can be said to be unreasonable: R. v. Burke, [1996] 1 S.C.R. 474, at para. 7.
[67] The “considerations” listed by Ms. Ellard were all forcefully argued by her counsel. The jurors were clearly alive to the frailties in the Crown’s case, and of the need for them to carefully examine the evidence. In the end, it was for each juror to decide what evidence to accept, and what weight to give to that evidence. That the jurors deliberated for five days before returning a verdict indicates that they scrutinized the evidence with great care.
[68] At the hearing of the appeal, both parties proceeded on the basis that the jury must have accepted Mr. Glowatski’s evidence. Ms. Ellard argued that he had been shown to be a person so devoid of credibility that no credence should have been given to his testimony. The Crown, on the other hand, argued that it was open to the jury to accept his testimony, particularly as it was confirmed by other evidence.
[69] It may well be that the jurors, or at least some of them, accepted Mr. Glowatski’s testimony regarding Ms. Ellard’s involvement in Ms. Virk’s death. In my view, it was open to them to do so, but this is something we will never know. However, I wish to point out that even if every juror rejected Mr. Glowatski’s testimony in its entirety, there remained a body of evidence upon which they could reasonably found a conviction. In this regard, it is important to keep in mind that the law does not require every juror to follow the same route (i.e., rely on the same facts) in coming to the conclusion that guilt has been proven beyond a reasonable doubt: R. v. Morin, [1988] 2 S.C.R. 345 at 360.
[70] It is impossible to know what evidence each juror accepted. However, on the basis of the testimony from witnesses other than Mr. Glowatski, the jurors could have found that Ms. Ellard, after participating in the initial beating, followed Ms. Virk to the north end of the bridge, and afterwards admitted to drowning her in the Gorge. This, coupled with the salt water stains on the jacket Ms. Ellard was wearing that night, could have led the jurors to conclude that she was guilty. Such a route to conviction would be a reasonable one.
[71] Having reviewed the evidence in light of the arguments advanced by Ms. Ellard, I find myself unable to articulate a basis for interfering with the jury’s verdict under s. 686(1)(a)(i) of the Code. In other words, I am of the opinion that that verdict is “one that a properly instructed jury acting judicially, could reasonably have rendered”: Biniaris, at para. 36.
[72] In reaching this conclusion, I have not taken into account the fact that Ms. Ellard did not testify, even though such a failure can be considered in assessing the reasonableness of a conviction: R. v. Noble, [1997] 1 S.C.R. 874, at paras. 101, 102.
Failure to Instruct on Collusion
[73] Ms. Ellard submits that a special caution should have been given to the jury with respect to collusion, “because of the distinct possibility that the evidence had been tainted as a result of discussions between the relevant witnesses”. In support of this argument, she relies on an appendix to her factum in which she lists the evidence given by six witnesses concerning the nature and extent of the discussions regarding what had happened to Ms. Virk, which took place immediately following her disappearance, and for some time afterwards. The following extracts from the appendix illustrate the reason why Ms. Ellard says a specific instruction on collusion was required:
Marissa Bowles
- She heard rumours at school about where [Ms. Ellard] and [Mr. Glowatski] went;
- She spoke to her friends at school during the next week;
- She heard details about what had happened over the weekend following the assault, but can no longer remember where those details came from.
Chandelle Naysmith
- On Nov. 15 there was a lot of talk about what had happened on the previous night;
- There was also a lot of talk at the school during the next week about what had happened;
- The events of Nov. 14 became the subject of a tremendous amount of gossip at Shoreline school;
- On Saturday, Nov. 15, she spoke to Chelsea Green, Teneel Ferris, [C.A.K.], [G.O.] and [M.G.P.];
- What happened to [Ms. Virk] was the hot topic of conversation, everyone was talking about it;
- During the school week starting Nov. 17, there was a lot of gossip flying about.
[74] Although Ms. Ellard speaks of the “corrosive impact of collusion on the probative value of evidence”, there is nothing in the record to suggest that any of the witnesses colluded in the pejorative sense, i.e., that they agreed to testify in a knowingly false way. Rather, the thrust of her complaint is that the trial judge did not caution the jury specifically about the possibility of innocent or inadvertent collusion and contamination, given the rampant gossip and rumours at the time, and the fact that the witnesses were young and susceptible to being influenced by what they heard.
[75] As the Supreme Court of Canada indicated in R. v. Jacquard, [1997] 1 S.C.R. 314, an appellate court must take a “functional approach” in reviewing jury charges. What this approach entails is succinctly set out in the judgment of Madam Justice Jackson in R. v. Brass, 2007 SKCA 94, 226 C.C.C. (3d) 216:
[3] The appellate role in reviewing a jury charge is encapsulated by R. v. Jacquard. In Jacquard, the Supreme Court urged appellate courts to use a functional approach to avoid the danger of setting an impossible standard for trial judges. Appellate review is to be an assessment to determine whether the accused, based on a review of the whole charge, has had a fair trial and is not an examination to find minute error. As has been frequently said, the purpose of appellate review is to ensure that juries are properly, not perfectly instructed.
