SUPREME COURT OF CANADA
Between:
Her Majesty The Queen
Appellant
and
Kelly Marie Ellard
Respondent
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment: (paras. 1 to 49) Dissenting Reasons: (paras. 50 to 61) |
Abella J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Charron, Rothstein and Cromwell JJ. concurring) Fish J. |
______________________________
R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19
Her Majesty The Queen Appellant
v.
Kelly Marie Ellard Respondent
Indexed as: R. v. Ellard
Neutral citation: 2009 SCC 27.
File No.: 32835.
2009: April 20; 2009: June 12.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for british columbia
Criminal law — Trial — Evidence — Admissibility — Prior consistent statements — Trial judge permitting Crown to re‑examine its witness to show that she had made prior consistent statements — Accused convicted of second degree murder — Whether trial judge erred in allowing statements to be admitted in re‑examination — If so, whether curative proviso applicable — Whether trial judge was required to give jury limiting instruction on use that could be made of statements — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
A teenage girl was brutally assaulted by several individuals. At the end of the assault, staggering from her injuries, she made her way across a bridge where she was again attacked and forcibly drowned. The prosecution for the murder centred on two individuals: G was convicted; the other is the accused. Both took part in the first assault and, it was alleged, followed the victim over the bridge and caused her death. This was the accused’s third trial. She was convicted of second degree murder. Part of the Crown’s case hinged on the testimony of a witness whose cross‑examination canvassed numerous inconsistencies between her testimony at trial, her statements to police made days after the murder, and her testimony at G’s trial. The defence submitted that these inconsistencies showed that she had reconstructed her memory over time under the influence of rumour and speculation. Following this cross‑examination, the trial judge permitted the Crown to re‑examine her to show that she had made prior consistent statements at previous trials on whether she had seen the victim cross the bridge. The Court of Appeal set aside the conviction and ordered a new trial on the basis that the trial judge’s failure to provide a limiting instruction to the jury on the use they could make of these prior consistent statements was a serious error.
Held (Fish J. dissenting): The appeal should be allowed and the accused’s conviction restored.
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.: While prior consistent statements are presumptively inadmissible, there is an exception if a party has made an allegation of recent fabrication. The opposing party may then rebut the allegation by introducing prior statements, consistent with testimony at trial, and made before the alleged fabrication arose. In this case, the statements on which the witness was re‑examined did not fit within this exception since they were not made before any of the circumstances the defence argued were responsible for the witness’s changed memory, namely the atmosphere of rumour and speculation following the murder. The trial judge therefore erred in ruling that the re‑examination was permissible. [31‑32] [34]
However, there was no reasonable possibility that the error had any impact on the verdict. It was an accepted fact at the trial that the victim crossed the bridge. Whether or not the Crown’s witness claimed to have seen her do so could have had no bearing on any disputed issue, and, in the circumstances of this case, could have had little effect on her general reliability. The real question at trial — whether the witness had seen the accused and G cross the bridge — was not addressed in the re‑examination. The fact that the witness had previously testified on this point had already been canvassed in the cross‑examination. Furthermore, the jury necessarily would have known and appreciated that nothing in the re‑examination detracted from or even addressed the inconsistencies in the witness’s evidence as a whole. The curative proviso under s. 686(1)(b)(iii) of the Criminal Code therefore applies to cure the trial judge’s harmless error in permitting the re‑examination. [35] [39‑40]
The absence of a limiting instruction in this case did not amount to a legal error. A limiting instruction will usually be required in cases where prior consistent statements are admitted on the theory that their repetition tends to risk bolstering the witness’s reliability or supporting the fact at issue. But, in the unusual circumstances of this case, the prior consistent statements were of no assistance to the Crown because they did not go to a disputed issue and did nothing to bolster the witness’s reliability. Since the statements had no such value, there was no risk of the jury using them to draw impermissible inferences. [42] [44] [48]
Per Fish J. (dissenting): The outcome of this appeal depends on whether there is any reasonable possibility that the verdict would have been different had the trial judge not erred in admitting the witness’s prior consistent statements. The burden in this regard rests on the Crown, and it has not been discharged in this case. The sole purpose of the evidence was to rehabilitate the witness — that is, to enhance her credibility — and Crown counsel, in this Court, was unable to provide any alternative explanation at all for the re‑examination. It is entirely possible, if not probable, that the jury would have seen the substance of the re‑examination as clearly relevant to a crucial factual issue: whether it was the accused who accompanied G in following the victim across the bridge. If the jury lent credence to the improperly admitted testimony of the witness that she had seen the victim cross the bridge, then it would have been obliged to reject the defence’s critical proposition that the witness had in fact seen nobody cross the bridge. There was therefore a reasonable possibility that the impermissibly admitted evidence could have affected the verdict. Finally, the question whether a limiting instruction was required is entirely moot, since the erroneous admission of the evidence is alone sufficient to require a new trial. [52‑55] [57] [60]
Cases Cited
By Abella J.
