R. v. K.M.E.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Low, Chiasson and Frankel, JJ.A.
• Citation: 2008 BCCA 341,(2008), 259 B.C.A.C. 59 (CA)
• Date: 28 May 2008

R. v. K.M.E. (2008), 259 B.C.A.C. 59 (CA);

    436 W.A.C. 59

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. SE.010

Regina (respondent) v. K.M.E. (appellant)

(CA033219; 2008 BCCA 341)

Indexed As: R. v. K.M.E.

British Columbia Court of Appeal

Low, Chiasson and Frankel, JJ.A.

September 5, 2008.

Summary:

The teenaged victim was assaulted by a group of teenagers under a bridge. The victim made her way across the bridge to the north end, where she was attacked again and then drowned in the waterway. Six of the teenagers were convicted in Youth Court on assault-related charges. K.M.E. was charged as an adult with second degree murder.

The British Columbia Supreme Court convicted K.M.E. She appealed.

The British Columbia Court of Appeal, in a decision reported at (2003), 178 B.C.A.C. 199; 292 W.A.C. 199, allowed the appeal and ordered a new trial. The second trial ended in a mistrial when the jury was unable to reach a unanimous verdict. A third trial was held in 2005. K.M.E. was convicted. She appealed.

The British Columbia Court of Appeal, Low, J.A., dissenting, allowed the appeal and ordered a new trial.

Editor's Note: There are a number of reported decisions regarding this accused. Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4353.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding collaboration or collusion - The teenaged victim was assaulted by a group of teenagers under a bridge - The victim made her way across the bridge to the north end, where she was attacked again and then drowned in the waterway - Six of the teenagers were convicted in Youth Court on assault-related charges - K.M.E. was charged as an adult with second degree murder - At her third trial, K.M.E. was convicted - She appealed, asserting, inter alia, that the trial judge erred in failing to give the jury a special caution regarding the possibility of collusion between various Crown witnesses - The British Columbia Court of Appeal rejected this ground of appeal - K.M.E.'s complaint was that the trial judge did not caution the jury specifically about the possibility of innocent or inadvertent collusion and contamination, given the rampant gossip and rumours at the time, and the fact that the witnesses were young and susceptible to being influenced by what they heard - Whether to give a warning was a matter of the judge's discretion - Defence counsel had not requested such an instruction - However, had the trial judge been asked to do so and declined, he would not have erred - The jurors were well aware of the need to consider the potential frailties in the evidence, given the influence of gossip and rumours, the impressionability of teenagers, the inconsistencies in accounts and the "changing memories" that were beneficial to the prosecution - In the context of this case, to have given a special instruction regarding these matters would have been to state the obvious - See paragraphs 73 to 78.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - The teenaged victim was assaulted by a group of teenagers under a bridge - The victim made her way across the bridge to the north end, where she was attacked again and then drowned in the waterway - Six of the teenagers were convicted in Youth Court on assault-related charges - K.M.E. was charged as an adult with second degree murder - At K.M.E.'s third trial, the witness, M.D.B., stated that she had seen the victim cross the bridge - However, in a statement made to police under oath 10 days after the events, M.D.B. said that she had last seen the victim under the south end of the bridge - In subsequent proceedings, she had consistently testified that she had seen the victim cross the bridge - The defence, in cross-examination, alleged that M.D.B.'s testimony was not based on her independent recollection, but was rather a reconstruction shaped by external influences - The trial judge allowed the Crown to re-examine M.D.B. regarding her prior consistent statements - K.M.E. was convicted - She appealed, asserting, inter alia, that the trial judge erred in permitting the Crown to re-examine the witness, M.D.B. - The British Columbia Court of Appeal allowed the appeal and ordered a new trial - Frankel, J.A., having found that the trial judge had erred in permitting re-examination of M.D.B. on the prior consistent statements, considered the effect of the trial judge's failure to give a limiting instruction regarding the use of M.D.B's prior statements - The jury should have been told specifically that M.D.B.'s prior consistent statements did not enhance the reliability of her testimony and, further, that those statements could not diminish any concerns the jury might have regarding the effect of external influences on her evidence - In the absence of such instructions, one or more of the jurors may have erroneously treated M.D.B.'s prior consistent testimony regarding the victim as a positive factor in deciding to accept her evidence that K.M.E. also crossed the bridge - The evidence was significant - The trial judge's error was not a harmless one - Further, defence counsel's failure to assert that the charge was deficient was not determinative - The ultimate responsibility for the charge rested with the trial judge - See paragraphs 90 to 98 - Chiasson, J.A., concurring in the result, would have deferred to the trial judge's determination that the cross-examination of M.D.B. provided a foundation for the introduction of prior consistent statements, but found that a limiting instruction was imperative - In light of the error, the verdict could not stand - See paragraphs 109 to 120.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4375.3 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The teenaged victim was assaulted by a group of teenagers under a bridge - The victim made her way across the bridge to the north end, where she was attacked again and then drowned in the waterway - Six of the teenagers were convicted in Youth Court on assault-related charges - K.M.E. and W.P.G. were charged as adults with second degree murder - W.P.G. was convicted - At her third trial, K.M.E. was convicted - She appealed, asserting, inter alia, that the conviction should be set aside and an acquittal entered because the jury's verdict was unreasonable or could not be supported by the evidence - K.M.E. listed a number of considerations as reasons why the conviction should be set aside, including that W.P.G., the Crown's chief witness, was "an incorrigible liar with an agenda to see [K.M.E.] convicted" - The British Columbia Court of Appeal rejected this ground of appeal - The assessment of the reasonableness of a jury verdict proceeded on the basis that the jury was properly instructed - Here, that meant that the jurors received appropriate directions regarding the assessment of the credibility and reliability of the Crown witnesses, a critical issue in the trial - The directions included a strong caution regarding W.P.G.'s evidence, the only person to connect K.M.E. directly to the victim's death and, by his own admission, a perjurer - Some jurors may have accepted his testimony - It was open to them to do so - However, even if every juror rejected W.P.G.'s testimony, there remained a body of evidence on which they could reasonably found a conviction - See paragraphs 60 to 72.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 4375.3 ].