[76] The judgment of Mr. Justice Doherty in R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), is also apposite:
[27] In Jacquard, Lamer C.J.C. stressed that a functional approach must be taken when assessing the adequacy of jury instructions. I take this to mean that instructions must be tested against their ability to fulfil the purposes for which they are given and not by reference to whether any particular approach or formula has been used. By the end of the instructions, whatever approach is used, the jury must understand:
· the factual issues which had to be resolved;
· the law to be applied to those issues and the evidence;
· the positions of the parties; and
· the evidence relevant to the positions taken by the parties on the various issues.
[77] It is clear from this Court’s judgment in R. v. McMath (1997), 121 C.C.C. (3d) 174 (B.C.C.A.), that the possibility of collusion or collaboration between witnesses does not automatically trigger a requirement that a jury be given a special caution with respect to the possibility that the testimony of these witnesses may be tainted in some way. Whether to give a warning is a matter left to the discretion of the trial judge: paras. 70, 71. Here, of course, defence counsel did not ask the trial judge to give such an instruction. However, had the trial judge been asked to do so and declined, he would not have erred.
[78] In my view, the jury would have been aware from the outset that Ms. Ellard was challenging the credibility and/or reliability of much of the Crown’s evidence. Having regard to defence counsel’s opening statement, the manner in which Crown witnesses were cross-examined, the closing addresses of counsel, and the charge to the jury, I have no doubt that the jurors were well aware of the need for them to consider the potential frailties in the evidence, such as the influence of gossip and rumours, the impressionability of teenagers, the inconsistencies in accounts, and the “changing memories” beneficial to the prosecution. In the context of this case, to have given a special instruction regarding these matters would have been to state the obvious.
Prior Consistent Statements
[79] This ground of appeal raises two questions. The first is whether the trial judge should have allowed the Crown to re-examine Ms. Bowles to show that she had testified in previous proceedings to having seen Ms. Virk cross the bridge. The second is whether, in light of the re-examination, the trial judge should have given the jury a limiting instruction with respect to the use it could properly make of Ms. Bowles’s prior consistent statements.
[80] The Crown submits that it was open to the trial judge to find that Ms. Bowles’s evidence regarding Ms. Virk crossing the bridge had been attacked as a “recent fabrication”, and that he properly exercised his discretion in allowing admission of Ms. Bowles’s prior consistent statements in re-examination. At the hearing of this appeal, Crown counsel conceded that the re-examination was poorly done, but took the position that, in the end, it had no effect on the trial because the evidence of Ms. Bowles was not central to the Crown’s case, and her credibility, as opposed to the reliability of her evidence, was never questioned. Crown counsel noted that there were other witnesses who testified that Ms. Virk crossed the bridge. She also argued that a limiting instruction was unnecessary and would have, in any event, been confusing to the jury.
[81] To begin, I would reject the Crown’s efforts to minimize the importance of Ms. Bowles’s evidence and, to some extent, compartmentalize it. At the trial there was no issue that Ms. Virk, followed by Mr. Glowatski, crossed over to the north end of the bridge. However, what was very much in issue was whether Ms. Ellard accompanied Mr. Glowatski. The testimony of Ms. Bowles, if accepted by the jury, established this fact. That the jurors asked to re-hear Ms. Bowles’s evidence regarding who she saw on the bridge is a clear indication they viewed her evidence as significant: R. v. S. (W.D.), [1994] 3 S.C.R. 521, at 528, 530. If the jurors found Ms. Bowles to be a reliable witness with respect to having seen Ms. Virk crossing the bridge, then this would have increased the probability of their finding her a reliable witness with respect to having seen Ms. Ellard and Mr. Glowatski crossing the bridge together.
[82] The Crown submits that a trial judge’s decision to admit evidence of prior consistent statements is entitled to a measure of deference: R. v. Stapleton, 2003 BCCA 444, (sub nom. R. v. Smith) 185 B.C.A.C. 304, at para. 11. While this is correct, such deference is not owed when that decision is based on a misapprehension of the nature of the attack being made on a witness’s evidence. That, in my view, is what occurred here.
[83] The trial judge rested his decision to allow re-examination of Ms. Bowles on the following passage from the judgment of Mr. Justice Cory in R. v. Evans, [1993] 2 S.C.R. 629 at 643:
Further, it has been held that there need not be, in cross-examination, any express allegation of recent fabrication for the prior statements to be admissible. It is sufficient if, in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance. In those situations, fairness and ordinary common sense require that the jury receive a balanced picture of the whole of the witness’s conduct throughout the police investigation. To demonstrate that the evidence of the witness is not a recent fabrication it may be essential to introduce on re-examination a prior statement which shows the consistency of the witness’ testimony. See R. v. Simpson, [1988] 1 S.C.R. 3, at p. 25.
[84] With respect, this reasoning is not applicable here. There was no allegation that Ms. Bowles’s testimony was a recent fabrication, or a recent contrivance, either express, or apparent, in the position of defence counsel. Rather, it was alleged in cross-examination that Ms. Bowles’s testimony with respect to seeing Ms. Virk, Ms. Ellard, and Mr. Glowatski cross the bridge was not based on her independent recollection of the events of November 14, 1997, but, rather, was a reconstruction shaped by the external influences to which she had been exposed, both before and after giving her statement to the police on November 24, 1997; a statement in which Ms. Bowles, under oath, said she had last seen Ms. Virk under the south end of the bridge, and in which she said nothing about seeing anyone crossing the bridge. These allegations did not trigger the exception to the general inadmissibility of prior consistent statements. That Ms. Bowles had, beginning with the Shoreline Six trial three months later in February of 1998, consistently testified that she saw Ms. Virk cross the bridge did not, in any way, rebut the suggestion that her memory had been affected by these external influences.