Referred to: R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Evans, [1993] 2 S.C.R. 629; R. v. Béland, [1987] 2 S.C.R. 398; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272; R. v. Simpson, [1988] 1 S.C.R. 3; R. v. B. (A.J.), [1995] 2 S.C.R. 413; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. Fair (1993), 16 O.R. (3d) 1; R. v. Divitaris (2004), 188 C.C.C. (3d) 390; R. v. A. (J.) (1996), 112 C.C.C. (3d) 528; R. v. Codina (1995), 95 C.C.C. (3d) 311; R. v. Demetrius (2003), 179 C.C.C. (3d) 26; R. v. S. (P.) (2000), 144 C.C.C. (3d) 120; R. v. G.M., [2000] O.J. No. 5007 (QL); R. v. Clark (1995), 87 O.A.C. 178; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523.
By Fish J. (dissenting)
R. v. Bevan, [1993] 2 S.C.R. 599.
Statutes and Regulations Cited
Criminal Code , R.S.C. 1985, c. C‑46 , s. 686(1) (b)(iii).
Authors Cited
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 5th ed. Toronto: Irwin Law, 2008.
APPEAL from a judgment of the British Columbia Court of Appeal (Low, Chiasson and Frankel JJ.A.), 2008 BCCA 341, 259 B.C.A.C. 59, 436 W.A.C. 59, 239 C.C.C. (3d) 233, 62 C.R. (6th) 274, [2008] B.C.J. No. 1689 (QL), 2008 CarswellBC 1877, setting aside the accused’s conviction and ordering a new trial. Appeal allowed, Fish J. dissenting.
John M. Gordon, Q.C., and Mary T. Ainslie, for the appellant.
Peter J. Wilson, Q.C., and Brock Martland, for the respondent.
The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ. was delivered by
[1] Abella J. — This appeal arises out of the third trial of Kelly Marie Ellard in connection with the tragic death of 14-year-old Reena Virk.
[2] Ms. Ellard was convicted of second degree murder. The Court of Appeal ordered a new trial because it concluded that the trial judge’s failure to provide a limiting instruction on the use of certain prior consistent statements was a serious error. While admitting these statements may technically have been an error, in my view the statements had no probative value or impact in the context of this trial. The error was therefore a harmless one. In the circumstances, no limiting instruction was required.
Background
[3] On November 14, 1997, a number of teenagers congregated at the southern end of the Craigflower Bridge in Victoria, British Columbia. After an argument broke out, Ms. Virk was “swarmed” by a group of eight individuals. She was punched, kicked, and burned with a cigarette. At the end of the brutal assault, staggering from her injuries, she made her way to the northern side of the bridge where she was attacked a second time and forcibly drowned in the Gorge Waterway.
[4] Six of the individuals who participated in the initial “swarming” were prosecuted in youth court in February 1998 in what came to be known as the trial of the “Shoreline Six”. Three of the six pleaded guilty to assault causing bodily harm. The other three were found guilty of the same offence following their trial.
