Murder of Reena Virk
Reena Virk (March 10, 1983 – November 14, 1997)
was a resident of Saanich, British Columbia, Canada. Her status as
a bullied murder victim attracted substantial media scrutiny in
Virk was first swarmed by a group of "friends".
The names of six of the girls involved in the first beating, known
collectively as "the Shoreline Six," have not all been released.
Following the first beating, Warren Glowatski and Kelly Ellard
Glowatski was given a life sentence after being
convicted of second-degree murder. Ellard was tried three times.
The verdict of her third trial, a conviction, was set aside. The
verdict was appealed to the Supreme Court of Canada which ruled
not to hold a fourth trial in an 8-1 decision, upholding the
conviction and sentence.
The Globe and Mail commented at the time that
her case had been "elevated into a national tragedy." A pair of
Canadian sociologists have described the case as a watershed
moment for a "moral panic" over girl violence by the Canadian
public in the late 1990s.
Virk came from a large extended family who had
immigrated from India. An article in Saturday Night described her
immediate family as "a minority within a minority," as they were
of the Jehovah's Witness religion in the local South Asian
community of 3,000 which was predominantly Sikh.
Virk has been described as a girl who was
desperate for acceptance amongst her peers, but was taunted and/or
ostracized by these girls whose subculture was influenced by Los
Angeles street gangs.
On the evening of Friday November 14, 1997,
Reena Virk was invited to a "party" by her friend near the
Craigflower Bridge, in a municipality in the city of Victoria,
While at the bridge, it is claimed that
teenagers drank alcohol and smoked marijuana. Virk was
subsequently swarmed by a group later called the Shoreline Six.
Witnesses said that one of the girls stubbed out a cigarette on
Virk's forehead, and that while seven or eight others stood by and
watched, Virk was repeatedly hit, punched and kicked. She was
found to have several cigarette burns on her skin, and apparently
attempts were made to set her hair on fire. This first beating
ended when one of the girls told the others to stop.
Virk managed to walk away, but was followed by
two members of the original group, Ellard and Glowatski. The pair
dragged Virk to the other side of the bridge, made her remove her
shoes and jacket, and beat her a second time. Ellard held her head
Despite an alleged pact amongst the people
involved to not "rat each other out", by the following Monday
rumours of the alleged murder spread throughout Shoreline
Secondary School. Reena Virk was a student at nearby Shoreline
Secondary School. Several uninvolved students and teachers heard
the rumours, but no one came forward to report it to the police.
The rumours were confirmed eight days later, on November 22, 1997,
when police using a helicopter found Virk's partially clothed body
washed ashore at the Gorge Inlet, a major waterway on Vancouver
The coroner ruled the death was by drowning. An
autopsy later revealed that Virk had sustained significant injury,
and that the head injuries were severe enough to have killed her
if she had not been drowned. Virk was 14 years old.
The six female perpetrators are referred to in
court documents as N.C., N.P., M.G.P., C.A.K., G.O., and K.M.E.
N.C. is known to be Nicole Cook and M.G.P is known to be Missy
Grace Pleich. Both have admitted involvement. Kelly Ellard is
referred to in some documents as K.M.E.
One girl in this group was found to be
incapable of being kept in jail due to suicide attempts. This is
due to PTSD since she'd witnessed her mother's violent death as a
Warren Paul Glowatski
Warren Glowatski was born April 26, 1981 in
Medicine Hat, Alberta. He was convicted of Virk's murder and
sentenced to life in prison.
Glowatski and his parents moved around
frequently prior to their separation in 1996; he lived in Estevan
and Regina, Saskatchewan, and Castlegar, British Columbia.
In 1996, Glowatski and his father moved to
Nanaimo, British Columbia on Vancouver Island. By 1997, they had
settled in a trailer home near the southern tip of the Island in
The following year Glowatski's father married a
woman he met in Las Vegas, Nevada. Warren Glowatski decided to
remain in Saanich, living alone in the trailer and supported by
money sent by his father.
On the night of Virk's murder, for unknown
reasons, Glowatski involved himself in the fight and twice kicked
the victim in the head. When the beating ended, Glowatski and
Kelly Ellard followed Virk. According to Glowatski, Ellard smashed
Virk's face into a tree knocking her out. With Glowatski's help
Ellard dragged Virk into the water where Ellard drowned her.
In June 1999, Glowatski was convicted of
second-degree murder and given a life sentence. Because he was 16
at the time of the murder, he was eligible for parole after
serving seven years. In November 2004, he was denied his first
chance at day parole.
The Virks did not contest the parole, because
Glowatski expressed remorse and responsibility for his part of the
murder. In July 2006, he was granted unescorted temporary absences
from jail. By December 2006, Glowatski was eligible to apply for
day parole again, which he was granted in June 2007.
During his incarceration, Glowatski discovered
that he is Metis. This played a large role in parole hearings as
he asked the parole board to incorporate his elders into the
process and various healing circles and other forms of restorative
justice were used bringing Glowatski and Virk's parents together.
In receiving day parole he proceeded to hug every member of the
parole board and those present, including the Virks.
Warren Glowatski was released on full parole in
Kelly Marie Ellard
Kelly Ellard, born August 9, 1982, was 15 years
old when she and Warren Glowatski drowned Virk. Ellard has stood
trial three times for the murder, and been convicted twice. On
June 12, 2009, the Globe and Mail reported that the Supreme Court
of Canada had overturned the judicial ruling of the BC Court of
Appeals in an 8-1 ruling. Ellard's third trial was judged to be
Evidence was cited in the book about the case
regarding Ellard's sociopathy and violence in middle school. The
reason for the absence of her birth father in her life is never
Ellard was initially convicted in March 2000
for second-degree murder in Virk's death. In February 2003, this
conviction was overturned and a new trial was ordered. The second
trial ended in a mistrial (as the result of a hung jury) in July
2004. A third trial was ordered and Ellard was convicted again of
second-degree murder in April 2005 and given an automatic life
sentence with no parole eligibility for seven years.
The Supreme Court ruled that her conviction
stands because the error by the original trial judge was
Nicole Cook, born 1983, lived in a group home
at the time. On MSNBC's documentary Bloodlust Under the Bridge,
Cook spoke about how she took a lit cigarette and put it out on
Reena Virk's face, initiating the mayhem that followed. Cook
further explained how she repeatedly punched and kicked Virk as
she was being pummeled by the other assailants.
At the end of the MSNBC interview, Cook then
lambasted the accusation that she had anything to do with Virk's
actual murder because Ellard was the participant charged for the
murder. Veteran Dateline reporter Keith Morrison then asked,
"Would the murder have ever happened if you hadn't started the
fight by burning her face with your cigarette?" and Cook replied,
"I don't know. Maybe."
Cook also returned to the crime scene the day
after the killing, accompanied by Pleich, and retrieved Reena's
shoes and sweater. They took these items back to their group home,
and forced another, younger resident named "Stephanie" to hide
them in her closet. They also forced this same younger girl to
make phone calls to Suman Virk, Reena's mother, while the search
for Reena was still active.
The best-selling book about the case, Under the
Bridge by Rebecca Godfrey, details some of the motives that may
have led to Virk's death. Two of the girls convicted in the
initial beating allege that Virk stole a phone book from Nicole
Cook and started calling Cook's friends and spreading rumours
about her. Cook stubbed out a cigarette on Virk's forehead during
the attack. Another girl, M.G.P, was allegedly angry with Virk for
stealing her boyfriend. Virk once lived with the two girls in a
youth group home. It is suggested she may have done those things
in order to assert herself as "tough".
The book also reveals that Virk was initially
considered a runaway when her mother first reported her missing to
the Saanich Police Department, the police agency in which the
Virks resided. The book "Under the Bridge" incorrectly documented
the Missing Persons report as being made to the Royal Canadian
Mounted Police. Two Russian sisters, who lived in the youth group
home, were prompted to call the police upon hearing that Virk was
most likely dead.
November 14, 1997, Reena Virk killed.
November 22, 1997, Reena Virk's body found.
February 9, 1998, three teenage girls plead
guilty to assault causing bodily harm for their roles in the
February 13, 1998, three more girls are
convicted of assault causing bodily harm.
Between April and May 1998, six teenage girls
are sentenced for their roles in the beating of Virk. Sentences
range from 60-day conditional sentences to one year in jail.
June 1999, Warren Glowatski, the only male
involved in the crime, is convicted of second-degree murder and
sentenced to life in prison with no chance of parole for seven
March 9, 2000, Kelly Ellard is convicted of
second-degree murder in adult court, where she is sentenced to
life in prison with no chance of full parole for five years.
November 15, 2000, 3 years and 1 day after
the murder of Reena Virk, her parents, Manjit and Suman Virk,
sue the teenagers who took part in the beating, the BC
government, and several other parties.
February 4, 2003, the BC Court of Appeal
announces that due to improprieties in the way Ellard was
questioned during her first trial, a new trial would be ordered
It is impermissible for the crown to ask the accused why
witnesses would lie about the accused.
June 14, 2004, Ellard's second murder trial
July 18, 2004, a mistrial is declared in
Ellard's second trial after the jury declares it is deadlocked
February 21, 2005, Kelly Ellard's third trial
April 12, 2005, Ellard is found guilty of
second degree murder. She is given an automatic life sentence
with no parole for at least 7 years.
July 20, 2006, after serving nearly nine
years of a life sentence, Warren Glowatski is granted unescorted
temporary passes by the National Parole Board, moving him a step
closer to becoming part of society. The Virk family supports the
August 9, 2006, Ellard appeals her
conviction, asking for a fourth trial or an acquittal. Crown has
the option to appeal, hold a fourth trail or abandon
April, 2009, Ellard's appeal goes before the
Supreme Court of Canada.
June 12, 2009, The Supreme Court of Canada
reinstates the second-degree murder conviction against Kelly
Ellard, putting an end to a legal case that spanned more than a
June 23, 2010 Warren Glowatski is released on
January 18, 2017 Ellard is denied parole.
The case in popular culture
The murder case has been the subject of an
award-winning and bestselling book, Under the Bridge. The True
Story of the Murder of Reena Virk (2005) by Rebecca Godfrey, which
is currently being developed into a feature film, and partly
inspired a monologue play, The Shape of a Girl (2001), by Joan
MacLeod, and The Beckoners by Carrie Mac. The film rights for the
book Under the Bridge have been purchased by Type A Productions, a
film production company, for adaptation into a movie.
The murder of Reena Virk was also the subject
of a thesis published in a book edited by Christine Alder and Anne
Worrell titled Girls' Violence; Myths and Realities. The author of
the thesis, "Racism, 'Girl Violence' and the Murder of Reena Virk",
Sheila Batacharya, discusses the murder of Reena Virk from
feminist perspective and looks at why the argument from media and
police that the murder was not racially motivated may not have
been entirely accurate. Batacharya also argues that the narrative
of 'girl violence' which academics policy makers and journalists
have asserted is evidenced by Virk's murder, obscures other
investigations and explanations surrounding this murder.
Reena’s father, Mr. Manjit Virk, has written a
book about the murder of his daughter: Reena: A Father’s Story
(2008), which is highly critical of the B.C. Ministry of Children
and Family Development and the B.C. justice system; Reena was
murdered under the voluntary care of the Ministry, yet no apology
was given or responsibility taken.
In December 2010 and 2012, students from
Walkerville High School in Windsor, Ontario performed a play based
on the death of Reena Virk for members of the community, as well
as the Virk parents.
In May 2011, Meghan Gallagher from The Bush
School in Seattle self-directed and performed The Shape of a Girl.
In 2015, Soraya Peerbaye published a series of
poems dedicated to the murder of Reena Virk entitled "Tell: poems
for a girlhood". The book was shortlisted for the 2016 Griffin
Kelly Ellard, B.C. woman convicted of
killing 14-year-old girl in 1997, denied parole
The Canadian Press
January 18, 2017
Convicted killer Kelly Ellard won’t get the
escorted releases from prison she says needs after the recent
birth of her child.
Ellard was asking for the parole board’s
permission to leave prison for medical appointments and parenting
programs, but the two board members were split on their decision
Ellard told the panel the birth of her baby has
calmed her, and the infant was the best therapy she could have
She was convicted of second-degree murder after
being tried as an adult in the 1997 beating and drowning death of
14-year-old Reena Virk near Victoria. Virk was swarmed and beaten
by a group of teenagers.
The Parole Board says another hearing will be
held for Ellard at a later date.
A media report said last October that Ellard
was eight-months pregnant following a conjugal visit from her
boyfriend. The gender of her child was not mentioned at
At Ellard’s first parole hearing last May, she
took responsibility for the death of Virk after repeatedly denying
that she was involved, but said she was a child herself at just 15
Board members rejected her request for parole
then, saying she came across as “very entitled” in presenting her
case for release.
Ellard was tried three times in Virk’s death,
and testimony from those trials heard that she and Warren
Glowatski followed Virk after the girl limped away from the
beating and then drowned the girl in the Gorge waterway near
But Ellard’s story to the parole board in May
differed from that account.
Ellard said she and Glowatski did go after Virk
and found her near the edge of the water.
She said she flicked a lighter to see Virk’s
face and observed the girl was covered in blood. She asked
Glowatski to help her bring Virk closer to the water and began to
splash her face, but she said Virk did not react.
Glowatski was drunk, she said, but he suggested
they flag down a car for help — a request Ellard said she refused.
“I was only thinking of myself,” she said,
describing the decision as panicked and impulsive based on the
perceived consequences. “I pushed her in. … It’s like almost I
just thought in my mind, it would just carry the problem away.”
Her trials heard Ellard held Virk’s head under
the water, but she denied it at the previous hearing.
