Respondent Kelly-Marie

File No. 32835
IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for British Columbia)
BETWEEN:
HER MAJESTY THE QUEEN
APPELLANT
(Respondent)
AND:
KELLY MARIE ELLARD
RESPONDENT
(Appellant)
RESPONDENT’S FACTUM
REDACTED
Counsel for the Appellant:
Ottawa Agent for the Appellant:
JOHN M. GORDON, Q.C. AND MARY T. AINSLIE
Crown Counsel Office
Criminal Appeals and Special Prosecutions
6th Floor, 865 Hornby Street
Vancouver, BC V6Z 2G3
Telephone: 604-660-1126
Facsimile: 604-660-1133
Email: john.gordon@gov.bc.ca
Email: mary.ainslie@gov.bc.ca
ROBERT E. HOUSTON, Q.C.
Burke-Robertson
Barristers and Solicitors
70 Gloucester Street
Ottawa, ON K2P 0A2
Telephone: 613-566-2068
Facsimile: 613-235-4430
Counsel for the Respondent:
Ottawa Agent for the Respondent:
PETER J. WILSON, Q.C.
Wilson, Buck, Butcher & Sears
400 – 744 W. Hastings Street
Vancouver, BC V6C 1A5
Telephone: 604-684-4751
Facsimile: 604-684-8319
Email: pjwilson@wbbslaw.com
HENRY S. BROWN, Q.C.
Gowlings Lafleur Henderson LLP
2600 – 160 Elgin Street
Ottawa, ON K1P 1C3
Telephone: 613-786-0139
Facsimile: 613-563-9869
BROCK MARTLAND
Smart, Harris & Martland
1190 – 840 Howe Street
Vancouver, BC V6Z 2L2
Telephone: 604-687-6278
Facsimile: 604-687-6298
Email: martland@martland.ca
INDEX
Page
PART 1: OVERVIEW AND STATEMENT OF FACTS ..................................................I
3
A . Overview of Respondent's Position.............................................................................
B. Respondent's Position with respect to Appellant's Statement of Facts .......................1
Evidence of Observations and Incriminating Statements .....................................3
Marissa Bowles .....................................................................................................
6
Warren Glowatski ..................................................................................................
8
Evidence supportive of the Respondent..............................................................
I1
Cold Wafer Evidence................................................................................ 11
Motive .......................................................................................................
14
Sean Lane ................................................................................................ 15
[B.E.M.] ....................................................................................................
15
Evidence Suggestive of Collusion .......................................................................16
18
PART II: ISSUES ON APPEAL .....................................................................................
PART Ill: STATEMENT OF ARGUMENT .....................................................................
18
1. The legal principles governing prior consistent statements ...................................... 18
1.1 The rule and its rationale...............................................................................
19
20
1.2 The exception to the rule: "recent fabrication" ..............................................
1.3 The need for a jury instruction on a prior consistent statement ....................23
2 . The prior consistent statement problems in this case ................................................24
2.1 The Bowles prior consistent statements were not admissible: no exception was
triggered ..............................................................................................................
24
2.2 Further error arose because no jury instruction was given ...........................27
3 . The appropriate remedy for these errors: a new trial .................................................31
4 . The two alternative bases for supporting the BCCA's order ......................................33
4.1 An unreasonable verdict .............................................................................
-33
4.2 The collusionlcontamination error .............................................................. 35
PART IV: SUBMISSION ON COSTS ............................................................................39
PART V: ORDER SOUGHT ..........................................................................................39
PART VI: LIST OF AUTHORITIES ...............................................................................40
PART VII: STATUTES ..................................................................................................41
PART 1: OVERVIEW AND STATEMENT OF FACTS
A. Overview of Respondent's Position
I.
The Kelly Ellard-Reena Virk case is famous. In the public imagination, it has
achieved a notoriety reserved for the most shocking and disturbing of murder cases. It is
interesting to contemplate why the case provokes such public revulsion against the female
youth (Ellard) and not the male youth (Warren Glowatski). The case has attracted
significant media attention and in the public mind, has the appearance of an overwhelming
case complete with eyewitnesses, confessions, and forensics.
2.
On closer examination, however, the Ellard case wears a Janus face. The
appearance of overwhelming strength does not survive close scrutiny. In reality, the case
bears the hallmarks of a wrongful conviction. This young woman is the object of great
public scorn and hatred; it is not hyperbole to say she is public enemy number one. Police
and prosecutors have pursued her conviction aggressively. The investigation targeted her
at a very early stage. The Crown's case relies on a classically self-interested and
untrustworthy witness - Glowatski, himself responsible for this homicide - who holds a
long-standing hatred of Ellard. This man, the only person said to witness Virk's death, has
lied a staggering twelve dozen times. The Crown led jailhouse informant testimony, a
notoriously suspect category of evidence, and all the more unusual employed against a
youth. The environment within the teenaged group was replete with gossip, speculation
and rumbur. This was exacerbated by improper police conduct in the case of at least one
witness. This environment produced accounts of conduct on Ellard's part that are
demonstrably wrong; and yet the Crown continued to rely on such evidence in asking the
jury to convict her.
3.
It is sometimes forgotten that this is a youth case, one that originated under the
Young Offenders Act. The vast majority of youth cases pass by unnoticed, the young
offender protected by a publication ban, or alternatively protected by media disinterest
when sentenced as an adult. Ellard, however, has achieved a public profile comparable to
few female offenders, Karla Homolka excepted. She has spent seven years in custody,
which, had she never appealed, would equal the maximum parole ineligibility period
available. She has, of course, challenged her conviction, and continues to maintain that it
was unjust. In the argument that follows, we ask this Court to study the facts of the case in
detail. What emerges is troubling. This is no overwhelming case; it is a suspect one which
calls into question the basis for conviction.
4.
The case against Ellard rested, principally, on three things.
First, incriminating
statements allegedly made to various acquaintances; second, observations of her related
by young people present on Nov.14, 1997, including the witness Marissa Bowles (Bowles);
and third, the testimony of Warren Glowatski (Glowatski). All of the important witnesses
were very young (most 13 or 14) at the relevant time and all had been participants in
rampant gossip circulating among them in the schools they attended and elsewhere.
Crown witnesses who related "confessions" attributed to Ellard almost invariably provided
a narrative describing injuries to Virk that were proven never to have occurred. Crown
witnesses who related critical observations of Ellard often described things that they had
either denied, or claimed not to have seen at all, in their early statements to police.
Glowatski, the Crown's most important witness, was forced to admit, during the course of
his cross-examination, to having told a disturbing number of lies, many of them related to
his allegations about Ellard and specifically designed to put her in a bad light.
5.
While the Appellant's factum adequately captures the strength of the Crown case,
the problems and complexities associated with the trial cannot be understood without
further reference to the facts; the Respondent must outline the facts in detail since they are
central to issues advanced herein, particularly the curative proviso, unreasonable verdict
and collusion (the last two are both alternative bases for vacating the conviction). Ellard
will thus expand on the facts highlighted by the Appellant and will do so for the following
reasons:
to show the unreliability of evidence of observations and incriminating statements;
to highlight the problem of Marissa Bowles' evidence;
to expand on the evidence related to Warren Glowatski;
to identify evidence supportive of Ellard; and
to identify evidence suggestive of collusion.
6.
Finally, the Respondent will suggest that consideration of the entirety of the
evidence demonstrates that the case against Ellard was not so overwhelming that a trier of
fact would inevitably convict; and thus is not an appropriate case for the application of s.
686(l)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, as am.
B. Respondent's Position with respect to Appellant's Statement of Facts
Evidence of Observations and Incriminating Statements
7.
The Appellant relies upon a statement attributed by Chelsea Green (Green) to
Ellard. Green testified only at Ellard's third trial and had never before been called as a
witness despite the multiple proceedings related to Virk's death. Green spoke to the police
twice within days of the attack on Virk (Nov. 22 and 25, 1997), but did not again speak to a
person in authority until February and March of 2005 when she spoke to Crown: Appellant's
Record (A.R.) V.5; 840 (5-39).
In spite of her early opportunities to speak to the police, it was
not until 7% years after the event that she outlined the statement led by Crown at trial.
Green's interaction with Ellard had been canvassed, however, in 1997 when she was
specifically questioned by police about whether Ellard made any statements to her; she
answered: "Not really. Well, not like details or anything". It was not until 2005 that Green
told anyone in authority that Ellard said she "finished her off" A.R. V.5; 888 (29-37).
8.
Green's 2005 revelation about the damning statement received from Ellard was not
the only dramatic change in her evidence. Green last observed Virk just starting to come
up the stairs, at which point Green left to go toward the Mac's store and the group she was
with (on the way to Mac's) began to go through Virk's bag1: A.R. v.5; 773
(19)
- 774 (39).
In
1997 Green told Victoria police Sgt. Bond (Bond) that she was then with the same group of
people who had been under the Craigflower Bridge (the Bridge). Bond specifically asked
what she saw Ellard do and Green answered "She was with us". Bond disagreed;
told
Green that Ellard was gone. Green agreed with Bond at this point but said she did not
know where Ellard had gone: A.R. V.5; 862 (4) - 863 (39). This answer seemed to please
Green testified that Virk's bag was gone through on the grassy area adjacent to the Comfort Inn
driveway depicted in photo #45 at A.R. V.12; 1995.
Bond who exclaimed "good, right on". Green felt the police were actually giving her tips
-
about what she should remember: A.R. V.5; 867 (13) 868 (6).
9.
Having told Bond in 1997 that Ellard "was gone", Green told Crown, on Feb. 15,
2005, that she now remembered seeing Ellard standing with Glowatski. Two weeks later,
in a second Crown interview, Green's memory improved further; she recalled not only that
Ellard was standing on the Bridge but that Ellard and Glowatski were looking toward the
-
north side of the Bridge and actually starting to move in that direction: A.R. V.5; 886 (2) 888
(15).
This was not an isolated instance of a Crown witness experiencing improved
memory, it was instead typical of the evidence called by the Crown against Ellard.
10.
Crown relies upon Jodene Rogers' (Rogers) assertion that Ellard said she hit Virk
"on the head with some object". In reality, Rogers' allegation was more extreme; she
testified that Ellard claimed to have "pounded Virk in the head" with a heavy object: A.R.
v.2; 257 (32-44).
However, the pathologist was clear that there was simply no evidence of
such an attack: A.R. V.6; 1114 (32-39). The flavour of the gossip circulating about Virk was
captured by Rogers' graphic suggestion that one of Virk's eyes popped out of its socket;
she testified "Those things get exaggerated when you get a bunch of 14-year-olds talking
about something like this": A.R. V.2; 262 (27-44). As with other important Crown witnesses,
Rogers testified about the extent of rumour and gossip circulating in relation to the
incident. Evidence given by various Crown witnesses describing the nature and extent of
that gossip was identified in detail in submissions at the court below: Respondent's Record
-
(R.R.) V.4; 551 552.