[5] The prosecution for Ms. Virk’s murder centred on two individuals, Ms. Ellard and Warren Glowatski, both of whom took part in the first assault and who, it was alleged, followed Ms. Virk over the bridge and caused her death. Mr. Glowatski was convicted in June 1999, and an appeal from his conviction was dismissed in November 2001.
[6] The prosecution of Ms. Ellard, on the other hand, has been protracted. Her first trial, in March 2000, resulted in a conviction which was overturned on appeal in February 2003. A second trial, held between June and July 2004, resulted in a mistrial.
[7] Ms. Ellard was again convicted by a jury at a third trial which took place from February to April 2005. The conviction resulted in an automatic sentence of life imprisonment. The trial judge, Bauman J., set Ms. Ellard’s parole eligibility at seven years.
[8] The Crown’s case rested in significant part on the testimony of Mr. Glowatski, who claimed that Ms. Ellard participated in the final assault on Ms. Virk and ultimately drowned her in the Gorge Waterway.
[9] Another Crown witness was Marissa Bowles, who saw the initial assault. Her evidence at this third trial was that she had seen Ms. Ellard cross the Craigflower Bridge with Mr. Glowatski some time after she saw Ms. Virk cross.
[10] Ms. Ellard’s lawyers argued that Ms. Bowles’ memory, as well as that of many other witnesses, had been tainted by rampant rumours and speculation in the days following Ms. Virk’s murder, and that this raised the possibility of involuntary collusion. In support of this position, they pointed to the fact that Ms. Bowles gave a sworn statement to the police on November 24, 1997, two days after the discovery of Ms. Virk’s body, in which she stated that she had last seen Ms. Virk under the southern end of the Craigflower Bridge, sitting in the mud. She did not tell the police that she saw Ms. Virk cross the bridge, nor that she watched Ms. Ellard and Mr. Glowatski follow her across it.
[11] Ms. Bowles was cross-examined at length about the numerous inconsistencies between her trial testimony and her statements to the police, including her recollection about whether she had seen Ms. Virk or Ms. Ellard cross the bridge. The cross‑examination also canvassed inconsistencies between her testimony at this trial and at Mr. Glowatski’s trial, in particular relating to how far she had seen Ms. Virk proceed across the Craigflower Bridge.
[12] Following this cross-examination, the trial judge permitted the Crown to re-examine Ms. Bowles to show that she had made prior consistent statements at previous trials about having seen Ms. Virk cross the bridge. This ruling, along with the trial judge’s failure to provide a limiting instruction about the use that could be made of the brief evidence elicited on re-examination, was at the heart of Ms. Ellard’s appeal to the Court of Appeal.
[13] Two of Ms. Ellard’s arguments on appeal — that the trial judge had erred in failing to instruct the jury about the possibility of collusion between various Crown witnesses, and that the jury had reached an unreasonable verdict — were unanimously rejected by the Court of Appeal.
[14] Each of the three members of the panel on appeal wrote reasons dealing with the admissibility of the prior consistent statements and the absence of a jury instruction limiting their use: 2008 BCCA 341, 259 B.C.A.C. 59. The majority concluded that a new trial was warranted. Frankel J.A. was of the view that Ms. Bowles’ prior consistent statements were inadmissible but that, having been admitted through re-examination, they required a limiting instruction on the use the jury could make of them. Chiasson J.A., concurring in the result, concluded that the trial judge’s ruling on admissibility should be granted deference, but agreed with Frankel J.A. that he should have provided a limiting instruction.
[15] In dissent, Low J.A. concluded that there was no error in the failure to give the jury a limiting instruction, and therefore no need for a new trial.
[16] In my view, the prior consistent statements should not have been admitted through re-examination. Nonetheless, these statements were of no consequence and their admission could not in any way be said to have had an impact on the jury’s deliberations. The error was therefore harmless. Nor, with respect, do I agree with the majority in the Court of Appeal that the trial judge was required to give the jury a limiting instruction regarding these statements. I would therefore allow the Crown’s appeal and restore the conviction.