[85] The most recent summary of the law regarding the inadmissibility of prior consistent statements, the exception when an allegation of recent fabrication is made, and the use to be made of such statements if they are admitted, is found in the judgment of Mr. Justice Bastarache in R. v. Stirling, 2008 SCC 10, 229 C.C.C. (3d) 257:
[5] It is well established that prior consistent statements are generally inadmissible (R. v. Evans, [1993] 2 S.C.R. 629; R. v. Simpson, [1988] 1 S.C.R. 3; R. v. Béland, [1987] 2 S.C.R. 398). This is because such statements are usually viewed as lacking probative value and being self-serving (Evans, at p. 643). There are, however, several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence (Evans, at p. 643; Simpson, at pp. 22-23). Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made — it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance” (Evans, at p. 643). It is also not necessary that a fabrication be particularly “recent”, as the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred (R. v. O’Connor (1995), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95). Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose.
. . .
[7] However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness’s story did not change as a result of a new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remains concocted”; see also J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313). …
[86] Although, as in Stirling, the issue as to the admissibility of prior consistent statements most often arises when it is alleged that a witness has fabricated his or her evidence (i.e., is being deliberately untruthful), it also can arise when what is being attacked is the reliability or trustworthiness of his or her recollection of events (i.e., when it is alleged that the witness, although honest, is nevertheless mistaken). As Chief Justice Dixon of the High Court of Australia stated in The Nominal Defendant v. Clements (1961), 104 C.L.R. 476 (H.C.) at 479:
The rule of evidence under which [the prior consistent statement] was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.
[Emphasis added.]
(This passage was quoted with approval in R. v. Giraldi (1975), 28 C.C.C. (2d) 248 (B.C.C.A.) at 251.)
[87] In the case at bar, Ms. Ellard’s counsel did not suggest that Ms. Bowles was being consciously dishonest in describing the events of November 14, 1997. As well, counsel never suggested that Ms. Bowles had given inconsistent testimony at previous trials with respect to seeing Ms. Virk, Mr. Glowatski, and Ms. Ellard crossing the bridge (as opposed to how far she could see across the bridge). Rather, what counsel suggested was that Ms. Bowles’s account in her statement to the police ten days after the events reflected her true memory, and that her testimony at the trial was unreliable as it was based on memory that had been contaminated by external influences in the period following Ms. Virk’s death.
[88] In Stirling, Bastarache J. noted that, when it is alleged that testimony has been fabricated, prior consistent statements have probative value because they can rebut that allegation by showing that the witness’s story was the same before the motive to fabricate arose. This presupposes some period in relation to which the fabrication is alleged to have occurred. As the term “prior consistent statement” connotes, to be admissible under this exception, a statement consistent with the evidence being challenged must have been made before the witness had an opportunity to concoct a story, or before a motive to fabricate arose: R. v. Campbell (1977), 38 C.C.C. (2d) 6 (Ont. C.A.) at 20; R. v. Pangilinan (1987), 39 C.C.C. (3d) 284 (B.C.C.A.) at 286. This reasoning applies equally when what is alleged is that a witness’s memory has been contaminated, albeit unconsciously, by external influences. When such an allegation is made, evidence may be given that the witness made a statement consistent with his or her present testimony before the potential for contamination existed.
[89] The external influences alleged to have contaminated Ms. Bowles’s memory would have been in play at the time she gave her statement to the police (in 1997), and well before she testified at the trial of the Shoreline Six (in 1998). Only a statement made by Ms. Bowles before the police interview, or, perhaps, shortly thereafter, that she saw Ms. Virk cross the bridge would have been probative on re-examination to rebut an allegation of contamination, but no such statement was offered. Similarly, the fact that Ms. Bowles testified to seeing Ms. Virk cross the bridge at Mr. Glowatski’s trial (in 1999) and Ms. Ellard’s previous trials (in 2000 and 2004) was not capable of rebutting the suggestion that her memory had been contaminated years before. The trial judge, therefore, was wrong in permitting the Crown to re-examine Ms. Bowles. To paraphrase what Mr. Justice Smith said in R. v. Kokotailo, 2008 BCCA 168, 232 C.C.C. (3d) 279, at para. 44, testimony is not made any more reliable simply because it is repeated several times.
[90] This, however, does not end the matter. There remains the question of whether the trial judge’s failure to give the jury a limiting instruction as to what use could be made of Ms. Bowles’s prior statements had any impact on the trial and, more particularly, on the jury’s assessment of her evidence. Although the Crown concedes that normally such an instruction is required, it submits that one was not necessary in this case.