“She was unconscious. I didn’t need to hold her
head under water. There would have been no point,” she said.
Glowatski, who was convicted of second-degree
murder, was released on full parole in 2009 after offering an
apology to Virk’s parents.
Notorious B.C. killer Kelly Ellard gets
pregnant while serving life sentence for murder
By Kim Bolan - VancouverSun.com
October 24, 2016
She is one of B.C.’s best-known killers – found
guilty of brutally beating and drowning a teenage girl under a
Victoria bridge in 1997.
Now Kelly Marie Ellard is about to become a
Despite serving a life sentence in prison for
killing 14-year-old Reena Virk, Ellard is now about eight months
pregnant, Postmedia News has learned.
The father is a man with gang links who was out
on day parole when he was allowed the intimate visits with Ellard
in the spring.
Darwin Dorozan, 41, was granted full parole in
August, but it has since been revoked after an alleged breach.
The Parole Board of Canada said in its Aug. 3
ruling releasing Dorozan that “there are concerns about your
relationship with your girlfriend, who is pregnant.”
Ellard, 33, is not identified as the girlfriend
in the documents, but Postmedia News has confirmed with several
sources that she is Dorozan’s pregnant girlfriend.
Dorozan was given credit by the two-person
panel for being “open and accountable about the relationship,” the
parole ruling says.
But the ruling also said Dorozan “will likely
face significant stress relating to the birth of your child.”
Dorozan is serving a seven-year, two-month
sentence after pleading guilty in 2012 to 11 counts of break and
enter and break and enter with intent. Dorozan broke into several
homes in 2010 and 2011 to steal things to finance a heroin
addiction, the board noted.
“Some of the residences were occupied and
during a confrontation with a male victim, you sprayed him in the
face about five times with bear spray.”
Ellard had three trials before she was
convicted in 2005. She was first found guilty in 2000, but the
B.C. Court of Appeal ordered a new trial. The second time around,
the jury couldn’t reach a verdict and a mistrial was declared. She
was convicted of second-degree murder after her third trial.
Though she was 15 when she killed Virk, Ellard
was raised to adult court and was sentenced to life with no hope
of parole for seven years.
Last May, the Parole Board of Canada denied
Ellard day parole, saying that while she was finally admitting
some responsibility for Virk’s death, there was “ongoing
minimization” of her crime.
And the two board members told Ellard that they
were concerned about her admitted drug use inside prison, as well
as “your lack of insight into why you committed the murder and
your sense of entitlement with respect to parole.”
The ruling made reference to Ellard’s
relationship with Dorozan, though he wasn’t named.
“You have family support and the support of
your boyfriend,” the board members said. “Your boyfriend is a
federal parolee but in community assessment No. 6 he is assessed
by (the Correctional Service of Canada) as a positive source of
The parole board did note the progress that
Ellard has made in recent years in jail – quitting her drug habit,
improving her education and working in the prison’s library.
Ellard and Dorozan got to know each other as
pen pals, writing for more than a year before being allowed to
have a private family visit.
The Correctional Service of Canada refused to
comment on Ellard or her pregnancy.
“The Privacy Act prevents us from discussing
the specifics of an offender’s case,” Correctional communications
adviser Audrey Jacques said.
But, speaking generally, she said all federal
inmates are eligible for private family visits if they and their
visitors meet certain criteria.
The visits take place in a separate building
within the confines of a prison complex and can occur every two
months for up to 72 hours at a time.
No one is commenting on what will happen to the
baby once it’s born given both parents are in prison.
Ellard’s mother, Susan Pakos, refused to
comment when contacted by Postmedia News.
“I have no comment on that whole subject and I
would appreciate it if no one ever contacted me or my family
again,” Pakos said. “I am not confirming whether it is true or
She said both her family and the Virks “have
been through a lot and should be left alone.
“I wish the media and everyone would just let
this case rest and everybody just get on their lives,” Pakos said.
The Correctional Service provides pregnant
inmates with prenatal and postnatal care, Jacques said.
Some of that care takes place within the
prison. But the Service “relies on community services to provide
other specialized care, including the services of obstetricians
and gynecologists. Arrangements are made at an outside hospital
for childbirth,” she said.
Babies can stay with their incarcerated mother
under the “mother-child residential program,” which began in 1997,
“The program is intended to foster positive
relationships between federally incarcerated women and their
children by providing a supportive environment that promotes
stability and continuity for the mother-child relationship and to
assist in the rehabilitation and successful reintegration of these
women offenders,” she said.
She said cases are assessed on an individual
“The best interests of the child are the
pre-eminent consideration in all decisions relating to
participation in the mother-child program, including the safety,
security and health of the child,” Jacques said.
Jacques said that inmate visits with family
members and friends can be limited “if there are risks to the
security of the penitentiary and the safety of staff, inmates and
“Positive contact with family and friends is
very important in the successful reintegration of offenders,” she
Now that Dorozan is back in jail, he and Ellard
would not be allowed to meet up because a Correctional Service
policy says “an inmate is not eligible to participate in private
family visits with other inmates.”
Dorozan’s parole was revoked in mid-August,
with police alleging they spotted him with a criminal associate in
violation of his parole conditions.
Yet just weeks earlier, the board granted the
long-time criminal full parole, noting how well he had done since
being released on day parole in February 2015.
The board said he was making healthy decisions
and dealing with stress, including the death of his brother in
“You dealt with recent, serious challenges
appropriately and have demonstrated a willingness to accept
feedback and rely on your supports.”
Ellard conviction restored in Reena Virk
Jun 12, 2009
The Supreme Court of Canada has reinstated the
second-degree murder conviction against Kelly Ellard in the 1997
death of B.C. teen Reena Virk, putting an end to a legal case that
spanned more than a decade.
In an 8-1 decision released Friday, the top
court overturned a B.C. Court of Appeal decision that threw out
Ellard's conviction on the grounds that the trial judge did not
properly instruct the jury.
The Supreme Court disagreed, saying "the
absence of a limiting instruction in this case did not amount to a
Writing for the majority of the Supreme Court,
Justice Rosalie Abella said the statements in question should not
have been admitted in evidence, but were essentially harmless.
Justice Morris Fish dissented, saying he would
have ordered a new trial.
Ellard was 15 when the 14-year-old Virk was
beaten by a group of teenagers and drowned in a park in Saanich,
near Victoria, in November 1997.
Virk's death sparked a national outcry over the
issue of bullying and the treatment of immigrants; Virk was the
daughter of Indian immigrants.
Ellard was convicted of second-degree murder in
2000, but the decision was set aside on appeal and a new trial
A second trial in 2004 ended in a hung jury.
Ellard was again found guilty of second-degree
murder in a third trial in 2005, but the result was thrown out by
the B.C. Court of Appeal. The Crown appealed that ruling and
argued before the Supreme Court in April.
It's not clear what happens next for Ellard,
who has already spent roughly seven years in prison.
She was originally sentenced to life in prison
with no chance of parole for seven years. The National Parole
Board will decide whether Ellard will be paroled.
'Inordinate' amount of time: Virk's father
Ellard's family refused comment on Friday's
Virk's father, Manjit Virk, said 11 years is an
"inordinate amount of time" for a case to work through the legal
"Thirty-five jurors have convicted her, out of
36 [jurors], and the defence just keeps beating the system to this
day and the system allowed it," he said.
He hopes lawmakers will learn from his
"Is it worth it to drag a case that long,
keeping everybody's life in limbo, at the expense of taxpayers?"
Six other girls, aged 14 to 16, were convicted
in 1998 of assaulting Virk and given sentences of up to a year in
Warren Glowatski was convicted in 1999 of
second-degree murder and sentenced to life in prison with no
chance of parole for at least seven years. He was granted day
parole in 2007.
Ellard's future up to Correctional Service
Kelly Ellard was sentenced to seven years in
prison when she was convicted as a juvenile of the murder of Reena
Virk, and it's estimated she has served about that much time as
her case proceeded through the courts.
Patrick Storey, a spokesman for the National
Parole Board, said Friday it's now up to the Correctional Service
of Canada to calculate when Ellard is eligible to be released.
"If she's close to — or past — her eligibility
date, it simply means she is in a position to apply for a
conditional release," Storey said, adding that doesn't necessarily
mean she will be released.
The parole board will look at a number of
factors in Ellard's case, including psychiatric assessments and
her behaviour while in prison, he said,
"Usually what an applicant has to demonstrate
is that they have changed in some way from the person they were at
the time of the offence to the person they are today," Storey
The Correctional Service of Canada wouldn't
comment on the Ellard file specifically, but a spokesperson did
say parole calculations can take anywhere from a few hours to
The murder of Reena Virk and trials of Kelly
April 14, 2009
On Nov. 14, 1997, Reena Virk was swarmed and
beaten under a bridge in Saanich on Vancouver Island, B.C., by a
group of teenagers, mainly girls.
Battered and bloodied, the 14-year-old managed
to get up and stagger across the bridge toward a bus stop to make
her way home. Two of the original attackers dragged her back and
beat Virk again, leaving her in Victoria's Gorge waterway. Police
found her body eight days later.
Six girls — ages 14 to 16 — were sentenced in
1998 for their roles in the initial beating. Warren Glowatski, who
was 17 at the time, was convicted of second-degree murder a year
Kelly Ellard, meanwhile, has stood trial three
times in connection with Virk's death. In 2000, she was convicted
of second-degree murder but, three years later, the B.C. Court of
Appeal ordered a new trial. That ended with a deadlocked jury.
A third trial in 2005 again convicted Ellard of
second-degree murder, but the B.C. Court of Appeal ordered a
fourth trial in 2008. However, the Supreme of Court of Canada
upheld the third conviction in June 2009.
Here are some key dates in the case:
June 12, 2009
The Supreme Court of Canada restores the
second-degree murder conviction against Kelly Ellard in the 1997
death of B.C. teen Reena Virk. In an 8-1 decision, the top court
overturns a B.C. Court of Appeal decision that threw out Ellard's
conviction on the grounds that the trial judge did not properly
instruct the jury.
March 19, 2009
The B.C. Court of Appeal rejects Ellard's
application to be released while the Supreme Court of Canada hears
arguments on whether a fourth trial should proceed.
Jan. 12, 2009
A five-judge panel of the Supreme Count of
Canada rules unanimously that B.C. prosecutors can proceed with
their appeal before the high court of a split lower-court ruling
to retry Ellard.
Sept. 5, 2008
The B.C. Court of Appeal overturns Ellard's
second-degree murder conviction and orders a fourth trial, saying
the trial judge erred in his instructions to the jury over
testimony. One of the three appeal justices, however, disagrees
with overturning Ellard's conviction.
June 21, 2007
Warren Glowatski is granted day parole.
August 3, 2006
A B.C. judge rules that Ellard will get legal
aid to pay for her latest appeal.
July 20, 2006
Warren Glowatski is granted unescorted
temporary absences from prison.
July 7, 2005
Justice Robert Bauman sentences Ellard to life
in prison, calling Virk's death a senseless and remorseless crime.
Ellard must serve seven years before she can seek parole.
April 12, 2005
Third trial finds Ellard guilty of
second-degree murder in the death of Virk.
April 7, 2005
A third jury begins deliberating the fate of
April 6, 2005
Final arguments wrap up in Ellard's third trial. Ellard's lawyer
attacks the testimony of key crown witnesses, saying almost every
one of them described new memories after being prodded by the
police and the Crown. The Crown prosecutor argued that as a whole,
the testimony points to Ellard as a murderer.
March 17, 2005
The crown's key witness – Glowatski – describes
how he and Ellard followed Virk as she staggered away from a group
of teens. He testified that he and Ellard beat Virk and left her
for dead in a waterway.
Feb. 21, 2005
Ellard goes on trial for a third time, accused
of killing Virk. It is more than seven years after Virk was
swarmed and beaten by a group of teenagers. Ellard was 15 when she
was first charged. She's now 22.
Nov. 19, 2004
Glowatski is denied day parole.
July 18, 2004
Justice Selwyn Romilly declares a mistrial in
Ellard's second-degree murder trial after jurors says they are
deadlocked. "All things must come to an end. That time is now,"
the jury wrote.
July 14, 2004
Jury begins its deliberations in the murder
trial of Ellard, accused of killing Reena Virk in 1997, when they
were both teenagers.
July 9, 2004
Ellard defence rests its case after its last
witness testifies that Glowatski, convicted of second degree
murder in the case, paid her to spread stories that Ellard had
July 8, 2004
Ellard finishes her third day of testimony,
still denying she killed Virk, but saying, "I'm obviously going to
be convicted. You've got what you want, my life is ruined."
July 6, 2004
Ellard admits to punching Virk, but says she
did so because she thought Virk was going to hurt one of her
friends. She denies drowning her in the tidal inlet.
June 30, 2004
A pathologist testifies that Virk's death was
due to drowning. He also says that if Virk had not drowned, she
may not have survived because of a serious head injury.
June 29, 2004
Glowatski, convicted of second-degree murder in
Virk's death, denies killing her, but says he watched Ellard drown
her. Ellard lawyer says Glowatski lied repeatedly in his initial
statements to police and at his own trial.
June 16-22, 2004
In five days of testimony, several witnesses
come forward to say Ellard admitted to killing to Virk.
June 14, 2004
A second trial opens for Ellard, charged with
second-degree murder in the swarming death of 14-year-old Reena
Virk almost seven years earlier.
March 4, 2004
Ellard's bail is revoked a month after she is
charged with assault causing bodily harm in connection with the
beating of a 58-year-old woman in a Vancouver park. Ellard is
ordered back into custody.