Analysis
[17] I agree with the unanimous conclusion of the Court of Appeal that the verdict was not unreasonable. There was ample evidence on which a properly instructed jury, acting judicially, could reasonably have convicted Ms. Ellard (R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36). That evidence included the following:
· Mr. Glowatski testified about Ms. Ellard’s central role in Ms. Virk’s murder.
· Three of the teenagers who initially attacked Ms. Virk described Ms. Ellard’s role in the first assault.
· Ms. Bowles testified that she saw Ms. Ellard cross the bridge with Mr. Glowatski. Another witness described Ms. Ellard as looking as if she were about to cross it.
· Three witnesses observed two individuals walking back across the bridge. Two of them specifically recognized Ms. Ellard as one of the individuals.
· Two witnesses saw Ms. Ellard returning home after the attack. Her pants appeared wet and she made incriminating statements at that time.
· Eleven witnesses testified about statements Ms. Ellard made about her involvement in the second attack which resulted in the forcible drowning.
· A jacket worn by Ms. Ellard bore stains consistent with the salt water in which Ms. Virk drowned.
[18] I also agree with the Court of Appeal’s unanimous conclusion that a limiting instruction on the possibility of collusion was not required.
[19] We are therefore left with the challenge to Ms. Bowles’ prior consistent statements which were admitted through re-examination. In order to determine whether these statements were admissible or in need of a limiting instruction, it is important to look at the context in which they arose. After testifying that she saw Ms. Virk cross the Craigflower Bridge followed by Ms. Ellard and Mr. Glowatski, Ms. Bowles was subjected to an extensive cross-examination in which many inconsistencies between her initial statements to the police and her testimony at trial were canvassed, as the following exchange demonstrates:
Q. Okay, so on November 24th, then, you told the police the last time you saw Reena 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 Kelly and Warren followed her, 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.
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.]
[20] These were far from the only inconsistencies between her statements to police and her testimony at trial. Defence counsel continuously suggested that her memories of the events surrounding Ms. Virk’s death had been reconstructed over time, including inconsistencies in how the initial fight leading to the assault broke out and how it progressed.
[21] Defence counsel also drew attention through the cross-examination to the fact that Ms. Bowles’ evidence had changed substantially, not only between her conversation with the police in 1997 and her evidence at various trials, but also between trials. These changes included whether Ms. Bowles thought Ms. Ellard had been drinking on the evening of Ms. Virk’s murder and how far she had watched Ms. Virk proceed across the Craigflower Bridge. This latter point was explored in the following exchange:
Q. So back in 1999 [at Mr. Glowatski’s trial] you said you saw [Ms. Virk] go about 10 feet, right?
A. Yes.
. . .
Q. Okay, and that was under oath?
A. Yes.
Q. And that was true?
A. Yeah, it was an estimate.
. . .
Q. Okay, and you say today that you also saw Kelly and Warren go -- yesterday you told us three quarters of the way across that bridge?
A. Yes.
Q. In the dark?
A. Yes.
. . .
Q. So in . . . 1999 you can see only 10 feet, but you can see half to three quarters of the way across that bridge today in your memory? [Emphasis added.]
[22] After Ms. Bowles’ cross-examination, the Crown sought to introduce prior consistent statements she had made at previous proceedings indicating that she had seen Ms. Virk cross the bridge. When the trial judge asked what the basis of the request was, the Crown replied: “What I’m going to put to this witness is that she said it [that she saw Ms. Virk cross the bridge] at every hearing that she’s testified in.” The trial judge then dismissed the jury and discussed the issue with counsel.