[91] The Crown points to the fact that Ms. Ellard’s counsel cross-examined Ms. Bowles regarding her ability to see how far Ms. Virk walked across the bridge. In so doing, Ms. Ellard’s counsel had Ms. Bowles adopt, as true, the evidence she gave at Mr. Glowatski’s trial, that she had been able to watch Ms. Virk walk north on the bridge for ten feet: see paragraph 34 above. The Crown says that, since the defence itself was relying on this aspect of Ms. Bowles's evidence, a limiting instruction was not required, because the prior statements elicited on re-examination were to the same essential effect and, therefore, would not have had any impact on the jury. I do not agree.
[92] The Crown’s submission ignores the context of Ms. Bowles’s cross-examination, and the position taken by the defence with respect to her evidence. The fact that Ms. Virk crossed the bridge was not contentious. What was contentious was whether Ms. Bowles’s testimony with respect to having seen anyone crossing the bridge, particularly Ms. Ellard, was reliable. Ms. Bowles’s evidence from Mr. Glowatski’s trial was not elicited by the defence to establish that Ms. Virk had crossed the bridge. Rather, the defence used her prior testimony in conjunction with her statement to the police in an effort to show that her memory of seeing anyone cross the bridge was unreliable.
[93] The reliability of Ms. Bowles’s evidence with respect to having seen Ms. Ellard cross the bridge cannot be separated from the reliability of her evidence that she saw Ms. Virk and Mr. Glowatski cross the bridge. These aspects of her memory, and ability to accurately recall, are inextricably connected. As Bastarache J. observed in Stirling, it is not possible to “hive off” a witness’s general credibility from the specific credibility question to which the prior consistent statements relate: para. 12. This reasoning applies equally when what is in issue is a witness’s reliability with respect to evidence given on a specific matter, as reliability is a factor in the assessment of a witness’s credibility as a whole: R. v. White, [1947] S.C.R. 268 at 272.
[94] Throughout the trial, the trial judge told the jurors that consistency was a factor they should consider in deciding whether to believe a witness: see paragraphs 12, 15, and 50 above. In my view, having regard to the “functional approach” to reviewing jury instructions, the jury should have been told specifically that Ms. Bowles’s prior consistent statements did not enhance the reliability of her testimony and, further, that those statements could not diminish any concerns the jury might have regarding the effect of external influences on her evidence. In the absence of such instructions, one or more of the jurors may have erroneously treated Ms. Bowles’s prior consistent testimony with respect to Ms. Virk as a positive factor in deciding to accept her evidence that Ms. Ellard also crossed the bridge.
[95] That the jurors asked to rehear Ms. Bowles’s evidence concerning who she saw cross the bridge evinces that this evidence was significant in their deliberations. I am, accordingly, unable to accede to the Crown’s alternative submission that, even if the manner in which the trial judge dealt with Ms. Bowles’s prior consistent statements was wrong in law, then it nonetheless was a harmless error.
[96] One final comment. I am aware that the failure of defence counsel to object to a jury charge is a factor to be considered in assessing “both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection”: Jacquard, at para. 38. Here, for whatever reason, Ms. Ellard’s counsel did not realize at the time that the charge was deficient. However, defence counsel’s failure to object is not determinative, as ultimate responsibility for the charge rests with the trial judge. When, as in this case, the error is a serious one, the lack of an objection cannot prejudice an accused’s right to appeal: Jacquard, at para. 37.
CONCLUSION
[97] I would allow this appeal, set aside the conviction, and order a new trial.
“The Honourable Mr. Justice Frankel”
Reasons for Judgment of the Honourable Mr. Justice Chiasson:
Introduction
[98] I have had the opportunity to read a draft of the reasons for judgment of my colleagues. Like Mr. Justice Low, I am indebted to Mr. Justice Frankel for his thorough analysis of the facts and the law. I agree with the conclusions of Frankel J.A., but add my own thoughts concerning the issue of the prior consistent statements of Ms. Bowles.
Admissibility of prior consistent statements
[99] As noted by my colleague, prior consistent statements are presumptively inadmissible. This is because the fact a person has stated the same thing on a number of occasions does not, by that fact alone, make the statement true. An exception to the rule against admissibility is to rebut an allegation of recent fabrication.
[100] Although the focus of the exception generally is on the credibility of a witness or testimony, of equal concern can be the reliability of evidence. For the purpose of this case, I consider that credibility concerns the believability of a person or testimony and reliability looks to accuracy, to the source of the evidence.
[101] In this case, it was not suggested that Ms. Bowles or her evidence was not believable. The defence took the position Ms. Bowles did not see Reena Virk, Warren Glowatski or the appellant re-crossing the bridge; she had no independent memory of this; her testimony to that effect derived from conversations with others. This is apparent from the following extract from the cross-examination of Ms. Bowles:
Q You didn’t tell the police that Kelly and Warren followed her [Reena], right?
A Yes.
Q You didn’t tell the police that you had actually seen Reena herself on the bridge, right?
A Yes.
[…]
Q And you knew, you’ll say now, that you saw Kelly and Warren go across the bridge?
A Yes.
Q And you knew that the last time you saw Reena she was actually walking across the bridge?
A Yes.
Q So why didn’t you tell the police any of these things on November 24th?
A I don’t know.
