Murder of Reena Virk

Reena Virk (March 10, 1983 – November 14, 1997) was a resident of Saanich, British Columbia, Canada. Her status as a bullied murder victim attracted substantial media scrutiny in Canada.

Virk was first swarmed by a group of "friends". The names of six of the girls involved in the first beating, known collectively as "the Shoreline Six," have not all been released. Following the first beating, Warren Glowatski and Kelly Ellard murdered Virk.

Glowatski was given a life sentence after being convicted of second-degree murder. Ellard was tried three times. The verdict of her third trial, a conviction, was set aside. The verdict was appealed to the Supreme Court of Canada which ruled not to hold a fourth trial in an 8-1 decision, upholding the conviction and sentence.

The Globe and Mail commented at the time that her case had been "elevated into a national tragedy." A pair of Canadian sociologists have described the case as a watershed moment for a "moral panic" over girl violence by the Canadian public in the late 1990s.

Reena Virk

Virk came from a large extended family who had immigrated from India. An article in Saturday Night described her immediate family as "a minority within a minority," as they were of the Jehovah's Witness religion in the local South Asian community of 3,000 which was predominantly Sikh.

Virk has been described as a girl who was desperate for acceptance amongst her peers, but was taunted and/or ostracized by these girls whose subculture was influenced by Los Angeles street gangs.

The murder

On the evening of Friday November 14, 1997, Reena Virk was invited to a "party" by her friend near the Craigflower Bridge, in a municipality in the city of Victoria, British Columbia.

While at the bridge, it is claimed that teenagers drank alcohol and smoked marijuana. Virk was subsequently swarmed by a group later called the Shoreline Six. Witnesses said that one of the girls stubbed out a cigarette on Virk's forehead, and that while seven or eight others stood by and watched, Virk was repeatedly hit, punched and kicked. She was found to have several cigarette burns on her skin, and apparently attempts were made to set her hair on fire. This first beating ended when one of the girls told the others to stop.

Virk managed to walk away, but was followed by two members of the original group, Ellard and Glowatski. The pair dragged Virk to the other side of the bridge, made her remove her shoes and jacket, and beat her a second time. Ellard held her head under water.

Despite an alleged pact amongst the people involved to not "rat each other out", by the following Monday rumours of the alleged murder spread throughout Shoreline Secondary School. Reena Virk was a student at nearby Shoreline Secondary School. Several uninvolved students and teachers heard the rumours, but no one came forward to report it to the police. The rumours were confirmed eight days later, on November 22, 1997, when police using a helicopter found Virk's partially clothed body washed ashore at the Gorge Inlet, a major waterway on Vancouver Island.

The coroner ruled the death was by drowning. An autopsy later revealed that Virk had sustained significant injury, and that the head injuries were severe enough to have killed her if she had not been drowned. Virk was 14 years old.

Perpetrators

The six female perpetrators are referred to in court documents as N.C., N.P., M.G.P., C.A.K., G.O., and K.M.E. N.C. is known to be Nicole Cook and M.G.P is known to be Missy Grace Pleich. Both have admitted involvement. Kelly Ellard is referred to in some documents as K.M.E.

One girl in this group was found to be incapable of being kept in jail due to suicide attempts. This is due to PTSD since she'd witnessed her mother's violent death as a child.

Warren Paul Glowatski

Warren Glowatski was born April 26, 1981 in Medicine Hat, Alberta. He was convicted of Virk's murder and sentenced to life in prison.

Glowatski and his parents moved around frequently prior to their separation in 1996; he lived in Estevan and Regina, Saskatchewan, and Castlegar, British Columbia.

In 1996, Glowatski and his father moved to Nanaimo, British Columbia on Vancouver Island. By 1997, they had settled in a trailer home near the southern tip of the Island in Saanich.

The following year Glowatski's father married a woman he met in Las Vegas, Nevada. Warren Glowatski decided to remain in Saanich, living alone in the trailer and supported by money sent by his father.