11.
The Appellant relies upon Shannon Meyer (Meyer) for another incriminating
statement (Appellant's Factum (A.F.), para 32). This statement was described by Meyer as
unusual and significant since she had never had any conversation with Ellard like it: A.R.
v.4; 575 (11-31).
In spite of that, and although her dealings with Ellard were fresh in her mind
when she provided her statement to the police, she didn't mention anything about a
conversation: A.R. V.4; 580 (2-11). Her failure to mention the statement must be assessed in
light of the fact that the police specifically asked her whether she had spoken to Ellard: A.R.
v.4; 584 (45)
- 585 (19). Meyer said nothing to the police about the statement until seven
months after her initial interview: A.R. v.4; 580 (2-11).
Meyer is important for another reason: she actually remembered that after the initial
12.
assault on Virk, Ellard accompanied other young people south from the Bridge to the
parking lot of the Comfort Inn, where a number of girls went through a baglbackpack which
Virk had been carrying. Meyer could recollect Ellard bragging about taking part in the
assault on Virk under the Bridge and remembered precisely where Ellard was located at
the time: A.R. V.4; 564 (19-26). This was an important observation, particularly in view of the
revised memory of events claimed by Bowles and Green in which they described Ellard
going the opposite direction - north across the Bridge.
The Appellant (A.F., para. 33) references a truncated version of allegations made by
13.
Chandelle Naysmith (Naysmith). Crown at trial similarly glossed over Naysmith's
immoderate allegations. Naysmith attributed to Ellard a fantastic series of assaults upon
Virk including: placing Virk's face against a rock
then kicking the back of Virk's head
to drive her face forcefully into the rocks: A.R. V.5; 725 (17-47); "smashing" Virk's face several
times into the bark of a tree: A.R. V.5; 726 (30-45); Jiterally jumping on Virk's head: A.R. V.5;
727 (21-44);
breaking both of Virk's arms by jumping on them: A.R. V.5; 728 (3-18); jumping on
-
Virk's throat from a picnic table: A.R. V.5; 728 (22) 729 (28); slashing at and actually cutting
Virk's face with a sharp-edged stick: A.R. V.5; 730 (10-37) and snapping Virk's neck: A.R. V.5;
730 (38)
- 731 (6).
Each of these events was put to the pathologist Dr. Gray for her expert
comment; Dr Gray testified she found no evidence to support any of them: A.R. V.5; 1110
-
(18) 1114 (31).
14.
Because Naysmith was able to direct police to the very tree into which Virk's face
had been "~mashed'~,
police identification experts conducted a close and careful search
over several hours: A.R. v.2; 20s (32-44). Their efforts to find any evidence capable of
supporting such an attack proved completely fruitless: A.R. V.2; 207 (3-22).
The rock wall in question was identified as the wall depicted in photographs 1-09; 1-10 and 1-11
at: A.R. V.12; 1976-1977.
15.
The Appellant cites a statement allegedly uttered by Ellard to [L.Z. (aka L.B.)], a
resident of the Victoria Youth Custody Centre (VYCC) where Ellard was initially detained.
[L.B.] was emphatic that Ellard's statement had been made while both were together in a
particular bathroom at VYCC brushing their teeth (the bathroom with a single sink): A.R.
v.7; 1155 (17-40); 1171(46)
- 1172 (9). Tony Guarascio, a correctional officer in VYCC at the
relevant time, testified that two inmates would never be placed together in the washroom
described by [L.B.]. The interaction between Ellard and [L.B.] could thus not have taken
place as related in [L.B.'s] testimony: A.R. V.7; 1135 (18-45).
Marissa Bowles
16.
The evidence of Bowles was replete with memory problems. For many events, her
memory was simply confused and uncertain. For the most significant events, however, her
memory had changed dramatically. Examples of problems included:
Whether she had been with her best friend Syreeta earlier in the evening of Nov.
14, 1997. In testimony given in June of 2004, Bowles remembered being with
Syreeta, but in March of 2005, she could no longer remember: A.R. V.4; 641(34) 642(24).
The number of people who had been at Shoreline School when she arrived there:
-
A.R. V.4; 643(5) 644(2).
Whether Ellard had been drinking on Nov. 14'~.At trial, In her testimony, Bowles did
not remember Ellard drinking; in testimony in 2000, she volunteered that Ellard was
drinking; in testimony at Glowatski's trial, she didn't think Ellard had been drinking.
Bowles could not say which of these versions was accurate: A.R. V.4; 645(4) - 517(34).
Who had intervened to stop the assault upon Virk. At various times Bowles
attributed this intervention to her friends [C.A.K.] and [G.O.]; to a young woman
named Shireen Shah, and to [M.P.G.]: A.R. V.4; 659(17) 666(46).
Whether she actually observed [N.C.] stub out a cigarette on Virk's forehead or
whether, as she originally told the police, she simply heard about that later: A.R. V.4;
-
-
653(24) 656(31).
Whether she observed Glowatski kicking Virk forcefully in the head, or whether, as
she originally told the police, she didn't actually see him do anything: A.R. V.4; 661(5)
-
662(35).
Whether, as she told the police, someone (perhaps Nicole Patterson) had
attempted to set Virk's hair on fire. Bowles could not remember whether she saw this
or heard about it; she could not remember it at all: A.R. v.4; 662(36) - 663(27).
Whether Sean Lane was the person at the bus stop who dropped a bottle of
perfume which had been removed from Virk's bag: A.R. v.4; 668(16-35).
Whether Ellard left the Bridge after the assault upon Virk and accompanied other
girls to the Comfort Inn where Virk's bag was gone through: A.R. V.4; 663(28) - 665(21).
Whether she could see 10 feet or % of the way across the Bridge on the night of
NOV.I4th, 1997: A.R. V.4; 671(18) 673 (11).
Whether she last saw Virk walking up the stairs adjacent to the Bridge and crossing
the Bridge headed north; or whether, as she originally told the police, Virk was sitting
in the mud at the bottom of the steps adjacent to the Bridge when she last saw her:
-
-
A.R. V.4; 674(41) 676(44).
17.
When Bowles spoke to the police she was not under arrest or in any trouble.
(Unlike many other witnesses, she was not then, and never has been, even suspected of
having participated in any assault on Virk.) She knew the matter was very serious; that it
was important to be accurate and to tell absolutely everything she knew; and that it was
important to be truthful. Her statement was given under oath: A.R. V.4; 634(9) - 635 (19). She
also knew Virk had been found in the Gorge and that Glowatski and Ellard had been
arrested for Virk's murder: A.R. V.4; 630(28) - 631 (15).
18.
Bowles testified that she watched Ellard with Glowatski walk % to % of the way
across the Bridge; Bowles then went to the Comfort Inn where girls were going through
-
Virk's knapsack: A.R. V.4; 613(8) (34). This evidence stood in sharp contrast to her original
sworn account of events to the police; at that time, when police directly asked her who had
gone to the Comfort Inn, the first name Bowles mentioned was "Kelly Ellard". In crossexamination it was suggested to her that this original account about Ellard had been the
truth, she responded "At the time, yes.": A.R. v.4; 684 (4) - 685 (21).
19.
There is good reason to believe that Bowles' revised account of Ellard's conduct
was the product of gossip and peer influence. When she first spoke to the police she said
(of Ellard and Glowatski) "I didn't know where they had gone to - but I do now". She
conceded under cross-examination that when she made this statement, she was referring
to things she had heard other people tell her: A.R. v.4; 677(12) - 678 (30). Indeed, she gave
an example of the gossip circulating at school; she told police "I talked to Shannon;
Shannon talked to Laura, Laura said she talked to Kelly"; Bowles agreed this was an
example of the grapevine and an accurate description of what was going on at school: A.R.
-
V.4; 682(25) 683 (13).
20.
A particular difficulty arises with respect to Crown's re-examination of Bowles at
trial. When re-examination commenced, an objection was raised. In response to that, and
in the presence of the iuty, Crown counsel stated:
. . . it was put to [Bowles] that she didn't tell the police back in November of '97. What
I'm going to put to this witness is that she said it at every hearing that she's testified
in. A.R. V.4; 685 (9-13).
This submission vouched for Bowles' credibility at large since it was a clear suggestion
that Bowles had always been consistent.
21.
The jury was excused immediately after this submission; when the jury returned it
was evident that the defence objection had been overruled since Crown was being
permitted to adduce the evidence objected to. Crown then asked the series of leading
-
questions reproduced at A.R. V.4; 693 (16) 694 (4).
Warren Glowatski
22.
The evidence of Glowatski was a critical component of the Crown case against
Ellard. Yet Glowatski was untruthful to a remarkable degree; under cross-examination he
admitted telling scores of lies to the police, psychiatrists, Corrections authorities, and in the
testimony he gave at his own trial for Virk's murder. In an appendix to Ellard's factum in
the court below, 144 of Glowatski's admitted lies were identified by reference to the
transcript. R.R. v.4; 553 - 556
23.
The Appellant references a karate chop which Glowatski claimed Ellard delivered to
the throat of Virk (A.F., para. 20); Glowatski agreed that this karate chop was like a hatchet
blow, and though not extremely forceful, it looked hard: A.R. V.8; 1377 (8
-
38).
The
pathologist testified that there was evidence of one blow to the left side of the neck; it was
possibly from a punch but it could not have been caused by a hard judo-chop type of
-
movement without damaging the adjacent voice box: A.R. V.6; 1081 (36) 1082 (16).
24.
Glowatski's account of Virk's death changed dramatically over time. Initially it
involved a titanic struggle in waist-deep water between Virk, fighting for her life, and Ellard
attempting to drown her. He maintained this account through his own trial and through
interviews with Crown leading to the trial herein. He adopted as true his statement to
Crown (from a pre-trial interview) that there had been a struggle in the water between Virk
and Ellard in which Ellard had difficulty holding Virk's head under the water because Virk
was squirming: A.R. V.9; 1619 (7)
-
1620 (24); 1628 (13-36).
Glowatski testified after the
pathologist. In evidence-in-chief, he suggested that Virk struggled a bit with Ellard and
"Kelly karate chopped her in the throat" then held Virk's head under water: A.R. V.8; 1400 (46)
- 1401 (4).
Early on the next day of his testimony, Crown counsel re-visited this "struggle"
evidence and Glowatski qualified his answer by describing the struggle as a "bit of a
-
wiggle": A.R. V.8; 1423 (34) 1424 (1). Under cross-examination, Glowatski admitted telling
Crown there had been a struggle between Virk and Ellard which caused Ellard difficulty in
the water: A.R. V.9; 1528 (2-22). This suggestion that any real struggle had occurred was
quite at odds with the medical evidence. At autopsy, swelling of Virk's brain was observed;
Dr. Gray's opinion was that Virk had been unconscious when placed in the water and
-
would not have been in any condition to fight back: A.R. V.6; 1108(20) 1109 (25).
25.