Criminal Law - Topic 4956

Appeals - Indictable offences - New trials - Grounds - Admission of evidence - [See Criminal Law - Topic 5418 ].

Criminal Law - Topic 5418

Evidence - Witnesses - Re-examination of - The teenaged victim was assaulted by a group of teenagers under a bridge - The victim made her way across the bridge to the north end, where she was attacked again and then drowned in the waterway - Six of the teenagers were convicted in Youth Court on assault-related charges - K.M.E. was charged as an adult with second degree murder - At K.M.E.'s third trial, the witness, M.D.B., stated that she had seen the victim cross the bridge - However, in a statement made to police under oath 10 days after the events, M.D.B. said that she had last seen the victim under the south end of the bridge - In subsequent proceedings, she had consistently testified that she had seen the victim cross the bridge - The defence, in cross-examination, alleged that M.D.B.'s testimony was not based on her independent recollection, but was rather a reconstruction shaped by external influences - The trial judge allowed the Crown to re-examine M.D.B. regarding her prior consistent statements - K.M.E. was convicted - She appealed, asserting, inter alia, that the trial judge erred in permitting the Crown to re-examine the witness, M.D.B. - The British Columbia Court of Appeal allowed the appeal and ordered a new trial - Frankel, J.A., found that the trial judge had allowed re-examination of M.D.B. on the reasoning that prior consistent statements were admissible to demonstrate that M.D.B.'s testimony was not a recent fabrication - This was an error - There was no allegation of recent fabrication - Rather, the defence alleged that M.D.B.'s true memory had been contaminated by external influences - The exception to the general inadmissibility of prior consistent statements was not triggered - The external influences said to have contaminated M.D.B.'s memory would have been in play when she gave her statement to police and well before the subsequent proceedings - Only a statement by M.D.B. made before the police interview or shortly thereafter that she saw the victim cross the bridge would have been probative on re-examination to rebut an allegation of contamination - No such statement was offered - The trial judge was wrong in permitting re-examination - See paragraphs 79 to 89 - Chiasson, J.A., concurring in the result, held that the trial judge's conclusion that there was an allegation of fabrication deserved deference and that he had not erred in permitting the re-examination - See paragraphs 99 to 108.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - [See Criminal Law - Topic 5418 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 54].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, 143 C.C.C.(3d) 1; 2000 SCC 15, refd to. [paras. 61, 127].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 2000 SCC 17, refd to. [para. 61].