On the night of Virk's murder, for unknown reasons, Glowatski involved himself in the fight and twice kicked the victim in the head. When the beating ended, Glowatski and Kelly Ellard followed Virk. According to Glowatski, Ellard smashed Virk's face into a tree knocking her out. With Glowatski's help Ellard dragged Virk into the water where Ellard drowned her.

In June 1999, Glowatski was convicted of second-degree murder and given a life sentence. Because he was 16 at the time of the murder, he was eligible for parole after serving seven years. In November 2004, he was denied his first chance at day parole.

The Virks did not contest the parole, because Glowatski expressed remorse and responsibility for his part of the murder. In July 2006, he was granted unescorted temporary absences from jail. By December 2006, Glowatski was eligible to apply for day parole again, which he was granted in June 2007.

During his incarceration, Glowatski discovered that he is Metis. This played a large role in parole hearings as he asked the parole board to incorporate his elders into the process and various healing circles and other forms of restorative justice were used bringing Glowatski and Virk's parents together. In receiving day parole he proceeded to hug every member of the parole board and those present, including the Virks.

Warren Glowatski was released on full parole in June 2010.

Kelly Marie Ellard

Kelly Ellard, born August 9, 1982, was 15 years old when she and Warren Glowatski drowned Virk. Ellard has stood trial three times for the murder, and been convicted twice. On June 12, 2009, the Globe and Mail reported that the Supreme Court of Canada had overturned the judicial ruling of the BC Court of Appeals in an 8-1 ruling. Ellard's third trial was judged to be fairly executed.

Evidence was cited in the book about the case regarding Ellard's sociopathy and violence in middle school. The reason for the absence of her birth father in her life is never revealed.

Ellard was initially convicted in March 2000 for second-degree murder in Virk's death. In February 2003, this conviction was overturned and a new trial was ordered. The second trial ended in a mistrial (as the result of a hung jury) in July 2004. A third trial was ordered and Ellard was convicted again of second-degree murder in April 2005 and given an automatic life sentence with no parole eligibility for seven years.

The Supreme Court ruled that her conviction stands because the error by the original trial judge was "harmless".

Nicole Cook

Nicole Cook, born 1983, lived in a group home at the time. On MSNBC's documentary Bloodlust Under the Bridge, Cook spoke about how she took a lit cigarette and put it out on Reena Virk's face, initiating the mayhem that followed. Cook further explained how she repeatedly punched and kicked Virk as she was being pummeled by the other assailants.

At the end of the MSNBC interview, Cook then lambasted the accusation that she had anything to do with Virk's actual murder because Ellard was the participant charged for the murder. Veteran Dateline reporter Keith Morrison then asked, "Would the murder have ever happened if you hadn't started the fight by burning her face with your cigarette?" and Cook replied, "I don't know. Maybe."

Cook also returned to the crime scene the day after the killing, accompanied by Pleich, and retrieved Reena's shoes and sweater. They took these items back to their group home, and forced another, younger resident named "Stephanie" to hide them in her closet. They also forced this same younger girl to make phone calls to Suman Virk, Reena's mother, while the search for Reena was still active.

Possible motives

The best-selling book about the case, Under the Bridge by Rebecca Godfrey, details some of the motives that may have led to Virk's death. Two of the girls convicted in the initial beating allege that Virk stole a phone book from Nicole Cook and started calling Cook's friends and spreading rumours about her. Cook stubbed out a cigarette on Virk's forehead during the attack. Another girl, M.G.P, was allegedly angry with Virk for stealing her boyfriend. Virk once lived with the two girls in a youth group home. It is suggested she may have done those things in order to assert herself as "tough".

The book also reveals that Virk was initially considered a runaway when her mother first reported her missing to the Saanich Police Department, the police agency in which the Virks resided. The book "Under the Bridge" incorrectly documented the Missing Persons report as being made to the Royal Canadian Mounted Police. Two Russian sisters, who lived in the youth group home, were prompted to call the police upon hearing that Virk was most likely dead.