Feb. 4, 2003
The B.C. Court of Appeal orders a new trial for
Ellard, now 21 years old. The court ruled the Crown failed to give
her a fair trail by asking Ellard 18 times why witnesses would
give false testimony against her. Ellard was testifying in her own
defence. Ellard – freed on bail pending her appeal – had served 18
months of a life sentence for second-degree murder.
Nov. 29, 2001
Glowatski, the second teen to be convicted of
second-degree murder in Virk's death, loses his appeal. The B.C.
Court of Appeal rules Glowatski actively took part in Virk's
Nov. 15, 2000
Virk's parents sue the teens arrested in
connection with the attack on their daughter, the B.C. government
and several others. "Society doesn't make people take
responsibility for their actions. This is one way to make them
responsible," Manjit Virk, Reena's father, said.
April 21, 2000
A judge rules Ellard must spend at least five
years behind bars before she can apply for parole. Ellard was 15
when she was arrested and charged with second-degree murder. The
case was tried in adult court. Had she been 18 or older when she
took part in Virk's killing, she would have had to serve at least
10 years before being eligible for parole.
March 31, 2000
Ellard is convicted of second-degree murder in
the death of Virk. The 17-year-old-girl is led from the courtroom
before she can say good-bye to her parents, to begin serving a
life sentence. Prosecutors had described Ellard as the most
aggressive in the group of girls who attacked Virk. The defence
portrayed Ellard as the victim of a conspiracy by a group of young
girls who were out to protect themselves.
March 9, 2000
The second-degree murder trial of Ellard opens
in Vancouver. It's the third trial connected to the killing of
June 18, 1999
Glowatski is sentenced to life in prison with
no chance of parole for seven years for second-degree murder in
the death of Virk. Justice Malcolm MacAuley says Glowatski would
have a better chance at participating in programs and receiving an
education at the federal institution of Matsqui than he would at a
June 2, 1999
Glowatski is convicted of second degree murder
in the death of Virk.
May 13, 1999
The Supreme Court of Canada refuses to hear an
appeal by Ellard's lawyers to have her case tried in youth court.
She will be tried as an adult.
May 3, 1999
Glowatski admits he took part in the beating of
Virk but insists he did not kill her.
April 12, 1999
Trial of Glowatski opens in Vancouver. He was
17 when he was accused of second-degree murder in the killing of
Virk. The judge rules against a publication ban on the details of
April to May 1998
Six girls — aged 14 to 16 — receive sentences
ranging from 60 days conditional to one year in jail for their
parts in the initial beating of Virk.
Feb. 13, 1998
Three teenaged girls are convicted of lesser
charges of assault causing bodily harm.
Feb. 9, 1998
The first of the trials in beating and drowning
of Virk opens in Vancouver. Three teenaged girls plead guilty to
charges of assault causing bodily harm. Three other teenaged girls
go to trial on charges of aggravated assault.
Nov. 22, 1997
Police divers find Virk's body in a shallow
tidal pool, about one kilometre from where she was last beaten.
Nov. 21, 1997
Glowatski is arrested and charged with Virk's
murder. Seven teenaged girls also face charges ranging from
assault to murder.
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation: R. v. Ellard,
2008 BCCA 341
Kelly Marie Ellard, Appellant
The Honourable Mr. Justice Low
The Honourable Mr. Justice Chiasson
The Honourable Mr. Justice Frankel
P.J. Wilson, Q.C. -
Counsel for the Appellant
J.M. Gordon Q.C. and C.A. Murray, Q.C. -
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
28 May 2008
Written Submissions Received:
4 and 8 July 2008
Place and Date of Judgment:
Vancouver, British Columbia
5 September 2008
Written Reasons by: The
Honourable Mr. Justice Frankel
Concurred in by: The
Honourable Mr. Justice Chiasson (at p. 42, para. 98)
Dissenting Reasons by:
The Honourable Mr. Justice Low (at p. 51, para. 126)
Reasons for Judgment of the Honourable Mr.
 Fourteen-year-old Reena Virk was brutally
beaten and then killed underneath the Craigflower Bridge in
Victoria, in the fall of 1997. After being assaulted by a group of
eight teenagers under the south end of the bridge, Ms. Virk made
her way across the bridge to the north end. There, she was again
attacked, and then drowned in the Gorge Waterway.
 Six of the teenagers involved in the
initial beating of Ms. Virk were convicted in Youth Court on
assault-related charges in 1998. They have come to be known as the
 The appellant, Kelly M. Ellard (then 15
years old), and Warren P. Glowatski (then 16 years old), were
charged as adults with the second degree murder of Ms. Virk. A
judge sitting without a jury convicted Mr. Glowatski of murder in
1999. His appeal was dismissed by this Court: 2001 BCCA 678, 160
C.C.C. (3d) 525. A jury convicted Ms. Ellard of murder in 2000.
However, this Court set aside that conviction, and ordered a new
trial: 2003 BCCA 68, 172 C.C.C. (3d) 28. The second trial, held in
2004, ended in a mistrial, when the jury was unable to reach a
 At the third trial in 2005, a jury again
convicted Ms. Ellard of murder. She now appeals that conviction.
Ms. Ellard submits that her conviction should be set aside and an
acquittal entered, because the jury’s verdict is unreasonable, or
cannot be supported by the evidence. In the alternative, she seeks
a new trial on the basis that the trial judge, Mr. Justice Bauman,
as he then was, erred in: (a) failing to give the jury a special
caution with respect to the possibility of collusion between
various Crown witnesses; and (b) permitting the Crown to
re-examine a witness to show that she had made prior statements
consistent with her evidence at trial. A fourth ground set out in
Ms. Ellard’s factum, alleging that the trial judge erred in not
giving the jury a caution with respect to the possibility that the
evidence of a particular witness had been affected by police
manipulation, was abandoned at the hearing of the appeal.
 For the reasons that follow, I have
concluded that the trial judge erred in permitting the Crown to
elicit evidence of prior consistent statements and in failing to
instruct the jury as to their limited use. I would, accordingly,
allow the appeal and order a new trial.
 On the evening of Friday, November 14,
1997, Ms. Virk gathered with a number of teenagers between the
ages of 13 and 16 years old on the grounds of Shoreline Middle
School in Victoria, British Columbia. Some of the teenagers were
drinking that night. Eventually, Ms. Virk and others made their
way to a spot underneath the south end of the nearby Craigflower
 Two members of this group, N.C. and M.G.P.,
bore some animosity towards Ms. Virk. After N.C. stubbed a lit
cigarette into Ms. Virk’s forehead a fight broke out. In what can
be described as a swarming, Ms. Virk was repeatedly punched and
kicked by a number of persons, including Ms. Ellard, Mr. Glowatski,
N.C., M.G.P., C.A.K., and G.O. The assault ended when one of those
in attendance persuaded the others that Ms. Virk had had enough.
The group then dispersed, leaving Ms. Virk alone underneath the
 Some members of the group observed Ms. Virk
make her way up the stairs from underneath the bridge with some
difficulty. She was last seen alive walking north across the
bridge, a route consistent with her intending to catch a bus home.
 There is no dispute that Mr. Glowatski
followed Ms. Virk to the north end of the bridge, where, in an
adjacent park, he again attacked her. What is disputed is whether,
as testified to by Mr. Glowatski, Ms. Ellard participated in this
second attack, and then dragged Ms. Virk into the waist deep
waters of the Gorge Waterway and caused her death by holding her
head under water.
 Ms. Virk’s disappearance was widely
publicized. By the following Monday, November 17, 1997, gossip and
rumours about her fate circulated throughout the community,
particularly amongst those who had been present when the first
assault took place. The student “grapevine” was, to say the least,
 On November 22, 1997, the police found
some of Ms. Virk’s clothing in the Gorge and, later that day,
recovered her body. This discovery attracted considerable media
attention. Once again, gossip and rumours as to what had happened
circulated through the student “grapevine”.
 Before any evidence was called, the trial
judge made an opening statement to the jury in which he discussed
their respective roles and functions, and provided some
preliminary instructions on the law. In the course of discussing
how the jurors might decide whether to believe a particular
witness, he stated:
Does the witness have any reason to remember
the things about which he or she testified? Does the witness seem
to be reporting to you what he or she saw or heard, or simply
putting together an account based on information obtained from
other sources rather than personal observation? Does the witness’s
testimony seem reasonable and consistent? Is it similar to or
different from what other witnesses say about the same events? Did
the witness say or do something different on the earlier occasion?
Defence Opening Address
 The trial judge exercised his discretion
to permit Ms. Ellard’s counsel to address the jury immediately
following Crown counsel’s opening statement. Defence counsel
emphasized that the credibility and reliability of witnesses would
be a critical issue in the case. He asked the jury to be alive to
the issue of “whether rumour and gossip have had more influence
than they should”.
 In the course of his remarks, Ms. Ellard’s
Recollection. In this case, because of the
passage of time and because of other events, recollection, I
suggest, will be even more prominent than real evidence and there
are a number of things that you need to assess when a witness
testifies before you from recollection. First, has the witness
been consistent in her or his recollection? Remember that
consistency is the hallmark of truthfulness and reliability. It is
the touchstone by which we measure such things. Look for it. Mark
it when it’s there and mark it when it’s absent.
 On the third day of the trial, the trial
judge instructed the jury on two matters arising out of testimony
given by a Crown witness the previous day. The first concerned
evidence of statements attributed to Ms. Ellard. The second dealt
with the use that can be made of a witness’s prior inconsistent
statements. On this latter point, the trial judge stated:
Not every difference or omission is important.
You should consider any explanation the witness gives for the
differences. You should also consider the fact, nature, and extent
of any differences when you decide whether to rely on the
witness’s testimony. When you are taking the differences into
account, you may use only the testimony given under oath in this
trial as evidence of what actually happened. You must not use the
earlier statement as evidence of what actually happened unless you
conclude that the witness accepted it as true while in the witness
box. You, rather, use the evidence given previously to test the
reliability of the evidence given by the witness in this courtroom
as you estimate or consider it in your final deliberations and
even then, as with the evidence of any witness, it is for you to
say whether, and how much you will rely on the evidence given by
the witness in this courtroom.
 On the fifth day of the trial, the jury
asked the trial judge to repeat both instructions, and he did so.
Evidence at Trial
 What follows is not intended as an
exhaustive summary of all of the evidence tendered by the Crown
 The Crown’s case rested principally on the
(a) incriminating statements allegedly made
by Ms. Ellard to a number of persons;
(b) observations of Ms. Ellard and Mr.
Glowatski following Ms. Virk to the north end of the bridge and
later returning together to the south end; and
(c) Mr. Glowatski’s testimony.
 Needless to say, the credibility and
reliability of this evidence was very much in issue. Ms. Ellard’s
counsel vigorously cross-examined the Crown’s witnesses,
particularly with respect to previous statements they made that
were inconsistent with their testimony at the trial. Those
cross-examinations were based on statements the witnesses had made
to the police and/or evidence they had given in one or more prior
judicial proceedings. Those prior proceedings consisted of the
Shoreline Six trial, Mr. Glowatski’s preliminary inquiry and
trial, and Ms. Ellard’s preliminary inquiry and her two previous
 The Crown placed emphasis on evidence that
the jacket worn by Ms. Ellard on the night of the murder was found
to have encrusted salt water residue at the waist and, to a lesser
degree, on the sleeves. This jacket was seized some ten days
 Dr. Laurel H. Gray, a forensic
pathologist, testified that her examination of Ms. Virk’s body
disclosed that she had been severely beaten; her injuries were
consistent with her having been repeatedly kicked and punched. Ms.
Virk’s facial injuries included a mark on her forehead consistent
with a cigarette burn. Dr. Gray’s opinion was that Ms. Virk had
been alive when she entered the water. She estimated that death by
drowning would not have been instantaneous, and would have taken
from three to five minutes.
 The Crown called 11 witnesses who
recounted statements allegedly made by Ms. Ellard, in which she
implicated herself in Ms. Virk’s death. All were teenagers in
1997. According to the witnesses, Ms. Ellard made two statements
the night of the murder. She made the other nine statements in the
weeks following the murder. Some of these witnesses were members
of the Shoreline Six.
 One of the statements attributed to Ms.
Ellard on the night of the murder occurred during a conversation
she had with Robert Harbicht, who was 16 years old at the time.
Mr. Harbicht knew Ms. Ellard, but they were not friends. He
testified that he encountered Ms. Ellard not far from the bridge
as he was walking home at about 11:15 p.m. She asked him for a
cigarette because she was “stressed out”. When he asked her why
she was “stressed out” she told him words to the effect that “she
had got in a fight with a girl, that she held her head
underwater”, and that this had happened “on the Gorge”. Ms. Ellard
looked “a little wet”, but she was not shivering. Mr. Harbicht
said he told his father about the conversation that night. A week
later his father sent him to talk to the police.
 Chandelle Naysmith gave evidence of
another incriminating statement made by Ms. Ellard. Ms. Naysmith,
who was 15 years old at the time, was a friend of Ms. Ellard and
several members of the Shoreline Six. Ms. Naysmith was not out on
the night of November 14, 1997. She first heard about the incident
involving Ms. Virk in a telephone conversation with G.O. at around
10:30 that night.
 Ms. Naysmith said that Ms. Ellard spoke to
her about the incident on the afternoon of November 19, 1997. Ms.
Ellard told Ms. Naysmith about the events of November 14, 1997,
and took her to the south and north ends of the bridge. In what
amounted to a re-enactment, Ms. Ellard related how she, together
with Mr. Glowatski and six others, had attacked Ms. Virk at the
south end of the bridge. She said that she and Mr. Glowatski then
followed Ms. Virk to the north end of the bridge, where they again
attacked her. Ms. Ellard described how she and Mr. Glowatski
dragged Ms. Virk into the water. Ms. Ellard said she held Ms.