Glowatski was clear that Ellard had drowned Virk in waist-deep water while holding
Virk face up in the water. This description could not account for the small pieces of gravel
found in Virk's throat and was generally at odds with the opinion of the pathologist: A.R. V.6;
-
1107 (12) (43).
26.
Glowatski testified that during her effort to drown Virk, Ellard was immersed in the
water of the Gorge for between two and five minutes. He said that upon emerging from the
water, Ellard was soaked from the waist down, she was not shivering and did not seem
affected by the cold water: A.R. V.9; 1634 (12-45).
27.
In support of the above allegations of Glowatski, the Appellant asserts that Candace
Tanner (Tanner) and Rob Harbicht (Harbicht) "made observation of the wet condition of
[Ellard's] pants" (A.F., para 17).
28.
The Appellant relies upon Harbicht's description of Ellard: "Obviously she was wet"
(A.F., para 28). In fact, Harbicht was cross-examined about this observation and did not
support Glowatski's allegations about Ellard being in water to her waist. Harbicht agreed
that at Ellard's Preliminary Inquiry four months after the relevant events (March 23, 1998),
he testified that Ellard's clothing "looked a little wet" at "the bottom of her jeans". When
asked if the clothing was anything other than wet Harbicht stated "a little muddy on like her
shoes and on the bottom of her jeans too". He confirmed the truth of these answers: A.R.
-
v.3; 459 (33) 460 (46).
This description was consistent with the condition of the trousers of
other young women who had been walking around that night on the wet field at Shoreline
School and under the Bridge. Significantly, Harbicht testified that Ellard was not shivering
when he saw her: A.R. V.3; 461 (1-22).
29.
The Appellant relies on Tanner's evidence about Ellard and Glowatski that 'Yheir
pants were noticeably wet from the knees down" (A.F., para. 27). However, this evidence
must be qualified; it is the complete opposite of what Tanner told the police in two
statemenk3 She appreciated the gravity of the police investigation and the need to be
accurate, truthful and thorough in those statements: A.R. V.3; 497 (10-45).
30.
On Nov. 26th 1997, police asked Tanner directly whether there was anything
different "about their [Ellard's and Glowatski's] clothing"; she answered "I don't know, not
that I remember". The police then became very specific and asked "were either of them
wet?"; she answered, "No. I wasn't really looking for that so I probably wouldn't remember
it". Police then asked "How about muddy, did you notice if either of them were muddy or
not?" She answered "No". Under cross-examination Tanner acknowledged that she told
-
police the truth: A.R. v.5; 530 (22) 532 (7). In her second statement Tanner told police she
heard nothing about "any mud on their clothes, water, water on their clothes, blood on their
clothes": A.R. V.4; 532 (15-43). Tanner knew that Virk had been found in the Gorge and that it
was believed she had been drowned there.
Tanner's statements were made on Nov 26 and 27, 1997 when the relevant events were fresh. The
second statement was taken under oath: A.R. V.3; 497 (10-45).
31.
~ ~
Other problems existed for Tanner; she was drunk on the evening of Nov 1 4 and
-
her whole recollection of the night was hazy: A.R. v.3; 501 (17) 503 (33). She agreed that her
memory had changed about a variety of things over time, and conceded she had never
seen Ellard before Nov. 14, 1997; in fact, she was unable to select or even recognize
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Ellard in a police line-up: A.R. V.4; 533 (30) 534 (42).
Evidence supportive of the Respondent
Cold Water Evidence
32.
Glowatski was the Crown's star witness. The accuracy of his description of Ellard's
conduct in beating and drowning Virk was central to the Crown case and Crown led
evidence from multiple witnesses to support his critical allegation that Ellard forcibly
drowned Virk in the waters of the ~ o r g e .In~this context, Glowatski's detailed allegations
about Ellard being immersed waist deep in the cold water of the Gorge brought her
appearance and conduct on the night of Nov. 14 1997 into stark relief in the trial context;
the allegations also raised questions about the probable effects of immersion in the cold
water of the Gorge on a November night.
33.
Sgt. Wall was a member of the police dive team that recovered Virk's body from the
Gorge. He testified the team always wore a "dry suit" when diving in the Gorge because of
the cold, and that a person immersed in the Gorge would experience a decline in body
temperature within five or 10 minutes. He believed the temperature of water in the Gorge
was in the range of 50-53 degrees Farenheit year round; a person immersed in the Gorge
up to their waist would be uncomfortably cold: A.R. V.2; 237 (22) - 238 (41).
34.
To deal with the effects expected from immersion in the waters of the Gorge, the
defence called an expert, Dr. Michel Ducharme (Ducharme), a senior scientist with a Ph.D
in physiology, employed by Defence Research and Development Canada and working for
the Department of National Defence. His research involved cold thermal physiology and
Other Crown witnesses who gave evidence of Ellard forcibly drowning Virk in the waters of the
Gorge included [C.A.K.]; Naysmith; Green; [L.B.], [M.P.G.] and Tanner.
investigating the issue of protection and survival in extreme environmental conditions. R.R.
-
V.3; 371 (18) 372 (19)
35.
Ducharme conducted two "cold simulations" in a Department of National Defence
climatic chamber capable of duplicating air temperature, wind direction and wind speed. A
treadmill was used to simulate walking and a container of water maintained at the
temperature of water in the Gorge was employed to immerse the subjects. Simulations
were conducted on March 24, 2005 and March 3 1 , 2 0 0 5 ~and reports prepared in respect
of them. R.R. V.3; 373(2)
-
374(2).
Both simulations involved young females with
"anthropometry" similar to Ellard: R.R. v.3; 375 (8-34), the object being to find subjects whose
potential for losing heat would be the same as Ellard: R.R. v.3; 376 (4-44). The simulations
were "single blind" trials, that is, the purpose of the experiment was concealed from the
subjects: R.R. V.3; 374 (3-20). Each simulation involved eight events or stages as outlined
below: R.R. V.3; 380 (11-38).
1. The beating of a person for two minutes
2. Dragging an 83 kilogram body over 25 metres with the assistance of a male, then a
further three metres alone
3. Immersion to the waist in 10 Celsius water for two minutes
4. A simulated walk of five minutes to a bus stop.
5. A five minute wait at that location.
6. A simulated walk of 20 minutes "home".
7. A change of clothing in a warm house.
8. A talk "outside" for three minutes.
36.
Both simulations were recorded on video shown.to the jury. The video (now in the
Respondent's Record) is forceful evidence for the Respondent yet impossible to
appreciate without viewing. Respondent respectfully requests that this Court watch the
I
video: R.R. V.4; 512.
37.
The simulations produced a dramatic and obvious effect upon the subjects. By
The simulations were based upon the acts allegedly done by Ellard as described in testimony
before the jury. This included an immersion in water time based upon the estimated times Glowatski gave
during cross-examination on March 22nd2005. Although Glowatski had at various times spoken of Ellard
being in the water for five or 10 minutes, only his lowest estimate of two minutes was used for the
simulations. Admissions were made about water temperature and weather conditions on Nov 14, 1997, see:
A.R. V.12; 2031 (paras. 9 and 10).
stage 7, the first subject was so cold and stiff that she needed help to change her clothing
and could not untie her shoelaces. By the last stage, she was obviously cold and exhibited
constant and intense shivering; her speech was affected and redness and goose bumps
appeared on her legs: R.R. V.3; 390 (4) - 391 (38). The subject in the second simulation also
needed help to change her clothing at stage 7 and showed similar conspicuous signs of
discomfort from cold: R.R. V.3; 398 (16) - 400 (21).
38.
Ducharme testified that the most extreme form of thermal stress to which the body
can be subjected is immersion in cold water. This is because water conducts heat 25 times
faster than air: R.R. v.3; 401 (29-38). He said that it is normal for the skin to turn red in
reaction to cold; that jeans do not provide insulation and that wet jeans will actually
conduct heat away from the skin to the environment: R.R. V.3; 402 (3) - 403 (16).
39.
Karen Ellard (Karen), Ellard's step-mother, testified for the defence. She was
present when Ellard arrived home at about 11:00 pm on Nov. 14, 1997. Karen was then in
a hot tub with her friend Tammy: R.R. v.1; 71 (15-35). After changing into her night clothes
(boxer shorts and short-sleeved t-shirt), Ellard came outside, barefoot, to talk to Karen.
Ellard looked normal; her skin, normally quite white, looked normal, and she did not appear
to be cold. The three of them talked for three or four minutes. Ellard's demeanor was not of
any concern and she seemed to be the same as usual. R.R. V.l; 76 (1) - 77 ( 27).
40.
After Ellard's arrest, Karen conducted an experiment. On Dec. 12, 1997 at about
10:OO pm she went into the water of the Gorge in an attempt to re-enact what Ellard had
allegedly done. Wearing blue jeans a sweatshirt and runners, she walked into the Gorge to
her waist; remained there for a total of three minutes, and then walked home as quickly as
she could; it took her 18 minutes. Upon arrrival her shoes had silt in them and grass like
seaweed. She was very cold, and shivering. She showered and noticed that her legs were
bright red; they were still bright red even after she went in the shower to warm up: R.R. V.1;
so (10) - 8s (11). Karen was cross-examined about this evidence but not shaken.
41.
Karen thought that the Calvin Klein jacket (said to have salt stains) seized by the
police from her home belonged to her other daughter ~amie': R.R. V.l; 68 (6-12).
42.
Not a single witness testified that Ellard was shivering or manifesting the least
appearance of being cold at any time on the night of Nov. 14, 1997.
Motive
43.
Motive deserves mention; it became important because others, not Ellard, were
motivated to harm Virk. The Appellant (A.F., para. I) speaks of the initial attack being
"retribution for some perceived transgression". The "transgression" was clearly established
by the evidence at trial; it was a dispute involving Virk and two other young women, [N.C.]
and [M.P.G.]. Both had a motive to assault Virk. It was [M.P.G.] who convinced Virk to
come out on the fatal evening and [N.C.] who began the initial attack on Virk beneath the
Bridge by stubbing out the cigarette on Virk's forehead.
44.
When [M.P.G.], after the attack on Virk, met with her best friend Naysmith, she told
Naysmith that she had been mad at Virk; displayed her injured hand; and said that
-
"[Glowatski] and [N.C.] had really gotten into it with Reena". A.R. v.5; 720 (5) 721 (35)
45.
The Appellant references the fact that [M.P.G.] found Virk's shoes "which were
eventually thrown away."
This overlooks the significant fact that [N.C.] and [M.P.G.]
together disposed of the shoes Virk had been wearing on the night of the fatal attack by
taking them into the downtown area of Victoria and placing them in a dumpster. [M.P.G.]
had admired the shoes on the night of the attack. Evidence was led that on the day
following the attack on Virk, [M.P.G.] and [N.C.] told Cote, another resident of their group
home, that "we fucked some girl up". Shortly after that time, [M.P.G.] told Cote "we went
and finished her off": R.R. v.3; 355 (31)- 357 (14). [M.P.G.] injured her hand in the attack on
Virk.