Timeline

• November 14, 1997, Reena Virk killed.

• November 22, 1997, Reena Virk's body found.

• February 9, 1998, three teenage girls plead guilty to assault causing bodily harm for their roles in the attack.

• February 13, 1998, three more girls are convicted of assault causing bodily harm.

• Between April and May 1998, six teenage girls are sentenced for their roles in the beating of Virk. Sentences range from 60-day conditional sentences to one year in jail.

• June 1999, Warren Glowatski, the only male involved in the crime, is convicted of second-degree murder and sentenced to life in prison with no chance of parole for seven years.

• March 9, 2000, Kelly Ellard is convicted of second-degree murder in adult court, where she is sentenced to life in prison with no chance of full parole for five years.

• November 15, 2000, 3 years and 1 day after the murder of Reena Virk, her parents, Manjit and Suman Virk, sue the teenagers who took part in the beating, the BC government, and several other parties.

• February 4, 2003, the BC Court of Appeal announces that due to improprieties in the way Ellard was questioned during her first trial, a new trial would be ordered It is impermissible for the crown to ask the accused why witnesses would lie about the accused.

• June 14, 2004, Ellard's second murder trial begins.

• July 18, 2004, a mistrial is declared in Ellard's second trial after the jury declares it is deadlocked 11-1.

• February 21, 2005, Kelly Ellard's third trial opens.

• April 12, 2005, Ellard is found guilty of second degree murder. She is given an automatic life sentence with no parole for at least 7 years.

• July 20, 2006, after serving nearly nine years of a life sentence, Warren Glowatski is granted unescorted temporary passes by the National Parole Board, moving him a step closer to becoming part of society. The Virk family supports the decision.

• August 9, 2006, Ellard appeals her conviction, asking for a fourth trial or an acquittal. Crown has the option to appeal, hold a fourth trail or abandon prosecution.

• April, 2009, Ellard's appeal goes before the Supreme Court of Canada.

• June 12, 2009, The Supreme Court of Canada reinstates the second-degree murder conviction against Kelly Ellard, putting an end to a legal case that spanned more than a decade.

• June 23, 2010 Warren Glowatski is released on parole.

• January 18, 2017 Ellard is denied parole.

The case in popular culture

The murder case has been the subject of an award-winning and bestselling book, Under the Bridge. The True Story of the Murder of Reena Virk (2005) by Rebecca Godfrey, which is currently being developed into a feature film, and partly inspired a monologue play, The Shape of a Girl (2001), by Joan MacLeod, and The Beckoners by Carrie Mac. The film rights for the book Under the Bridge have been purchased by Type A Productions, a film production company, for adaptation into a movie.

The murder of Reena Virk was also the subject of a thesis published in a book edited by Christine Alder and Anne Worrell titled Girls' Violence; Myths and Realities. The author of the thesis, "Racism, 'Girl Violence' and the Murder of Reena Virk", Sheila Batacharya, discusses the murder of Reena Virk from feminist perspective and looks at why the argument from media and police that the murder was not racially motivated may not have been entirely accurate. Batacharya also argues that the narrative of 'girl violence' which academics policy makers and journalists have asserted is evidenced by Virk's murder, obscures other investigations and explanations surrounding this murder.

Reena’s father, Mr. Manjit Virk, has written a book about the murder of his daughter: Reena: A Father’s Story (2008), which is highly critical of the B.C. Ministry of Children and Family Development and the B.C. justice system; Reena was murdered under the voluntary care of the Ministry, yet no apology was given or responsibility taken.

In December 2010 and 2012, students from Walkerville High School in Windsor, Ontario performed a play based on the death of Reena Virk for members of the community, as well as the Virk parents.

In May 2011, Meghan Gallagher from The Bush School in Seattle self-directed and performed The Shape of a Girl.

In 2015, Soraya Peerbaye published a series of poems dedicated to the murder of Reena Virk entitled "Tell: poems for a girlhood". The book was shortlisted for the 2016 Griffin Poetry Prize.