R. v. Lai - see R. v. Chao (K.J.S.) et al.

R. v. Chao (K.J.S.) et al. (2006), 229 B.C.A.C. 236; 379 W.A.C. 236; 2006 BCCA 368, refd to. [para. 61].

R. v. Robinson (C.L.) (2003), 184 B.C.A.C. 97; 302 W.A.C. 97; 176 C.C.C.(3d) 23; 2003 BCCA 353, refd to. [para. 62].

R. v. Portillo (W.) and Portillo (N.) (2003), 174 O.A.C. 226; 176 C.C.C.(3d) 467 (C.A.), refd to. [para. 62].

R. v. Swanson (D.A.) (2003), 179 B.C.A.C. 63; 295 W.A.C. 63; 2003 BCCA 108, refd to. [para. 62].

R. v. Sidhu (G.S.) (2004), 193 B.C.A.C. 147; 316 W.A.C. 147; 183 C.C.C.(3d) 199; 2004 BCCA 59, refd to. [para. 66].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 66].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 66].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 69].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 72].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [paras. 75, 143].

R. v. Brass (D.A.R.) (2007), 304 Sask.R. 20; 413 W.A.C. 20; 226 C.C.C.(3d) 216; 2007 SKCA 94, refd to. [para. 75].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 76].

R. v. McMath (P.D.) (1997), 100 B.C.A.C. 64; 163 W.A.C. 64; 121 C.C.C.(3d) 174 (C.A.), refd to. [para. 77].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [paras. 81, 112].

R. v. Stapleton - see R. v. Smith (R.E.).

R. v. Smith (R.E.) (2003), 185 B.C.A.C. 304; 303 W.A.C. 304; 2003 BCCA 444, refd to. [para. 82].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81, dist. [para. 83].

R. v. Stirling (B.J.) (2008), 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 229 C.C.C.(3d) 257; 2008 SCC 10, refd to. [paras. 85, 107].

Nominal Defendant v. Clements (1961), 104 C.L.R. 476 (Aust. H.C.), refd to. [para. 86].

R. v. Giraldi (1975), 28 C.C.C.(2d) 248 (B.C.C.A.), refd to. [para. 86].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 88].

R. v. Pangilinan (1987), 39 C.C.C.(3d) 284 (B.C.C.A.), refd to. [para. 88].

R. v. Kokotailo (J.R.) (2008), 254 B.C.A.C. 262; 426 W.A.C. 262; 232 C.C.C.(3d) 279; 2008 BCCA 168, refd to. [para. 89].

White v. R., [1947] S.C.R. 268, refd to. [para. 93].

R. v. Divitaris (A.) (2004), 186 O.A.C. 366; 188 C.C.C.(3d) 390 (C.A.), refd to. [para. 114].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134, refd to. [para. 114].

R. v. J.A. (1996), 95 O.A.C. 83; 112 C.C.C.(3d) 528 (C.A.), refd to. [para. 114].

R. v. Demetrius (L.) (2003), 176 O.A.C. 349; 179 C.C.C.(3d) 26; 2003 CarswellOnt 3631 (C.A.), refd to. [para. 114].

R. v. M.A., [2006] O.A.C. Uned. 529; 214 C.C.C.(3d) 38 (Ont. C.A.), refd to. [para. 115].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 118].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 118].

R. v. Lajoie (G.R.) (1993), 64 O.A.C. 213 (C.A.), refd to. [para. 120].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2008 Looseleaf Update), p. 11:50 [para. 114].

Counsel:

P.J. Wilson, Q.C., for the appellant;

J.M. Gordon Q.C., and C.A. Murray, Q.C., for the respondent.

This appeal was heard at Vancouver, British Columbia, on May 28, 2008, by Low, Chiasson and Frankel, JJ.A., of the British Columbia Court of Appeal. On September 5, 2008, the judgment of the court was delivered with the following opinions:

Frankel, J.A. - see paragraphs 1 to 97;

Chiasson, J.A., concurring - see paragraphs 98 to 125;

Low, J.A., dissenting - see paragraphs 126 to 145.