Virk’s head under water for ten minutes.
 L.B., who had been in a youth detention
centre with Ms. Ellard on an unrelated matter in November of 1997,
testified that one night, while she was brushing her teeth in a
bathroom, Ms. Ellard confessed to the murder, saying that she had
held Ms. Virk’s head under water for five minutes. However, Tony
Guarascio, a corrections officer at the detention centre called by
the Crown, testified, in cross-examination, that L.B. and Ms.
Ellard would never have been together in the bathroom described by
 In several of her statements, including
the one to Ms. Naysmith, Ms. Ellard described serious injuries
inflicted on Ms. Virk that the autopsy performed by Dr. Gray
proved did not exist, e.g., a broken arm, a broken leg.
 Mr. Glowatski described his involvement in
the murder. He testified that, after the initial assault on Ms.
Virk, he accompanied Ms. Ellard to the north end of the bridge, as
Ms. Ellard said she wanted to see if Ms. Virk was alright. He said
that, when they caught up to Ms. Virk, they assaulted her by
punching and kicking her until she was unconscious. They then
dragged her towards the water. Although Mr. Glowatski stopped at
the water’s edge, he said Ms. Ellard pulled Ms. Virk into the
water. Mr. Glowatski said that, while standing waist deep in the
water, Ms. Ellard held Ms. Virk’s head underwater until she
stopped struggling. Mr. Glowatski and Ms. Ellard then walked back
to the south end of the bridge.
 Defence counsel forcefully cross-examined
Mr. Glowatski. He admitted telling more than 144 lies to the
police, corrections officials, and at his own trial. He agreed he
lied about Ms. Ellard to the police in order to make her look bad,
and to push responsibility for Ms. Virk’s murder on her. He
further agreed that he repeatedly lied at his own trial in an
effort to place responsibility for Ms. Virk’s death solely on Ms.
Ellard. Some of the lies he told related to injuries that Mr.
Glowatski said Ms. Ellard inflicted on Ms. Virk, such as breaking
 Chelsea D. Green, who had witnessed the
initial swarming, testified that, afterwards, she saw Ms. Ellard
and Mr. Glowatski standing on the bridge, as if they were going to
walk north across it.
 Marissa D. Bowles had also been a
spectator at the initial swarming. She testified that she saw Ms.
Virk come up the stairs and walk north, one-half to three-quarters
of the way across the bridge. She said that Ms. Virk was followed
a short time later by Ms. Ellard and Mr. Glowatski.
 Ms. Ellard’s counsel challenged the
accuracy and reliability of Ms. Bowles’s recollection of events.
She was cross-examined on the statement she gave to the police on
November 24, 1997, two days after Ms. Virk’s body had been
recovered. At the time she gave this statement, Ms. Bowles was
under oath to tell the truth. In her statement, she told the
police that she had last seen Ms. Virk underneath the south end of
the bridge, and had said nothing about seeing Ms. Virk crossing
the bridge followed by Mr. Glowatski and Ms. Ellard. The
cross-examination included the following exchange:
Q So you were specifically talking to [the
police officer] about where [Mr. Glowatski and Ms. Ellard] were
and you didn’t say, “I saw them go across the bridge,” right?
Q And the odd thing about it, would you agree
with me, Marissa, is that you say, “I didn’t know then, but I do
now?” Do you see that?
Q Okay, and that was the 24th of November,
Q And that’s after you know that [Ms. Virk’s]
been found in the Gorge, right?
Q And you know that [Mr. Glowatski] and [Ms.
Ellard] have been arrested for her murder, right?
Q And you are making an assumption that they
went across the bridge; is that fair?
Q You were told through rumours and things at
school where they went, right?
Q Okay, and so when you say, “I didn’t know
where they were, but I do now,” you’re referring to things you’ve
heard other people tell you, again, right?
Q Not an independent memory of where they went,
A I remember seeing them go across the bridge.
Q Then why didn’t you tell the police that?
A I don’t know.
Q You didn’t think it was important in a murder
investigation to tell them that you saw the girl that ended up
dead going across the bridge and you saw these two following her?
A I didn’t say it at the time, no.
Q Well, I know you didn’t say it. You didn’t
think it was important?
A Not at the time, no.
Q Not only did you not say it, you told the
police you didn’t know where they were, right?
Q And you told the police the last time you saw
[Ms. Virk] she was down in the mud, right?
Q And that was the truth, wasn’t it?
A At the time, yes.
 Ms. Bowles was also cross-examined on
testimony she gave at Mr. Glowatski’s trial in 1999, and in
proceedings in 2000. Although the nature of the 2000 proceedings
is not mentioned in the transcript of Ms. Bowles’s
cross-examination, it would appear that counsel was referring to
Ms. Bowles’s evidence at Ms. Ellard’s first trial.
 Defence counsel put to Ms. Bowles the fact
that, while her current evidence was that she had watched Ms. Virk
walk one-half to three-quarters of the way across the bridge, her
evidence at Mr. Glowatski’s trial in 1999 was that she had been
able to see Ms. Virk for only ten feet:
Q So back in 1999 you said you saw [Ms. Virk]
go about 10 feet, right?
Q You agree?
Q Okay, and that was under oath?
Q And that was true?
A Yeah, it was an estimate.
Q Well, you told the truth then, right?
Q Okay, and it was much closer to the time that
we’re talking about here today than we are today, right?
Q Okay, and you say today that you also saw
[Ms. Ellard] and [Mr. Glowatski] go – yesterday you told us three
quarters of the way across that bridge?
Q In the dark?
Q But you can’t remember what [Ms. Ellard] was
Q What about [Mr. Glowatski]?
A White jeans.
Q So in 1997 – or 1999 you can see only 10
feet, but you can see half to three quarters of the way across the
bridge today in your memory?
A It was an – it was an estimate at the time.
 At the end of Ms. Bowles’s
cross-examination, she was questioned again about the
contaminating effect of the gossip and rumours that had been
rampant amongst her peers regarding what had happened to Ms. Virk.
Ms. Ellard’s counsel would later refer to this effect as “changing
memories” beneficial to the prosecution:
Q Okay, so on November 24th, then, you told the
police the last time you saw [Ms. Virk] she was down in the mud,
Q And that’s what you recall 10 days after the
Q You didn’t tell the police that [Ms. Ellard]
and [Mr. Glowatski] followed her, right?
Q You didn’t tell the police that you had
actually seen [Ms. Virk] herself on the bridge, right?
Q You didn’t tell the police that [Mr.
Glowatski] had gone to [Syreeta Hartley’s] the next day to wash
his clothes, right?
Q But at that time you knew that [Mr. Glowatski]
had done that, right?
Q And you knew, you’ll say now, that you saw
[Ms. Ellard] and [Mr. Glowatski] go across the bridge?
Q And you knew that the last time you saw [Ms.
Virk] she was actually walking across the bridge?
Q So why didn’t you tell the police any of
these things on November 24th?
A I don’t know.
Q You don’t know? I’m going to suggest to you,
Ms. Bowles, it’s because you didn’t actually see [Mr. Glowatski]
and [Ms. Ellard] walk across that bridge and that that is
something that you’ve constructed over time from all the other
things you’ve heard. Is that possible?
Q Well, what did you mean, then, when you said
to the police, “I didn’t know where she was then, but I do now,”
or, “I didn’t know where they were then but I do now?” What did
A I don’t know.
 Based on this closing line of
cross-examination, Crown counsel applied for leave to re-examine
Ms. Bowles to elicit that she had previously testified to having
seen Ms. Virk walking north on the bridge. However, counsel did
not articulate with clarity the basis on which this proposed
re-examination should be permitted. Over the objection of Ms.
Ellard’s counsel, the trial judge ruled that such re-examination
was permissible because the defence had alleged that Ms. Bowles’s
evidence on this point was a “recent fabrication”: 2005 BCSC 1085.
Following this, Ms. Bowles stated that she previously testified to
having seen Ms. Virk crossing the bridge at the Shoreline Six
trial (on February 10, 1998), at Mr. Glowatski’s trial (on April
15, 1999), and at Ms. Ellard’s previous trials.
 C.A.K. and G.O., who had both participated
in the initial assault on Ms. Virk, testified that, as they were
being driven home that night by G.O.’s mother, they saw Ms. Ellard
and Mr. Glowatski together, walking south across the bridge.
G.O.’s mother, L.S.E., testified that she saw two people walking
south on the bridge, but could not tell who they were. As G.O. had
died prior to this trial, her evidence was tendered by playing the
tape recording of the testimony she gave at Ms. Ellard’s first
 Ms. Ellard’s case rested not only on an
attack on the Crown’s evidence implicating her in Ms. Virk’s
death, but also on the position that it was more likely that N.C.
and/or M.G.P. were involved in the second attack with Mr.
Glowatski. The evidence given by the principal defence witnesses
is described below.
 Barry D. Hartwell testified as to the ill
will between M.G.P., Ms. Virk, and Ms. Ellard. He said that, on
the day before Ms. Virk was killed, M.G.P. had asked him to assist
her in assaulting Ms. Virk, but that he did not want to get
involved. Mr. Hartwell further stated that, on the night Ms. Virk
was killed, he saw M.G.P., who had cuts and bruises on her left
hand. M.G.P. told him that she had come directly to his place
“after beating [Ms. Virk] unconscious in the gorge”.
 Ms. Ellard’s stepmother, Karen R. Ellard,
testified that Ms. Ellard arrived home at approximately 11:30 p.m.
on November 14, 1997. Mrs. Ellard and a friend were in a hot tub.
Mrs. Ellard said that Ms. Ellard changed into shorts and a t-shirt
(i.e., her usual sleeping attire) before coming out to the hot tub
to say hello. Although Mrs. Ellard thought that it was too cold
for this attire, she said Ms. Ellard did not appear cold, and that
her skin colour was normal.
 Mrs. Ellard described an experiment she
conducted on December 12, 1997, attempting to duplicate the
conditions on November 14, 1997. She said that she walked
waist-deep into the waters of the Gorge, and remained there for
three minutes. She then walked home. During this walk she was cold
and shivering. When she got home and took off her wet jeans, her
legs were bright red. They were still red after she had showered.
 B.E.M. had been in prison with Mr.
Glowatski. He testified to conversations in which Mr. Glowatski
complained that two girls involved in Ms. Virk’s killing had
“walked free”. B.E.M. said that Mr. Glowatski had mentioned the
girls’ names. Although he could not recall the names, he said that
Ms. Ellard’s name was not mentioned as one of those involved. He
said that Mr. Glowatski would refer to Ms. Ellard in highly
 Michelle D. Coté testified regarding
conversations she had with M.G.P. on November 15, 1997, which
could be interpreted as an admission by M.G.P. that she and N.C.
killed Ms. Virk.
 Michel B. Ducharme, a scientist with a
Ph.D. in physiology, was qualified to give opinion evidence as to
the effect of cold water on the human body. He conducted two “cold
water simulations” in a climatic chamber in March 2005, using
young women with body characteristics similar to those of Ms.
Ellard. The jury was shown video recordings of those simulations.
In both videos, the young women manifested the effects of exposure
Defence Jury Address
 One of the themes of defence counsel’s
closing address was that the jury could not have confidence in the
truthfulness and/or reliability of the testimony of many of the
Crown’s witnesses, particularly Mr. Glowatski, and those who
attributed incriminating statements to Ms. Ellard. Focusing on the
gossip and rumours that had circulated in the days prior to and
after the recovery of Ms. Virk’s body, and the inconsistencies in
the various accounts given by some of the witnesses, he stated:
One of the truly remarkable things about this
trial is the memory changes you’ve heard about. And one of the
things you have to consider when you assess a witness is whether
the witness has a good memory. Were witnesses reporting to you
what they actually heard, what they saw, or are they simply
putting together some account from what other people told them?
You have to think about that.
Are these witnesses reporting their personal
observations or are they simply putting together stuff they got
from others? There’s a couple of odd things, you know. Look at
Chandelle Naysmith and her close friend, [M.G.P.]. They talked
about this at great length at the donut shop. [M.G.P.] said they
did it once. Chandelle said they did it twice.
 With respect to Ms. Bowles, defence
counsel said, “I wouldn’t call her a liar, but can you have any
trust in what she remembers anymore”. He went on to refer to the
fact that she testified to a number of things not mentioned in her
statement to the police, a statement made when events were much
fresher in her mind.
 However, defence counsel did describe Mr.
Glowatski as “a liar”, referring, in particular, to the fact that
some of what he had said about the injuries inflicted on Ms. Virk
had not been borne out by Dr. Gray’s examination of her body.
Crown Jury Address
 Crown counsel asked the jury to accept the
testimony of the witnesses implicating Ms. Ellard, notwithstanding
counsel’s acknowledgment that there were inconsistencies in this
evidence. In urging the jury to accept as truthful the various
incriminating statements attributed to Ms. Ellard, Crown counsel
In summary, with regards to the “talk”
evidence, while all a bit different, all are consistent. Kelly
Ellard was telling all of these people that she killed Reena Virk.
Think about some of the detail, detail only the killer would know,
or killers in this case, the hairy bum, the landmarks. While all
different, all chillingly the same. And these people that came to
tell you about it, is it something you’d think they’d forget? They
told you not. It’s not everyday somebody confesses murder to you.
That’s what they told you.