Q You don’t know? I’m going to suggest to you, Ms. Bowles, it’s because you didn’t actually see Warren and Kelly walk across that bridge and that that is something that you’ve constructed over time from all the other things you’ve heard. Is that possible?
A No.
[Emphasis added.]
[102] During the discussion whether to allow the Crown to re-examine Ms. Bowles, the trial judge stated the Crown could put prior consistent statements to the witness “to the extent it’s been suggested that the witness recently fabricated the evidence”. Defence counsel responded:
I didn’t suggest it was a recent fabrication. She said, in 1997, she didn’t remember this. I didn’t put to this witness, “You just remembered that today.” I put to her she’s never remembered it at all.
[…]
MS. MURRAY [for the Crown]: I think that’s right, that – what my friend just said, that she made the suggestion that she never remembered it at all. So for that reason –
MS. DANELIUK [for the defence]: No, not never remembered it, didn’t see it at the time. Sorry, I don’t want to misstate that. I didn’t say that she’s just remembering it today. I said she’s never seen it.
[103] It is clear the judge allowed the re-examination on the basis there had been an allegation of recent fabrication.
[104] Frankel J.A. concludes there was no allegation of recent fabrication. Low J.A. implicitly concludes there was.
[105] The word “fabrication” often has a pejorative connotation. The Concise Oxford English Dictionary, 11th ed. (Oxford University Press: 2004) offers the following definition of “fabricate”: “invent in order to deceive”. This negative connotation links to an impeachment of a witness’s credibility. In a more neutral sense, a memory may be fabricated, or made, innocently through the influence of external forces such as conversations; in this context, the issue is the reliability of the evidence. Defence counsel used the word “constructed”. In my view, she was suggesting Ms. Bowles’s evidence was made or fabricated by things she had heard about what happened on the night in question.
[106] The thrust of the defence position was Ms. Bowles did not see Reena Virk, Warren Glowatski or the appellant re-cross the bridge, that is, cross to the north side. The defence sought to establish this by showing that Ms. Bowles did not tell the police she saw them do so when first interviewed. Counsel also explored the extensive gossip and rumours that surrounded the events of the killing. Had the matter ended there, no foundation would have been laid for the introduction of prior consistent statements, but counsel suggested that the witness's testimony at trial was constructed based on what she had heard.
[107] The trial judge concluded this amounted to an allegation of fabrication. In my view, this Court should give deference to this conclusion. This was not a simple case where there was a trigger-point which suggested the witness had a reason to fabricate. (Even in such cases, there must be some flexibility: see for example R. v. Stirling, 2008 SCC 10, 229 C.C.C. (3d) 257, where the focus was on the initiation of a civil action seeking damages as the event giving rise to a motive to fabricate, but the court recognized that from the moment of the accident, the witness had some motive to lie to avoid criminal responsibility.) The allegation in this case was that the construction of Ms. Bowles’s memory took place over time.
[108] I cannot say the trial judge erred in concluding counsel’s questioning suggested fabrication and in permitting the re-examination.
Need for a limiting instruction
[109] The issue becomes whether the judge erred by failing to give a limiting instruction on the use the jury could make of the evidence.
[110] A peculiarity of the issue is the fact Crown counsel did not seek to introduce prior consistent statements that Ms. Bowles saw the appellant re-cross the bridge. Counsel’s focus was on whether Ms. Bowles previously testified that Reena Virk re-crossed the bridge. That fact was not in issue. It was common ground she did so. As Low J.A. states, the real issue was whether the appellant re-crossed the bridge.
[111] The principal evidence against the appellant, overall, was that of Warren Glowatski. He was a singularly non-credible and unreliable witness. The testimony of Ms. Bowles was extremely important as corroboration of the testimony of Warren Glowatski. This is underscored by the jury’s request: “[w]e would also like to hear Marrissa [sic] Bowles all testimony relating to seeing Rena [sic] coming up the stairs and seeing Warren + Kelly cross the bridge.”
[112] The Supreme Court of Canada commented on the significance of jury questions in R. v. S. (W.D.), [1994] 3 S.C.R. 521 at 528:
[…] questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. This is true for any number of reasons which have been expressed by this Court on other occasions. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful manner
[Emphasis added.]
and at 539:
All questions received from the jury must be considered to be of significance and import.
[113] In the context of this case, it is apparent the jury was concerned about Ms. Bowles’s evidence relating to whether the appellant re-crossed the bridge. Did she see the appellant do so or was her testimony based on what she heard from others? The Crown introduced prior consistent statements to establish Ms. Bowles’s evidence she saw Reena Virk re-cross the bridge was not fabricated. The jury’s request included the testimony related to Reena Virk re-crossing the bridge. It would not be startling for jury members to think that if Ms. Bowles’s recollection Reena Virk re-crossed the bridge was reliable, so too was her recollection the appellant re-crossed the bridge.