[23] Defence counsel explained her concerns over allowing the re-examination as follows:
And the last point is that my friend wants to go back to every single transcript where Ms. Bowles has testified and say, “Well, but you did tell them on this day, and you did tell them on that day.” I didn’t suggest to this witness that on those other occasions she didn’t say it. . . . That is oath helping and if we’re going to get into that, every inconsistency that is put to a witness in these proceedings, my friend can stand up and put in five or six consistent times when something was said, and that’s, in my respectful submission, improper. I didn’t suggest she didn’t say it under oath at the last trial. [Emphasis added.]
[24] When the trial judge asked whether the statements could be admitted to rebut an allegation of recent fabrication, Ms. Ellard’s 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 [it] to her she’s never remembered it at all.
[25] Defence counsel also pointed out that the jury had already heard that Ms. Bowles had testified in a prior proceeding about having seen Ms. Virk cross the bridge. This was brought out during her cross-examination in which Ms. Bowles was asked about her prior evidence relating to having seen Ms. Virk cross the bridge for only a short distance. This evidence stood in marked contrast to her testimony at this trial in which she claimed to have seen Ms. Virk cross for a significantly greater distance. Defence counsel therefore submitted the following to the trial judge:
. . . my friend is saying, “I want to mention that in Glowatski’s trial, you did testify she went across the bridge.” Well, we all know that because I put that paragraph to her. So my friend’s wanting to go through these various times that she’s testified and say, “Well, you did say it on this occasion, and that.” I think my friend now, just in her submission, has assisted the defence objection here because I was putting to her that she didn’t tell the police about this. That was my point, and that was what she agreed to. I didn’t suggest that she didn’t tell the court on any other occasion about this. And by, in fact, as I said, bringing up the Glowatski [trial] passage, it’s been brought to their attention. So it’s not -- I don’t think it’s something that really should be allowed for. [Emphasis added.]
[26] The Crown’s counter-argument was:
Well, it went further, My Lord, because then at the very end, it was put to her that she didn’t see them go across the bridge, so it goes a bit further.
[27] After these submissions, and relying on R. v. Evans, [1993] 2 S.C.R. 629, at p. 643, the trial judge concluded that an express allegation of recent fabrication need not necessarily be made out before a rebuttal is permitted. He therefore allowed re-examination on Ms. Bowles’ prior testimony about having seen Ms. Virk cross the bridge.
[28] The re-examination, almost in its entirety, consisted of the following exchange:
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. 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.
. . .
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 included [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.
[29] As is clear, the only information that Ms. Bowles confirmed on re-examination was that on a number of prior occasions, she had testified about having seen Ms. Virk cross the bridge, an undisputed fact at the trial. She made no reference to seeing Ms. Ellard cross the bridge. Nor did she say anything that addressed any of the other inconsistencies in her evidence which had been brought out in her cross-examination.
[30] The re-examination received little attention in Crown counsel’s closing submissions, and was only briefly described, without objection from defence counsel, in the jury charge. There was no instruction to the jury limiting the use it could make of Ms. Bowles’ prior consistent statements, nor was one sought by the defence at any time.
[31] Having described the relevant context, the first issue is whether Ms. Bowles’ prior statements were admissible through re-examination. It is true that prior consistent statements are presumptively inadmissible (R. v. Béland, [1987] 2 S.C.R. 398, at pp. 409-10, and R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5). The rationale for excluding them is that repetition does not, and should not be seen to, enhance the value or truth of testimony. Because there is a danger that similar prior statements, particularly ones made under oath, could appear to be more credible to a jury, they must be treated with caution.
[32] Certain exceptions have nevertheless developed in the jurisprudence. In particular, where a party has made an allegation of recent fabrication, the opposing party can rebut the allegation by introducing prior statements made before the alleged fabrication arose, that are consistent with the testimony at trial. The allegation need not be express. It is enough 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” (Evans, at p. 643; see also R. v. Simpson, [1988] 1 S.C.R. 3, at p. 24).
[33] To be “recent”, the fabrication need only have been made after the event testified about (Stirling, at para. 5). A mere contradiction in the evidence is not enough to engage the recent fabrication exception. However, a “fabrication” can include being influenced by outside sources (R. v. B. (A.J.), [1995] 2 S.C.R. 413). To rebut an allegation of recent fabrication, it is necessary to identify statements made prior to the existence of a motive or of circumstances leading to fabrication. In all cases, the timing of the prior consistent statements will be central to whether they are admissible.