 With respect to Ms. Ellard having followed
Ms. Virk to the north end of the bridge, the Crown relied on the
combined evidence of Mr. Glowatski, Ms. Green, and Ms. Bowles:
So what do we have there? We have three
witnesses that say that Kelly Ellard went over the bridge with
 At the outset of his charge, the trial
judge told the jury the instructions he had given them at the
beginning and during the course of the trial with respect to the
law, and in relation to the rules of evidence, still applied. In
discussing how the jurors should assess the evidence of the
witnesses he stated, in part:
Did the witness seem to be reporting to you
what he or she saw or heard, or is he or she simply putting
together an account based on information obtained from other
sources rather than personal observation? Did the witness’
testimony seem reasonable and consistent? Is it similar to or
different from what other witnesses said about the same events?
Did the witness say or do something different on an earlier
occasion? Do any inconsistencies in the witness’ evidence make the
main points of the testimony more or less believable and reliable?
Is the inconsistency about something important or a minor detail?
Does it seem like an honest mistake? Is it a deliberate lie? Is
the inconsistency because the witness said something different or
because he or she failed to mention something? Is there any
explanation for it, that is, the inconsistency? Does the
explanation make sense?
 The trial judge reviewed the testimony of
each witness in some detail. The summary of Ms. Bowles’s evidence
concluded as follows:
Again, she agreed that she told police on
November 24 that she last saw Reena Virk, she was down in the mud,
that she did not tell police that Kelly Ellard and Warren
Glowatski followed her across the bridge, that she did not tell
police that Warren Glowatski washed his clothes the next day, at
Syreeta Hartley’s. She didn’t know why she didn’t tell the police
these things. She denied that it was because she did not see them
and constructed them over time from what she heard.
On re-examination, she was asked if she gave
evidence at the Shoreline Six trial and in other proceedings
involving Kelly Ellard. She said that she did and that each time
she testified to the effect that she saw Reena Virk going across
the bridge that night.
 In instructing the jury on how to approach
the evidence of the several statements in which Ms. Ellard
allegedly implicated herself in Ms. Virk’s death, the trial judge
You recall that the alleged statements made by
the accused, Kelly Ellard, to the various witnesses who testified
in this trial were summaries of verbal statements. The alleged
statements were not a verbatim record of the questions asked and
the answers given by Ms. Ellard. It is, therefore, quite possible
that these summaries of what the accused allegedly said to these
witnesses were innocently distorted.
I want to emphasize that it is up to you to
decide how much weight or importance, if any, you should give to
these statements or any part of them, if you decide that the
statements were made.
 Noting that most of the principal
witnesses in the trial had been cross-examined on statements they
had made to the police and/or their testimony in previous
proceedings, the trial judge instructed the jury with respect to
the use that it could make of prior inconsistent statements:
Common sense tells you that when a witness says
one thing in the witness box, but has said something quite
different on an earlier occasion, this may reduce the value of his
or her evidence.
In particular, if a person has previously lied
under oath, that is a serious matter and it may well taint all of
that witness’s testimony in your minds.
Not every difference or omission is important.
You should consider any explanation the witness gave for the
differences. You should also consider the fact, nature and extent
of any differences when you decide whether to rely on the
When you are taking the differences into
account, you may only use the testimony given under oath in this
trial as evidence of what actually happened. You must not use the
earlier statement as evidence of what actually happened unless you
conclude that the witness accepted it as true while in the witness
box. Even then, as with the evidence of any witness, it is for you
to say whether or how much you will rely on it.
 The trial judge gave the jury a “Vetrovec
warning” with respect to the testimony of Mr. Glowatski: R. v.
Vetrovec,  1 S.C.R. 811. The jurors were told to approach
Mr. Glowatski’s evidence “with the greatest of care and caution”,
and that it would be dangerous to found a conviction on his
evidence unless it was supported by other evidence they accepted.
The trial judge mentioned Ms. Bowles’s testimony with respect to
Ms. Ellard and Mr. Glowatski following Ms. Virk across the bridge
as potentially confirmatory evidence. The jury was similarly
warned to be cautious of L.B.’s evidence.
 The trial judge related the respective
positions of the parties to the jury. At the hearing of the appeal
we were advised by counsel that, at the request of the trial
judge, these portions of the charge were, in fact, written by
trial counsel. With respect to Ms. Ellard, the trial judge stated,
The position of the defence is that the
recollections on which the Crown case is based are simply not
supported by the real evidence you’ve heard. As to the confessions
attributed to Ms. Ellard, they all contain allegations originated
by Warren Glowatski which the forensic pathologist has proven to
be false. Although Glowatski has now abandoned these allegations
as lies, they are still being advanced as the truth by witnesses
like Chandelle Naysmith, [C.A.K.], Jodene Rogers and others.
The defence questions the reliability of
witnesses who gave one version of events in their original
statements and another version later. In particular, the evidence
given by Chelsea Green seven-and-a-half years after the fact, and
Melissa [sic] Bowles about seeing Kelly Ellard on the bridge was
very different from what they originally told the police.
Likewise, the evidence of Candace Tanner about seeing wet pants
is, in the defence submission, directly contrary to what she told
the police seven years before.
The defence asks how it can be possible that
every single new or improved memory in the case is a memory, which
assists the Crown.
 At the conclusion of the charge, Ms.
Ellard’s counsel, in the absence of the jury, asked the trial
judge to instruct the jury on two points relating to the evidence.
The trial judge did so. Ms. Ellard’s counsel did not ask for an
instruction on the possibility of collusion between various Crown
witnesses, or with respect to Ms. Bowles’s prior consistent
 On the second day of its deliberations,
the jury sent a note to the trial judge asking to hear portions of
the testimony of Mr. Harbicht and Ms. Bowles again. That note
1) WE WOULD LIKE TO HEAR ROB HARBICHT TESTIMONY
FROM WHERE HE ANSWERS QUESTIONS ABOUT CONVERSATION WITH [MS.
ELLARD] – WHAT WORDS HE RECALLS SHE SAID
2) WE WOULD ALSO LIKE TO HEAR MARISSA BOWLES
ALL TESTIMONY RELATING TO SEEING [MS. VIRK] COMING UP THE STAIRS
AND SEEING [MR. GLOWATSKI] + [MS. ELLARD] CROSS THE BRIDGE
 After consulting with counsel, the trial
judge advised the jurors that it would be necessary for them to
listen to the tape recordings of all the evidence of these
witnesses. After the tapes were played in open court, the jury
again retired to consider its verdict.
 Three day later, the jury found Ms. Ellard
guilty of second degree murder.
 In advancing her argument that the jury’s
verdict was unreasonable, Ms. Ellard relies on s. 686(1)(a)(i) of
the Criminal Code, R.S.C. 1985, c. C-46, which provides that an
appellate court may set aside a verdict of guilty “on the ground
that it is unreasonable or cannot be supported by the evidence”.
In her factum, Ms. Ellard lists the following “considerations” as
reasons why her conviction should be set aside, and an acquittal
A. Every ‘confession’ proffered by the Crown
was suspect …;
B. The Crown’s chief witness was an
incorrigible liar with an agenda to see [Ms. Ellard] convicted;
C. The most important observations from
witnesses supporting the Crown case were suspect …;
D. The bulk of the evidence was corrupted and
contaminated by gossip and rumour rampant among the Crown’s
E. [Mr. Glowatski’s] description of how [Ms.
Virk] was drowned did not accord with the evidence;
F. [Mr. Glowatski’s] description of [Ms.
Ellard’s] conduct at critical times did not accord with the
G. Other individuals, particularly [M.G.P.],
had destroyed evidence, made damning admissions, and had motive to
harm [Ms. Virk];
H. [Ms. Ellard] was without any motive to
murder [Ms. Virk];
I. Credible evidence existed to suggest that
[Ms. Ellard] did not do what the Crown alleged.
 Madam Justice Arbour discussed s. 686(1)(a)(i)
in detail in R. v. Biniaris,  1 S.C.R. 381, 2000 SCC 15. She
summarized how this provision is to be applied in her judgment in
the companion case of R. v. A.G.,  1 S.C.R. 439, 2000 SCC
6 … The proper test is “whether the verdict is
one that a properly instructed jury acting judicially, could
reasonably have rendered” (Yebes, supra, at p. 185). In embarking
on the exercise mandated by s. 686(1)(a)(i) of the Criminal Code,
the reviewing court must engage in a thorough re-examination of
the evidence and bring to bear the weight of its judicial
experience to decide whether, on all the evidence, the verdict was
a reasonable one. Inevitably the verdict will be one that was open
to the jury, in the sense that it was not an error of law for the
trial judge to leave it to the jury for consideration. Moreover,
it is not sufficient for the reviewing judge to simply take a
different view of the evidence than the jury did. The appeal
court, if it is to overturn the verdict, must articulate the basis
upon which it concludes that the verdict is inconsistent with the
requirements of a judicial appreciation of the evidence. This is
what must now be done in this case.
More recently, in R. v. Lai, 2006 BCCA 368,
(sub nom. R. v. Chao) 229 B.C.A.C. 236, Madam Justice Ryan stated:
 The question then is reduced to whether
there was a body of evidence upon which a properly instructed jury
acting judicially could have reasonably reached the conclusion
that it did in the case at bar. In examining the strength of the
evidence through the lens of judicial experience, we must ask as
well whether the evidence is of such a troubling nature that we
must set aside convictions based upon it.
 In applying the test, it is important to
keep in mind that it involves a judicial assessment of “the
cumulative effect of all the evidence”, not a “piecemeal
evaluation”: R. v. Robinson, 2003 BCCA 353, 176 C.C.C. (3d) 23, at
para. 40. It is also important to keep in mind that “the question
is not whether a conviction was the only reasonable verdict, but
whether it was a reasonable verdict”: R. v. Portillo (2003), 176
C.C.C. (3d) 467 (Ont. C.A.), at para. 51; see also R. v. Swanson,
2003 BCCA 108, 179 B.C.A.C. 63, at para. 19.
 The assessment of the reasonableness of a
jury verdict proceeds on the basis that the jury was properly
instructed. In the context of this case, this means, in
particular, that the jurors received appropriate directions with
respect to what was clearly a critical issue at the trial, the
assessment of the credibility and reliability of the Crown’s
witnesses. These directions included a strong caution with respect
to the evidence of Mr. Glowatski, the only person to connect Ms.
Ellard directly to Ms. Virk’s death and, by his own admission, a
 There is no question that the jury was
faced with a difficult task. The trial concerned an event that was
several years old; one that had taken place when many of the
witnesses were teenagers. Several witnesses had participated in
some way in the events leading to Ms. Virk’s death. The student
“grapevine” had been rampant with gossip and rumours, and Ms.
Virk’s death had been reported in the media. Many witnesses had
made statements to the police, or given evidence in previous
proceedings, inconsistent with their testimony at the trial.
 The cross-examination of some of the
Crown’s witnesses elicited explanations for why their statements
to the police and/or previous evidence differed from their
testimony at trial. Many witnesses stated they had an independent
memory of the events, and that they were able to distinguish
between their firsthand knowledge, and what they had heard from
 As has been said many times, jurors have
the unique advantage of seeing and hearing the witnesses. They are
in the best position to decide whether to accept all, some, or
none of a witness’s evidence. In R. v. Sidhu, 2004 BCCA 59, 183
C.C.C. (3d) 199 (at paras. 53, 54), Madam Justice Prowse noted,
with reference to R. v. François,  2 S.C.R. 827, that
inconsistency or a motive to concoct do not preclude a jury from
accepting the evidence of a witness whose credibility and/or
reliability has been challenged. Accordingly, as Madam Justice
McLachlin, as she then was, observed in François (at 837), “[a]
verdict of guilty based on such evidence may well be both
reasonable and lawful”. It is only when an appellant can show that
a jury’s findings with respect to credibility and/or reliability
cannot be supported by any reasonable view of the evidence that a
verdict can be said to be unreasonable: R. v. Burke,  1
S.C.R. 474, at para. 7.
 The “considerations” listed by Ms. Ellard
were all forcefully argued by her counsel. The jurors were clearly
alive to the frailties in the Crown’s case, and of the need for
them to carefully examine the evidence. In the end, it was for
each juror to decide what evidence to accept, and what weight to
give to that evidence. That the jurors deliberated for five days
before returning a verdict indicates that they scrutinized the
evidence with great care.
 At the hearing of the appeal, both parties
proceeded on the basis that the jury must have accepted Mr.
Glowatski’s evidence. Ms. Ellard argued that he had been shown to
be a person so devoid of credibility that no credence should have
been given to his testimony. The Crown, on the other hand, argued
that it was open to the jury to accept his testimony, particularly
as it was confirmed by other evidence.
 It may well be that the jurors, or at
least some of them, accepted Mr. Glowatski’s testimony regarding
Ms. Ellard’s involvement in Ms. Virk’s death. In my view, it was
open to them to do so, but this is something we will never know.
However, I wish to point out that even if every juror rejected Mr.
Glowatski’s testimony in its entirety, there remained a body of
evidence upon which they could reasonably found a conviction. In
this regard, it is important to keep in mind that the law does not
require every juror to follow the same route (i.e., rely on the
same facts) in coming to the conclusion that guilt has been proven
beyond a reasonable doubt: R. v. Morin,  2 S.C.R. 345 at
 It is impossible to know what evidence
each juror accepted. However, on the basis of the testimony from
witnesses other than Mr. Glowatski, the jurors could have found
that Ms. Ellard, after participating in the initial beating,
followed Ms. Virk to the north end of the bridge, and afterwards
admitted to drowning her in the Gorge. This, coupled with the salt
water stains on the jacket Ms. Ellard was wearing that night,
could have led the jurors to conclude that she was guilty. Such a
route to conviction would be a reasonable one.
 Having reviewed the evidence in light of
the arguments advanced by Ms. Ellard, I find myself unable to
articulate a basis for interfering with the jury’s verdict under
s. 686(1)(a)(i) of the Code. In other words, I am of the opinion
that that verdict is “one that a properly instructed jury acting
judicially, could reasonably have rendered”: Biniaris, at para.
