R. v. K.M.E., (2009) 389 N.R. 20 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 20, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 389 N.R. 20 (SCC);2009 SCC 27;JE 2009-1170;[2009] 2 SCR 19;EYB 2009-160183;245 CCC (3d) 183;389 NR 20;[2009] SCJ No 27 (QL);308 DLR (4th) 193;67 CR (6th) 78;272 BCAC 1

R. v. K.M.E. (2009), 389 N.R. 20 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. JN.002

Her Majesty The Queen (appellant) v. Kelly Marie Ellard (respondent)

(32835; 2009 SCC 27; 2009 CSC 27)

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

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

June 12, 2009.

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. Ellard was charged as an adult with second degree murder.

The British Columbia Supreme Court convicted Ellard. 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. Ellard was convicted. She appealed.

The British Columbia Court of Appeal, Low, J.A., dissenting, in a decision reported at (2008), 259 B.C.A.C. 59; 436 W.A.C. 59, allowed the appeal and ordered a new trial. The Crown appealed.

The Supreme Court of Canada, Fish, J., dissenting, allowed the appeal and restored the conviction.

Editor's Note: There are a number of reported decisions regarding this accused.

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 - Ellard was charged as an adult with second degree murder - At Ellard's third trial, the witness, Bowles, stated that she had seen the victim cross the bridge - However, in a statement made to police under oath 10 days after the events, Bowles 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 Bowles' 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 Bowles regarding her prior consistent statements - Ellard was convicted - On appeal, a new trial was ordered due to the trial judge's failure to give a limiting instruction regarding the use of Bowles' prior statements - The Supreme Court of Canada allowed the Crown's appeal, restoring the conviction - The prior consistent statements should not have been admitted through re-examination - Nonetheless, the error was harmless - The trial judge was not required to give the jury a limiting instruction regarding the statements - The statements added nothing to what the jury already had before it - By the end of the cross-examination, the jury already knew that Bowles' evidence at a previous trial included the fact that she had seen the victim cross the bridge - The re-examination contained no new information of any kind, let alone evidence that could have undermined the defence's position or bolstered the reliability of Bowles' testimony generally - It was notable too that Ellard's counsel failed to ask for a limiting instruction - While not determinative, this was an accurate reflection of the insignificance of the substance and impact of the evidence elicited on re-examination - In the unusual circumstances here, where the prior consistent statements were of no assistance to the Crown nor any harm to the defence, there was no real risk that the jury would use the statements to draw any impermissible inference - See paragraphs 41 to 49.

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 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See second Evidence - Topic 1031 ].

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - [See second Evidence - Topic 1031 ].

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The Supreme Court of Canada stated that the rationale for excluding prior consistent statements was that repetition did not, and should not be seen to, enhance the value or truth of testimony - Because there was a danger that similar prior statements, particularly ones made under oath, could appear to be more credible to a jury, they had to be treated with caution - An exception to the general rule was where a party made an allegation of recent fabrication - The opposing party could rebut the allegation by introducing prior statements made before the alleged fabrication arose that were consistent with the testimony at trial - To be "recent", the fabrication only had to have been made after the event testified about - To rebut an allegation of recent fabrication, it was necessary to identify statements made prior to the existence of a motive or of circumstances leading to fabrication - The timing of the prior consistent statements was central to their admissibility - Here, a witness's testimony in a number of related proceedings differed from the version that she had related to police 10 days after the events - The defence alleged that an atmosphere of rumour and speculation had led to the witness's changed memory - The trial judge allowed the witness to be re-examined regarding her prior consistent statements - However, the timing of the statements prevented them from being capable of rebutting an allegation of recent fabrication - The trial judge had erred in ruling that the re-examination was permissible on the basis of this exception - See paragraphs 31 to 34.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - 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 - Ellard was charged as an adult with second degree murder - At Ellard's third trial, the witness, Bowles, stated that she had seen the victim cross the bridge - However, in a statement made to police under oath 10 days after the events, Bowles 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 trial judge allowed the Crown to re-examine Bowles regarding her prior consistent statements to rebut an allegation of recent fabrication - Ellard was convicted - On appeal, a new trial was ordered due to the trial judge's failure to give a limiting instruction regarding the use of Bowles' prior statements - The Supreme Court of Canada allowed the Crown's appeal, restoring the conviction - The timing of Bowles' prior consistent statements prevented them from being capable of rebutting an allegation of recent fabrication - The trial judge had erred in ruling that the re-examination was permissible on the basis of this exception - However, there was no reasonable possibility that the error had any impact on the verdict - The fact that Bowles had previously testified about seeing the victim cross the bridge was already before the jury and had no bearing on the disputed issue of whether Bowles had seen Ellard cross the bridge - That was the issue on which Bowles had been extensively cross-examined - Further, the inconsistencies in Bowles' evidence were emphasized repeatedly - The jury would have understood that nothing in the brief re-examination explained, corrected or even addressed them - The error in admitting the statements was amenable to the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code - See paragraphs 35 to 40.

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 17].

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; 2000 SCC 15, refd to. [para. 17].

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, refd to. [para. 27].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 31].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 31].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 32].

R. v. A.J.B., [1995] 2 S.C.R. 413; 182 N.R. 384; 133 Nfld. & P.E.I.R. 231; 413 A.P.R. 231, refd to. [para. 33].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 40].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 40].

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. [para. 41].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134, refd to. [para. 42].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 16 O.R.(3d) 1 (C.A.), refd to. [para. 42].

R. v. Divitaris (A.) (2004), 186 O.A.C. 366; 188 C.C.C.(3d) 390 (C.A.), refd to. [para. 42].

R. v. J.A. (1996), 95 O.A.C. 83; 112 C.C.C.(3d) 528 (C.A.), refd to. [para. 42].

R. v. Codina (A.M.) (1995), 77 O.A.C. 180; 95 C.C.C.(3d) 311 (C.A.), refd to. [para. 42].

R. v. Demetrius (L.) (2003), 176 O.A.C. 349; 179 C.C.C.(3d) 26 (C.A.), refd to. [para. 43].

R. v. P.S. (2000), 131 O.A.C. 282; 144 C.C.C.(3d) 120 (C.A.), refd to. [para. 43].

R. v. G.M., [2000] O.J. No. 5007 (C.A.), refd to. [para. 43].

R. v. Clark (R.T.) (1995), 87 O.A.C. 178 (C.A.), refd to. [para. 43].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 47].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 47].

R. v. Daley - see R. v. W.J.D.

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 52].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), p. 501 [para. 43].

Counsel:

John M. Gordon, Q.C., and Mary T. Ainslie, for the appellant;

Peter J. Wilson, Q.C., and Brock Martland, for the respondent.

Solicitors of Record:

Attorney General of British Columbia, Vancouver, B.C., for the appellant;

Wilson, Buck, Butcher & Sears, Vancouver, B.C., for the respondent.

This appeal was heard on April 20, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was delivered in both official languages on June 12, 2009, including the following opinions:

Abella, J. (McLachlin, C.J.C., Binnie, LeBel, Deschamps, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 49;

Fish, J., dissenting - see paragraphs 50 to 61.