[34] In this case, the statements put to Ms. Bowles on re-examination were not made prior to the atmosphere of rumour and speculation that the defence claimed had led to her changed memory. As a result, their timing prevented them from being capable of rebutting an allegation of recent fabrication. The trial judge therefore erred in ruling that the re‑examination was permissible on the basis of this exception.
[35] There was, however, no reasonable possibility that this error had any impact on the verdict. The fact that Ms. Bowles had previously testified about seeing Ms. Virk cross the bridge was already before the jury. And it was an accepted fact at the trial that Ms. Virk did so. Whether or not Ms. Bowles claimed to have seen her crossing the bridge, therefore, had no bearing on a disputed issue. The re-examination did nothing to address the real question, namely whether Ms. Bowles had seen Ms. Ellard cross the bridge with Mr. Glowatski, in pursuit of Ms. Virk. That was the issue on which Ms. Bowles had been subjected to an extensive cross-examination which seriously impugned the reliability of her evidence.
[36] The inconsistencies in Ms. Bowles’ evidence were emphasized throughout the trial. The trial judge’s review of Ms. Bowles’ evidence, in fact, concluded with the following summary of those inconsistencies:
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.]
[37] In closing submissions, defence counsel also emphasized the inconsistencies in Ms. Bowles’ evidence, stating “I wouldn’t call her a liar, but can you have any trust in what she remembers anymore?”, and drew renewed attention to the discrepancy between her report to the police and her testimony at trial.
[38] In summarizing the theory of the defence, the trial judge also reminded the jury of the problems with Ms. Bowles’ reliability as follows:
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. [Emphasis added.]
[39] The jury would therefore necessarily have known and appreciated that nothing in the re-examination in any way repaired the inconsistencies in Ms. Bowles’ evidence as a whole. It may have been, as Chiasson J.A. suggested, that the Crown intended to bolster Ms. Bowles’ reliability generally through the re-examination, but that was not its result. The central inconsistencies between Ms. Bowles’ statements to the police and those she made at this trial, as well as her inconsistencies between trials, were not addressed in the re-examination in any way. Consequently, because her prior consistent statements were unresponsive to the defence’s contention that she had reconstructed her memory over time, the re-examination did nothing to ameliorate Ms. Bowles’ reliability. The jury, because it would have been well aware of the inconsistencies in Ms. Bowles’ evidence, would also necessarily have understood that nothing in the brief re‑examination explained, corrected, or even addressed them.
[40] For these reasons, the error in admitting the statements is amenable to an application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 . The proviso can generally be used either where the error is harmless, or, if serious, is counterbalanced by evidence so overwhelming against the accused that no substantial wrong or miscarriage of justice resulted. Since I see the trial judge’s error in permitting the re-examination as a harmless one, I would therefore apply the proviso. (See R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26, and R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at paras. 80-81.)
[41] This leaves us with whether a limiting instruction was necessary to explain the use the jury could make of the evidence elicited on re-examination. Lamer C.J. in R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 2 and 62, confirmed that in reviewing jury charges, “[t]he purpose . . . is to ensure that juries are properly — not perfectly — instructed.”
[42] As previously noted, because there is a danger that the repetition of prior consistent statements may bolster a witness’s reliability, a limiting instruction will almost always be required where such statements are admitted. The purpose of such an instruction is to tell the jury that consistency is not the same as accuracy, and that the statements can only be used to rebut the allegation of recent fabrication, not to support the fact at issue or the general reliability of the witness. (See R. v. Rockey, [1996] 3 S.C.R. 829, per McLachlin J.; R. v. Fair (1993), 16 O.R. (3d) 1 (C.A.), at pp. 20-21; R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 31; R. v. A. (J.) (1996), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 533; and R. v. Codina (1995), 95 C.C.C. (3d) 311 (Ont. C.A.), at p. 330.)