[114] It also is possible, as asserted by Low J.A., that the jury clearly saw and compartmentalized the issues whether Reena Virk re-crossed the bridge, whether Warren Glowatski followed her and whether the appellant accompanied him, but, in my view, supporting the reliability of Ms. Bowles's testimony on one issue through prior consistent statements required a limiting instruction on the use that could be made of that out-of-court evidence. This is consistent with the rule that generally a limiting instruction should be given. (McWilliams’ Canadian Criminal Evidence, 4th ed. (Aurora Ont.: Canada Law Book, 2008) at 11:50; R. v. Divitaris (2004), 188 C.C.C. (3d) 390, at para. 31 (Ont. C.A.); R. v. Rockey, [1996] 3. S.C.R. 829, per McLachlin J. (as she then was); R. v. A. (J.) (1997), 112 C.C.C. (3d) 528 (Ont. C.A.).) R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.) provides examples of circumstances where a limiting instruction is not required: defence relies upon the prior consistent statement; it is clear the prior statement is not offered for the truth of its contents; there is no concern about self-corroboration.
[115] The criminal law and the rules of evidence are a template for justice; not rigid, but a template none the less. Often trial judges have a discretion whether to provide an instruction to a jury. In those circumstances, of some significance may be the absence of a request for an instruction by defence counsel. (R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.).) In my view, that is not the case with prior consistent statements.
[116] The notion that consistency does not reinforce veracity is counterintuitive. The danger of prior consistent statements becomes apparent only when they are placed into the context of the law’s focus on the supremacy of in-court testimony.
[117] In this case, it would have been important for the jury to be told that the fact Ms. Bowles previously testified to seeing Reena Virk re-cross the bridge could not be used to establish that fact, but only to rebut any suggestion Ms. Bowles fabricated her in-court testimony to that effect. That is, the prior statement could be used only to rebut the suggestion her in-court testimony concerning Reena Virk re-crossing the bridge was not reliable because it had been constructed. It could not be used in any way to support the reliability of her in-court testimony the appellant re-crossed the bridge or to rebut any suggestion that that testimony was constructed from what she heard from others. It is significant to note that the point of focus of the jury’s question was on Ms. Bowles’s evidence concerning re-crossing the bridge by all three of Reena Virk, Warren Glowatski and the appellant.
The curative provision
[118] Section 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, provides that notwithstanding an error of law in a jury charge, this Court may dismiss an appeal if it is satisfied that no substantial wrong or miscarriage of justice occurred. The onus is on the Crown to show that if the error had not occurred the result necessarily would have been the same. (R. v. Simpson, [1988] 1 S.C.R. 3; R. v. Bevan, [1993] 2 S.C.R. 599.)
[119] I am aware there was some other evidence supporting the contention the appellant and Mr. Glowatski followed Reena Virk across the bridge, but considering the significance of Ms. Bowles’s evidence as corroborative of Warren Glowatski’s evidence and the importance of his evidence to the Crown’s case, I am unable to conclude that the verdict necessarily would have been the same.
[120] In addition, as was the case in R. v. Lajoie (1993), 64 O.A.C. 213, the verdict cannot stand safely. The appellant has been to trial three times in this matter: the first conviction was set aside on appeal; the jury on the second trial was unable to reach a verdict; on the third trial the jury deliberated for several days (in Lajoie, it was eight hours).
Conclusion
[121] I would defer to the trial judge’s determination that the cross-examination of Ms. Bowles provided a foundation for the introduction of prior consistent statements.
[122] In my view, generally a limiting instructing is required when evidence of prior consistent statements is adduced. In the circumstances of this case, such an instruction was imperative. As evidence that confirmed an uncontroverted fact – that Reena Virk re-crossed the bridge – Ms. Bowles’s testimony on re-direct had little practical purpose other than to bolster the reliability of her testimony.
[123] In such circumstances, the absence of a request from defence counsel for a limiting instruction cannot override the compelling need for such an instruction.
[124] In my view, the error went to the core of an issue of specific concern to the jury and it cannot be said that absent the error the result necessarily would have been the same. In addition, the history of this case suggests in light of the error the verdict cannot stand safely.
[125] I would allow the appeal and order a new trial.
“The Honourable Mr. Justice Chiasson”
Reasons for Judgment of the Honourable Mr. Justice Low:
[126] I have read in draft form the reasons of Mr. Justice Frankel in this appeal. I am indebted to him for his thorough discussion of the evidence presented at trial.
[127] I agree with my colleague that on the application of the test in R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, to the body of evidence in this case it cannot be said that the verdict was unreasonable.
[128] I also agree that there was no error on the part of the trial judge in not giving the jury a special instruction on the possibility of witness collusion.
[129] I am unable to agree with my colleague, however, that the failure of the trial judge to give a limiting instruction on the law of prior consistent statements was an error. I have also read the proposed reasons of Mr. Justice Chiasson. I am not persuaded by his reasoning that the judge erred as argued. It seems to me that my colleagues are suggesting that the trial judge erred in failing to give a special instruction to the jury with respect to prior consistent evidence that the witness Marissa Bowles did not give.
[130] It follows that I would dismiss the appeal.
[131] I can state my reasons briefly. At trial, the only issue was identification. It was common ground that Warren Glowatski was criminally responsible for the murder. The Crown sought to prove that the appellant was also criminally responsible. The defence theory was that Mr. Glowatski acted alone or that, if he did not act alone, one or both of two named teenaged girls, other than the appellant, acted with him.
[132] It was also common ground that the murder occurred on the side of the water opposite the location of the swarming assault of Reena Virk. The case against the appellant was strengthened by eyewitness evidence that the appellant started across the bridge in the company of Mr. Glowatski. Some of that evidence came from Marissa Bowles.