Only Glowatski asserted that Ellard was wearing the "Calvin Klein" jacket. The expert who
examined salt stains on the jacket agreed under cross-examination that the staining was inconsistent with
the jacket having been worn by a person immersed in salt water up to their waist: A.R. V.6; 1050 (27) 1051
(16).
-
46.
Evidence was led that [M.P.G.] attended at the home of a friend on the night of the
attack and told him that she had left Virk "unconscious in the gorge" after being in a fight
with her. R.R. V.l;
9 (42-46).
Sean Lane
47.
Sean Lane (Lane) testified for the defence; he was acquainted with Ellard through
school: R.R. V.l; 119 (1-13). On the night of Nov. 14'" he was not part of the group present
when Virk was assaulted, but was with a young woman named Carolyn Watts. He saw a
group of people, including Ellard, at an intersection south of the Bridge. He and Watts then
went to the bus stop south of the Bridge where he was joined by Ellard and others. He
remained there for half an hour to 45 minutes. There was a conversation about a fight
earlier in the night and at one point he dropped a bottle of perfume that was handed to
him. He had gloves on and it slipped. Glowatski walked by later on looking for his friend
Lorne who had earlier walked by looking for Glowatski. Glowatski walked by the bus stop;
asked if anyone had seen Lorne and then just took off. Ellard was simply socializing, there
was nothing notable about her clothing. He was confident he never saw Glowatski and
Ellard together on Nov. 1 4 ~R.R.
~ : V.l; 123 (38) - 126 (3). Lane's evidence was consistent with
the statements Bowles and Green initially provided police.
[B.E.M.1
48.
[B.E.M.] testified for the defence. He had a lengthy criminal record. He spent time
in prison with Glowatski whom he described as part of his "crew". A photograph of the
crew was marked: A.R. v.12; 2039. He described a conversation in which Glowatski said,
"All I did was stand on somebody's head for F sakes"; Glowatski also said two other
people were present and were walking scot free; Glowatski named the people going free;
they were girls names. At one point, another inmate asked why Glowatski had only one
accused; Glowatski said "Fuck, that bitch is getting what she deserves". Glowatski always
used foul language when referring to Ellard. Glowatski suggested that he was angry at
-
Ellard because he had been spurned by her: R.R. V.l; 160 (1) 164 (29).
Evidence Suggestive of Collusion
49.
There were several examples of odd parallels in evidence given by witnesses who
happened to be close friends.
50.
[M.P.G.] was one of Naysmith's best friends in 1997; they talked several times a
day: A.R. v.4; 709 (47) - 710 (16). Naysmith told the police that after the assault on Virk, Ellard
and Glowatski had gone to the Mac's store across from the Comfort Inn; from Mac's they
observed Virk leave (i.e., emerge from under the Bridge) to catch a bus and thus went
after her: A.R. V.5; 722 (30)
- 723 (35); also V.5; 726 (15-29). A
similar account was given by
[M.P.G.] who testified that after the assault on Virk she went home on the bus and while
waiting for the bus in front of the Mac's store, she observed Virk emerge from under the
Bridge: A.R. V.7; 1221 (41)
- 1222 (7).
It is impossible to make these observations of the
Bridge from the Mac's store. Victoria Police Sgt. Dibden testified that the observation
could not be made because the Comfort Inn obstructs the view of the south end of the
-
Bridge: A.R. V.6; 1003 (39) 1004 (21). This fact is also obvious from the aerial photograph at
A.R. v.12; 1970.
The spectre of collusion is surely raised when two close friends both
describe the same, yet clearly impossible state of affairs.
51.
Bowles and Green were close friends.
Both told the police in their original
statements that they last saw Virk at the bottom of the steps adjacent to the Bridge;
Bowles said Virk was sitting in the mud, while Green said Virk was just starting up the
stairs. Later both revised their stories to provide a very similar narrative about seeing
Ellard, in company with Glowatski, either walking, or beginning to walk, across the Bridge
after Virk. The coincidence of their revised accounts is striking; it is remarkable that both
would "correct" their recollections in identical fashion.
52.
The evidence of Bowles and Green seemed to "evolve" in other similar ways. Both
originally told police that Ellard was one of the young women who went south to the
Comfort Inn to examine the contents of Virk's purse. This is the opposite direction they
described in their revised accounts. Further, Green, just as Bowles had done, testified that
she had a vivid memory of seeing the cigarette butted out on Virk, yet told the police that
she heard about but did not see this incident. Green explained this inconsistency by
describing her account to the police on the point (though sworn) as a lie. A.R. v.5; 873(41)
-
875(4).
53.
The evidence of [C.A.K.] and [G.O.], referenced by Crown, is another example of
the tendency of the evidence of friends to bear marked similarities.
The confession
attributed to Ellard by [C.A.K.] contained the allegation that Virk's arms and legs had been
broken. [G.O.], [C.A.K.'s] best friend, suggested that separately, she had received a
confession from Ellard in which the Responded claimed Virk's arms and legs had been
broken. Their parallel assertions were, of course, conclusively disproved by the evidence
of the pathologist.
54.
Jodene Rogers and Laura Taylor both recounted a bizarre story which seemed to
have no connection with any other description of how Virk met her death. They claimed
Ellard told them that she had placed her foot on Virk's head in the water and held it there
nonchalantly while smoking a cigarette: Taylor: A.R. V.5; 897 (7-18); Rogers: A.R. V.2; 248 (28) 249 (3).
55.
Taylor and Rogers were close friends: A.R. V.5; 899 (42-44).
Many of the "confessions" attributed to Ellard by various young women appeared to
have their genesis in lies told about Ellard to the police b~ Glowatski in his initial
statements. Among Glowatski's admitted lies in his early police statements were his
assertions that Ellard:
smashed Virk's face into a tree;
grabbed Virk's arm and twisted it;
broke Virk's arm; and
stomped on Virk's windpipe.
It is a strange irony that many of the young women called as Crown witnesses continued to
assert, as truth, the very allegations that Glowatski himself had long since abandoned as
lies - lies he conceded were fabricated to inculpate Ellard.
PART !I: ISSUES ON APPEAL
56.
The Crown's appeal focuses on the question of law arising in the dissent of Mr.
Justice Low at the B.C. Court of Appeal - whether a jury instruction was required with
respect to Marissa Bowles' prior consistent statements. The Respondent Ellard maintains
that this Court must consider the broader question of the admissibility of those prior
consistent statements. We suggest the issues may be framed thus:
I.
2.
3.
57.
Was the learned trial judge correct to permit the admission of Bowles'
prior consistent statements? Was he required to give an instruction to the
jury on its use of those statements?
Was this an unreasonable verdict?
Did the trial judge err in failing to give the jury a direction on the issue of
collusion and contamination of witnesses, in this case?
This is a Crown appeal as-of-right. In such cases, while the Crown appeal is limited
to the question of law upon which the dissent arose, the Respondent may advance
alternative bases for supporting the order of the court below. See R. v. Keegstra, [I
9951 2
S.C.R. 381, 98 C.C.C. (3d) I,at paras. 23, 26. In this case, Ellard's primary submission is
that the B.C. Court of Appeal's order should be upheld for the reasons of Frankel J.A. Our
alternative submission, in the event this Court disagrees, is that there are two additional
bases supporting the order that this conviction be vacated: unreasonable verdict, and the
error with respect to contamination of witnesses.
PART Ill: STATEMENT OF ARGUMENT
1. The legal principles governing prior consistent statements
58.
Although the law governing prior consistent statements is well-established, we wish
to review the legal principles, since their application dictates the result in this case. We
begin with a general discussion of the law, before turning to the specific facts of Ellard's
trial. To conclude we address the question of remedy, in particular the curative proviso.
We submit that the learned trial judge erred twice - first by admitting Bowles' prior
consistent statements, and second by failing to give the jury any limiting instruction as to
the use of these statements. The evidence was significant in the trial and there is no
assurance the jury would have reached the same result had they not occurred.
1.1 The rule and its rationale
59.
Prior consistent statements are generally inadmissible: R. v. Stirling, [2008] 1
S.C.R. 272, 229 C.C.C. (3d) 257, at para. 5. The rule, and its supporting rationale, were
stated by Professors Paciocco and Stuesser:
It is generally impermissible to prove that at some point before testifying, a witness made
statements consistent with her testimony. Where that statement is being proved to show
consistency, it violates the rule against self-serving evidence, or the rule against narrative, as
it is sometimes called. D.M. Paciocco and L. Stuesser, The Law of Evidence, 4thEd (2005), at
ch. 11, s. 4.1 (QL)
60.
-
The Sopinka treatise describes two rationales for this prohibition:
Two different rationales have been given for the exclusion of such evidence. The one most
commonly relied on is that, due to the risk of fabrication, no person should be allowed to
create evidence for him or herself. The other view emphasizes the valuelessness of such
evidence since a witness'[s] story is not made more probable or trustworthy by any number of
repetitions of it. J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada
(2"ded.,
61.
-
1999), at p. 313 (footnotes omitted)
A prior consistent statement is "potentially dangerous, because it may mislead the
trier of fact into thinking that because a person said the same thing on more than one
occasion, it is more likely to be true. On the contrary, a concocted statement, repeated on
more than one occasion, remains concocted": R. v. Divifaris (2004), 188 C.C.C. (3d) 390
(Ont. C.A.), at para. 28, per Feldman J.A.
62.
A person may be consistently correct or consistently incorrect. Consistency does
not equate with accuracy; the reliability of a statement is not enhanced by the fact that it
was made more than once: R. v. C.(S.R.)
(2004), 188 C.C.C. (3d) 239 (P.E.I.S.C.A.D.), at
para. 38. This point, however, is counter-intuitive, as Chiasson J.A. pointed out in the
court below at para. 116: A.R. v.1; 91. Jurors may fall into the intuitively appealing logic of
thinking that if a person has repeatedly provided the same account, the account is more
credible and reliable.
63.
This is the flip side of the "prior inconsistent statement" coin. When triers of fact
address prior &consistent statements they look for inconsistency and, when they find it,
may use it to conclude a statement lacks credibilitylreliability. Inconsistency thus equals
untrustworthiness and so - the thinking goes - consistency must equal trustworthiness.
64.
To similar effect, without knowledge of evidence law, jurors might reason that a
person is unlikely to get a fact wrong on repeated occasions; if a witness asserts facts and
it can be shown that the witness previously testified to those same facts, this may be
understood to give an assurance that the facts are accurate and the witness is reliable.
Indeed, when the prior statement is itself sworn testimony, this may be taken as giving a
superadded assurance of accuracy: not only has it been led in sworn testimony, it was
given in evidence in court before! Moreover, the dynamic of a re-examination which
references sworn testimony from earlier trials is likely to leave jurors with the impression
that the earlier sworn testimony was accepted as reliable.
65.
The law rejects such reasoning. Consistency does not correlate with accuracy or
trustworthiness.