[43] Delineated exceptions to the generally stringent rule have emerged, some of which were canvassed in R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), at para. 22. These include situations where the defence itself relies on the prior statement, R. v. S. (P.) (2000), 144 C.C.C. (3d) 120 (Ont. C.A.), at paras. 62-63; where the prior statement was not offered as proof of the underlying fact, R. v. G.M., [2000] O.J. No. 5007 (QL) (C.A.); or where the concern over self‑corroboration and thereby bolstering the witness’s reliability is not present, R. v. Clark (1995), 87 O.A.C. 178. (See also David M. Paciocco and Lee Stuesser, The Law of Evidence (5th ed. 2008), at p. 501.)
[44] As indicated earlier in these reasons, I accept that the prior consistent statements should not have been admitted. However, because the statements did not address the defence theory that Ms. Bowles’ memory had been reconstructed from rumour and speculation, their admission was harmless. For similar reasons, I am not persuaded that the absence of a limiting instruction in this case amounted to legal error. The evidence elicited on re‑examination added nothing to what the jury already had before it. By the end of the cross‑examination, the jury already knew that Ms. Bowles’ evidence at a previous trial included the fact that she had seen Ms. Virk cross the bridge. The re‑examination contained no new information of any kind, let alone any evidence that could have undermined the defence’s position or bolstered the reliability of Ms. Bowles’ testimony generally.
[45] The defence also suggested that a question from the jury during its deliberations showed that it considered Ms. Bowles’ evidence to be significant. This may well be true, but it is of no assistance on the question before us in this appeal. The question was: “We would also like to hear Marissa Bowles all testimony [sic] relating to seeing Reena [Virk] coming up the stairs and seeing Warren [Glowatski] & Kelly [Ellard] cross the bridge.” The relevant testimony was played for the jury in full, and it heard all of Ms. Bowles’ evidence about seeing Ms. Virk, Ms. Ellard and Mr. Glowatski during the night in question, including defence counsel’s cross-examination.
[46] It is difficult to see the relationship between this question and how the jury was likely to interpret the anodyne evidence elicited on re-examination. There is no doubt that jury questions can be revealing, but I do not see this particular request as taking the analysis in any particular direction. And I certainly do not see it as indicating that the jury considered Ms. Bowles’ evidence to be more reliable as a whole because she had testified in a consistent manner about the undisputed fact that Ms. Virk crossed the
bridge. There is in any event the possibility that had an instruction about the use the jury could make of the erroneously admitted statements been given, it would only have served to emphasize them.
[47] It is notable too that Ms. Ellard’s counsel failed to ask for a limiting instruction, either at the time of the charge or when the jury asked to re-hear Ms. Bowles’ evidence. Such a failure is, of course, not determinative, and the responsibility for the jury charge ultimately falls on the trial judge. Nevertheless, experienced defence counsel, clearly committed to their clients’ best interests, heard all of the evidence and arguments, yet saw no need for an instruction. Their failure to seek one in this case is an accurate reflection of the insignificance of the substance and impact of the evidence elicited on re-examination. (See R. v. Arcangioli, [1994] 1 S.C.R. 129, at pp. 142-43, and R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 80.)
[48] In the unusual circumstances of this case therefore, where the prior consistent statements were of virtually no assistance to the Crown nor of any harm to the defence, there was no real risk that the jury would use these statements to draw any impermissible inference. No limiting instruction was therefore required to explain to the jury that they should ignore the impact-free repetition they heard in re-examination.
[49] I would therefore allow the appeal and restore Ms. Ellard’s conviction.
The following are the reasons delivered by
Fish J. (dissenting) —
I
[50] With respect for those who see the matter differently, I would dismiss the appeal and affirm the decision of the Court of Appeal ordering a new trial (2008 BCCA 341, 259 B.C.A.C. 59). My conclusion rests essentially on the reasons given by Frankel J.A., speaking for the majority in the Court of Appeal, but I do wish to add brief reasons of my own.