[133] Ms. Bowles testified that she saw both Mr. Glowatski and the appellant follow Reena Virk across the bridge. This was inconsistent with what she said in her written statement to the police ten days after the event. In that statement, she said that the last time she saw her, Ms. Virk was in the mud at or near the site of the initial assault. She did not tell the police that she saw Ms. Virk cross the bridge. Nor did she say that she saw Mr. Glowatski or the appellant follow Ms. Virk across the bridge. Defence counsel carefully and thoroughly explored these inconsistencies in cross examination. Counsel suggested to the witness that her evidence that she saw Mr. Glowatski and the appellant walk across the bridge was “constructed over time from all the other things you’ve heard”. She denied the suggestion.
[134] The fact in issue was not whether Reena Virk crossed the bridge or whether Mr. Glowatski followed her. The disputed fact was whether the appellant accompanied Mr. Glowatski. I do not agree that the reliability of Ms. Bowles’s evidence cannot be separated with respect to these three facts. It is inconceivable that the jurors did not fully understand that, regardless of what they might have thought about the reliability of the evidence of this witness with respect to the first two facts, they still had to consider the reliability of her evidence as to the third fact. The jurors were instructed that they could accept all, some or none of the evidence of a particular witness. I am sure that they would have seen it as illogical reasoning to conclude that, because Ms. Bowles testified at previous trials that she saw Ms. Virk crossing the bridge, her evidence should be accepted that she also saw the appellant crossing the bridge.
[135] Defence counsel questioned Ms. Bowles about the evidence she had given at Mr. Glowatski's trial, as follows:
Q Okay, and you say to us today that you watched her go half to three quarters of the way across that bridge in the dark, right?
A Yes.
Q Okay, and she’s wearing black, a dark jacket?
A I don’t remember exactly.
Q Okay. You testified at Mr. Glowatski’s trial, and I’ll just ask you to turn to that transcript at tab 3, please, and page 257. Are you there?
A Yeah.
Q All right. You’re talking about seeing Reena come up the bridge and at line 38, you (sic) say:
Okay --
Well, this is the question to you.
-- you say light-headed …
Speaking about Reena, that is.
A Yes.
Q And he says:
What gave you that impression? How was she walking?
And you said:
She was kind of staggering.
And the question is:
And how long did you watch her for?
And you answered:
Um, about 10 feet until I -- I just couldn’t see her anymore because it got dark closer to the middle of the bridge.
Do you see that?
A Yes.
Q So back in 1999 you said you saw her go about 10 feet, right?
A Yes.
Q You agree?
A Yes.
Q Okay, and that was under oath?
A Yes.
Q And that was true?
A Yeah, it was an estimate.
Q Well, you told the truth then, right?
A Yes.
[136] The re-examination of this witness at trial commenced as follows:
Q There were some passages put to you, Marissa, from your evidence at Warren Glowatski’s trial through your cross-examination, correct?
A Yes.
Q At Warren Glowatski’s trial you testified for the Crown?
A Yes.
Q You also testified at trials against [G.O.] and [C.K.] for the Crown?
Q I want to talk to you a little bit. You’ve been cross-examined at some length about how far you can see over the Craigflower Bridge and there was a passage put to you. Let me just find it here and that was from Warren Glowatski’s trial, I believe. Just a second. First of all, let me do it this way. You were asked a lot about whether you actually saw Reena Virk get up and walk across the bridge and how far you could see her, correct?
A Yes.
Following an objection to this questioning, submissions and the trial judge's ruling, the re-examination concluded the next day:
Q Ms. Bowles, when we broke, I was asking you -- well, I was asking you about the statement that was put to you during your cross-examination where you told the police that you -- where you didn’t tell the police about Reena going over the bridge, correct?
A Yeah.
Q Let me just get another book here. You testified in what we call the "Shoreline 6" trials that [G.O.] and [C.K.] and [N.P.] on -- for the Crown on February 10th, 1998; do you remember that?
A Yes.
Q And on that date -- sorry, you had a chance to go through the transcript of that?
A Yes.
Q And on that date did you testify about Reena going across the bridge?
A Yes.
Q You testified for the Crown in the trial against Warren Glowatski on April 15th, 1999?
A Yes.
Q You’ve had a chance to go through your transcript?
A Yeah.
Q And on that occasion did you testify that you saw Reena Virk walking across the bridge?
A Yeah.
Q You testified in other proceedings involving Ms. Ellard?
A Yes.
Q And have you had a chance to go through your transcripts?
A Yes.
Q And have you testified previously in Ellard trials that you saw Reena Virk walking across the bridge?
A Yes.
[137] It is difficult to discern what the Crown sought to accomplish with this re-examination. But the re-examination did nothing more than emphasize the inconsistency in the evidence of the witness brought out in cross examination in the passage reproduced in para. 135 above. Its substance was redundant to evidence she had already given in cross examination. I do not see how the jury could have come to the conclusion that, because Ms. Bowles testified previously under oath about a fact not in dispute, the reliability of her evidence was strengthened about a fact that the defence vigorously disputed. Indeed, if the jurors drew anything from the re-examination it would have been against the reliability of the witness. This is so because the re-examination implicitly emphasized the apparent failure of Ms. Bowles to testify on prior occasions that she had seen the appellant crossing the bridge.