Kelly Ellard, B.C. woman convicted of killing 14-year-old girl in 1997, denied parole

The Canadian Press

January 18, 2017

Convicted killer Kelly Ellard won’t get the escorted releases from prison she says needs after the recent birth of her child.

Ellard was asking for the parole board’s permission to leave prison for medical appointments and parenting programs, but the two board members were split on their decision Wednesday.

Ellard told the panel the birth of her baby has calmed her, and the infant was the best therapy she could have hoped for.

She was convicted of second-degree murder after being tried as an adult in the 1997 beating and drowning death of 14-year-old Reena Virk near Victoria. Virk was swarmed and beaten by a group of teenagers.

The Parole Board says another hearing will be held for Ellard at a later date.

A media report said last October that Ellard was eight-months pregnant following a conjugal visit from her boyfriend. The gender of her child was not mentioned at Wednesday’s hearing.

At Ellard’s first parole hearing last May, she took responsibility for the death of Virk after repeatedly denying that she was involved, but said she was a child herself at just 15 years old.

Board members rejected her request for parole then, saying she came across as “very entitled” in presenting her case for release.

Ellard was tried three times in Virk’s death, and testimony from those trials heard that she and Warren Glowatski followed Virk after the girl limped away from the beating and then drowned the girl in the Gorge waterway near Victoria.

But Ellard’s story to the parole board in May differed from that account.

Ellard said she and Glowatski did go after Virk and found her near the edge of the water.

She said she flicked a lighter to see Virk’s face and observed the girl was covered in blood. She asked Glowatski to help her bring Virk closer to the water and began to splash her face, but she said Virk did not react.

Glowatski was drunk, she said, but he suggested they flag down a car for help — a request Ellard said she refused.

“I was only thinking of myself,” she said, describing the decision as panicked and impulsive based on the perceived consequences. “I pushed her in. … It’s like almost I just thought in my mind, it would just carry the problem away.”

Her trials heard Ellard held Virk’s head under the water, but she denied it at the previous hearing.

“She was unconscious. I didn’t need to hold her head under water. There would have been no point,” she said.

Glowatski, who was convicted of second-degree murder, was released on full parole in 2009 after offering an apology to Virk’s parents.

Notorious B.C. killer Kelly Ellard gets pregnant while serving life sentence for murder

By Kim Bolan - VancouverSun.com

October 24, 2016

She is one of B.C.’s best-known killers – found guilty of brutally beating and drowning a teenage girl under a Victoria bridge in 1997.

Now Kelly Marie Ellard is about to become a mother.

Despite serving a life sentence in prison for killing 14-year-old Reena Virk, Ellard is now about eight months pregnant, Postmedia News has learned.

The father is a man with gang links who was out on day parole when he was allowed the intimate visits with Ellard in the spring.

Darwin Dorozan, 41, was granted full parole in August, but it has since been revoked after an alleged breach.

The Parole Board of Canada said in its Aug. 3 ruling releasing Dorozan that “there are concerns about your relationship with your girlfriend, who is pregnant.”

Ellard, 33, is not identified as the girlfriend in the documents, but Postmedia News has confirmed with several sources that she is Dorozan’s pregnant girlfriend.

Dorozan was given credit by the two-person panel for being “open and accountable about the relationship,” the parole ruling says.

But the ruling also said Dorozan “will likely face significant stress relating to the birth of your child.”

Dorozan is serving a seven-year, two-month sentence after pleading guilty in 2012 to 11 counts of break and enter and break and enter with intent. Dorozan broke into several homes in 2010 and 2011 to steal things to finance a heroin addiction, the board noted.

“Some of the residences were occupied and during a confrontation with a male victim, you sprayed him in the face about five times with bear spray.”

Ellard had three trials before she was convicted in 2005. She was first found guilty in 2000, but the B.C. Court of Appeal ordered a new trial. The second time around, the jury couldn’t reach a verdict and a mistrial was declared. She was convicted of second-degree murder after her third trial.