II
[51] In its re-examination of Marissa Bowles, the Crown adduced evidence of her prior consistent statements. That was the entire scope of the re-examination. Ms. Bowles was an important Crown witness. There is no dispute that the prior consistent statements should not have been admitted.
[52] The outcome of this appeal therefore depends on whether “there is any reasonable possibility that the verdict would have been different” had the trial judge not erred in admitting the impugned evidence: R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617. The burden in this regard is, of course, on the Crown. And it is a heavy burden indeed. In my view, that burden has not been discharged in this case.
III
[53] The improperly admitted evidence was elicited by the Crown immediately after a withering cross-examination by defence counsel. Its sole purpose was to “rehabilitate” the witness — that is, to enhance Ms. Bowles’ credibility. Indeed, at the hearing in this Court, Crown counsel was unable to provide any alternative explanation at all for the re-examination. And if that was the Crown’s purpose, nothing permits us to assume that it could not possibly have had that effect.
[54] On the contrary, I find it plausible to assume that the jury, untrained and inexperienced in these matters, would have attached to the re-examination of Ms. Bowles the significance that trained counsel expected that impermissibly adduced evidence to have. More specifically, it is entirely possible, if not probable, that the jury would have seen the substance of the re-examination as clearly relevant to a crucial factual issue: whether it was Ms. Ellard who accompanied Mr. Glowatski in following Ms. Virk across the Craigflower bridge, shortly before she was killed.
[55] If the jury lent credence to the improperly admitted evidence of Ms. Bowles that she had seen Ms. Virk cross the bridge, then the jury would have been obliged to reject the critical proposition advanced by the defence: that Ms. Bowles had in fact seen nobody cross the bridge, as her original statements to the police suggested.
[56] We cannot safely conclude that a re-examination tending impermissibly to bolster Ms. Bowles’ credibility generally, and to confirm in particular that she saw Ms. Virk cross the bridge, could not reasonably have led the jury to attach more weight to Ms. Bowles’ evidence that she saw Ms. Ellard cross the same bridge only a short time later.
[57] My conclusion that there existed a reasonable possibility that the impermissibly admitted evidence could have affected the verdict is confirmed by a request for help sent by the jury to the judge during its deliberations. Of the two questions asked by the jury, one warrants special concern:
We would also like to hear Marissa Bowles all testimony [sic] relating to seeing [Ms. Virk] coming up the stairs and seeing [Mr. Glowatski and Ms. Ellard] cross the bridge.
[58] It is plain from this note that the jury consciously linked Ms. Bowles’ testimony that she saw Ms. Virk come up the stairs and cross the bridge — the subject of the impermissible re-examination — to her testimony that she saw Mr. Glowatski and Ms. Ellard subsequently cross the bridge.
[59] Finally, a brief word regarding Justice Abella’s conclusion that there was in this case no need to give a limiting instruction since there was “no real risk that the jury would use these statements to draw any impermissible inference” (para. 48). On the contrary, as I have already explained, there is ample room for serious concern that the improperly admitted evidence had the effect of impermissibly bolstering the reliability of portions of Ms. Bowles’ testimony that clearly incriminated Ms. Ellard.
[60] In any event, on my view of the matter, the question whether a limiting instruction was required is entirely moot. Since the erroneous admission of the evidence is alone sufficient to require a new trial, there is no real need to consider whether a limiting instruction that was never given might have been sufficient, depending on its terms, to dissipate the concerns arising from the improper admission of Ms. Bowles’ prior consistent statements.
IV
[61] In the result, as mentioned at the outset, I would dismiss the appeal and affirm the judgment of the Court of Appeal ordering a new trial.
Appeal allowed, Fish J. dissenting.
Solicitor for the appellant: Attorney General of British Columbia, Vancouver.
Solicitors for the respondent: Wilson, Buck, Butcher & Sears, Vancouver.
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