Yet without clear instruction, the danger of jurors misusing prior
consistent statements is real. Jurors may engage in the kind of flawed reasoning just
described, concluding that testimony must be trustworthy if prior consistency is
demonstrated. The risk is exacerbated when multiple prior consistent accounts over a
lengthy time frame are adduced, and exacerbated further when the prior statements
constitute sworn testimony from earlier proceedings.
66.
This is why prior consistent statements are bedeviling: they have an oath-helping
effect. Without a careful limiting instruction, the fact of consistency may be taken as a
guarantee of reliability. Consistency may communicate to the jury that a particular witness
testifies with a warrant of trustworthiness because she testified to the same effect in other
proceedings. It is this bolstering of a witness - this vouching for reliability and credibility
- that is improper, and that leads to the general bar on prior consistent statements.
1.2 The exception to the rule: "recent fabrication"
67.
While prior consistent statements are generally inadmissible, there are exceptions.
The exception relevant to this appeal permits admission in order to rebut an allegation of
"recent fabrication". It is described by Paciocco and Stuesser thus:
Prior consistent statements made by a witness are not admissible to counter the simple claim
that the testimony of that witness is false. As indicated, credibility is not enhanced simply
because the witness told the same story before, since that earlier telling may be nothing
more than an earlier version of the same lie. If an opposing party claims, however, that the
testimony of a witness has been "recently" fabricated, prior consistent statements that serve
to rebut the allegation of recent fabrication will be admissible. Prior consistent statements will
rebut the allegation of recent fabrication only where those statements predate the point in
time at which the opposing party claims the version of events was first fabricated. . . . The
relevance of the prior consistent statement does not come from consistency alone. It comes
from the fact that the timing of the prior consistent statement demonstrates that the version
testified to is not new. Ordinarily the evidence comes in solely to rebut the suggestion of
recent concoction. - Paciocco and Stuesser, supra, at s. 4.2, p. 2
68.
A few points may be made about the "recent fabrication" exception:
The exception is not easily triggered. It does not, and cannot, arise in every case in
which a party challenges or contradicts a witness (otherwise, trials would be full of
prior consistent statements, led to rehabilitate every challenged witness, by
demonstrating prior consistency). Rather, the question is whether the trier of fact
would be left with a misleading picture that the witness fabricated her account
inexplicably late in the day, when in fact the witness had given an earlier account,
before the motive to fabricate arose. See R. v. Campbell ( I 977), 38 C.C.C. (2d) 6
(Ont. C.A.), at p. 20; see also Judge S.R. Creagh, "Prior Consistent Statements",
Federation of Law Societies National Criminal Law Program (Vancouver, 2003), at p.
2; R. v. MacDonald (2000),148 C.C.C. (3d) 273 (Ont. C.A.), at para. 50.
Sound policy reasons exist to restrict admissibility of prior consistent statements.
As a practical matter, in criminal proceedings, the Crown usually leads such
statements. Often the allegation of "recent fabrication" arises during defence crossexamination. If permitted, Crown re-examines and leads the prior consistent
statement. For a juror, such a re-examination may be unusual and noteworthy. It
may, as in this case, follow objection and argument in the absence of the jury. This
may make the re-examination evidence more dramatic and set it apart from other
testimony, thus giving the prior consistent statements greater prominence and leaving
the impression of a witness of long-standing consistency. The prior consistent
statements may achieve disproportionate significance. In the case at bar, for
example, the last words of evidence heard by the jury was contained in the
impugned re-examination.
A second policy reason for restricting the admission of prior consistent statements is
rooted in trial efficiency. The purpose of such evidence is relatively limited and
precise, as we describe shortly. Given this narrow purpose, efficiency and materiality
militate in favour of restricting the use of prior consistent statement evidence. In R. v.
Beland a n d Phillips, [I
9871 2 S.C.R. 398, 36 C.C.C. (3d) 481, at p. 490 (C.C.C.),
Mclntyre J., for the majority, wrote: " n o admit the evidence] is to open the trial
process to the time-consuming and confusing consideration of collateral issues and
to deflect the focus of the proceedings from their fundamental issue of guilt or
innocence." See also R. v. Toten (1993), 83 C.C.C. (3d) 5 (Ont. C.A.), at pp. 25-26,
36.
The use of the prior consistent statement is limited. It does not establish the fact set
out in the earlier statement (this would be a hearsay use), though the witness's incourt testimony may. And - relevant to this case - the prior consistent statement
does not support the general reliability of the witness's account or provide an
assurance of the witness's accuracy or trustworthiness. Instead, it may be used for
the limited and specific purpose of neutralizing the suggestion that the witness made
up an account after the motive to be dishonest arose: Divitaris, supra, at paras. 2932; Paciocco and Stuesser, supra, s. 4.2, p. 2 (QL); R. v. Dinardo [2008], 1 S.C.R.
788, 231 C.C.C. (3d) 177, at paras. 36-40 .
69.
The terminology used to describe the "recent fabrication" exception sometimes
invites confusion. The words "recent fabrication" may imply that recencv is a prerequisite
to admitting otherwise inadmissible evidence. This of course is false since the real
question is not the recency of the testimony but the timinq of the supposed change in the
witness's account. As Bastarache J. explained in Stirling, supra, at para. 5:
It is also not necessary that a fabrication be particularly "recent", as the issue is not the
recencv of the fabrication but rather whether the witness made up a false stow at some point
after the event that is the subiect 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. [Emphasis added.]
70.
The value of a prior consistent statement turns on the timing of the story said to be
fabricated. If the witness can be shown to have given a consistent account, before any
opportunity to concoct a story or a motive to fabricate arose, then the existence of the
earlier account undermines the allegation of fabrication. On the other hand, if the prior
statement was given afterwards it has no value. Indeed, such an account allows the
witness to create self-serving evidence for herself if permitted: see Frankel J.A. para. 88,
A.R.
v.1;
80;
Campbell, supra, at p. 20; R. v. Sark (2004), 182 C.C.C. (3d) 530 (N.B.C.A.),
at para. 34 (prior statement made after the alleged motive to fabricate arose could not
rebut allegation); Divitaris, supra, at paras. 32-35.
71.
In Stirling, supra, at para. 7, this Court emphasized the limited purpose for which
prior consistent statements may be admitted:
However, a prior consistent statement that is admitted to rebut the suggestion of recent
fabrication continues to lack any probative value bevond showinq that the witness's stow did
not chanqe as a result of a new motive to fabricate. Importantlv, it is impermissible to
assume that because a witness has made the same statement in the past, he or she is more
likelv to be tellinq the truth, and any admitted prior consistent statements should not be
assessed for the truth of their contents. [Emphasis added.]
I.3 The need for a jury instruction o n a prior consistent statement
72.
Many courts have held that a jury instruction will be necessary when evidence of a
prior consistent statement is admitted before a jury. The requirement has been put in
strong terms; see R. v. F.(J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.) at paras. 41-42: "In
all cases where evidence is admitted under the rubric of prior consistent statements, the
trial judge is obliged to instruct the jury as to the limited value of the evidence." See also:
MacDonald, supra, at paras. 52-53; Divitaris, supra, at para. 31 ; R. v. A.(J.)
(1996), 112
C.C.C. (3d) 528 (Ont. C.A.), at p. 536; R. v. Wait (1994), 69 O.A.C. 63 (C.A.), at paras. 45, and R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.).
As to the significance of
improper reliance on such statements, see Dinardo, supra, para. 40.
73.
In R. v. Demetrius (2003), 179 C.C.C. (3d) 26, at para. 21, the Ontario Court of
Appeal acknowledged the general requirement for a limiting instruction but pointed out a
few situations where an instruction might be unnecessary - where the defence itself relied
on the prior consistent statement; where it was clear the statement was not offered as
proof of the underlying facts (i.e., where no hearsay concern existed); and where there
was no concern about self-corroboration.
74.
Demetrius was an example of the first situation: defence counsel did not resist the
admission of the evidence, and in closing, relied upon it to support the defence. The lack
of instruction was therefore not fatal in that case (paras. 17-19 and 23-24).
75.
The need for a limiting instruction flows from the limited purpose for which the prior
consistent statements may be used. As described above, the prior consistent statement
may only be used to assess and respond to the allegation that the witness fabricated her
account (Stirling, supra, para. 7). It may not be used to bolster the witness generally, nor
to prove the truth of the facts contained in the prior statement.
76.
Without proper instruction the danger exists that jurors may use prior consistent
statements for an impermissible purpose. As this Court noted in another context:
The limited use to which the evidence can be put must, of course, be explained to the jury
with some care. The distinction between the use of evidence limited to credibility and
evidence that can be used to infer guilt is well understood by lawyers but may not be easily
understood by a jury. R. v. Crawford, [ I 9951, 1 S.C.R. 858,96 C.C.C. (3d) 481, at para. 37
-
2. The prior consistent statement problems in this case
77.
Ellard identifies two errors of law in her trial. First, Bowles re-examination was
admitted in error; Second, the learned trial judge erred in failing to provide any instruction
limiting the jury's use of Bowles' prior consistent statements.
2.1
78.
The Bowles prior consistent statements were not admissible: no
exception was triggered
The first error was to conclude there had been an allegation of "recent fabrication",
giving rise to re-examination. On this point, we rely on the reasoning set out by Mr. Justice
Frankel at paras. 82-89 A.R. V.1; 76- 81, and do not propose to repeat his analysis. (We
observe that while Frankel J.A. outlined his reasoning on this point at some length,
Chiasson J.A. said very little other than expressing the view he would defer to the trial
judge. Low J.A. did not address the question).
79.
Put simply, prior consistent statements can only be led to meet an allegation of
"recent fabrication" in circumstances where the allegation has actually been made and the
prior statement is responsive to it in the manner contemplated by the jurisprudence.
80.
There are two reasons why the exception was not triggered. Either one, standing
alone, should have led to a ruling that Crown counsel could not re-examine Bowles.
81.
First, the defence did not allege recent fabrication. As Frankel J.A. noted, counsel
did not suggest that Bowles was being consciously dishonest, or that she had given
inconsistent testimony about seeing Virk, Glowatski and Ellard on the Bridge (as opposed
to how far she could see across the Bridge). It was merely suggested her memory was
contaminated by external influences: A.R. V.l; 80, para. 87. An objective reading of Bowles'
cross-examination discloses that her memory was rightly characterized as a dramatically
revised, and thus unreliable, product of extraneous influence. This was in fact reflected in
defence counsel's submission to the jury : A.R. V.10; 1729 (7-10).
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?
It was suggested that while Bowles honestly believed certain facts, the provenance of
those "facts" was not her own observations, but stories and rumours assimilated from
peers. The trial judge's conclusion that there had been an allegation of recent fabrication
was error driven by a misapprehension of the nature of attack on the witness: Frankel J.A.
at para. 82: A.R. V.I; 77.
82.
