B.C. Appeal Court orders fourth trial in murder of 14-year-old Reena Virk
Published Saturday September 6th, 2008
VANCOUVER - More than a decade after the beating death of 14-year-old Reena Virk in suburban Victoria shocked the nation, the legal odyssey of one of her accused killers continues after a B.C. Appeal Court overturned her conviction Friday and ordered a fourth trial.
Kelly Ellard has been convicted twice and sentenced to life in prison for taking part in killing Virk in November 1997; another trial ended in a hung jury.
Now the appeal court says Ellard, who was 15 at the time of the murder and is now at least 25, may face yet another trial after the judge at her third trial erred.
But Ellard's lawyer, Peter Wilson, said he has concerns about a fourth trial in the case.
"I have serious concerns about whether any coherent narrative can be obtained any longer from witnesses who, for the most part, were 13 and 14 years old and who witnessed these events 11 years ago and have been talking about it since," Wilson told The Canadian Press.
"After a while it's difficult for any of us to sort out what we truly remember from what we've heard and from what we've seen."
The Crown must decide whether to appeal the ruling to the Supreme Court of Canada, to proceed with yet another trial or to abandon the prosecution altogether.
Stan Lowe, spokesman for the provincial Crown prosecutor's office, said officials are reviewing the judgment.
"Over the next few weeks we will conduct a comprehensive assessment of the decision and determine what the most appropriate course of action will be," he said.
Wilson said his client will remain behind bars for the time being, until the Crown makes a decision. The Crown has 30 days to file an appeal.
"I need to figure out where this is going," Wilson said.
Although they have attended every hearing and been very vocal in the past, Virk's parents, Manjit and Suman, did not return calls seeking comment Friday.
"I don't want to call it the justice system anymore. I'll call it the legal system," Manjit Virk said at the appeal court hearing in May.
But Robert Mulligan, who teaches law at the University of Victoria, said far from casting doubt on the credibility of the criminal justice system, the court's latest reversal should build confidence.
"The public should be comforted by the fact we have the appellant system" to protect against miscarriages of justice, he said.
The appeal hinged on the evidence of a witness at the third trial in 2005, who told the jury she watched Ellard follow Virk after she fled an earlier beating and walked over the Craigflower bridge on that night near Victoria. The witness was convicted in taking part in the earlier beating and cannot be named.
In the 60-page ruling, two of three judges supported the appeal, saying the trial judge erred in permitting the Crown to elicit further evidence from the witness and failed to properly instruct the jury about it.
"In addition, the history of this case suggests in light of the error, the verdict cannot stand safely," wrote Justice Edward Chiasson.
One of the three judges on the panel dissented.
Virk was swarmed on Nov. 14, 1997, and beaten by eight teenagers between the ages of 13 and 15 - most of them girls.
The Crown alleges Ellard and her co-accused, Warren Glowatski, followed the teen after she staggered away, bloodied and alone.
Virk was last seen alive walking over the bridge. Despite rumours circulating among the high school crowd for more than a week, Virk's body wasn't found by police until Nov. 22, 1997, floating in the Gorge waterway.
Glowatski, who was also a teenager at the time of the killing, was convicted as an adult of second-degree murder. He served most of his sentence and was granted day parole last year.
Wilson argued at the Appeal Court hearing in May that the jury based its second-degree murder conviction on lies, rumours and inconsistent evidence.
But Crown lawyer John Gordon told the court the jury was aware of the poor credibility of witnesses, rampant teenage gossip and rumours - and convicted anyway.
Gordon conceded that the re-examination of the witness was "poorly done," but that it had no effect on the trial because the witnesses evidence wasn't centre to the Crown's case.
The appeal court disagreed with the Crown about the importance of the evidence.
"At the trial there was no issue that Ms. Virk, followed by Mr. Glowatski, crossed over the north end of the bridge," Frankel wrote in the decision. "However, what was very much in issue was whether Ms. Ellard accompanied Mr. Glowatski."
The jury asked to hear the witness's testimony again as they deliberated at the third trial, and Frankel noted that is a clear indication the jury viewed the evidence as significant.
In his dissenting reasons, Justice Richard Low said it was "inconceivable" that jurors didn't fully understand that their job was to assess the reliability of the witness and her evidence that she saw Ellard crossing the bridge after Virk.
He also questioned why Ellard's experienced defence counsel didn't object at trial.
Wilson said he spoke to Ellard on the phone Friday.
"She's pleased. Obviously, she's wondering what the next step is and I have to sort that out now," he said.
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committed by Judges at trial. If we do not insure due process we do not have a true justice system. What alternative would we accept, kangaroo courts? courts with an eye to the financial costs? Neither should we accept judgements made that do not conform with law as in this case. Lets hope thet do it right this time as due process is most important. Not only for the guilty but also the innocent and the victim.
I can see it all now her bragging to her friends...well yeah I killed her but the judge screwed up so I got off!!! What a great message that sends.
Fourth trial!! Come on...what a waste of taxpayers money.
A Reader makes refference to the Young Offenders Act. This Act is currently under review for improvement. There are things that are not working here. So lets improve the Act, not do away with due process. Justice is expensive but justice is also needed. It must not be allowed to "SEEM to be done" but it must be "SEEN to be done".
I hope nobody would convict a person based upon my limited opinion on a trial case. But what I am concerned with is the much larger issue of maintaining due process. Judgements that do not follow the law do not protect justice. Without justice what will we become? Maintaining justice is expensive yes, a waste of money no. We have more than enough examples of the wrongly convicted. In each cas there is a lack or absence of due process resulting in miscarriages of justice while the guilty remain free. I will just call to mind the case of Stephen Truscott for one. What purpose has his incarceration served even for the family of the victim?
When due process is swept aside in order to convict we can and do find that everyone becomes a victim.
I understand the underlying emotions of those who would rather see due process dispenced of rather than dispenced.
These emotions are difficult to overcome. But we need to ask ourselves when we are in the mist of them, do we subscribe to our emotional selves yet again.
One of the southern Govenors, a man who was an ardent supporter of the death penelty and signed the death warrents of hundreds of persons personaly later recanted this belief when when DNA evidence was provided and proved he had presided over the murder of over 100 innocent persons while Govenor.
It is an article of law that we do not convict those not yet found guilty, regardless of how guilty we may feel them to be.
These cases are difficult, yes! but justice needs to be served