 In reaching this conclusion, I have not
taken into account the fact that Ms. Ellard did not testify, even
though such a failure can be considered in assessing the
reasonableness of a conviction: R. v. Noble,  1 S.C.R. 874,
at paras. 101, 102.
Failure to Instruct on Collusion
 Ms. Ellard submits that a special caution
should have been given to the jury with respect to collusion,
“because of the distinct possibility that the evidence had been
tainted as a result of discussions between the relevant
witnesses”. In support of this argument, she relies on an appendix
to her factum in which she lists the evidence given by six
witnesses concerning the nature and extent of the discussions
regarding what had happened to Ms. Virk, which took place
immediately following her disappearance, and for some time
afterwards. The following extracts from the appendix illustrate
the reason why Ms. Ellard says a specific instruction on collusion
- She heard rumours at school about where [Ms.
Ellard] and [Mr. Glowatski] went;
- She spoke to her friends at school during the
- She heard details about what had happened
over the weekend following the assault, but can no longer remember
where those details came from.
- On Nov. 15 there was a lot of talk about what
had happened on the previous night;
- There was also a lot of talk at the school
during the next week about what had happened;
- The events of Nov. 14 became the subject of a
tremendous amount of gossip at Shoreline school;
- On Saturday, Nov. 15, she spoke to Chelsea
Green, Teneel Ferris, [C.A.K.], [G.O.] and [M.G.P.];
- What happened to [Ms. Virk] was the hot topic
of conversation, everyone was talking about it;
- During the school week starting Nov. 17,
there was a lot of gossip flying about.
 Although Ms. Ellard speaks of the
“corrosive impact of collusion on the probative value of
evidence”, there is nothing in the record to suggest that any of
the witnesses colluded in the pejorative sense, i.e., that they
agreed to testify in a knowingly false way. Rather, the thrust of
her complaint is that the trial judge did not caution the jury
specifically about the possibility of innocent or inadvertent
collusion and contamination, given the rampant gossip and rumours
at the time, and the fact that the witnesses were young and
susceptible to being influenced by what they heard.
 As the Supreme Court of Canada indicated
in R. v. Jacquard,  1 S.C.R. 314, an appellate court must
take a “functional approach” in reviewing jury charges. What this
approach entails is succinctly set out in the judgment of Madam
Justice Jackson in R. v. Brass, 2007 SKCA 94, 226 C.C.C. (3d) 216:
 The appellate role in reviewing a jury
charge is encapsulated by R. v. Jacquard. In Jacquard, the Supreme
Court urged appellate courts to use a functional approach to avoid
the danger of setting an impossible standard for trial judges.
Appellate review is to be an assessment to determine whether the
accused, based on a review of the whole charge, has had a fair
trial and is not an examination to find minute error. As has been
frequently said, the purpose of appellate review is to ensure that
juries are properly, not perfectly instructed.
 The judgment of Mr. Justice Doherty in R.
v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), is also
 In Jacquard, Lamer C.J.C. stressed that a
functional approach must be taken when assessing the adequacy of
jury instructions. I take this to mean that instructions must be
tested against their ability to fulfil the purposes for which they
are given and not by reference to whether any particular approach
or formula has been used. By the end of the instructions, whatever
approach is used, the jury must understand:
· the factual issues which had to be resolved;
· the law to be applied to those issues and the
· the positions of the parties; and
· the evidence relevant to the positions taken
by the parties on the various issues.
 It is clear from this Court’s judgment in
R. v. McMath (1997), 121 C.C.C. (3d) 174 (B.C.C.A.), that the
possibility of collusion or collaboration between witnesses does
not automatically trigger a requirement that a jury be given a
special caution with respect to the possibility that the testimony
of these witnesses may be tainted in some way. Whether to give a
warning is a matter left to the discretion of the trial judge:
paras. 70, 71. Here, of course, defence counsel did not ask the
trial judge to give such an instruction. However, had the trial
judge been asked to do so and declined, he would not have erred.
 In my view, the jury would have been aware
from the outset that Ms. Ellard was challenging the credibility
and/or reliability of much of the Crown’s evidence. Having regard
to defence counsel’s opening statement, the manner in which Crown
witnesses were cross-examined, the closing addresses of counsel,
and the charge to the jury, I have no doubt that the jurors were
well aware of the need for them to consider the potential
frailties in the evidence, such as the influence of gossip and
rumours, the impressionability of teenagers, the inconsistencies
in accounts, and the “changing memories” beneficial to the
prosecution. In the context of this case, to have given a special
instruction regarding these matters would have been to state the
Prior Consistent Statements
 This ground of appeal raises two
questions. The first is whether the trial judge should have
allowed the Crown to re-examine Ms. Bowles to show that she had
testified in previous proceedings to having seen Ms. Virk cross
the bridge. The second is whether, in light of the re-examination,
the trial judge should have given the jury a limiting instruction
with respect to the use it could properly make of Ms. Bowles’s
prior consistent statements.
 The Crown submits that it was open to the
trial judge to find that Ms. Bowles’s evidence regarding Ms. Virk
crossing the bridge had been attacked as a “recent fabrication”,
and that he properly exercised his discretion in allowing
admission of Ms. Bowles’s prior consistent statements in
re-examination. At the hearing of this appeal, Crown counsel
conceded that the re-examination was poorly done, but took the
position that, in the end, it had no effect on the trial because
the evidence of Ms. Bowles was not central to the Crown’s case,
and her credibility, as opposed to the reliability of her
evidence, was never questioned. Crown counsel noted that there
were other witnesses who testified that Ms. Virk crossed the
bridge. She also argued that a limiting instruction was
unnecessary and would have, in any event, been confusing to the
 To begin, I would reject the Crown’s
efforts to minimize the importance of Ms. Bowles’s evidence and,
to some extent, compartmentalize it. At the trial there was no
issue that Ms. Virk, followed by Mr. Glowatski, crossed over to
the north end of the bridge. However, what was very much in issue
was whether Ms. Ellard accompanied Mr. Glowatski. The testimony of
Ms. Bowles, if accepted by the jury, established this fact. That
the jurors asked to re-hear Ms. Bowles’s evidence regarding who
she saw on the bridge is a clear indication they viewed her
evidence as significant: R. v. S. (W.D.),  3 S.C.R. 521, at
528, 530. If the jurors found Ms. Bowles to be a reliable witness
with respect to having seen Ms. Virk crossing the bridge, then
this would have increased the probability of their finding her a
reliable witness with respect to having seen Ms. Ellard and Mr.
Glowatski crossing the bridge together.
 The Crown submits that a trial judge’s
decision to admit evidence of prior consistent statements is
entitled to a measure of deference: R. v. Stapleton, 2003 BCCA
444, (sub nom. R. v. Smith) 185 B.C.A.C. 304, at para. 11. While
this is correct, such deference is not owed when that decision is
based on a misapprehension of the nature of the attack being made
on a witness’s evidence. That, in my view, is what occurred here.
 The trial judge rested his decision to
allow re-examination of Ms. Bowles on the following passage from
the judgment of Mr. Justice Cory in R. v. Evans,  2 S.C.R.
629 at 643:
Further, it has been held that there need not
be, in cross-examination, any express allegation of recent
fabrication for the prior statements to be admissible. It is
sufficient if, in light of the circumstances of the case and the
conduct of the trial, the apparent position of the opposing party
is that there has been a prior contrivance. In those situations,
fairness and ordinary common sense require that the jury receive a
balanced picture of the whole of the witness’s conduct throughout
the police investigation. To demonstrate that the evidence of the
witness is not a recent fabrication it may be essential to
introduce on re-examination a prior statement which shows the
consistency of the witness’ testimony. See R. v. Simpson,  1
S.C.R. 3, at p. 25.
 With respect, this reasoning is not
applicable here. There was no allegation that Ms. Bowles’s
testimony was a recent fabrication, or a recent contrivance,
either express, or apparent, in the position of defence counsel.
Rather, it was alleged in cross-examination that Ms. Bowles’s
testimony with respect to seeing Ms. Virk, Ms. Ellard, and Mr.
Glowatski cross the bridge was not based on her independent
recollection of the events of November 14, 1997, but, rather, was
a reconstruction shaped by the external influences to which she
had been exposed, both before and after giving her statement to
the police on November 24, 1997; a statement in which Ms. Bowles,
under oath, said she had last seen Ms. Virk under the south end of
the bridge, and in which she said nothing about seeing anyone
crossing the bridge. These allegations did not trigger the
exception to the general inadmissibility of prior consistent
statements. That Ms. Bowles had, beginning with the Shoreline Six
trial three months later in February of 1998, consistently
testified that she saw Ms. Virk cross the bridge did not, in any
way, rebut the suggestion that her memory had been affected by
these external influences.
 The most recent summary of the law
regarding the inadmissibility of prior consistent statements, the
exception when an allegation of recent fabrication is made, and
the use to be made of such statements if they are admitted, is
found in the judgment of Mr. Justice Bastarache in R. v. Stirling,
2008 SCC 10, 229 C.C.C. (3d) 257:
 It is well established that prior
consistent statements are generally inadmissible (R. v. Evans,
 2 S.C.R. 629; R. v. Simpson,  1 S.C.R. 3; R. v.
Béland,  2 S.C.R. 398). This is because such statements are
usually viewed as lacking probative value and being self-serving
(Evans, at p. 643). There are, however, several exceptions to this
general exclusionary rule, and one of these exceptions is that
prior consistent statements can be admitted where it has been
suggested that a witness has recently fabricated portions of his
or her evidence (Evans, at p. 643; Simpson, at pp. 22-23).
Admission on the basis of this exception does not require that an
allegation of recent fabrication be expressly made — it is
sufficient that the circumstances of the case reveal that the
“apparent position of the opposing party is that there has been a
prior contrivance” (Evans, at p. 643). It is also not necessary
that a fabrication be particularly “recent”, as the issue is not
the recency of the fabrication but rather whether the witness made
up a false story at some point after the event that is the subject
of his or her testimony actually occurred (R. v. O’Connor (1995),
100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95). Prior consistent
statements have probative value in this context where they can
illustrate that the witness’s story was the same even before a
motivation to fabricate arose.
. . .
 However, a prior consistent statement that
is admitted to rebut the suggestion of recent fabrication
continues to lack any probative value beyond showing that the
witness’s story did not change as a result of a new motive to
fabricate. Importantly, it is impermissible to assume that because
a witness has made the same statement in the past, he or she is
more likely to be telling the truth, and any admitted prior
consistent statements should not be assessed for the truth of
their contents. As was noted in R. v. Divitaris (2004), 188 C.C.C.
(3d) 390 (Ont. C.A.), at para. 28, “a concocted statement,
repeated on more than one occasion, remains concocted”; see also
J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence
in Canada (2nd ed. 1999), at p. 313). …
 Although, as in Stirling, the issue as to
the admissibility of prior consistent statements most often arises
when it is alleged that a witness has fabricated his or her
evidence (i.e., is being deliberately untruthful), it also can
arise when what is being attacked is the reliability or
trustworthiness of his or her recollection of events (i.e., when
it is alleged that the witness, although honest, is nevertheless
mistaken). As Chief Justice Dixon of the High Court of Australia
stated in The Nominal Defendant v. Clements (1961), 104 C.L.R. 476
(H.C.) at 479:
The rule of evidence under which [the prior
consistent statement] was let in is well recognized and of long
standing. If the credit of a witness is impugned as to some
material fact to which he deposes upon the ground that his account
is a late invention or has been lately devised or reconstructed,
even though not with conscious dishonesty, that makes admissible a
statement to the same effect as the account he gave as a witness
if it was made by the witness contemporaneously with the event or
at a time sufficiently early to be inconsistent with the
suggestion that his account is a late invention or reconstruction.
(This passage was quoted with approval in R. v.
Giraldi (1975), 28 C.C.C. (2d) 248 (B.C.C.A.) at 251.)
 In the case at bar, Ms. Ellard’s counsel
did not suggest that Ms. Bowles was being consciously dishonest in
describing the events of November 14, 1997. As well, counsel never
suggested that Ms. Bowles had given inconsistent testimony at
previous trials with respect to seeing Ms. Virk, Mr. Glowatski,
and Ms. Ellard crossing the bridge (as opposed to how far she
could see across the bridge). Rather, what counsel suggested was
that Ms. Bowles’s account in her statement to the police ten days
after the events reflected her true memory, and that her testimony
at the trial was unreliable as it was based on memory that had
been contaminated by external influences in the period following
Ms. Virk’s death.
 In Stirling, Bastarache J. noted that,
when it is alleged that testimony has been fabricated, prior
consistent statements have probative value because they can rebut
that allegation by showing that the witness’s story was the same
before the motive to fabricate arose. This presupposes some period
in relation to which the fabrication is alleged to have occurred.
As the term “prior consistent statement” connotes, to be
admissible under this exception, a statement consistent with the
evidence being challenged must have been made before the witness
had an opportunity to concoct a story, or before a motive to
fabricate arose: R. v. Campbell (1977), 38 C.C.C. (2d) 6 (Ont.
C.A.) at 20; R. v. Pangilinan (1987), 39 C.C.C. (3d) 284 (B.C.C.A.)
at 286. This reasoning applies equally when what is alleged is
that a witness’s memory has been contaminated, albeit
unconsciously, by external influences. When such an allegation is
made, evidence may be given that the witness made a statement
consistent with his or her present testimony before the potential
for contamination existed.
 The external influences alleged to have
contaminated Ms. Bowles’s memory would have been in play at the
time she gave her statement to the police (in 1997), and well
before she testified at the trial of the Shoreline Six (in 1998).