Tied to this is the fact that the statements at issue did
not occur
before the
environment for contamination arose for Bowles. The suggestion was not, for instance,
that because of events in 2006, Bowles fabricated a new account (which would have made
a prior statement relevant). Rather, the allegation was that Bowles' original recollection
related to the police was the truth but had afterwards been corrupted and rendered
unreliable by extraneous influences. As Frankel J.A. stated at para. 89 (A.R.v.1; 81):
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 reexamination to rebut an allegation of contamination, but no such statement was offered.
83.
The second reason the Bowles re-examination was improper was that it was
not
responsive to the supposed allegation of "recent fabrication". Imagine, for the sake of
analysis, that defence counsel had asserted that Bowles wilfully lied in her account by
inventing the observation of seeing Ellard accompany Glowatski north across the Bridge.
How would evidence of a different fact (that Virk crossed the Bridge) respond to that
allegation? In this regard it is essential to keep the evidence of Bowles in proper context
vis a vis what was and was not controversial in the context of the trial.
84.
Bowles was important to Crown for specific reasons; her evidence was singled out
in Crown's closing address as placing Ellard and Glowatski at the top of the Bridge stairs
when Virk came up those stairs: A.R. V.10; 1767 (32-47); as showing that Ellard accompanied
Glowatski and "followed Reena Virk across the Bridge": A.R. V.10; 1768 (8-9); and as being
"one of three witnesses that say that Kelly Ellard went over the Bridge with Warren
Glowatski": A.R. V.10; 1769 (42-44). This evidence was very important in relation to Glowatski
since, as Crown counsel told the jury: "The key to Warren Glowatski's evidence, and this is
really important, is that it doesn't stand alone": A.R. V.lO; 1778 (10-14).
85.
Ultimately Bowles became a key witness for the jury; its only question included a
request to hear Bowles' testimony related to Virk coming up the stairs and seeing Ellard
accompany Glowatski cross the Bridge: A.R. v.12; 2155. AS noted by this Court in R. v.
S.(W.D.), [I
9941 3 S.C.R. 521, 93 C.C.C. (3d) 1, at pp. 528 and 539:
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.
...
All questions received from the jury must be considered to be of significance and import.
86.
Apart from Green, who did not come forward for 7% years, Bowles' testimony that
Ellard and Glowatsi followed Virk to the north side of the Bridge, was the only independent
support for Glowatski on that point. This fact was emphasized by the trial judge who, in
identifying potential confirmatory evidence for the Glowatski Vetrovec ~ a u t i o npointed
,~
to:
The evidence of Marissa Bowles to the effect that she saw Reena Virk cross to the north side
of the bridge and that she saw Kelly Ellard and Warren Glowatski follow Reena Virk to the
north side of the bridge: A.R. V . l l ; 1932 (1-6)
The above outlined evidence - emphasized by the Crown in closing, requested for "readback by the jury, and highlighted by the trial judge as confirming Glowatski - was
essentially the evidence elicited from Bowles in re-examination.
87.
The core of Ellard's defence was that she never accompanied Glowatski to the
north side of the Bridge, but instead went south to the Comfort Inn with the oth'er girls who
went through Virk's backpack there (just as Bowles originally told police). Thus, the real
R. v. Vetrovec, [I9821 1 S.C.R. 811,67 C.C.C. (2d) 1.
26
issue was not whether Virk crossed to the north side of the Bridge, or whether Glowatski
followed Virk north over the Bridge and killed her (facts never in dispute), but whether
Ellard accompanied Glowatski (which was the central disputed fact). As Frankel J.A.
observed (A.R. V.I; 76, para. 81), Bowles' testimony, if accepted by the jury, established that
Ellard accompanied Glowatski. Contrary to the position taken by the Appellant, therefore,
the re-examination was not harmless, and did not deal with uncontroversial facts.
88.
In the circumstances Crown's re-examination of Bowles had the effect of bolstering
her evidence at large; particularly given the way Crown "~ummarized'~
the re-examination
(in the jury's presence): "it was put to [Bowles] that she didn't tell the police back in
November of '97. What I'm goins to put to this witness is that she said it at even/ hearing
that she's testified in." A.R. V.4; 685 (9-13) (emphasis added).
89.
Even if, as the Appellant asserts, the re-examination dealt with uncontroversial
facts, this does not address the problem that the re-examination had the consequence of
improperly bolstering Bowles as a witness. Moreover, the bolstering was itself significant,
as it rendered Bowles unique in the trial, as having consistently provided multiple accounts
over seven years, each time in legal proceedings.
90.
The comments of Finlayson J.A. in R. v. F.(J.E.), supra, at p. 469, are apt:
[Recent fabrication] is a favourite justification of the Crown for leading evidence of prior
consistent statements, but too often, the questions are put to the complainant before the
record indicates such an attack is to be made, much less that it has been...
2.2 Further error arose because no jury instruction was given
91.
Independent of Ellard's submission about the admissibility of the re-examination,
the absence of limiting instruction remains a significant and serious trial problem.
92.
II
The learned trial judge gave no limiting instruction in relation to Bowles' prior
consistent testimonial statements. While the Crown refers to cases holding that jury
charges should be "read as a whole" and assessed functionally, rather than against a
standard of perfection, such reasoning is more helpful in the case of partial or imperfect
instructions. In this case there was no instruction whatever.
93.
The jurisprudence is clear that when prior consistent statements are admitted
before a jury, an instruction is required. This is not a situation, like Demetrius, supra,
where defence counsel relied on the evidence. The statements admitted were at risk of
being used for an impermissible purpose. This situation required an instruction. The words
of Sharpe J.A from R. v. D i u (2000), 144 C.C.C. (3d) 481 (Ont. C.A.) may be apt. He said
(at para. 141) of a situation where no instruction had been given regarding the use to
which disposition evidence (called by a co-defendant) could be put:
The failure to provide the jury with guidance as to the appropriate use of the evidence left
the jury in a vacuum. The evidence had been admitted and the jury should have been
clearly told what use it could make of it.
94.
The Crown and Low J.A. employ the same reasoning in maintaining that no jury
instruction was required in this case. Because it was uncontroversial that Virk crossed the
Bridge to the north, they say, nothing turns on the admission of Bowles' prior consistent
statements, which merely repeated something that was not in dispute.
95.
This position does not bear scrutiny. In Stirling, supra, at para. 7, the Court
discussed two impermissible uses of prior consistent statements - using them (1) as
proof of the facts they assert, and (2) to conclude the witness is more likely to be telling the
truth. Appellant's submissions (and Low J.A.'s reasons) deal with the first but not the
second concern.
The problem is not having jurors conclude, "well, it's obvious Virk
crossed the Bridge"; the problem is that the buttressing effect of showing this witness to be
repeatedly consistent may lead jurors to conclude, "Bowles must be believed because she
has consistently described this event over seven years of legal proceedings."
96.
Appellant argues that "consistency of testimony about a fact not in dispute at trial
does not logically, or as a matter of common sense, enhance the reliability of a different
fact very much in dispute" (A.F., para. 9). This argument may be responsive to a
hypothetical "hearsay" concern about the prior statements - but it is not responsive to the
concern about bolstering the witness in an impermissible way.
97.
As noted, the general prohibition on prior consistent statements exists in part
because they may mislead jurors into concluding that "consistency equals trustworthiness".
The "common-sense" approach, for a lay person not instructed on the law, may well be to
reverse the reasoning of the judge's instructions about prior &consistent statements and
reason "if inconsistent equals untrustworthy, then consistent equals trustworthy". Any juror
using such forbidden reasoning in relation to Bowles would conclude that having testified
consistently at evew hearing since I998 Bowles was reliable. The next logical step would
be, as Frankel J.A. observed, at para 81 of his reasons (A.R. v.1; 76)' to conclude that
Ellard accompanied Glowatski (across the Bridge):
98.
An appearance of overall strength may have improperly attached to Bowles'
evidence from her demonstrated consistency. Unfortunately, the jury was not told that
consistency does not ensure reliability; that a liar - or an honestly mistaken person
-
may well be perfectly consistent; jurors were not told Bowles' re-examination could not be
used to bolster her overall trustworthiness as a witness, but only to neutralize an
implication that she had recently fabricated her evidence.
99.
Further, the defence focus on contamination of witnesses only increased the need
for a limiting instruction on Bowles' prior consistent statements. Without such instruction,
jurors may have concluded that the fact of consistency was itself a final answer to the
concerns about collusion and contamination.
100. At trial, Crown fought to conduct a re-examination of Bowles. The Appellant cannot
now argue that the re-examination was unnecessary. Appellant downplays the significance
of Bowles' evidence, even while noting the attention devoted to it at trial (A.F., paras. 67-68
and
36); however, Crown's insistence upon the re-examination at trial is a true reflection of
the value of Bowles in relation to core issues in the trial. The appellant may now suggest
that the re-examination was unnecessary and poorly done, but this position is conveniently
helpful in addressing Ellard's complaint on appeal.
101.
It is important that the subject matter of the Bowles re-examination was in no way
remote from the central fact in dispute: whether Ellard accompanied Glowatski across the
Bridge to follow Virk. The jury question focused squarely on Bowles' evidence, specifically
in relation to Virk coming up the stairs and Glowatski and Ellard crossing the Bridge. It is
impossible to separate these inextricably linked events as though they were discrete
occurrence^.^
Indeed, the re-examination focused on this witness's recollection of
precisely the same events, at the same time and place, as the critical question of whether
Ellard accompanied Glowatski across the Bridge. The re-examination supported Bowles's
evidence on the core dispute by showing her to have been repeatedly consistent in court
testimony on these matters.
102. In the context of the trial, and in view of the jury's question indicating its interest in
the topic, Bowles' evidence was pivotal. Glowatski gave a damning account of Ellard's
conduct but was a classic unsavoury witness requiring a robust Vetrovec caution. Crown
appreciated the difficulties inherent in Glowatski's evidence, and thus proffered Bowles as
independent support for him on the vital issue in the case: whether Ellard accompanied
Glowatski to the north side of the Bridge where Virk was killed.
(Indeed Crown
acknowledges that Bowles' evidence, "if accepted, clearly confirmed Glowatski in an
important respect": A.F., para. 47.) Frankel J.A. recognized, at para 81, that the jury found
Bowles' evidence to be significant: A.R. V.l; 76.
Likewise the singular importance of
Bowles' evidence to the case and to the jury was explained by Chiasson J.A.:
The testimony of Ms. Bowles was extremely important as corroboration of the testimony of
Warren Glowatski. This is underscored by the jury's request [to hear Bowles's evidence
about these matters again]. - A.R. V.l; 89, para. 111
As noted, Bowles' re-examination, replayed during deliberations, was the last evidence
heard by the jury before rendering its verdict.
103. A final point. Crown's factum repeatedly asserts that defence counsel did not object
to the absence of a limiting instruction on Bowles' prior consistent testimonial statements.