Though she was 15 when she killed Virk, Ellard was raised to adult court and was sentenced to life with no hope of parole for seven years.

Last May, the Parole Board of Canada denied Ellard day parole, saying that while she was finally admitting some responsibility for Virk’s death, there was “ongoing minimization” of her crime.

And the two board members told Ellard that they were concerned about her admitted drug use inside prison, as well as “your lack of insight into why you committed the murder and your sense of entitlement with respect to parole.”

The ruling made reference to Ellard’s relationship with Dorozan, though he wasn’t named.

“You have family support and the support of your boyfriend,” the board members said. “Your boyfriend is a federal parolee but in community assessment No. 6 he is assessed by (the Correctional Service of Canada) as a positive source of support.”

The parole board did note the progress that Ellard has made in recent years in jail – quitting her drug habit, improving her education and working in the prison’s library.

Ellard and Dorozan got to know each other as pen pals, writing for more than a year before being allowed to have a private family visit.

The Correctional Service of Canada refused to comment on Ellard or her pregnancy.

“The Privacy Act prevents us from discussing the specifics of an offender’s case,” Correctional communications adviser Audrey Jacques said.

But, speaking generally, she said all federal inmates are eligible for private family visits if they and their visitors meet certain criteria.

The visits take place in a separate building within the confines of a prison complex and can occur every two months for up to 72 hours at a time.

No one is commenting on what will happen to the baby once it’s born given both parents are in prison.

Ellard’s mother, Susan Pakos, refused to comment when contacted by Postmedia News.

“I have no comment on that whole subject and I would appreciate it if no one ever contacted me or my family again,” Pakos said. “I am not confirming whether it is true or not.”

She said both her family and the Virks “have been through a lot and should be left alone.

“I wish the media and everyone would just let this case rest and everybody just get on their lives,” Pakos said.

The Correctional Service provides pregnant inmates with prenatal and postnatal care, Jacques said.

Some of that care takes place within the prison. But the Service “relies on community services to provide other specialized care, including the services of obstetricians and gynecologists. Arrangements are made at an outside hospital for childbirth,” she said.

Babies can stay with their incarcerated mother under the “mother-child residential program,” which began in 1997, Jacques said.

“The program is intended to foster positive relationships between federally incarcerated women and their children by providing a supportive environment that promotes stability and continuity for the mother-child relationship and to assist in the rehabilitation and successful reintegration of these women offenders,” she said.

She said cases are assessed on an individual base.

“The best interests of the child are the pre-eminent consideration in all decisions relating to participation in the mother-child program, including the safety, security and health of the child,” Jacques said.

Jacques said that inmate visits with family members and friends can be limited “if there are risks to the security of the penitentiary and the safety of staff, inmates and visitors.”

“Positive contact with family and friends is very important in the successful reintegration of offenders,” she said.

Now that Dorozan is back in jail, he and Ellard would not be allowed to meet up because a Correctional Service policy says “an inmate is not eligible to participate in private family visits with other inmates.”

Dorozan’s parole was revoked in mid-August, with police alleging they spotted him with a criminal associate in violation of his parole conditions.

Yet just weeks earlier, the board granted the long-time criminal full parole, noting how well he had done since being released on day parole in February 2015.

The board said he was making healthy decisions and dealing with stress, including the death of his brother in late 2015.

“You dealt with recent, serious challenges appropriately and have demonstrated a willingness to accept feedback and rely on your supports.”

Ellard conviction restored in Reena Virk murder case

CBC News

Jun 12, 2009

The Supreme Court of Canada has reinstated the second-degree murder conviction against Kelly Ellard in the 1997 death of B.C. teen Reena Virk, putting an end to a legal case that spanned more than a decade.

In an 8-1 decision released Friday, the top court overturned a B.C. Court of Appeal decision that threw out Ellard's conviction on the grounds that the trial judge did not properly instruct the jury.