Only a statement made by Ms. Bowles before the police interview,
or, perhaps, shortly thereafter, that she saw Ms. Virk cross the
bridge would have been probative on re-examination to rebut an
allegation of contamination, but no such statement was offered.
Similarly, the fact that Ms. Bowles testified to seeing Ms. Virk
cross the bridge at Mr. Glowatski’s trial (in 1999) and Ms.
Ellard’s previous trials (in 2000 and 2004) was not capable of
rebutting the suggestion that her memory had been contaminated
years before. The trial judge, therefore, was wrong in permitting
the Crown to re-examine Ms. Bowles. To paraphrase what Mr. Justice
Smith said in R. v. Kokotailo, 2008 BCCA 168, 232 C.C.C. (3d) 279,
at para. 44, testimony is not made any more reliable simply
because it is repeated several times.
 This, however, does not end the matter.
There remains the question of whether the trial judge’s failure to
give the jury a limiting instruction as to what use could be made
of Ms. Bowles’s prior statements had any impact on the trial and,
more particularly, on the jury’s assessment of her evidence.
Although the Crown concedes that normally such an instruction is
required, it submits that one was not necessary in this case.
 The Crown points to the fact that Ms.
Ellard’s counsel cross-examined Ms. Bowles regarding her ability
to see how far Ms. Virk walked across the bridge. In so doing, Ms.
Ellard’s counsel had Ms. Bowles adopt, as true, the evidence she
gave at Mr. Glowatski’s trial, that she had been able to watch Ms.
Virk walk north on the bridge for ten feet: see paragraph 34
above. The Crown says that, since the defence itself was relying
on this aspect of Ms. Bowles's evidence, a limiting instruction
was not required, because the prior statements elicited on
re-examination were to the same essential effect and, therefore,
would not have had any impact on the jury. I do not agree.
 The Crown’s submission ignores the context
of Ms. Bowles’s cross-examination, and the position taken by the
defence with respect to her evidence. The fact that Ms. Virk
crossed the bridge was not contentious. What was contentious was
whether Ms. Bowles’s testimony with respect to having seen anyone
crossing the bridge, particularly Ms. Ellard, was reliable. Ms.
Bowles’s evidence from Mr. Glowatski’s trial was not elicited by
the defence to establish that Ms. Virk had crossed the bridge.
Rather, the defence used her prior testimony in conjunction with
her statement to the police in an effort to show that her memory
of seeing anyone cross the bridge was unreliable.
 The reliability of Ms. Bowles’s evidence
with respect to having seen Ms. Ellard cross the bridge cannot be
separated from the reliability of her evidence that she saw Ms.
Virk and Mr. Glowatski cross the bridge. These aspects of her
memory, and ability to accurately recall, are inextricably
connected. As Bastarache J. observed in Stirling, it is not
possible to “hive off” a witness’s general credibility from the
specific credibility question to which the prior consistent
statements relate: para. 12. This reasoning applies equally when
what is in issue is a witness’s reliability with respect to
evidence given on a specific matter, as reliability is a factor in
the assessment of a witness’s credibility as a whole: R. v. White,
 S.C.R. 268 at 272.
 Throughout the trial, the trial judge told
the jurors that consistency was a factor they should consider in
deciding whether to believe a witness: see paragraphs 12, 15, and
50 above. In my view, having regard to the “functional approach”
to reviewing jury instructions, the jury should have been told
specifically that Ms. Bowles’s prior consistent statements did not
enhance the reliability of her testimony and, further, that those
statements could not diminish any concerns the jury might have
regarding the effect of external influences on her evidence. In
the absence of such instructions, one or more of the jurors may
have erroneously treated Ms. Bowles’s prior consistent testimony
with respect to Ms. Virk as a positive factor in deciding to
accept her evidence that Ms. Ellard also crossed the bridge.
 That the jurors asked to rehear Ms.
Bowles’s evidence concerning who she saw cross the bridge evinces
that this evidence was significant in their deliberations. I am,
accordingly, unable to accede to the Crown’s alternative
submission that, even if the manner in which the trial judge dealt
with Ms. Bowles’s prior consistent statements was wrong in law,
then it nonetheless was a harmless error.
 One final comment. I am aware that the
failure of defence counsel to object to a jury charge is a factor
to be considered in assessing “both the overall accuracy of the
jury instructions and the seriousness of the alleged
misdirection”: Jacquard, at para. 38. Here, for whatever reason,
Ms. Ellard’s counsel did not realize at the time that the charge
was deficient. However, defence counsel’s failure to object is not
determinative, as ultimate responsibility for the charge rests
with the trial judge. When, as in this case, the error is a
serious one, the lack of an objection cannot prejudice an
accused’s right to appeal: Jacquard, at para. 37.
 I would allow this appeal, set aside the
conviction, and order a new trial.
“The Honourable Mr. Justice Frankel”
Reasons for Judgment of the Honourable Mr.
 I have had the opportunity to read a draft
of the reasons for judgment of my colleagues. Like Mr. Justice
Low, I am indebted to Mr. Justice Frankel for his thorough
analysis of the facts and the law. I agree with the conclusions of
Frankel J.A., but add my own thoughts concerning the issue of the
prior consistent statements of Ms. Bowles.
Admissibility of prior consistent statements
 As noted by my colleague, prior consistent
statements are presumptively inadmissible. This is because the
fact a person has stated the same thing on a number of occasions
does not, by that fact alone, make the statement true. An
exception to the rule against admissibility is to rebut an
allegation of recent fabrication.
 Although the focus of the exception
generally is on the credibility of a witness or testimony, of
equal concern can be the reliability of evidence. For the purpose
of this case, I consider that credibility concerns the
believability of a person or testimony and reliability looks to
accuracy, to the source of the evidence.
 In this case, it was not suggested that
Ms. Bowles or her evidence was not believable. The defence took
the position Ms. Bowles did not see Reena Virk, Warren Glowatski
or the appellant re-crossing the bridge; she had no independent
memory of this; her testimony to that effect derived from
conversations with others. This is apparent from the following
extract from the cross-examination of Ms. Bowles:
Q You didn’t tell the police that Kelly and
Warren followed her [Reena], right?
Q You didn’t tell the police that you had
actually seen Reena herself on the bridge, right?
Q And you knew, you’ll say now, that you saw
Kelly and Warren go across the bridge?
Q And you knew that the last time you saw Reena
she was actually walking across the bridge?
Q So why didn’t you tell the police any of
these things on November 24th?
A I don’t know.
Q You don’t know? I’m going to suggest to you,
Ms. Bowles, it’s because you didn’t actually see Warren and Kelly
walk across that bridge and that that is something that you’ve
constructed over time from all the other things you’ve heard. Is
 During the discussion whether to allow
the Crown to re-examine Ms. Bowles, the trial judge stated the
Crown could put prior consistent statements to the witness “to the
extent it’s been suggested that the witness recently fabricated
the evidence”. Defence counsel responded:
I didn’t suggest it was a recent fabrication.
She said, in 1997, she didn’t remember this. I didn’t put to this
witness, “You just remembered that today.” I put to her she’s
never remembered it at all.
MS. MURRAY [for the Crown]: I think that’s
right, that – what my friend just said, that she made the
suggestion that she never remembered it at all. So for that reason
MS. DANELIUK [for the defence]: No, not never
remembered it, didn’t see it at the time. Sorry, I don’t want to
misstate that. I didn’t say that she’s just remembering it today.
I said she’s never seen it.
 It is clear the judge allowed the
re-examination on the basis there had been an allegation of recent
 Frankel J.A. concludes there was no
allegation of recent fabrication. Low J.A. implicitly concludes
 The word “fabrication” often has a
pejorative connotation. The Concise Oxford English Dictionary,
11th ed. (Oxford University Press: 2004) offers the following
definition of “fabricate”: “invent in order to deceive”. This
negative connotation links to an impeachment of a witness’s
credibility. In a more neutral sense, a memory may be fabricated,
or made, innocently through the influence of external forces such
as conversations; in this context, the issue is the reliability of
the evidence. Defence counsel used the word “constructed”. In my
view, she was suggesting Ms. Bowles’s evidence was made or
fabricated by things she had heard about what happened on the
night in question.
 The thrust of the defence position was
Ms. Bowles did not see Reena Virk, Warren Glowatski or the
appellant re-cross the bridge, that is, cross to the north side.
The defence sought to establish this by showing that Ms. Bowles
did not tell the police she saw them do so when first interviewed.
Counsel also explored the extensive gossip and rumours that
surrounded the events of the killing. Had the matter ended there,
no foundation would have been laid for the introduction of prior
consistent statements, but counsel suggested that the witness's
testimony at trial was constructed based on what she had heard.
 The trial judge concluded this amounted
to an allegation of fabrication. In my view, this Court should
give deference to this conclusion. This was not a simple case
where there was a trigger-point which suggested the witness had a
reason to fabricate. (Even in such cases, there must be some
flexibility: see for example R. v. Stirling, 2008 SCC 10, 229
C.C.C. (3d) 257, where the focus was on the initiation of a civil
action seeking damages as the event giving rise to a motive to
fabricate, but the court recognized that from the moment of the
accident, the witness had some motive to lie to avoid criminal
responsibility.) The allegation in this case was that the
construction of Ms. Bowles’s memory took place over time.
 I cannot say the trial judge erred in
concluding counsel’s questioning suggested fabrication and in
permitting the re-examination.
Need for a limiting instruction
 The issue becomes whether the judge erred
by failing to give a limiting instruction on the use the jury
could make of the evidence.
 A peculiarity of the issue is the fact
Crown counsel did not seek to introduce prior consistent
statements that Ms. Bowles saw the appellant re-cross the bridge.
Counsel’s focus was on whether Ms. Bowles previously testified
that Reena Virk re-crossed the bridge. That fact was not in issue.
It was common ground she did so. As Low J.A. states, the real
issue was whether the appellant re-crossed the bridge.
 The principal evidence against the
appellant, overall, was that of Warren Glowatski. He was a
singularly non-credible and unreliable witness. The testimony of
Ms. Bowles was extremely important as corroboration of the
testimony of Warren Glowatski. This is underscored by the jury’s
request: “[w]e would also like to hear Marrissa [sic] Bowles all
testimony relating to seeing Rena [sic] coming up the stairs and
seeing Warren + Kelly cross the bridge.”
 The Supreme Court of Canada commented on
the significance of jury questions in R. v. S. (W.D.),  3
S.C.R. 521 at 528:
[…] questions from the jury require careful
consideration and must be clearly, correctly and comprehensively
answered. This is true for any number of reasons which have been
expressed by this Court on other occasions. A question presented
by a jury gives the clearest possible indication of the particular
problem that the jury is confronting and upon which it seeks
further instructions. Even if the question relates to a matter
that has been carefully reviewed in the main charge, it still must
be answered in a complete and careful manner
and at 539:
All questions received from the jury must be
considered to be of significance and import.
 In the context of this case, it is
apparent the jury was concerned about Ms. Bowles’s evidence
relating to whether the appellant re-crossed the bridge. Did she
see the appellant do so or was her testimony based on what she
heard from others? The Crown introduced prior consistent
statements to establish Ms. Bowles’s evidence she saw Reena Virk
re-cross the bridge was not fabricated. The jury’s request
included the testimony related to Reena Virk re-crossing the
bridge. It would not be startling for jury members to think that
if Ms. Bowles’s recollection Reena Virk re-crossed the bridge was
reliable, so too was her recollection the appellant re-crossed the
 It also is possible, as asserted by Low
J.A., that the jury clearly saw and compartmentalized the issues
whether Reena Virk re-crossed the bridge, whether Warren Glowatski
followed her and whether the appellant accompanied him, but, in my
view, supporting the reliability of Ms. Bowles's testimony on one
issue through prior consistent statements required a limiting
instruction on the use that could be made of that out-of-court
evidence. This is consistent with the rule that generally a
limiting instruction should be given. (McWilliams’ Canadian
Criminal Evidence, 4th ed. (Aurora Ont.: Canada Law Book, 2008) at
11:50; R. v. Divitaris (2004), 188 C.C.C. (3d) 390, at para. 31
(Ont. C.A.); R. v. Rockey,  3. S.C.R. 829, per McLachlin J.
(as she then was); R. v. A. (J.) (1997), 112 C.C.C. (3d) 528 (Ont.
C.A.).) R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.)
provides examples of circumstances where a limiting instruction is
not required: defence relies upon the prior consistent statement;
it is clear the prior statement is not offered for the truth of
its contents; there is no concern about self-corroboration.
 The criminal law and the rules of
evidence are a template for justice; not rigid, but a template
none the less. Often trial judges have a discretion whether to
provide an instruction to a jury. In those circumstances, of some
significance may be the absence of a request for an instruction by
defence counsel. (R. v. Austin (2006), 214 C.C.C. (3d) 38 (Ont.
C.A.).) In my view, that is not the case with prior consistent
 The notion that consistency does not
reinforce veracity is counterintuitive. The danger of prior
consistent statements becomes apparent only when they are placed
into the context of the law’s focus on the supremacy of in-court
 In this case, it would have been
important for the jury to be told that the fact Ms. Bowles
previously testified to seeing Reena Virk re-cross the bridge
could not be used to establish that fact, but only to rebut any
suggestion Ms. Bowles fabricated her in-court testimony to that
effect. That is, the prior statement could be used only to rebut
the suggestion her in-court testimony concerning Reena Virk
re-crossing the bridge was not reliable because it had been
constructed. It could not be used in any way to support the
reliability of her in-court testimony the appellant re-crossed the
bridge or to rebut any suggestion that that testimony was
constructed from what she heard from others. It is significant to
note that the point of focus of the jury’s question was on Ms.