Mr. Justice Frankel referred to the events as "inextricably connected": A.R. V.l; 82, para 93.
30
While no objection was raised it should be noted that counsel vigorously opposed the
admission of this evidence. It is conceded that, ideally, the issue should have been raised;
but this was a difficult trial and no counsel is perfect. A failure to object is not determinative
but merely a factor to be considered by this Court. Other important factors point the other
way, including that this was a murder case involving a youth barely I 5 at the time of the
incident yet facing an adult sentence in a notorious case. The admission and unrestricted
use of inadmissible evidence in a murder case should not be condoned on the basis of
counsel's failure to object. Moreover, with the luxury of reflection inherent in the appellate
,
review process, one must be mindful of the context in which the issue arose - near the
I
!
:
conclusion of an intense trial with myriad difficult issues to consider. The legal error in this
case raises the spectre of unfairness, which should never be visited upon a youthful
accused simple because no timely objection was made. As Mr. Justice Frankel stated:
...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. - A.R. V.1; 83-84 (para. 96).
104. The law on this issue is clear. Where counsel does not object or take a position for
tactical reasons, the appellate court will be slow to permit counsel to ride a different horse
on appeal. (This is no such case; there was no tactical reason not to seek such a jury
instruction.) Otherwise, while the failure to object is a consideration in assessing the
nature of the complaint, the jurisprudence makes plain that the failure to object cannot
govern the outcome, nor deprive an accused person of the constitutional right to a fair trial.
Where an appellate court identifies legal errors, it must correct the situation, no matter the
approach taken by counsel at trial. See: R. v. Arcangoli, [I9941 1 S.C.R. 129, 87 C.C.C.
(3d) 289, at pp. 142-43; R. v. Esau, [ I 9971 2 S.C.R. 777, 166 C.C.C. (3d) 289, at paras.
26, 28; R. v. Maciel (2007), 219 C.C.C. (3d) 516, at para. 97; R. v. Jacquard, [I9971 I
S.C.R. 312, 113 C.C.C. (3d) 95, at paras. 35-37.
3. The appropriate remedy for these errors: a new trial
105. The Court of Appeal for British Columbia ordered a new trial. The Respondent's
position is that a new trial is required in this case. The issue is whether the curative
proviso ought to be employed, such that Ellard's conviction is maintained despite the
errors identified above.
106. The test governing the curative proviso was stated by Major J. in R. v. Arcangoli,
supra, at p. 146:
The principles and tests to be applied under s. 686(1)(b)(iii) of the Criminal Code, the
"curative provision", are a matter of settled jurisprudence. That section places a
burden on the Crown to justify the denial of a new trial despite the presence of an
error in the lower court. While the satisfaction of that onus is a condition precedent to
the application of the curative provision, the curative provision need not be applied
even if the onus is met. In Colpifts v. The Queen, 119651 S.C.R. 739, at p. 744, the
applicable test was stated to be whether "the verdict would necessarily have been the
same if such error had not occurred".
107. As Binnie J. noted for the Court in R. v. Jolivef, [2000] I S.C.R. 751, 144 C.C.C.
(3d) 97, at para. 46: "The onus rests upon the Crown to satisfy the court that there is no
reasonable possibility that the verdict would have been different had the trial judge not
committed an error of law". In Jolivet, Mr. Justice Binnie described the factors relevant to
the reviewing court's assessment: "the seriousness of the error in question, the effect it
likely had upon the jury's inference-drawing process and the probable guilt of the accused
on the basis of the legally admissible evidence untainted by the error" (para. 54).
108. In R. v. Pangilinan ( I 987), 39 C.C.C. (3d) 284 (B.C.C.A.), at paras. 10-11, Esson
J.A. concluded, in a comparable situation, that the curative proviso was not appropriate
where evidence of prior consistent statements was incorrectly admitted - quite apart from
the issue of an instruction to the jury.
109. To uphold Ellard's conviction despite concluding that there should have been an
instruction as to Bowles' prior consistent statements, the Court would have to conclude the
result would inevitably have been the same. In this case, that cannot be said. The jury
deliberated for a long time: five days. It asked two questions, one focusing specifically on
what Bowles said about the central issue in the trial, whether Ellard accompanied
Glowatski north across the Bridge. These factual matters cannot be separated from the
issues upon which Crown counsel re-examined Bowles. Setting aside Glowatski, only
Bowles testified to seeing Ellard cross the Bridge to the north. (Green suggested she
thought Ellard was about to cross but could not go so far as saying she did.)
4. The two alternative bases for supporting the BCCA's order
I1 0 As noted, at para. 57, supra, we advance two alternative bases for the B.C. Court of
Appeal's order vacating Ellard's conviction, both of which were argued at that Court. The
first basis is unreasonable verdict, and the second arises from the trial judge's lack of
instruction to the jury on the question of collusion/contamination of witnesses.
4.1 An unreasonable verdict
111. The test for an unreasonable verdict is set out in the leading case, R, v. Biniaris,
[2000] 1 S.C.R. 381, 143 C.C.C. (3d) I.The court must "review, analyse and, within the
limits of appellate disadvantage, weigh the evidence" (para. 36). The reviewing court
brings to the analysis its "accumulated judicial experience" and its knowledge of the proper
legal analysis, as well as its experience with particular issues that give rise to concerns
about wrongful convictions. (Biniaris, at para. 39.) As put by Ryan J.A. in describing
Madam Justice Arbour's reasons: "the judicial experience she refers to is knowledge that is
generally unavailable to the jury - familiarity, acquired through long experience by the
courts, with the pitfalls of certain types of evidence and situations": R. v. Lai, 2006 BCCA
368, at paras. 60, 61-62. This permits the appellate court to determine whether the jury
may be said to have acted "judicially" (Biniaris, at paras. 36, 38, 39).
112. In our submission, an informed legal assessment of the jury's conviction of Ellard one bringing to bear this Court's accumulated judicial experience, and in particular its
familiarity with features of criminal cases giving rise to wrongful convictions
- should
produce the conclusion that the conviction in this case was unreasonable. In support of
this, we rely on the detailed review of the evidence provided in Part I of this factum (which
we adopt here), and highlight the following troubling features of the trial verdict:
- This was
a notorious and high-profile case with a sympathetic victim. The public
expected the police to "solve" it immediately; investigators were quick to focus on
Ellard and Glowatski.
- It featured problematic police conduct in handling eyewitnesses such as Chelsea
Green, the witness who, oddly, had never testified despite the many preliminary
hearings and trials, and who came forward at a very late date with increasingly
detailed recollections. Green's evidence was tainted by reason of the police handling
of her in 1997, which amounted to coaching and directing a witness to provide certain
answers, as well as providing her with significant informationg (see para. 8, supra).
- The allegations arose in a cauldron of gossip and rumour among impressionable
youths; many were 13 or 14 at the time. This environment was not dissimilar to that
described in Arthur Miller's play, The Crucible.
- The Crown relied on a notoriously unsatisfactory brand of evidence, a purported
confession from a jailhouse informant - highly unusual in a youth case. That
witness's account was proven to have been impossible.
- The defence theory of contamination of evidence involved a feature familiar to
experienced judicial fact-finders, but likely unfamiliar and counter-intuitive to lay
persons on a jury. Unintended (innocent) contamination or influence will produce an
honest, yet mistaken, account from the witness. The witness will honestly believe in
her account, and yet is mistaken in taking another person's account as her own
recollection. Such evidence may appear strong when it is not, because the witness is
testifying honestly, albeit inaccurately. These situations do not survive close judicial
scrutiny. (More on this below.)
- These young witnesses were in most cases unreliable, by reason of their reduced
maturity and susceptibility to influence, coupled with the uncontradicted fact of
rampant gossip swirling around after a shocking incident. At trial, these witnesses
testified to events many years earlier.
- It is also important to note that the young witnesses involved were, for the most part,
neither criminals nor unsavoury witnesses. This gave their testimony an aura of
credibility and presented a danger not unlike the danger associated with eyewitness
in-court identification which, as this court has noted, is deceptively credible, largely
because it is honest and sincere: R. v. Hibbert, [2002] 2 S.C.R. 445,163 C.C.C. (3d)
129, at para. 50.
- he
case turned on a wholly unsatisfactory witness, Warren Glowatski,
acknowledged to be an unmitigated liar, and himself responsible for the killing.
- Many aspects of the allegations against Ellard were demonstrablv wrong. This
included the accounts of her attack on Virk (disproved by the independent pathology
evidence) and the description of Ellard being waist-deep in the Gorge waterway for 25 minutes (disproved by the defence expert Ducharme and his cold-water
The information provided to Green by police was identified in Respondent's facturn below, see R.R.
v.4;557.
experiments; these experiments were captured in Exhibit 43: R.R. v.4; 512 which offers
powerful evidence to show that this allegation cannot be true.)
- The jury deliberated for a long time - five days - and asked questions; this
suggests hesitancy on its part.
I3
In many respects this case bears similarity to the case of R. v. Burke, [ I 9961 I
S.C.R. 474, 105 C.C.C. (3d) 205. Although that appeal arose in a judge-alone trial, it was
apparent that flawed reasoning had been employed in assessing the evidence. As here, it
was apparent that important parts of the evidence of key Crown witnesses were
demonstrably wrong. This Court undertook a detailed review of the evidence which led to
the conclusion that three counts involved unreasonable verdicts.
114. The Ellard conviction was based on misconceptions about the strength of certain
types of evidence, and a failure to recognize the unresolved difficulties in the Crown's
evidence.
Seen through the lens of judicial experience, and alive to the sorts of
considerations that give rise to the wrongful convictions, it amounts to an unreasonable
verdict. For this reason, the conviction should be vacated.
4.2 The collusionlcontamination error
I5
The terms "collusion" and "contamination" refer to situations where a witness has
not provided an account based solely on her perceptions, but rather one influenced by
information coming from others. Collusion means the witness's recollection is coloured by
her contact with another person; it may be intentional (cooking up a story together) or
unintended (unwittingly adopting details from another person's account as one's own
recollection). The allegation in Ellard's trial was not of intentional collaboration (that
witnesses colluded together to lie), but, Glowatski aside, the allegation was that most
Crown witnesses had inadvertently adopted the accounts and details recited by friends, as
being their own recollection. The stage was set for this to occur: these were young
teenagers, generally 13 or 14; they mainly attended school together and socialized
together; there was significant interest from police and media; the incident recounted was
shocking; and these youths conversed freely with many others about the gritty details of
what supposedly occurred. Disturbingly often, their account meshed perfectly with that of
a friend, and yet the mutual account was demonstrably incorrect.
116. We acknowledge there is a paucity of caselaw addressing the question of
collusion/contamination outside the usual contexts of ( I ) similar-fact evidence, and (2)
Vetrovec witnesses.