The Supreme Court disagreed, saying "the absence of a limiting instruction in this case did not amount to a legal error."

Writing for the majority of the Supreme Court, Justice Rosalie Abella said the statements in question should not have been admitted in evidence, but were essentially harmless.

Justice Morris Fish dissented, saying he would have ordered a new trial.

Ellard was 15 when the 14-year-old Virk was beaten by a group of teenagers and drowned in a park in Saanich, near Victoria, in November 1997.

Virk's death sparked a national outcry over the issue of bullying and the treatment of immigrants; Virk was the daughter of Indian immigrants.

Ellard was convicted of second-degree murder in 2000, but the decision was set aside on appeal and a new trial ordered.

A second trial in 2004 ended in a hung jury.

Ellard was again found guilty of second-degree murder in a third trial in 2005, but the result was thrown out by the B.C. Court of Appeal. The Crown appealed that ruling and argued before the Supreme Court in April.

It's not clear what happens next for Ellard, who has already spent roughly seven years in prison.

She was originally sentenced to life in prison with no chance of parole for seven years. The National Parole Board will decide whether Ellard will be paroled.

'Inordinate' amount of time: Virk's father

Ellard's family refused comment on Friday's decision.

Virk's father, Manjit Virk, said 11 years is an "inordinate amount of time" for a case to work through the legal system.

"Thirty-five jurors have convicted her, out of 36 [jurors], and the defence just keeps beating the system to this day and the system allowed it," he said.

He hopes lawmakers will learn from his daughter's case.

"Is it worth it to drag a case that long, keeping everybody's life in limbo, at the expense of taxpayers?"

Six other girls, aged 14 to 16, were convicted in 1998 of assaulting Virk and given sentences of up to a year in jail.

Warren Glowatski was convicted in 1999 of second-degree murder and sentenced to life in prison with no chance of parole for at least seven years. He was granted day parole in 2007.

Ellard's future up to Correctional Service of Canada

Kelly Ellard was sentenced to seven years in prison when she was convicted as a juvenile of the murder of Reena Virk, and it's estimated she has served about that much time as her case proceeded through the courts.

Patrick Storey, a spokesman for the National Parole Board, said Friday it's now up to the Correctional Service of Canada to calculate when Ellard is eligible to be released.

"If she's close to — or past — her eligibility date, it simply means she is in a position to apply for a conditional release," Storey said, adding that doesn't necessarily mean she will be released.

The parole board will look at a number of factors in Ellard's case, including psychiatric assessments and her behaviour while in prison, he said,

"Usually what an applicant has to demonstrate is that they have changed in some way from the person they were at the time of the offence to the person they are today," Storey said.

The Correctional Service of Canada wouldn't comment on the Ellard file specifically, but a spokesperson did say parole calculations can take anywhere from a few hours to days.

The murder of Reena Virk and trials of Kelly Ellard

CBC News

April 14, 2009

On Nov. 14, 1997, Reena Virk was swarmed and beaten under a bridge in Saanich on Vancouver Island, B.C., by a group of teenagers, mainly girls.

Battered and bloodied, the 14-year-old managed to get up and stagger across the bridge toward a bus stop to make her way home. Two of the original attackers dragged her back and beat Virk again, leaving her in Victoria's Gorge waterway. Police found her body eight days later.

Six girls — ages 14 to 16 — were sentenced in 1998 for their roles in the initial beating. Warren Glowatski, who was 17 at the time, was convicted of second-degree murder a year later.

Kelly Ellard, meanwhile, has stood trial three times in connection with Virk's death. In 2000, she was convicted of second-degree murder but, three years later, the B.C. Court of Appeal ordered a new trial. That ended with a deadlocked jury.

A third trial in 2005 again convicted Ellard of second-degree murder, but the B.C. Court of Appeal ordered a fourth trial in 2008. However, the Supreme of Court of Canada upheld the third conviction in June 2009.