Bowles’s evidence concerning re-crossing the bridge by all three
of Reena Virk, Warren Glowatski and the appellant.
The curative provision
 Section 686(1)(b)(iii) of the Criminal
Code, R.S.C. 1985, c. C-46, provides that notwithstanding an error
of law in a jury charge, this Court may dismiss an appeal if it is
satisfied that no substantial wrong or miscarriage of justice
occurred. The onus is on the Crown to show that if the error had
not occurred the result necessarily would have been the same. (R.
v. Simpson,  1 S.C.R. 3; R. v. Bevan,  2 S.C.R. 599.)
 I am aware there was some other evidence
supporting the contention the appellant and Mr. Glowatski followed
Reena Virk across the bridge, but considering the significance of
Ms. Bowles’s evidence as corroborative of Warren Glowatski’s
evidence and the importance of his evidence to the Crown’s case, I
am unable to conclude that the verdict necessarily would have been
 In addition, as was the case in R. v.
Lajoie (1993), 64 O.A.C. 213, the verdict cannot stand safely. The
appellant has been to trial three times in this matter: the first
conviction was set aside on appeal; the jury on the second trial
was unable to reach a verdict; on the third trial the jury
deliberated for several days (in Lajoie, it was eight hours).
 I would defer to the trial judge’s
determination that the cross-examination of Ms. Bowles provided a
foundation for the introduction of prior consistent statements.
 In my view, generally a limiting
instructing is required when evidence of prior consistent
statements is adduced. In the circumstances of this case, such an
instruction was imperative. As evidence that confirmed an
uncontroverted fact – that Reena Virk re-crossed the bridge – Ms.
Bowles’s testimony on re-direct had little practical purpose other
than to bolster the reliability of her testimony.
 In such circumstances, the absence of a
request from defence counsel for a limiting instruction cannot
override the compelling need for such an instruction.
 In my view, the error went to the core of
an issue of specific concern to the jury and it cannot be said
that absent the error the result necessarily would have been the
same. In addition, the history of this case suggests in light of
the error the verdict cannot stand safely.
 I would allow the appeal and order a new
“The Honourable Mr. Justice Chiasson”
Reasons for Judgment of the Honourable Mr.
 I have read in draft form the reasons of
Mr. Justice Frankel in this appeal. I am indebted to him for his
thorough discussion of the evidence presented at trial.
 I agree with my colleague that on the
application of the test in R. v. Biniaris,  1 S.C.R. 381,
2000 SCC 15, to the body of evidence in this case it cannot be
said that the verdict was unreasonable.
 I also agree that there was no error on
the part of the trial judge in not giving the jury a special
instruction on the possibility of witness collusion.
 I am unable to agree with my colleague,
however, that the failure of the trial judge to give a limiting
instruction on the law of prior consistent statements was an
error. I have also read the proposed reasons of Mr. Justice
Chiasson. I am not persuaded by his reasoning that the judge erred
as argued. It seems to me that my colleagues are suggesting that
the trial judge erred in failing to give a special instruction to
the jury with respect to prior consistent evidence that the
witness Marissa Bowles did not give.
 It follows that I would dismiss the
 I can state my reasons briefly. At trial,
the only issue was identification. It was common ground that
Warren Glowatski was criminally responsible for the murder. The
Crown sought to prove that the appellant was also criminally
responsible. The defence theory was that Mr. Glowatski acted alone
or that, if he did not act alone, one or both of two named
teenaged girls, other than the appellant, acted with him.
 It was also common ground that the murder
occurred on the side of the water opposite the location of the
swarming assault of Reena Virk. The case against the appellant was
strengthened by eyewitness evidence that the appellant started
across the bridge in the company of Mr. Glowatski. Some of that
evidence came from Marissa Bowles.
 Ms. Bowles testified that she saw both
Mr. Glowatski and the appellant follow Reena Virk across the
bridge. This was inconsistent with what she said in her written
statement to the police ten days after the event. In that
statement, she said that the last time she saw her, Ms. Virk was
in the mud at or near the site of the initial assault. She did not
tell the police that she saw Ms. Virk cross the bridge. Nor did
she say that she saw Mr. Glowatski or the appellant follow Ms.
Virk across the bridge. Defence counsel carefully and thoroughly
explored these inconsistencies in cross examination. Counsel
suggested to the witness that her evidence that she saw Mr.
Glowatski and the appellant walk across the bridge was
“constructed over time from all the other things you’ve heard”.
She denied the suggestion.
 The fact in issue was not whether Reena
Virk crossed the bridge or whether Mr. Glowatski followed her. The
disputed fact was whether the appellant accompanied Mr. Glowatski.
I do not agree that the reliability of Ms. Bowles’s evidence
cannot be separated with respect to these three facts. It is
inconceivable that the jurors did not fully understand that,
regardless of what they might have thought about the reliability
of the evidence of this witness with respect to the first two
facts, they still had to consider the reliability of her evidence
as to the third fact. The jurors were instructed that they could
accept all, some or none of the evidence of a particular witness.
I am sure that they would have seen it as illogical reasoning to
conclude that, because Ms. Bowles testified at previous trials
that she saw Ms. Virk crossing the bridge, her evidence should be
accepted that she also saw the appellant crossing the bridge.
 Defence counsel questioned Ms. Bowles
about the evidence she had given at Mr. Glowatski's trial, as
Q Okay, and you say to us today that you
watched her go half to three quarters of the way across that
bridge in the dark, right?
Q Okay, and she’s wearing black, a dark jacket?
A I don’t remember exactly.
Q Okay. You testified at Mr. Glowatski’s trial,
and I’ll just ask you to turn to that transcript at tab 3, please,
and page 257. Are you there?
Q All right. You’re talking about seeing Reena
come up the bridge and at line 38, you (sic) say:
Well, this is the question to you.
-- you say light-headed …
Speaking about Reena, that is.
Q And he says:
What gave you that impression? How was she
And you said:
She was kind of staggering.
And the question is:
And how long did you watch her for?
And you answered:
Um, about 10 feet until I -- I just couldn’t
see her anymore because it got dark closer to the middle of the
Do you see that?
Q So back in 1999 you said you saw her go about
10 feet, right?
Q You agree?
Q Okay, and that was under oath?
Q And that was true?
A Yeah, it was an estimate.
Q Well, you told the truth then, right?
 The re-examination of this witness at
trial commenced as follows:
Q There were some passages put to you, Marissa,
from your evidence at Warren Glowatski’s trial through your
Q At Warren Glowatski’s trial you testified for
Q You also testified at trials against [G.O.]
and [C.K.] for the Crown?
Q I want to talk to you a little bit. You’ve
been cross-examined at some length about how far you can see over
the Craigflower Bridge and there was a passage put to you. Let me
just find it here and that was from Warren Glowatski’s trial, I
believe. Just a second. First of all, let me do it this way. You
were asked a lot about whether you actually saw Reena Virk get up
and walk across the bridge and how far you could see her, correct?
Following an objection to this questioning,
submissions and the trial judge's ruling, the re-examination
concluded the next day:
Q Ms. Bowles, when we broke, I was asking you
-- well, I was asking you about the statement that was put to you
during your cross-examination where you told the police that you
-- where you didn’t tell the police about Reena going over the
Q Let me just get another book here. You
testified in what we call the "Shoreline 6" trials that [G.O.] and
[C.K.] and [N.P.] on -- for the Crown on February 10th, 1998; do
you remember that?
Q And on that date -- sorry, you had a chance
to go through the transcript of that?
Q And on that date did you testify about Reena
going across the bridge?
Q You testified for the Crown in the trial
against Warren Glowatski on April 15th, 1999?
Q You’ve had a chance to go through your
Q And on that occasion did you testify that you
saw Reena Virk walking across the bridge?
Q You testified in other proceedings involving
Q And have you had a chance to go through your
Q And have you testified previously in Ellard
trials that you saw Reena Virk walking across the bridge?
 It is difficult to discern what the Crown
sought to accomplish with this re-examination. But the
re-examination did nothing more than emphasize the inconsistency
in the evidence of the witness brought out in cross examination in
the passage reproduced in para. 135 above. Its substance was
redundant to evidence she had already given in cross examination.
I do not see how the jury could have come to the conclusion that,
because Ms. Bowles testified previously under oath about a fact
not in dispute, the reliability of her evidence was strengthened
about a fact that the defence vigorously disputed. Indeed, if the
jurors drew anything from the re-examination it would have been
against the reliability of the witness. This is so because the
re-examination implicitly emphasized the apparent failure of Ms.
Bowles to testify on prior occasions that she had seen the
appellant crossing the bridge.
 In his address to the jury, defence
counsel, after making a general reference to the “memory changes”
of a number of witnesses, said this about the evidence of Marissa
Marissa Bowles, for example. You know, Marissa
Bowles seemed like a perfectly nice young woman to me. I wouldn’t
call her a liar, but can you have any trust in what she remembers
anymore? She talked to the police when these events were fresh in
her mind, and she said to them, “No, I didn’t see that incident
where [N.C.] butted a cigarette on Reena’s forehead, but I heard
about it later.” She said [N.P.] told her about it later. Then,
months down the road, she remembers it. Now she believes she saw
She told the police, “No, I didn’t see
Glowatski kick Reena. I just heard about it later.” Then, months
down the road, she remembers that she actually saw that.” [sic]
And then the police want to know, when they’re talking to her,
“When’s the last time you actually saw Reena Virk? When’s the last
time you saw her?” And she says, “Oh, I remember that. She was
down at the bottom on the rocks by that rock wall, sitting down in
the mud. That’s where I saw her.” She -- there’s a memory she has.
They ask her for it, and she tells them. Now she remembers that
Reena walked up the stairs and that she was obviously in distress.
She was staggering, and she walked across the bridge and Kelly
Ellard followed her. Well, where does that come from? When the
police say, “When’s the last time you saw Reena Virk,” how could
you miss that?
 Other than a brief remark about an
unrelated aspect of the evidence of Ms. Bowles, defence counsel
did not mention her evidence again. In his submission, he was
content to specifically challenge the reliability of her evidence
by pointing out that she did not tell the police about certain
things in her initial statement, including that she saw the
appellant follow Ms. Virk across the bridge.
 In her address to the jury, Crown counsel
said the following with respect to the evidence of Marissa Bowles:
Let’s go now to the top of the hill. Now, we
know that after the first beating under the bridge, all of the
kids, save Reena, made their way to the top of the hill. And we
know that people went various places. Some were dealing with the
knapsack, some were milling around. We know at the top of the
hill, from Marissa Bowles and Warren Glowatski, that there was
Marissa Bowles and Lorne Lloyd-Walters and Warren Glowatski and
Kelly Ellard towards the top of the stairs.
You heard from Marissa Bowles about that. She
told you that:
A group of girls took Reena’s bag into the
parking lot of the Comfort Inn. This is after Reena walked up the
stairs. Kelly and Warren were about five feet away from me. They
were beside each other, just the two of them. Others were about
five feet away in a different direction. Reena started coming up
the stairs. I saw her from the side. She was staggering, looking
 Crown counsel did not otherwise
specifically mention the evidence of Ms. Bowles. She did not
invite the jury to reach any conclusion about the reliability of
the evidence of this witness from the evidence elicited in
re-examination. She did not respond to the argument of defence
counsel about the failure of Ms. Bowles to tell the police in her
initial statement about seeing Mr. Glowatski and the appellant
follow Ms. Virk across the bridge.
 It is obvious from the jury request to
hear the testimony of Ms. Bowles “relating to seeing [Ms. Virk]
coming up the stairs and seeing [Mr. Glowatski] + [the appellant]
cross the bridge” that the jurors were concerned about the
evidence of this witness that she saw the victim, Mr. Glowatski
and the appellant crossing the bridge. The court replayed the
audiotape of her entire evidence. So the jurors again heard the
inconsistencies in her evidence. In my opinion, the request of the
jury to rehear this evidence does not affect the question of
whether it was necessary for the trial judge to provide
instruction on the law with respect to prior consistent
statements. As worded, the question from the jury does not suggest
that the jurors might have been inclined, as a consequence of the
re-examination by the Crown of Ms. Bowles, to assess her evidence
on any basis that would be impermissible in law. They simply
wanted to hear her evidence again.
 I also think that it is significant that
experienced defence counsel at trial did not object to the failure
of the trial judge to instruct the jury as to the law concerning
prior consistent statements. Further, counsel did not raise a
concern even after hearing the evidence of Ms. Bowles played back
for the jury. This emphasizes that the point now raised on appeal
was obscure to counsel and to the court at trial. In this regard,
I would apply the following passage from R. v. Jacquard,  1
 Nevertheless, defence counsel’s failure to
comment at the trial is worthy of consideration. In Thériault v.
The Queen,  1 S.C.R. 336, 61 C.C.C. (2d) 102, 126 D.L.R.
(3d) 193, although I dissented on unrelated grounds, Dickson J.
(as he then was) expressed the proper view at pp. 343-44:
“[a]lthough by no means determinative, it is not irrelevant that
counsel for the accused did not comment, at the conclusion of the
charge, upon the failure of the trial judge to direct the
attention of the jury to the evidence”. In my opinion, defence
counsel’s failure to object to the charge says something about
both the overall accuracy of the jury instructions and the
seriousness of the alleged misdirection.
 I am not persuaded that the absence of an
instruction as to the law of prior consistent statements gave rise
to a risk that the jury might have used forbidden reasoning in
assessing the evidence of Ms. Bowles. There is nothing before the
court that identifies any logical thought process that one or more
jurors might have undertaken that would involve such reasoning.
 I would dismiss the appeal.
“The Honourable Mr. Justice Low”