B.C attorney general talks to Virk family as Ellard case faces 4th trial
Published Saturday September 6th, 2008
VANCOUVER - B.C.'s attorney general said Saturday he sympathizes with the family of Reena Virk as the woman twice convicted of killing her faces the possibility of a fourth trial.
Kelly Ellard has been convicted twice and sentenced to life in prison for taking part in killing 14-year-old Virk in November 1997. Another trial ended in a hung jury.
Now, the B.C. Court of Appeal says the judge at her third trial made a mistake and Ellard, who was 15 at the time of the murder and is now at least 25, may face another trial.
And, Attorney General Wally Oppal said he talked to the Virk family Saturday morning and offered them his support.
"This worst part about this is the ordeal that the Virk family has to go through again," Oppal said. "They're a remarkable family. They have shown so much patience, so much kindness.
"In fact," Oppal said, "they've even forgiven one of the offenders. That's almost unheard of. I can't say enough good things about the family."
Virk's mother Suman was stunned by the court decision.
"There are no words to describe the feeling that I have," Suman Virk told reporters gathered outside her Victoria home Friday. "Shock. Disbelief, I can't believe it."
The attorney general says B.C.'s Criminal Justice Branch has three choices as a result of the ruling.
"One is to go to the Supreme Court of Canada because it was a 2-1 decision so there's an automatic right of appeal. The second avenue is to immediately go to a re-trial," the former appeal court judge said.
Or, it could abandon the case altogether.
Whatever the situation, Premier Gordon Campbell said Saturday that justice must be allowed to run its course.
"The ministry will look at the decision and they'll decide whether they're going to appeal it or not," Campbell said. "Obviously, we want justice to be served.
"Unfortunately, sometimes that takes a lot longer than you or me or anyone else would like," Campbell said.
The offender referred to by Oppal is Warren Glowatski, who was also a teen at the time of the killing.
He was convicted of the second-degree murder in the case in 1999 and sentenced to life without parole for seven years. He has since been released.
While he initially refused to testify against Ellard, he changed his mind by the second Ellard trial.
Then, last June, the Virk family extended its hand of forgiveness to Glowatski.
It's not known if the now-free Glowatski would testify in a new trial for Ellard.
But Ellard's lawyer, Peter Wilson, said Friday he has concerns about such a trial.
His concerns revolve around the memories of witnesses to events 11 years ago.
"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," 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.
Oppal acknowledged the public must be feeling frustrated at the repeated trials in the case.
"I understand the concern of the public. I understand the public would be upset at what's happened," Oppal said.
"You have to remember that the conduct of a criminal trial is a complex endeavour," he added. "There are many, many rulings that judges make and many of the rulings that are made are made with no prior precedent for them.
"That being the case, it's easy for a judge to make an inadvertent error and that's what happened here," Oppal 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 of 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.
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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