Here are some key dates in the case:

June 12, 2009

The Supreme Court of Canada restores the second-degree murder conviction against Kelly Ellard in the 1997 death of B.C. teen Reena Virk. In an 8-1 decision, the top court overturns a B.C. Court of Appeal decision that threw out Ellard's conviction on the grounds that the trial judge did not properly instruct the jury.

March 19, 2009

The B.C. Court of Appeal rejects Ellard's application to be released while the Supreme Court of Canada hears arguments on whether a fourth trial should proceed.

Jan. 12, 2009

A five-judge panel of the Supreme Count of Canada rules unanimously that B.C. prosecutors can proceed with their appeal before the high court of a split lower-court ruling to retry Ellard.

Sept. 5, 2008

The B.C. Court of Appeal overturns Ellard's second-degree murder conviction and orders a fourth trial, saying the trial judge erred in his instructions to the jury over testimony. One of the three appeal justices, however, disagrees with overturning Ellard's conviction.

June 21, 2007

Warren Glowatski is granted day parole.

August 3, 2006

A B.C. judge rules that Ellard will get legal aid to pay for her latest appeal.

July 20, 2006

Warren Glowatski is granted unescorted temporary absences from prison.

July 7, 2005

Justice Robert Bauman sentences Ellard to life in prison, calling Virk's death a senseless and remorseless crime. Ellard must serve seven years before she can seek parole.

April 12, 2005

Third trial finds Ellard guilty of second-degree murder in the death of Virk.

April 7, 2005

A third jury begins deliberating the fate of Ellard.

April 6, 2005

Final arguments wrap up in Ellard's third trial. Ellard's lawyer attacks the testimony of key crown witnesses, saying almost every one of them described new memories after being prodded by the police and the Crown. The Crown prosecutor argued that as a whole, the testimony points to Ellard as a murderer.

March 17, 2005

The crown's key witness – Glowatski – describes how he and Ellard followed Virk as she staggered away from a group of teens. He testified that he and Ellard beat Virk and left her for dead in a waterway.

Feb. 21, 2005

Ellard goes on trial for a third time, accused of killing Virk. It is more than seven years after Virk was swarmed and beaten by a group of teenagers. Ellard was 15 when she was first charged. She's now 22.

Nov. 19, 2004

Glowatski is denied day parole.

July 18, 2004

Justice Selwyn Romilly declares a mistrial in Ellard's second-degree murder trial after jurors says they are deadlocked. "All things must come to an end. That time is now," the jury wrote.

July 14, 2004

Jury begins its deliberations in the murder trial of Ellard, accused of killing Reena Virk in 1997, when they were both teenagers.

July 9, 2004

Ellard defence rests its case after its last witness testifies that Glowatski, convicted of second degree murder in the case, paid her to spread stories that Ellard had killed Virk.

July 8, 2004

Ellard finishes her third day of testimony, still denying she killed Virk, but saying, "I'm obviously going to be convicted. You've got what you want, my life is ruined."

July 6, 2004

Ellard admits to punching Virk, but says she did so because she thought Virk was going to hurt one of her friends. She denies drowning her in the tidal inlet.

June 30, 2004

A pathologist testifies that Virk's death was due to drowning. He also says that if Virk had not drowned, she may not have survived because of a serious head injury.

June 29, 2004

Glowatski, convicted of second-degree murder in Virk's death, denies killing her, but says he watched Ellard drown her. Ellard lawyer says Glowatski lied repeatedly in his initial statements to police and at his own trial.

June 16-22, 2004

In five days of testimony, several witnesses come forward to say Ellard admitted to killing to Virk.

June 14, 2004

A second trial opens for Ellard, charged with second-degree murder in the swarming death of 14-year-old Reena Virk almost seven years earlier.

March 4, 2004

Ellard's bail is revoked a month after she is charged with assault causing bodily harm in connection with the beating of a 58-year-old woman in a Vancouver park. Ellard is ordered back into custody.