It may be noted that in the first context, similar-fact evidence,
collusion between witnesses may affect the reliability, the weight, and even the
admissibility of the evidence. See Burke, supra;
R. v. Handy, [2002] 2 S.C.R. 908, 164
C.C.C. (3d) 481, at paras. 104-13; R. v. Shearing, [2002] 3 S.C.R. 33, 165 C.C.C. (3d)
225, at para. 40. In the second context, with a Vetrovec-type untrustworthy witness, the
jury is already cautioned to be highly sceptical - but of course no such warning attaches
to non-Vefrovec witnesses. The present case is distinctive because it involves neither of
those usual dimensions insofar as the contamination issue goes. The Vetrovec aspect is
more subtle still: the numerous witnesses other than Glowatski were not subject to any
caution about their evidence and the need for confirmation - indeed these witnesses
stood in contrast to Glowatski - and yet caution
was
necessary for these witnesses'
accounts. The Ellard case boasts a strong basis in the evidence to find that contamination
occurred. This should have given rise to a warning that all such evidence be approached
carefully and with scepticism.
117. The specific complaint is this: on the facts of this case, it was legal error for the trial
judge not to give a caution respecting the very real prospect of inadvertent contamination.
This was the elephant in the room. It was not enough to repeat that defence counsel took
a certain position. Direction was needed. The jury was at risk of faulty reasoning concluding that if the witness appeared truthful and denied collusion, that was the end of
the matter. The jury ought to have been told that witnesses may honestly come to believe
that details, obtained second-hand many years before, were details they themselves
observed. Such testimony will appear believable and will be "honest", and yet it is untrue.
It is not enough now to say, as Frankel J.A. did, that an instruction would only have stated
the obvious: A.R. V.l; 75, para. 78. With respect, the operation of this aspect of memory and
the interplay of early discussions with peers is by no means obvious. The jury likewise
should have been told to consider whether witnesses who discussed events with one
another intentionally or accidentally allowed themselves to change or modify their stories:
Shearing, at para. 44. The jury should have been told that the appearance of strength
coming from two similar or identical accounts would be entirely lost where explained by
collusion. The instruction should have required that the jury confirm it was satisfied the
evidence could be relied on as being free from collusion: Burke, at para. 43; see also
para. 45. Finally, in any instance where the jury found collusion, it should have been told
to be careful, and to look for corroboration before relying on it.
1 1 8 We leave to this Court to assess whether such instructions are appropriate
whenever collusion is established, or whether such matters should be left to the discretion
of the trial judge as suggested by Prowse J.A. in R. v. McMath (1997), 121 C.C.C. (3d)
174 (B.C.C.A.), at paras. 67-71; see also R. v. Soomel a n d Mann, 2006 BCCA 17 (leave
denied: [2006] S.C.C.A. No. 83), at para. 13. On the facts of Ellard's case, we maintain
that such directions became necessary.
119. In seeking these instructions, we do not suggest the jurors are unintelligent, but
rather this is an area where laypersons are unlikely to be familiar with the beguiling but
untrustworthy nature of testimony that is both honest and wrong. Such evidence may be
analogized to jailhouse informants who are "convincing liars"; see R. v. Khela, 2009 SCC
4, at paras. 4-5.
120. The trial judge in this case recited the defence theory, but did not explain this
feature of contaminated evidence: that it may present a trap for the fact-finder, in that the
evidence has an appearance of strength that quickly falls away under close scrutiny. In
this case, the judge's instruction did not highlight the gaping discrepancy between the
accounts of confessions and the pathology evidence.
121. This is not a case in which suggestions of collusion were made without any an air of
reality. Here, the evidence clearly proved that many witnesses - young and
impressionable at the time - spoke to one another in the weeks following the incident.
There is ample basis in the record to find not only opportunit~for contamination of
witnesses' accounts, but that such contamination probably occurred.
For example,
Marissa Bowles' telling answer in her statement to police, in describing Ellard and
Glowatski: "I didn't know where they had gone to - but I do now". She agreed that this
-
referred to things she'd heard from others: A.R. V.4; 677(12) 678 (30). This exemplifies the
manner in which a witness's account was influenced directly by gossip and peer influence.
The record herein is replete with examples of young witnesses repeating rumours, which
then spread like a virus:
see paras. 49-55, supra; some of these details, despite
consistency among witnesses who were friends, were routinely impossible.
122. In the case of Burke, supra, this Court addressed the implications of collusion.
Collusion was an important factor that, on appeal, led to the conclusion that there were
unreasonable verdicts for three counts. Burke involved claims, by former residents of the
Mount Cashel Orphanage, that they had been indecently assaulted by a Christian Brother.
The trial judge had used the evidence of one complainant to corroborate that of another
complainant, on the basis their accounts were strikingly similar. On appeal to this Court,
this type of corroboration was deemed unsound because of the risk of collaboration arising
from the fact the two complainants shared the same lawyer. Notably, in Burke, the
evidence did not go so far as to establish actual collaboration or that the lawyer had indeed
shared such information - it showed only that there was a lawyer common to the two
complainants who could have relayed information between them. While the present case
does not involve similar-fact evidence, the evidence here goes significantly further: it
establishes that many of the young witnesses did indeed speak with one another about the
incident. In other words, in this case, the evidence establishes that information flowed
among young and impressionable witnesses. That is not in dispute. All that is disputed is
whether this affected the recollections of these witnesses. The caution expressed in
Burke applies with even greater force to Ellard's case.
123. The legal error here was serious. It went to the key question of how the jury
assessed the Crown's witnesses.
That the jury deliberated for five days and asked
questions about specific witnesses confirms that this issue went to the heart of its
assessment of the case. It cannot be said this was harmless error. (We rely on the
analysis above, in discussing prior consistent statements, with respect to this error as
well.) Furthermore, while it is fair to observe that counsel did not raise an objection at the
time, for the reasons already argued, this fact cannot make right what is wrong.
PART IV: SUBMISSIONS ON COSTS
124. Ellard does not seek costs.
PART V: ORDER SOUGHT
125. The Respondent Ellard asks this Court to affirm the Court of Appeal's order
3
1
vacating the conviction. In light of the troubled history of this case and the unprecedented
prospect of a fourth murder trial, the Court may wish to comment on the wisdom of the
Crown proceeding again to trial.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
DATED at Vancouver, British Columbia this 24thday of March, 2009.
Peter J -Wilson, Q.C.
Counsel for the Respondent
Brock Martland
PART VI: LIST OF AUTHORITIES
[Paragraph in factum. where authority cited. given in square brackets]
Cases
R. v. A.(J.) (1996). 112 C.C.C. (3d) 528 (Ont. C.A.) ..................................................[721
R. v. Arcangoli, [ I 9941 1 S.C.R. 129, 87 C.C.C. (3d) 289. at p. 299 (C.C.C.) ....[104. 1061
R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont. C.A.) ...................................................
[721
R. v. Beland and Phillips, [ I 9871 2 S.C.R. 398. 36 C.C.C. (3d) 48 1.............................[681
.
R. v. Biniaris. [2000] 1 S.C.R. 381 143 C.C.C. (3d) 1 .............................................[ I 111
R. v. Burke, [I9961 1 S.C.R. 474, 105 C.C.C. (3d) 205 ......................[113. 116, 117. I221
R. v. C.(S.R.) (2004), 188 C.C.C. (3d) 239 (P.E.I.S.C.A.D.) ........................................[621
R. v. Campbell (1977). 38 C.C.C. (2d) 6 (Ont. C.A.) ...............................................
[68,701
R. v. Crawford, [I9951 1 S.C.R. 858. 96 C.C.C. (3d) 481 ............................................[761
R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont . C.A.) ...................................[73. 74, 931
R. v. Dinardo [2008], 1 S.C.R. 788, 231 C.C.C. (3d) 177 ......................................[68, 721
R. v. Diu (2000), 144 C.C.C. (3d) 481 (Ont. C.A.) ........................................................
[931
R. v. Divitaris (2004). 188 C.C.C. (3d) 390 (Ont. C.A.) ..............................[61, 68, 70. 721
R. v. Esau. [I9971 2 S.C.R. 777, 166 C.C.C. (3d) 289 ...............................................11041
R. v. F.(J.E.) (1993), 85 C.C.C. (3d) 457 (Ont. C.A.) .............................................[72, 901
R. v. Handy. [2002] 2 S.C.R. 908, 164 C.C.C. (3d) 481 .............................................[ I 161
R. v. Hibbert. [2002] 2 S.C.R. 445. 163 C.C.C. (3d) 129 ...........................................[ I 121
R. v. Jacquard. [I9971 1 S.C.R. 312. 113 C.C.C. (3d) 95 ..........................................A
[ 041
R. v. Jolivet, [2000] 1 S.C.R. 751 , 144 C.C.C. (3d) 97 ...............................................[ I 071
R. v. Keegstra [I9951 2 S.C.R. 381, 98 C.C.C. (3d) 1..................................................[571
R. v. Khela. 2009 SCC 4 ............................................................................................
[I 191
R. v. Lai. 2006 BCCA 368 ..........................................................................................
[ I 1 11
R. v. MacDonald (2000).148 C.C.C. (3d) 273 (Ont. C.A.) ............................................
1681
R. v. Maciel(2007). 219 C.C.C. (3d) 516 (Ont. C.A.).................................................[ I 041
R. v. McMath (1997), 121 C.C.C. (3d) 174 (B.C.C.A.) ...............................................
11181
R. v. Pangilinan (1987). 39 C.C.C. (3d) 284 (B.C.C.A.) .............................................[ I 081
R. v. S.(W.D.).[1994]3S.C.R.52l793C.C.C. (3d) 1 .................................................[851
R. v. Sark (2004). 182 C.C.C. (3d) 530 (N.B.C.A.) ......................................................
[To]
R. v. Shearing, [2002] 3 S.C.R. 33, 165 C.C.C. (3d) 225 ...................................[116, I 171
R. v. Soomel and Mann, 2006 BCCA 17 (leave denied: [2006] S.C.C.A. No. 83)......[1181
R. v. Stirling, 120081 IS.C.R. 272. 229 C.C.C. (3d) 257 ......................[59. 69, 71. 75, 951
R. v. Toten (1993), 83 C.C.C. (3d) 5 (Ont. C.A.) ..........................................................[681
.
R. v. Vetrovec, [ I 9821 1 S.C.R. 81 1 67 C.C.C. (2d) 1 .................................................
[861
R. v. Wait (1994). 69 O.A.C. 63 (C.A.) .........................................................................
1721
Texts and articles
Judge S.R. Creagh. "Prior Consistent Statements". Federation of Law Societies National
Criminal Law Program (Vancouver. 2003) .......................................................[681
D.M. Paciocco and L . Stuesser. The Law of Evidence. 4th Ed (2005) ........... [59. 67. 681
J . Sopinka. S.N. Lederman and A.W. Bryant. The Law o f Evidence in Canada (2nd ed.,
1999) ........................................................................................................
1601
PART VII: STATUTES
Criminal Code. R.S.C. 1985. c . C-46. as am., s . 686: contained in Appellant's Factum