[138] In his address to the jury, defence counsel, after making a general reference to the “memory changes” of a number of witnesses, said this about the evidence of Marissa Bowles:
Marissa Bowles, for example. You know, Marissa Bowles seemed like a perfectly nice young woman to me. I wouldn’t call her a liar, but can you have any trust in what she remembers anymore? She talked to the police when these events were fresh in her mind, and she said to them, “No, I didn’t see that incident where [N.C.] butted a cigarette on Reena’s forehead, but I heard about it later.” She said [N.P.] told her about it later. Then, months down the road, she remembers it. Now she believes she saw it.
She told the police, “No, I didn’t see Glowatski kick Reena. I just heard about it later.” Then, months down the road, she remembers that she actually saw that.” [sic] And then the police want to know, when they’re talking to her, “When’s the last time you actually saw Reena Virk? When’s the last time you saw her?” And she says, “Oh, I remember that. She was down at the bottom on the rocks by that rock wall, sitting down in the mud. That’s where I saw her.” She -- there’s a memory she has. They ask her for it, and she tells them. Now she remembers that Reena walked up the stairs and that she was obviously in distress. She was staggering, and she walked across the bridge and Kelly Ellard followed her. Well, where does that come from? When the police say, “When’s the last time you saw Reena Virk,” how could you miss that?
[139] Other than a brief remark about an unrelated aspect of the evidence of Ms. Bowles, defence counsel did not mention her evidence again. In his submission, he was content to specifically challenge the reliability of her evidence by pointing out that she did not tell the police about certain things in her initial statement, including that she saw the appellant follow Ms. Virk across the bridge.
[140] In her address to the jury, Crown counsel said the following with respect to the evidence of Marissa Bowles:
Let’s go now to the top of the hill. Now, we know that after the first beating under the bridge, all of the kids, save Reena, made their way to the top of the hill. And we know that people went various places. Some were dealing with the knapsack, some were milling around. We know at the top of the hill, from Marissa Bowles and Warren Glowatski, that there was Marissa Bowles and Lorne Lloyd-Walters and Warren Glowatski and Kelly Ellard towards the top of the stairs.
You heard from Marissa Bowles about that. She told you that:
A group of girls took Reena’s bag into the parking lot of the Comfort Inn. This is after Reena walked up the stairs. Kelly and Warren were about five feet away from me. They were beside each other, just the two of them. Others were about five feet away in a different direction. Reena started coming up the stairs. I saw her from the side. She was staggering, looking light-headed.
[141] Crown counsel did not otherwise specifically mention the evidence of Ms. Bowles. She did not invite the jury to reach any conclusion about the reliability of the evidence of this witness from the evidence elicited in re-examination. She did not respond to the argument of defence counsel about the failure of Ms. Bowles to tell the police in her initial statement about seeing Mr. Glowatski and the appellant follow Ms. Virk across the bridge.
[142] It is obvious from the jury request to hear the testimony of Ms. Bowles “relating to seeing [Ms. Virk] coming up the stairs and seeing [Mr. Glowatski] + [the appellant] cross the bridge” that the jurors were concerned about the evidence of this witness that she saw the victim, Mr. Glowatski and the appellant crossing the bridge. The court replayed the audiotape of her entire evidence. So the jurors again heard the inconsistencies in her evidence. In my opinion, the request of the jury to rehear this evidence does not affect the question of whether it was necessary for the trial judge to provide instruction on the law with respect to prior consistent statements. As worded, the question from the jury does not suggest that the jurors might have been inclined, as a consequence of the re-examination by the Crown of Ms. Bowles, to assess her evidence on any basis that would be impermissible in law. They simply wanted to hear her evidence again.
[143] I also think that it is significant that experienced defence counsel at trial did not object to the failure of the trial judge to instruct the jury as to the law concerning prior consistent statements. Further, counsel did not raise a concern even after hearing the evidence of Ms. Bowles played back for the jury. This emphasizes that the point now raised on appeal was obscure to counsel and to the court at trial. In this regard, I would apply the following passage from R. v. Jacquard, [1997] 1 S.C.R. 314:
[38] Nevertheless, defence counsel’s failure to comment at the trial is worthy of consideration. In Thériault v. The Queen, [1981] 1 S.C.R. 336, 61 C.C.C. (2d) 102, 126 D.L.R. (3d) 193, although I dissented on unrelated grounds, Dickson J. (as he then was) expressed the proper view at pp. 343-44: “[a]lthough by no means determinative, it is not irrelevant that counsel for the accused did not comment, at the conclusion of the charge, upon the failure of the trial judge to direct the attention of the jury to the evidence”. In my opinion, defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.
[144] I am not persuaded that the absence of an instruction as to the law of prior consistent statements gave rise to a risk that the jury might have used forbidden reasoning in assessing the evidence of Ms. Bowles. There is nothing before the court that identifies any logical thought process that one or more jurors might have undertaken that would involve such reasoning.
[145] I would dismiss the appeal.
“The Honourable Mr. Justice Low”