Feb. 4, 2003

The B.C. Court of Appeal orders a new trial for Ellard, now 21 years old. The court ruled the Crown failed to give her a fair trail by asking Ellard 18 times why witnesses would give false testimony against her. Ellard was testifying in her own defence. Ellard – freed on bail pending her appeal – had served 18 months of a life sentence for second-degree murder.

Nov. 29, 2001

Glowatski, the second teen to be convicted of second-degree murder in Virk's death, loses his appeal. The B.C. Court of Appeal rules Glowatski actively took part in Virk's killing.

Nov. 15, 2000

Virk's parents sue the teens arrested in connection with the attack on their daughter, the B.C. government and several others. "Society doesn't make people take responsibility for their actions. This is one way to make them responsible," Manjit Virk, Reena's father, said.

April 21, 2000

A judge rules Ellard must spend at least five years behind bars before she can apply for parole. Ellard was 15 when she was arrested and charged with second-degree murder. The case was tried in adult court. Had she been 18 or older when she took part in Virk's killing, she would have had to serve at least 10 years before being eligible for parole.

March 31, 2000

Ellard is convicted of second-degree murder in the death of Virk. The 17-year-old-girl is led from the courtroom before she can say good-bye to her parents, to begin serving a life sentence. Prosecutors had described Ellard as the most aggressive in the group of girls who attacked Virk. The defence portrayed Ellard as the victim of a conspiracy by a group of young girls who were out to protect themselves.

March 9, 2000

The second-degree murder trial of Ellard opens in Vancouver. It's the third trial connected to the killing of Virk.

June 18, 1999

Glowatski is sentenced to life in prison with no chance of parole for seven years for second-degree murder in the death of Virk. Justice Malcolm MacAuley says Glowatski would have a better chance at participating in programs and receiving an education at the federal institution of Matsqui than he would at a youth facility.

June 2, 1999

Glowatski is convicted of second degree murder in the death of Virk.

May 13, 1999

The Supreme Court of Canada refuses to hear an appeal by Ellard's lawyers to have her case tried in youth court. She will be tried as an adult.

May 3, 1999

Glowatski admits he took part in the beating of Virk but insists he did not kill her.

April 12, 1999

Trial of Glowatski opens in Vancouver. He was 17 when he was accused of second-degree murder in the killing of Virk. The judge rules against a publication ban on the details of the case.

April to May 1998

Six girls — aged 14 to 16 — receive sentences ranging from 60 days conditional to one year in jail for their parts in the initial beating of Virk.

Feb. 13, 1998

Three teenaged girls are convicted of lesser charges of assault causing bodily harm.

Feb. 9, 1998

The first of the trials in beating and drowning of Virk opens in Vancouver. Three teenaged girls plead guilty to charges of assault causing bodily harm. Three other teenaged girls go to trial on charges of aggravated assault.

Nov. 22, 1997

Police divers find Virk's body in a shallow tidal pool, about one kilometre from where she was last beaten.

Nov. 21, 1997

Glowatski is arrested and charged with Virk's murder. Seven teenaged girls also face charges ranging from assault to murder.

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation: R. v. Ellard, 2008 BCCA 341

Date: 20080905
Docket: CA033219

Between:

Regina, Respondent
And
Kelly Marie Ellard, Appellant

Before:

The Honourable Mr. Justice Low
The Honourable Mr. Justice Chiasson
The Honourable Mr. Justice Frankel

P.J. Wilson, Q.C. - Counsel for the Appellant
J.M. Gordon Q.C. and C.A. Murray, Q.C. - Counsel for the Respondent

Place and Date of Hearing: Vancouver, British Columbia

28 May 2008

Written Submissions Received: 4 and 8 July 2008

Place and Date of Judgment: Vancouver, British Columbia

5 September 2008

Written Reasons by: The Honourable Mr. Justice Frankel

Concurred in by: The Honourable Mr. Justice Chiasson (at p. 42, para. 98)

Dissenting Reasons by: 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”